This is a complaint brought by Malcolm MacDonald, Trustee of the MacDonald Land Trust under a declaration of trust dated January 4, 1973 and recorded with the Barnstable County Registry of Deeds in Book 1803, Page 325 to register his title to a parcel of vacant land situated on John's Pond in Mashpee in the County of Barnstable and shown on a plan entitled "Petition Plan of Land in Mashpee, Mass. . . . the petitioner: Malcolm E. MacDonald" dated November 12, 1986 by William M. Warwick and Associates, Inc. The defendant James J. Nigrelli claims to own a 50 foot wide strip principally included within the limits of the land shown on a plan filed in this Registration Case No. 42280, but a portion of which was registered in the name of Dr. MacDonald's wife, Patricia MacDonald, in Land Court Case No. 31149 and title to which was confirmed in the plaintiff in Land Court Confirmation Case No. 35640. It is unclear from this record whether title to the registered land now is in the plaintiff's wife or in the plaintiff.
I find and rule that the plan filed in this case does not accurately reflect the ownership of the plaintiff and defendant within the locus. I further find and rule that the abstract prepared by the Land Court examiner is unacceptable in view of his previous representation in Case No. 35640 of the plaintiff. Accordingly I dismiss the registration proceedings without prejudice in order that the plaintiff may, if he so elects, file a complaint which describes the land remaining after placement of the land of the defendant as set forth herein and which is accompanied by a plan prepared in accordance with the findings set forth herein. The Land Court will appoint a truly independent Land Court examiner to review the records and to report to the Court on the title to the property from 1885 to date, not by incorporating the abstract in Confirmation Case No. 35640 as the current examiner has done but with a first look at the entire title.
A trial was held at the Land Court on July 10, 1991 at which a stenographer was sworn to record and transcribe the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. After the introduction of the abstract (but not the Examiner's report) and the file plan the plaintiff rested without calling any witnesses; in effect he relied on the abstract prepared by the Land Court examiner in the file plan described above. The defendant called as witnesses, Henry H. Thayer, a prominent member of the Massachusetts Conveyancing Bar, a partner in the firm of Messrs.Rackemann, Sawyer and Brewster and a past president of the Massachusetts Conveyancers' Association. He also called Dr. Malcolm E. MacDonald, the plaintiff in his capacity as trustee.
On all the evidence I find and rule as follows:
1. In 1952 Malcolm E. Ryder et al conveyed to Allen B. Ryder by deed dated November 13, 1952 and recorded with the Barnstable County Registry of Deeds (to which all recording references herein refer) in Book 833, Page 214 a parcel of woodland situated in the northwesterly part of Mashpee on John's Pond and bounded and described as follows:
On the East by a tract of land formerly known as "The Wilbur Lot";
On the South by John's Pond, 100 feet;
On the West by our remaining land; and
On the North by land now or formerly of Nelson Howland.
The deed continued
Said parcel of land lies partly on the north side of an old road believed to have been called Back Road and on the south of said road lies the major portion running to John's Pond, being in width 100 feet throughout its entire length.
There is a second explanatory paragraph to this effect:
This land lies at the easterly end of parcel one described in a deed to us from Edmund Wright and Charles S. Marshall dated December 10, 1947, recorded with Barnstable County Deeds in Book 685, page 159.
2. Shortly thereafter by deed dated March 16, 1953 and recorded in Book 837, Page 204 Malcolm E. Ryder et al conveyed to Allen B. Ryder a parcel described as follows:
On the East by a parcel of land conveyed by us to the grantee by a deed dated November 13, 1952, duly recorded with Barnstable County Deeds;
On the South by John's Pond, about 100 feet;
On the West by land being conveyed by us to Bradford E. Norris; and
On the North by land of owners unknown, probably heirs or successors in title of Solomon C. Howland, William Jones, Gustavus C. Howland or others, 520 feet.
The deed further continues
Said parcel of land lies partly on the North side of an old road believed to have been called Back Road and on the South of said road lies the major portion running to John's Pond.
This land is a part of the easterly portion of parcel one described in a deed to us from Edmund Wright and Charles S. Marshall dated December 10, 1947, recorded with Barnstable County Deeds in Book 685, page 159 (Exhibit No. 3C).
Simultaneously with the deed described in Paragraph 2 Malcolm E. Ryder et al conveyed the parcel adjoining to the west to Bradford E. Norris by deed datd March 16, 1953 and duly recorded in Book 837, Page 206 (Exhibit No. 3D).
3. By deed dated September 11, 1957 and recorded in Book 1017, Page 212 Allen B. Ryder conveyed to Howard W. Edminster a parcel of land described as follows:
On the East by a tract of land formerly known as "The Wilbur Lot";
On the South by John's Pond, one hundred (100) feet;
On the West by land now or formerly of Malcolm E. Ryder and Katherine H. Ryder; and
On the North by land formerly of Nelson Howland (Exhibit No. 3F).
4. The following year by deed dated September 25, 1958 and duly recorded in Book 1019, Page 135 Mr. Edminster conveyed to Alphonso Nigrelli, the father of the defendant one-half of the parcel that he had acquired from Mr. Ryder. It is this deed which determines the rights of the parties to this litigation. The description of the parcel of woodland on John's Pond read as follows :
On the East by a tract of land formerly known as "The Wilbur Lot", now or formerly owned by Howard W. Edminster;
On the South by John's Pond, 50 feet;
On the West by land now or formerly of Malcolm E. Ryder and Katherine H. Ryder; and
On the North by land formerly of Nelson Howland.
Said parcel of land lies partly on the north side of an old Road believed to have been called Back Road and on the South of said Road lies the major portion running to John's Pond, being in width 50 feet throughout its entire length.
This land lies at the easterly end of parcel one described in a deed to the aforesaid Malcolm E. and Katherine H. Ryder from Edmund Wright and Charles S. Marshall dated December 10, 1947, recorded with Barnstable County Deeds in Book 685 page 159.
The important thing about this description is the reference to the Wilbur Lot abutting on the east and land now or formerly of Malcolm E. Ryder and Katherine H. Ryder on the west. Perhaps the most significant part of the deed is the reference to the fact that the land lies at the easterly end of Parcel One in a deed to Malcolm E. and Katherine H. Ryder.
5. In the interim Allen B. Ryder had conveyed to Patricia R. MacDonald the land to the west of the 100 foot wide strip which formed a portion of the locus in Land Court Registration Case No. 31149. This deed was dated July 19, 1958 and duly recorded in Book 1010, Page 291.
6. It was not until 1963 that Howard W. Edminster by deed dated July 25, 1963 and duly recorded in Book 1210, Page 573 (Abstract 35640, p. 45) conveyed to Malcolm E. MacDonald, et al, as tenants by the entirety all lands he owned on John's Pond in Mashpee.
7. Some fifteen years after the Edminster-Nigrelli conveyance an affidavit was obtained from Howard W. Edminster who now had moved from Cohasset to Syracuse, New York to the effect that he had intended to convey the westerly half of his 100 foot wide strip to Mr. Nigrelli and not the easterly 50 feet thereof. The affidavit pointed out that there was a possible ambiguity between the deed to Nigrelli and said deed dated July 25, 1963 to Malcolm E. MacDonald and Patricia R. MacDonald in which the grantor had conveyed all lands owned in Mashpee on John's Pond and that the relative locations of the two parcels was in doubt. The affidavit flatly contradicts the language of the deed to Nigrelli stating that the parcel conveyed to Malcolm E. MacDonald and his wife was to be "bounded on the east by 'Wilbur Lot' and on the west by land conveyed to Alphonso Nigrelli." This affidavit which appears in Book 2102 at Page 51 (Exhibit No. 3H) bears a certificate from Robert J. Tilden that the facts stated in the foregoing affidavit are relevant to the title of the land therein specified and will be of benefit and assistance in clarifying the chain of title and as such should be filed for record in the Registry of Deeds. Mr. Nigrelli was not a party to this affidavit, and it can be given no effect.
8. After Alphonso Nigrelli's death title passed through the probate of his will and by a conveyance to the defendant in the present proceeding. In that aspect the title of the defendant is not in question.
9. The major portion of the land claimed by the plaintiff in this action together with the land confirmed in Case No. 35640 was obtained from Henry C. Labute by deed dated September 2, 1971 and recorded in Book 1526, Page 314 (Exhibit No. 5).
10. The file plan in Registration Case No. 31149 shows the abutter to the east to be Alphonso Nigrelli which of course would place the Nigrelli land within the land shown on the filed plan in the present Case No. 42280. The decree plan in 31149 shows Nigrelli in the same position. The file plan in Confirmation Case No. 35640 has indicated in small dotted lines the two 50 foot wide strips by which Edminster conveyed to the MacDonalds and to Mr. Nigrelli and shows the Nigrelli land as abutting the land to be confirmed. The registration case, 31149, if placed on this plan cut in part through both of the 50 foot wide strips. Most, but not all, of the land which Dr. MacDonald claims was conveyed by Edminster to Nigrelli was subsumed in the registration case together with a portion of the easterly part of the 100 foot strip, at least as shown on the plan entitled "Plan of Land in West Mashpee, Mass." dated February 16, 1968 by Charles N. Savery, Inc. and filed with the Court in Case No. 35640. The plaintiff therefore claims that the defendant has lost his land through Mrs. MacDonald's actions and is left to a claim against the assurance fund.
General Laws, Chapter 185, Section 45 lends finality to registration proceedings in order to protect the marketability and easy transferability of the title but not to protect a wrong doer. Kozdras v. Land Vest Properties, Inc., 382 Mass. 34 (1980). Section 45 Provides for a one year period within which any person deprived of land, or any estate or interest therein by the judgment of registration obtained by fraud may file a complaint for review within one year after the entry of the judgment provided no innocent purchaser has acquired an interest. The tort remedies to compensate any person aggrieved by the judgment remain, of course, as to the action to establish a constructive trust where the registered land still is owned by the party in whom title was registered and no rights of innocent third parties have intervened. State Street Bank & Trust Company v. Beale, 353 Mass. 103 (1967). A party must be deprived of land or of an interest therein, Baker v. Kemp, 299 Mass. 490 (1938), to raise the question of fraud. In the present case the additional proceedings will establish how much of the defendant's family's land was subsumed in the registration case and whether any remedy now exists for any wrong doing. It would appear that the statute of limitation for fraud may have run, however, since the decree was entered in 1962 and notice had been given to Nigrelli. He may have had sufficient knowledge to locate the Land Court boundary in relationship to his land. On the other hand a constructive trust may still be established as in Beale if the facts, once litigated, so warrant.
On all the evidence I find and rule that it was the easterly portion of the 100 foot wide Edminster strip that was conveyed to Alphonso Nigrelli. The affidavit from Mr. Edminster was obtained by those representing Dr. MacDonald. There was no notice to or agreement by the grantee in that deed and the description in the deed must control. The deed recites not only that it bounds easterly by the Wilbur Lot but that it is the easterly part of the 100 foot strip, and those boundaries therefore must control. The deed was in error in describing the land to the east as formerly having been owned by the grantor, but its description of its westerly boundary as formerly being of the Ryders accurately could apply to the second 50 foot wide strip conveyed to the MacDonalds by the catch-all deed as well as to the larger parcel to the west. Moreover, by showing the land of Nigrelli as the easterly abutter on the file plan in Land Court Case No. 31149 the MacDonalds are now estopped to deny that this is the case. The deed from Labute to Malcolm E. MacDonald dated September 2, 1971 and duly recorded in Book 1526, Page 314 (Abstract Case No. 35640, Sheet 17) bounds by land both of MacDonald and Nigrelli so estoppel applies to it as well.
It is difficult to believe that the plaintiff in this case would argue that the registration case brought by a member of the MacDonald family encompassed most of the land of Alphonso Nigrelli and that therefore the Nigrellis are relegated to their claim against the assurance fund and that they have lost their 50 foot wide strip. The MacDonalds have no personal right of eminent domain and the harsh doctrine for which they contend is unacceptable to the Court. I find and rule that it was the easterly portion of the Edminster land which was conveyed to Alphonso Nigrelli, that the actual boundaries of so much of that land as lies without the lines of Registration Case No. 31149 must be computed by the surveyor who prepares the new file plan and shown thereon with the correct dimensions. The plaintiff may file a subsequent registration proceeding as set forth above based on a severed plan which preserves the defendant's land. It will be open to the defendant in such proceedings to contest the location of the 50 feet if it is not accurately placed in accordance with my findings and rulings herein. It is open to the defendant also to pursue any additional remedies he may have to recover for land that has been lost in earlier proceedings. The placement of his lot to the east in this proceeding establishes that it is not within the boundaries of the MacDonald land. Indeed on either theory, east or west, there is a gap between Case No. 31149 and this registration proceeding. The registered land surveyor who prepared the plan clearly was wrong to show the parcels as abutting.
The complaint for registration is dismissed without prejudice.