MISC 133447

January 3, 1992

Worcester, ss.



By complaint filed April 6, 1989, Plaintiff seeks the removal of a cloud upon his title to a parcel of land in Phillipston ("Locus"). Specifically, Plaintiff seeks the invalidation of a foreclosure by entry made on Locus, or, in the alternative, a declaration that he has acquired title to Locus through adverse possession.

On June 10, 1991, Defendants filed a Motion to Dismiss.

This case was tried on June 13, 1991, at which time the proceedings were transcribed by a court-appointed reporter. Two witnesses testified, nineteen exhibits were introduced into evidence, and a chalk was furnished to assist the Court. All of the exhibits and the chalk are incorporated herein by reference for the purpose of any appeal.

After considering the evidence, testimony and pertinent documents, I make the following findings:

1. Locus consists of approximately 95 acres which are presently overgrown, wild or woodland. In the 1920's, a portion of Locus was woodland but over forty acres were open fields.

2. By deed dated June 12, 1915, and recorded in the Worcester District Registry of Deed [Note 1] at Book 2080, Page 404, Stefan and John Dembkowski ("Defendants") conveyed Locus to Adam and Rosella Sawicki, [Note 2] Plaintiff's mother and father ("the Sawickis"), as joint tenants subject to two mortgages neither of which is involved herein.

3. On that same date, to secure the payment of $1,200, the Sawickis granted Defendants a third mortgage ("the Mortgage") on Locus, which mortgage is recorded at Book 2080, Pages 404-5. Other than the terms recited in the Mortgage, there is no evidence of the existence or status of a the $1,200 mortgage note. On the same date, the Sawickis executed a note in the amount of $200 payable to Defendants ("the $200 Note"), which Note is in evidence.

4. On March 20, 1918, Defendants made an entry ("the 1918 Entry") on Locus to foreclose the Mortgage. The Certificate of Entry was recorded on April 16, 1918, at Book 2151, Page 240.

5. On May 25, 1918, the Sawickis appear to have made a payment to Defendants inasmuch as the $200 Note was cancelled and endorsed, "Paid in Full."

6. On January 14, 1949, Adam Sawicki died, whereupon his interest in Locus vested in Rosella Sawicki as a surviving joint tenant.

7. By deed dated July 2, 1954, and recorded at Book 3604, Pages 520-1, Rosella Sawicki coneyed Locus to Plaintiff.

8. Plaintiff was born on Locus in 1922; he and his family lived on Locus until January 10, 1925, at which time they moved to Otter River in Templeton, about nine miles away. Between 1915 and 1925, the Sawickis kept livestock and cut firewood on Locus and used Locus for truck gardening, haying and general farm purposes.

9. The summer after moving, the Sawickis drove their cattle back to Locus where they were left to graze. Plaintiff testified that after he and his parents moved they continued to cut hay, pick blueberries and cut and split firewood on Locus. At least the hay cutting, presumably of the forty acre tract, continued until the outbreak of World War II in 1941.

10. Until 1930, when they burned, there was a house and two barns on Locus. Some time thereafter, a small shelter ("the Shelter") was set up by the Sawickis for use by berry pickers and on occasion as a camp.

11. The Sawickis and Plaintiff have paid taxes on Locus from 1918 to the present time.

12. Around 1949 or 1950, Plaintiff instituted litigation and defended counter litigation with respect to the boundaries of Locus. Plaintiffs' activities on Locus, from 1941 to 1950 consisted mainly of clearing brush.

13. Plaintiff maintained a garden on Locus in the 1970's and posted a "No Trespassing" sign on the back portion. This was later supplemented with additional "No Trespassing" and "Private Property" signs. In 1978 and on two other occasions, Plaintiff was granted a permit from the Department of Agriculture to clear contiguous five acre portions. In 1980, Plaintiff planted grapevines, apple trees and Christmas trees. In 1984, Plaintiff contacted Wildlife Management, a neighbor, and informed that they were posting signs on Locus, whereupon Wildlife Management removed such signs.

14. Plaintiff was first aware of Defendants' adverse claim on Locus in August of 1986 when he received a letter from Defendants indicating a claim of an ownership interest in Locus. The letter is not in evidence nor is the content thereof. Upon receipt of the letter, Plaintiff phoned Defendants heirs and disputed their claim. Neither Defendant nor heirs have made any other attempt to claim Locus. From 1918 until 1986, a period of 68 years, Defendants and their successors in title failed to take any action whatsoever with respect to the 1918 entry. They have not maintained or used Locus for any purpose, paid taxes or even inquired into its title.

15. At no time did Plaintiff or the Sawickis pay any of the profits from Locus to Defendants, nor did Defendants ask for same. Defendants have not offered to pay any portion of the taxes, nor made any other claim or given any other indication of ownership.

G.L. c. 244, §§1 and 2 concern the procedure for foreclosure by open and peaceable entry. [Note 3] Section 1 provides, in pertinent part:

A mortgagee may, after breach of condition of a mortgage of land, recover possession of the land mortgaged by and open and peaceable entry thereon, if not opposed by the mortgagor or other person claiming it . . . ; and possession so obtained, if continued peaceably for three years, shall forever foreclose the right of redemption.

Section 2 provides, in pertinent part:

If an entry for breach of condition is made without a judgment a memorandum of the entry shall be made on the mortgage deed and signed by the mortgagor . . . or a certificate . . . of two competent witnesses to prove the entry shall be made. Such memorandum certificate . . . be recorded in the registry of deeds for the county or district where the land lies.

This possession is presumed to continue until proof of some act done to defeat or interrupt it. Bennett v. Conant, 64 Mass. (10 Cush.) 163, 167 (1852)

After the entry to foreclose, and, in the absence of any evidence of an adverse holding, the mortgagor and his successors are assumed to hold under the mortgagee, and their possession is his, until the completion of the foreclosure. Cunningham v. Davis, 175 Mass. 212 , 222 (1900) (See also Worcester v. Bennett, 310 Mass. 400 , 404 (1941) and Araserv, Inc. v. Bay State Harness, Etc., 437 F. Supp. 1083, 1093 (1977)).

If, however, after the entry to foreclose a mortgage the mortgagee accepts any portion of the mortgage debt, or interest thereon, the entry is deemed to have been waived. Willard v. Kimball, 277 Mass. 350 , 358 (1931). Further, the parties may agree to waive the entry. Botham v. McIntier, 36 Mass. (Pick. 19) 346 (1837); Bennett at 168.

As in any case where events of over seventy years past are in issue, the difficulty in interpreting the actions and interests of the parties stems from the lapse of time and the death of all persons familiar with the transaction.

It would, accordingly, seem logical that such actions be interpreted in accordance with the presumed intent of the parties as demonstrated by their acts.

In the present case, Plaintiff and his family lived on and farmed Locus from the 1918 Entry until 1925, thereafter it was farmed for some period and hayed until 1941, presumably the last cutting would have been in June or September of 1941. Defendants have made no attempt to gain possession other than writing a letter.

While the Supreme Judicial Court has stated that permitting a mortgagor to continue actual occupation after entry does not per se defeat the operation of an entry for foreclosure, Ellis v. Drake, 90 Mass. (9 Allen) 161, 163 (1864), in the present case, the Sawickis not only remained in occupation of Locus for 7 years after the Entry, but continued to farm, remove wood, plant trees, pay taxes, and defend various claims against title on Locus over a period of seventy years. [Note 4]

As stated above, it is difficult to know with certainty what went through the minds of the parties on May 25, 1918, approximately a month after the entry, when the Sawickis paid Defendants a sum sufficient at least to satisfy the $200 Note. As now argued by Plaintiffs, it would not seem logical to pay off an unsecured note and leave the entry in tact when the same amount presumably could have been applied to the mortgage note, thereby defeating the Entry.

To attribute the comprehension of such fine and technical points of law to the Sawickis is unrealistic. While obviously hard working and successful farmers, they were, as appears from the note, illiterate and most likely relatively unschooled in the field real estate law. Furthermore, the relationship of the Note to the Mortgage is not entirely clear. I cannot find with certainty that the $200 Note was unsecured, the mortgage note, if in fact there was a separate mortgage note, not being before the Court.

The undisputed fact of a payment tendered and accepted only a few weeks after the entry, together with the extended use and occupation of Locus by Plaintiffs, their continuing to retain all profits therefrom, as well as to pay taxes thereon, and the absolute lack of interest in Locus by Stefan and John Dembkowski, and support the assumption and I so find that the acceptance of the payment in 1918 was in fact a waiver of the entry. Whatever the other terms or agreements may have been made at that time, I cannot determine. Sufficient to say the Dembkowskis showed absolutely no interest in Locus until 1986, and other than the defense of this suit, little interest thereafter.

Assuming ad arguendo that the entry was not waived, Plaintiffs activities appear to be sufficient to support a claim of title by adverse possession.

For Plaintiff to prevail on such claim, he must prove that for twenty years, without interruption, he and/or his predecessors in title have used the Locus in a manner which was actual, open, notorious, exclusive and adverse. Boston Seaman's Friend Society, Inc. v. Rifkin Management, Inc., 19 Mass. App. Ct. 248 , 251 (1979); Ryan v. Stavros, 348 Mass. 251 , 262 (1964); Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961). A failure to prove any one of those elements will preclude a finding on his behalf. Gareault v. Hillman, 317 Mass. 657 , 661 (1945). The purpose behind those various requirements is to put the true owner on notice of hostile activity of the possession, so that he may be afforded an opportunity to take steps toward vindicating his rights by legal action. Ottavia v. Savarese, 338 Mass. 330 , 333 (1959); Dow v. Dow, 243 Mass. 587 , 593 (1923).

In this instance, the Sawickis lived on Locus from March 20, 1921, when the foreclosure would have become final to 1925. It is not disputed that in the 1920's Locus was about half open fields, used for haying and pasture. In 1925, the family cows were driven from Templeton to Locus, for pasturing. Thereafter until "the outbreak of World War II," which I interpret to be late 1941, Plaintiffs used Locus for haying. The Court will assume that haying practices in Worcester County are similar to those in Plymouth County where it has observed that the practice of haying consists of mowing the field to a height of a few inches in June after which the field is either used as pasture or allowed to grow a second hay crop which is harvested in September. In either event the activities on forty acres of land for a period in excess of twenty years, albeit such excess was only a few months, were such to put "the true owner (if other than the hayer) on notice of his hostile activity of possession."

In summary, I find that the 1918 entry was waived, and had it not been Plaintiff would have established title to Locus by adverse possession.

Judgment accordingly.


[Note 1] Unless indicated to the contrary, all recorded instruments are located in this Registry.

[Note 2] The name on the deed and mortgage referred to in Finding Number 3, infra, was "Savicki". For purposes of this decision, I find that the intended reference was to the Sawickis.

[Note 3] There have been no material changes in either G.L. c. 244, §1 or §2 since 1918. (See R.L. 1902, c. 187, §§1 and 2.)

[Note 4] In determining the relationship between the parties, it is noteworthy that the Sawickis did not sign a memorandum on the mortgage deed, an option presented by G.L. c. 244, §2, but instead Defendants recorded a certificate of two witness.