ROBERT H. ENGMAN and MARGARET E. ENGMAN vs. JOSEPH W. FRANCIS, TAMI JOY MICKS and RICHARD LEONARD MICKS.

The plaintiffs Robert H. Engman and Margaret E. Engman seek to register their title to a parcel of land containing 2.728 acres and situated on the southeasterly side of Holsbery Road, a public way in the Town of Truro in the County of Barnstable. The defendants are Joseph W. Francis, his daughter Tami Joy Micks and son-in-law Richard Leonard Micks. I find and rule that the plaintiffs have not established by a preponderance of the evidence that they have a title suitable for registration. I further find that the defendants do not have good title either by record or adverse possession to the locus.

It is not surprising that the parties have had difficulty in establishing title to the premises in question which are situated southwesterly of Route 6 and southerly of Old County Road. In the very close vicinity of locus there have been at least eight registration cases with others not far distant. This may be due to the paucity of the population in Truro which remains a small town, particularly since the advent of the Cape Cod National Seashore, the boundaries of which are very close to the locus, the fire in the Registry of Deeds in Barnstable or inattention to records by the early settlers. In any event it has been difficult to establish ownership in the area.

A trial was held at the Land Court on December 5 and December 18, 1990 at which a stenographer was appointed to record and tanscribe the testimony. The plaintiff called as witnesses the Land Court Title Examiner, William M. O'Brien, the plaintiff Margaret Engman (who is now divorced from the co-plaintiff who did not testify at the trial) and James Bowman, the registered land surveyor who prepared the file plan. The defendant called as witnesses Charles Nickerson Rogers, a lay person who has experience in examining the records of the Registry of Deeds and other sources of title information, Chester N. Lay, also a registered land surveyor, John Worthington, Jr., a childhood friend of the defendant Joseph W. Francis, Everett G. Adams, another lifelong friend of Mr. Francis and two of the defendants, Tami Micks and Joseph W. Francis. The plaintiff then called as a rebuttal witness Malcolm Harris, a neighbor.

On all the evidence I find and rule as follows:

1. No one has been able to locate a deed covering locus prior to 1964, and it appears probable that the instruments were lost when the Barnstable County Registry of Deeds was destroyed by fire. Both parties agree, however, that one Girard Cordes at one time owned a parcel of land in this vicinity. A portion thereof was mortgaged to one Reliance Dyer by instrument dated October 13, 1840 and recorded in Book 25, Page 280, which covers the westerly part of locus although its not clear how far to the south this parcel extended. The mortgage was foreclosed, and title to the mortgaged premises devolved through the heirs of Reliance Dyer, but no one has been able to locate them and no notice has been given to them.

2. One Mary W. Pippette for many years has been shown as the owner of locus or as claiming the locus on several plans of the area. These include the registered land plans filed in Case Nos. 25500, 34692 and a plan of unregistered land formerly owned by the defendant Joseph W. Francis, his brother and sister entitled "Subdivision Plan of Land in Truro, Mass. as surveyed for Joseph W. Francis et al" dated June 1964 by Schofield Brothers (Exhibit No. 15). A plan of land to the north entitled "Plan of Land in Truro, Mass. as surveyed for Frederick C. Nelson" dated November 1966, Plan Book 208, Page 15, Exhibit "1", Examiner's Abstract, Sheet 35, shows the abutting owner at locus to be Geoffrey L. Pippette (husband of Mary W. Pippette).

3. In Land Court Case Nos. 22032 and 34692 Mary W. Pippette entered into stipulations with the plaintiffs in those actions relative to certain rights of way across locus and which certainly constituted a claim of right thereto. The assessors' certificate filed in the latter case stated that Mary W. Pippette was assessed for the locus here in controversy.

4. In a dispute between the father and uncle of Joseph W. Francis and his siblings in which the present defendant, his brother and sister were interested as remaindermen, his step-uncle registered title to a large parcel of land in the vicinity and the decision of the Land Court was upheld by the Supreme Judicial Court in case of Marshall v. Francis, 327 Mass. 702 (1951).

5. A taking by the Town of Truro for the layout of Holsbery Road showed the owner of locus to be one Charles Holmes (Exhibit No. 3) who was either the father or grandfather of Mary W. Pippette.

6. Mrs. Pippette was uncertain of the location of the land on which she was paying real estate taxes and which she believed she had acquired from her father. In two letters to John Dyer, Sr. who was a well-known local surveyor and a member of the Board of Assessors in Truro, she expressed the view that her father had acquired a tax title by a tax deed from the Town and sought Mr. Dyer's help in locating this after inquiries to the registry apparently had failed. The question still would remain as to her title since there were other siblings in the family, and although land in Truro was devised to her by her father, it is only described as "land and buildings on south side of Pamet River Truro. . ." (Sheet 23A of Exhibit No. 1), which is of little help in identifying that parcel as locus. It is clear, however, that she believed her ownership to be in the neighborhood of locus and for many years defended that position in the Land Court before which she testified or was prepared to testify in several contested registration proceedings.

7. The conservators of the property of Mary Warren Pippette, also known as Mary W. Pippette, Mary Warren Holmes Pippette and Mary Holmes Pippette, Whitfield W. Johnson and William C. Hayes, conveyed her Truro real estate to Robert M. Engman and Margaret E. Engman by deed dated July 10, 1975 and duly recorded in Book 2209, Page 62 (Exhibit No. 7). Whatever interest the ward had in locus was convyed by this language "together with all rights, title and interest, if any of the ward in the 'Holsbery Road Parcel ' so­called, containing approximately one acre."

8. In addition to the claims which Mrs. Pippette made over a period of many years she also paid tax bills during some of this period. It is difficult, however, to locate the parcels covered by the tax bills, but there are several tax bills in the 1940's which cover a one-acre piece which ties in with the description in the Engman deed. Of course, the locus which the plaintiffs seek to register is substantially larger. An affidavit by Thomas A. Kane, now deceased, former town clerk and tax collector for Truro, but not an assessor, recites that Mary and her husband Geoffrey were assessed for and paid taxes on locus from 1942 until 1976, but I find that the evidence does not establish this.

9. The defendants are unclear as to the theory by which they claim title. They, of course, made an admission against interest in the preparation of the Schofield plan referred to above which shows Mary W. Pippette as the supposed owner in the area of locus. There was evidence that Joseph W. Francis and his contemporaries as children and young adults engaged in games on the locus, picked mayflowers and blueberries as well as pine cones and evergreens, perhaps in the company of Mr. Francis' grandmother, Mary Marshall, and drove motor vehicles across locus as they advanced in years. Allegedly Mrs. Marshall and subsequently Mr. Francis and the other defendants had a garden on locus and erected birdhouses to attract a feathered population to protect the crops from insects. In addition and at some point unclear in time the Marshall/Francis parties maintained and repaired locust fence posts enclosing portions of the area some of which still remain and drove wagons across locus to harvest salt hay. These activities constituted customary steps taken in rural areas by those living in the vicinity without constituting any claim of title. It was not until the 1970's that any of the activities were carried on under such claim. I discount the evidence of Mr. Francis that his grandparents farmed this area. While they may have kept cows or other domestic animals there, it was not done under a claim of right but as a practical way of securing feed for the cows which were moved from time to time to various pastures. The registration proceedings brought by his step-relatives referred to above were easterly of this location, and I doubt that there was any activity by the Francises on this site before the early 1980's. The evidence of Malcolm Harris which I accept was that the locus was pristine land when he and his wife first visited it in 1972, that signs first appeared thereon in the mid 1970's and that there was no real activity on the locus until 1983. This constituted dumping of debris from another Francis building site, installation of a rusty flathed trailer on which there was an old shed with a stovepipe and later in 1987 the digging of a foundation for the house to be constructed by the defendants Micks and Joy. An injunction issued by this Court allowed the latter activity but no more.

10. The filing of the present registration petition in September of 1987 stopped the running of the twenty-year period of adverse possession, and therefore the attempt by the defendant to acquire title on this ground will commence anew once this case is finally concluded and all appeal periods have expired.

11. The defendant also claims an interest of record from one Blanche Cordes to Joseph W. Francis dated October 5, 1964 and recorded in Book 1285, Page 197 (Exhibit No. 28). Girard Cordes was survived by ten children so that the interest conveyed by the deeds may be as little as one-fifteenth based on a view of the records by a lay examiner certainly far remote from the totality of interest necessary to establish record title to land. The deed only would convey the undivided interest also in the portion of the Cordes premises not included in the Dyer mortgage. Since no deed to Girard Cordes ever has been located, no one is certain as to what he owned of record.

The plaintiffs rested their case on the theory of a lost grant, most probably from the Town of Truro or its tax collector. They point to Mrs. Pippette's involvement with the locus over many years and the claims which she made to own it both in this Court and locally. However, her letters to Mr. Dyer suggest that she was uncertain as to the precise property or the source of her title. Nonetheless, she seems to have focused on this location. However, there is insufficient evidence for me to hold that indeed she or her father obtained a grant sufficient to convey the title. With the splintering of the Cordes' interest her interest apart from any tax deed, even if it could be shown, would doubtless be fractional. If there were a tax deed f:rom the Town of Truro, there should be some record thereof and if not recorded seasonably, the deed would fail. See G.L. c. 60 , §45. Other than the claims made in the Land Court and the general acknowledgement of Mrs. Pippette as the likely owner of locus in the plans referred to in this decision, there is no evidence of physical possession of any part of the property by the plaintiffs' predecessors. Therefore, the plaintiffs cannot bring themselves within the doctrine of adverse possession which requires open, uninterrupted, notorious and exclusive possession for a period of at least twenty years adverse to all the world for title to be acquired. Similarly, for reasons I have already detailed, record title fails for as to at least a portion of locus, title is in the descendants of the mortgagee Reliance Dyer, and the remainder of the record interest may be in the descendants of Girard Cordes. The interests of all possible claimants of record under either the Dyer portion or the Cordes portion would be splintered, and to register title a plaintiff must be able to establish title to the entire interest in the property either of record or by adverse possession. A sensible solution for returning locus to the tax rolls would be for the Town of Truro to obtain authority to assess it to owners unknown, to proceed to take it for the nonpayment of taxes and then to sell it in accordance with the statutory procedure. Otherwise, ownership will be unsettled for a period of at least another twenty years. I have not commented on the plaintiffs' requested factual findings as I have made extensive findings of my own.

On all the evidence therefore I find and rule that the plaintiffs have not established a lost grant to the plaintiffs' predecessors, that if the grant were an unrecorded tax deed it would no longer be valid and at best would constitute color of title, that there was no evidence of possession sufficient to show title in the plaintiffs by adverse possession and that interests in the record title are splintered. Accordingly the complaint for registration must be dismissed.

Judgment accordingly.