These registration cases were brought to register and confirm title to contiguous tracts of land on North Neck Road, Chappaquiddick Island, in Edgartown (Registration Parcel), which are shown on plan 43184-A2 (Plan) filed with this court. The Plan separates the land into parcels labeled 1 through 4. Each of parcels 1 through 4 consists of narrow sliver lots that were set-off to local Native Americans in 1878. On May 13, 1996, Plaintiffs initiated this action by filing a petition for registration.
The 1996 case, 96 REG 43184, was severed and retained by motion allowed February 15, 2000. That case concerns parcel 4 on the Plan which consists of set-off lots 99 through 104 (Locus.) The 2000 case, 00 REG 43326, concerns parcels 1 through 3 on the Plan. Through its Motion for Summary Judgment, brought October 29, 2010, Plaintiffs seek to dismiss the several claims of fractional interests in Locus brought by Defendants (sometimes referred to herein as the Matthews Heirs). [Note 1]
Essentially, Plaintiffs argue that the Matthews Heirs hold no interest in Locus because in 1901 their purported predecessors-in-title conveyed all of their interest in Locus to Harrison H. Child (Child). In accordance with Land Court Rule 4, Plaintiffs motion is accompanied by a memorandum of law, including a statement of undisputed facts, exhibits A through J, and an affidavit of Attorney Henry H. Thayer. On October 29, 2010, Defendants opposed the motion through a written opposition with eight exhibits attached. Also on October 29, 2010, Plaintiffs filed a motion to strike from the summary judgment record the interrogatory responses filed by four Defendants. [Note 2] A hearing was held on both motions on March 1, 2011, at which all parties were heard.
For reasons stated below, this court hereby allows Plaintiffs Motion to Strike and the interrogatory responses are stricken. Based on the summary judgment record, this court determines that Plaintiffs are entitled to dismissal of the claims of the Matthews Heirs and therefore Plaintiffs Motion for Summary Judgment is GRANTED.
The record establishes the following facts which are not in dispute:
1. As shown on the Plan as parcels 1 through 4, the Registration Parcel consists of approximately 6.8 acres on North Neck Road. Locus is parcel 4 on the Plan which consists of sliver lots 99 through 104, each of which is roughly 0.2 acres. Thus, Locus is approximately 1.2 acres.
2. Plaintiffs, William C. Fynbo, Marjorie Fynbo, Camille Beatrice Fynbo Marks, and Mary Willie (Fynbos) live on the Registration Parcel of which Locus is a part.
3. The Matthews Heirs claim title to Locus as the ancestors of the Matthews family who were set-off sliver lots 99 through 104 in 1878. The set-off distributions are more fully explained below in paragraph 4.
Interest in Locus
4. By virtue of the 1878 report of the Probate Commissioners for Dukes County, recorded with the Dukes County Registry of Deeds, [Note 3] in Book 65, at Page 57, the court declared that the following persons were the owners of Lot 4, which is described at pages 106 through 108:
Margaret P. Matthews: Lot 99
Eunice E. Rocker: Lot 100
Olivia D. Magnett: Lot 101
Isadora A. Jeurtin: Lot 102
Eliza J. Healis: Lot 103
Margaret E. Matthews: Lot 104
5. Isadora A. Jeurtin was the daughter of Margaret P. Matthews and William Matthews. In 1875, she married Arthur Jeurtin, becoming known as Isadora A. Jeurtin. In 1891, she married Thomas A. Spicer, in a second marriage, becoming known as Isadora Spicer.
6. Olivia D. Magnett was the daughter of Margaret P. Matthews and William Matthews. She married Benjamin C. Magnett becoming known as Olivia D. Magnett. She died on April 14, 1886.
7. Margaret E. Matthews was the daughter of Margaret P. Matthews and was later known as Margaret E. Handay.
8. Eliza J. Healis was the daughter of Margaret P. Matthews and William Matthews. She married Edward T. Healis becoming known as Eliza J. Healis.
9. Margaret P. Matthews, owner of lot 99, died intestate on October 9, 1893, leaving daughters Eunice E. Rocker, Isadora Spicer, and Eliza J. Healis, and Benjamin C. Magnett, husband of her other daughter, the late Olivia D. Magnett.
10. Eliza J. Healis died on October 5, 1895. There apparently is no probate.
11. On April 19, 1897, Edward T. Healis petitioned the Dukes County Probate Court to be appointed guardian of Herbert B. Healis, Edward Nelson Healis, Isadora E. Healis, George W. Healis, and Richard O. Healis.
12. On October 18, 1897, the Court approved the petition and Edward T. Healis filed his Inventory as Guardian listing the childrens interest in real estate as Lots 133, 134 + 135 Franklin Ave. Thurston plan. Buildings.
13. On November 16, 1901, ten grantors, Nelson E. Healis, James Healis, Isadora Rocker, Herbert B. Healis, Isadora A. Spicer, Thomas S. Spicer, Benjamin C. Magnett, Eunice E. Rocker, Margaret A. Handay, and Edward J. Healis, executed a deed to Child that is recorded in Book 106, at Page 8 (November 1901 Deed) conveying the following:
A certain tract or parcel of land bounded and described as follows:
Viz: Beginning at a stake and stone at the Southerly corner of the herein described and conveyed land therein running North Easterly One hundred Seventy three and 61/100 (173.61) feet to a stake and stones, thence North Westerly by land Nugent and Chamberlain One Thousand Nineteen (1019) feet, thence in the same course Four Hundred Eighty (480) feet to the harbor, thence by the harbor to the Indian Line Fence, thence South Easterly by said Indian Line Fences Fourteen Hundred Nineteen (1419) feet to the first mentioned bound. Said lot herein conveyed conveys about six and 56/100 (6.56) acres.
Also all our rights and title in and to any and all our land situate on the island of Chappaquiddick in the Town of Edgartown, Massachusetts whether the same be included in the above described parcel or not.
The above described parcel is situate on the Island of Chappaquiddick in said Edgartown.
14. The first paragraph of the November 1901 Deed sets out a metes and bounds description of a parcel that is not Locus.
15. When the November 1901 Deed was executed, Eunice E. Rocker held a full interest in Lot 100 and a one fifth interest in Lot 99; Benjamin C. Magnett held a full interest in Lot 101 and a one fifth interest in Lot 99; Isadora A. Spicer held a full interest in Lot 102 and a one fifth interest in Lot 99; Margaret A. Handay held a full interest in Lot 104 and a one fifth interest in Lot 99.
16. On November 22, 1901, Edward T. Healis filed a petition, as guardian of Edward Nelson Healis, Isadora E. Healis, George W. Healis and Richard O. Healis to sell certain undivided interests in Indians Lands on Chappaquiddick inherited from their mother Eliza J. Matthews Healis (Matthews/Healis Interests).
17. On December 2, 1901, the Probate Court granted Edward T. Healis a license to sell the Matthews/Healis Interests.
18. Pursuant to the license to sell, on December 16, 1901, Edward J. Healis, as guardian of Edward Nelson Healis, Isadora E. Healis, George W. Healis, and Richard O. Healis, executed a deed to Child that is recorded in Book 102, at Page 424 (December 1901 Deed) stating, in relevant part, the following:
all right title and interest in and to certain lots or parcels of land which the said minors Edward Nelson Healis, Isadora E. Healis, George W. Healis and Richard O. Healis now own and hold as heirs at law of their late Mother Eliza J. Matthews Healis; meaning to convey all their right title and interest in certain lots or parcels of land situate on the Island of Chappaquiddick in the town of Edgartown, County of Dukes County and Commonwealth of Massachusetts of which their late mother died seized.
19. At the time of the December 1901 Deed, the children owned the remaining interests in Lot 99 and Lot 103 as the heirs at law of their late mother Eliza J. Matthews Healis. [Note 4]
20. Child died testate in 1930. His successors-in-title have been named as Defendants in these proceedings. [Note 5]
* * * * * *
Rule 56(c) of the Massachusetts Rules of Civil Procedure . . . provides that a judge shall grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Attorney General v. Bailey, 386 Mass. 367 , 370-71 (1982) (quoting Mass. R. Civ. P. 56(c)). In reviewing a motion for summary judgment, the court shall not assess the credibility of witnesses or the weight of the evidence or make its own decision of facts. Hub Assocs. v. Goode, 357 Mass. 449 , 451 (1970) (quoting Gordon v. American Tankers Corp., 286 Mass. 349 , 353 (1934)). A motion for summary judgment will not be granted merely because the facts [the movant] offers appear more plausible than those tendered in opposition, or because it appears that the adversary is unlikely to prevail at trial. Bailey, 386 Mass. at 371 (quoting Hayden v. First Nat'l Bank, 595 F.2d 994, 997 (5th Cir. 1979)). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue of fact and that the record entitles them to judgment as a matter of law. Kourouvacilis v. G. M. Corp., 410 Mass. 706 , 711 (1991). This case is ripe for summary judgment because the material facts are not in dispute.
The issue in this case, as framed by the parties, is whether the two 1901 deeds are effective and unambiguously conveyed all of the interests that the grantors held in Locus. Plaintiffs argue that both the November 1901 Deed and December 1901 Deed are free and clear of any ambiguity and evidence an intent by the grantors to convey all of their interests in Locus to Child. Defendants contend that the language in the two deeds is ambiguous and, therefore, parol evidence should be admitted to show that the conduct of the Matthews Heirs after 1901 is consistent with retention of ownership of Locus.
The underlying principle in the interpretation of conveyances is that the words used in the written instrument should be construed so as to give effect to the intent of the parties, unless inconsistent with some rule of law or repugnant to the terms of the grant. Bass River Savings Bank v. Nickerson, 303 Mass. 332 (1939) (citations omitted). When the words are clear, they alone determine the meaning of the instrument. Merrimack Valley Nat'l Bank v. Baird, 372 Mass. 721 , 724 (1977). Where there is no ambiguity in the instrument, it must be enforced according to its terms. Freelander v. G. K. Realty Corp., 357 Mass. 512 , 516 (1970). A clause is ambiguous if it is shown that reasonably intelligent people would differ as to which one of two or more meanings is the proper one. Jefferson Ins. Co. of New York v. Holyoke, 23 Mass. App. Ct. 472 , 474-75 (1987). However, an ambiguity is not created simply because a controversy exists between parties, each favoring an interpretation contrary to the other. Id. at 475. In addition, as a general rule, a writing is construed against the author of the doubtful language and the author of the ambiguous term is held to any reasonable interpretation attributed to that term which is relied on by the other party. Merrimack Valley Nat'l Bank, 372 Mass. at 724.
November 1901 Deed
The second paragraph of the November 1901 Deed begins by stating [a]lso all our right and title in and to any and all our land situate on the island of Chappaquiddick in the town of Edgartown (emphasis added.) The definition of the word also is, besides; as well; in addition some other thing Blacks Law Dictionary (5th Ed. 1979). By placing the word also in the beginning of the second paragraph the grantors distinguished the second paragraph from the first paragraph in which they conveyed their interest in a specific parcel defined by a metes and bounds description. In addition to the conveyance described in the first paragraph, the second paragraph of the deed conveyed all of the grantors right and title in their additional land located on Chappaquiddick, which encompassed Locus. Furthermore, the grant in the second paragraph ends with the straightforward language whether the same be included in the above described parcel or not. (emphasis added) . By bracketing the grant of Locus in the second paragraph between this phrase and the word also, the grantors clearly stated their intent that the second paragraph would convey land in addition to that granted in the preceding paragraph. The second paragraph of the November 1901 Deed read in the context of the entire deed is free of any ambiguity and shows the intent of the grantors to convey their interest in Locus to Child.
Defendants argue that even if the second paragraph unambiguously conveys land in addition to that described in the first paragraph, the language of the second paragraph is insufficient to convey the grantors interests. Accordingly, this court must address the validity of the conveyance language set forth in the second paragraph of the November 1901 Deed. The second paragraph states, in relevant part, [a]lso all our right and title in and to any and all our land situate on the island of Chappaquiddick . . . whether the same be included in the above described parcel or not (emphasis added). It is well settled that a conveyance of all right, title and interest of land in a defined geographic area is effective. Campbell v. First Natl Bank of Amherst, 379 Mass. 512 (1980) (Supreme Judicial Court found a mortgage deed which conveyed all right, title, and interest in and to land located in Hampshire County to be valid); Hampshire Natl Bank v. Calkins, 3 Mass. App. Ct. 697 (1975) (holding that a mortgage concerning all land in Hampshire County is valid).
In Campell and Calkins the courts upheld as effective conveyances language in mortgages describing the grantors interest as all right, title and interest and describing the land as all land in a cetain county. Defendants argue that these cases are distinguishable because a mortgage is a conditional conveyance of legal title only. However, our case law defines a mortgage as a transfer of title. E.g. Faneuil Investors Group v. Board of Sleectmen of Dennis, 458 Mass. 1 , 6 (2010) ( a mortgage is a conveyance of title). There is no rational reason for construing a conveyance by a mortgage deed any differently than a conveyance by another form of deed with respect to the issue relating to the adequacy of descriptive langauge. This court finds as a matter of law, that the grantors conveyance of all of our right and title in and to any and all our land on the island of Chappaquiddick in the November 1901 Deed is effective to convey their respective interests in Locus.
December 1901 Deed
Pursuant to a license, Edward J. Healis, as guardian of Edward Nelson Healis, Isadora E. Healis, George W. Healis and Richard O. Healis (Minor Children), conveyed to Child, in relevant part, all right title and interest in and to certain lots or parcels of land which the said minors now own and hold as heirs at law of their late [m]other meaning to convey all their right title and interest in certain lots or parcels of land situate on the Island of Chappaquiddick of which their late mother died seized. (emphasis added). As explained above, a conveyance of all right, title and interest of land in a defined geographic area is legally sufficient. Campbell, 379 Mass. at 512; Hampshire Natl Bank, 3 Mass. App. Ct. at 697.
Defendants argue that Edward J. Healis, as guardian of the Minor Children, did not know what interest he was conveying or if the Minor Children in fact had any interest in land on Chappaquiddick. The basis for this argument is that first, in 1897 Edward J. Healis, Guardian, did not list the Minor Childrens interest in Locus on the childrens real estate inventory form in his petition for guardianship and, second, he did not specifically reference the lot numbers and explain the interest in Locus on his petition for a license to sell real estate in 1901. When the language of the applicable instruments is clear and explicit, and without ambiguity, there is no room for construction, or for the admission of parol evidence to prove that the parties intended something different. Hamouda v. Harris, 66 Mass. App. Ct. 22 , 25 (2006) (quoting Cook v. Babcock, 7 Cush. 526 , 528 (1851)). Therefore, regardless of what Edward J. Healis listed in 1897 on the Minor Childrens real estate inventory form in connection with his petition for guardianship, by the time he filed his petition for a license to sell in 1901, he was aware of land on Chappaquiddick. While he did not specify interests in Lot 99 and Lot 103, he referenced the Childrens interests as certain undivided interests in Indian Lands on Chappaquiddick inherited from their mother Eliza J. Matthews Healis. The undisputed facts establish that Eliza J. Matthews Healis owned interests in Lots 99 and 103 at the time of her death. Thus, the December 1901 Deed lawfully conveyed those interests which were approved by the Probate Courts license to sell as those specific interests were included within the general language of the petition and the license.
In the December 1901 Deed Edward J. Healis, as guardian, conveyed the Minor Childrens interest in certain lots or parcels of land situate on the Island of Chappaquiddick to Child. The interests referenced in the deed, and the interest that the Minor Children in fact inherited, was the fractional interest in set-off Lots 99 and 103 which they received as the heirs at law of their late mother Eliza J. Matthews Healis. The plain language of the December 1901 Deed establishes that Edward J. Healis, as guardian of the Minor Children, intended to convey all of the Minor Childrens interest in Locus. For these reasons this court holds that the language of the December 1901 Deed unambiguously showed an intent by the grantor to convey the Minor Childrens interest in Locus and the deed did so. [Note 6]
Defendants attempt to introduce the Interrogatory answers of Cleo Rocha, Sylvia Harriet Rocker, Elizabeth Johnson, and Alma Gordon-Smith into the summary judgment record to show that the conduct of the Matthews Heirs after 1901 is consistent with retention of ownership of Locus. Because this court holds that there is no ambiguity in the 1901 deeds, the court is able to begin and end our inquiry here by reference to the language as set forth in the relevant deeds. Handson v. Caldwell Crossing, 66 Mass. App. Ct. 497 , 502-3 (2006) quoting Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998)). When reading within the four corners of the November 1901 Deed and December 1901 Deed, this court finds that the grantors clearly intended to convey all of their interests in Locus to Child. Therefore, the parol evidence rule bars resort to extrinsic evidence. [Note 7]
This court concludes that the November 1901 Deed and the December 1901 Deed executed by or on behalf of the ancestors of the Matthews Heirs conveyed to Child all their interests and that, as a matter of law, the conveyances set forth in the 1901 deeds were legally effective. Accordingly, Defendants have no claim of record interests in and to Locus and Plaintiffs Motion for Summary Judgment is granted.
The registration cases may proceed free of the claims of the Matthews Heirs. Plaintiffs should submit to the court a written report regarding the status of the remaining issues and parties to these actions on or before November 9, 2012.
[Note 1] The Matthews Heirs are: Demming Rocker, Kevin Rocker, Raymond Powell, Heirs of Mildred Rocker, Shirley Delgardo, Eunice Moreis, Herbert Healis, Neal Healis, Harry Walter Rocker, Helen Irene Joia, Antoine Cgee Rocker, Mark Henry Rocker, Patricia Rocker-Potter, Marion Rocker-Boothe, Frances Monteiro, Faith Rocker, Clayton August Rocker, Charles Antoine Rocker, Chandrani Rocker Cole, Diedra Hill, Grace Holman, Andrea Waterman, Patricia Gresham, Walter Osborne Healis, Jr., Steven Alan Healis, Diane Lynn Crandall, Herbert Donald Healis, Jr., Michael David Healis, Barbara Wyche, Regina M. Lewis, Deborah Glover, Pamela Young, Penny Marchman, Julie Tippett, Alma Gordon Smith, Robert Gordon, Sylvia Harriet Ricker, Clayton Michael Rocker, Patricia Deanna Rocker, Cleo Rocha, Elizabeth Johnson, Meredith F. McGoings, and Rosalyn H. Williams Washington.
Diane L. Crandall, Michael D. Healis, Steven A. Healis, and Rosalyn H. Williams Washington have filed with the Court disclaimers of any interest that they might have in Locus and the remainder of the Registration Parcel.
[Note 2] Plaintiffs move to strike Defendants exhibits 5 through 8, all of which are Answers to William C. Fynbos First Set of Interrogatories by Cleo Rocha, Sylvia Harriet Rocker, Elizabeth Johnson, and Alma Gordon-Smith.
[Note 3] All recording references are to this Registry.
[Note 4] Herbert B. Healis also received interests in Lot 99 and Lot 103 as an heir at law of his late Mother Eliza J. Matthews Healis; however, Herbert was one of the ten grantors listed on the November Deed.
[Note 5] The successors-in-interest to Child are not the subject of this summary judgment motion.
[Note 6] Both parties acknowledge the connection between the November and December deeds. Plaintiffs seem to imply that the deeds must be construed together as part of one continuing conveyance of Locus to Child. Defendants then argue that the December 1901 Deed cannot serve to expand the initial grant set forth in the November 1901 Deed. See Ide v. Bowden, 342 Mass. 22 , 27 (1961) (a general grant after a specific grant cannot serve to expand the initial grant in the same deed). This court finds that the 1901 deeds are separate conveyances and that each is free of any ambiguity and evidences an intent by the respective grantors (who are different) to convey all of their interests to Child. In that sense, the court agrees with Plaintiffs position that the two deeds were meant to vest Child with 100 percent of the interests in the Registration Parcel.
[Note 7] However, even if this court were to hold that the parol evidence rule did not bar the entry of the interrogatory answers, Plaintiffs motion to strike likely would be granted, at least in large part. Rule 56(e) of the Massachusetts Rules of Civil Procedure requires that affidavits shall be made on personal knowledge, shall set forth facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. See also, Madsen v. Erwin, 395 Mass. 715 , 721 (1985) (hearsay not acceptable); Dattoli v. Hale Hospital, 400 Mass. 175 , 178 (1987) (personal knowledge required). These same requirements apply to interrogatories submitted in opposition to a summary judgment motion. See Sweda Intl. v. Donut Maker, 13 Mass. App. Ct. 914 (1982). This court need not analyze each one of the interrogatory answers because this court holds that the parol evidence rule bars them; however, each answer raises the question as to whether it contains inadmissible hearsay.