ROBERT GULICK, ET AL, TRUSTEES OF THE LEXINGTON VILLAGE CONDOMINIUM TRUST v. HEIRS OF PHOEBE CUMMINGS BURTT

Introduction

The Plaintiff Trustees of the Lexington Village Condominium Trust (the “Plaintiffs”) seek to quiet title to a small, landlocked parcel of land in Lexington, Massachusetts, by reforming a deed in the Trust’s chain of title, which had been executed by members of the Cummings family in 1949 (the “1949 Deed”). The Plaintiffs contend that, it was only by inadvertence or mistake that the parcel in question was omitted from the description of the land conveyed by the 1949 Deed. The Defendants also seek a declaration that the Defendants hold no interests in the subject parcel. [Note 1]

The Defendants having been defaulted under Mass. R. Civ. P. Rule 55(a), the Plaintiffs have requested the entry of a default judgment in their favor: (1) reforming the 1949 Deed to include the “omitted” parcel; and (2) declaring that the Defendants have no right, title, or interest in said parcel. At a July 28, 2012 status conference concerning the Plaintiffs’ initial Request for Default Judgment, the Plaintiffs were advised that no action would be taken on the request as presented because further publication was necessary to ensure service on all potential defendant heirs, and because the factual allegations in the Complaint, even if taken as admitted, were insufficient to support the requested judgment. Thereafter, a new citation for publication was issued, returnable on October 18, 2010. No appearances or answers were filed in response.

On December 14, 2010, the Plaintiffs filed a Memorandum in Support of Request for Entry of Default Judgment, together with additional documentation in the form of an Affidavit of a title examiner, with copies of various recorded deeds and plans attached thereto. A hearing was commenced on January 18, 2012, and then continued to February 16, 2012 in order to give the Plaintiffs an opportunity to present evidence and legal argument in support of their alternative claim for adverse possession.

At the February 16 hearing session, the Plaintiffs withdrew their claim for adverse possession and submitted a further memorandum in support of their request for entry of a default judgment reforming the 1949 Deed. Thereafter, the court took the matter under advisement. Now, for the reasons discussed below, I find that the Plaintiffs have failed to establish that they are entitled to a judgment reforming the 1949 Deed and, correspondingly have failed to establish entitlement to a declaratory judgment that the Defendants hold no interests in the subject parcel.

Facts

Based upon the uncontroverted factual allegations in the Plaintiff’s Complaint, and the admissible documentary evidence attached to the Plaintiffs’ Memorandum in Support of Request for Entry of Default Judgment, I find the following:

1. By deed dated January 23, 1924, and recorded in the Middlesex South Registry of Deeds at Book 4698, Page 496 (the “1924 Deed”), Theresa B. Cummings acquired from Maria Mitchell, et al, a parcel of land (the “Subject Parcel”) described as a “portion of lot ‘A’ shown on a plan entitled: “Plan of land in Lexington, Mass. belonging to Estate of Patrick Mitchell,” recorded in Plan Book 224, Plan 36 (the “1914 Plan”). The Subject Parcel is shown on the 1914 Plan as the easternmost portion of Lot A, bounded on the east and south by land of Theresa B. Cummings, and on the north by land of the Boston and Maine Railroad. [Note 2]

2. On January 5, 1949, Theresa B. Cummings died intestate, survived by her husband, Charles A. Cummings, and her children, Bavel L. Cummings, Ada H. Melick, and Phoebe A. Burtt. [Note 3] The inventory of the Theresa B. Cummings’ estate, as filed with the Probate Court, lists only two properties: “House and land at 475 Massachusetts Avenue, Lexington” and “House and land at 465 Massachusetts Avenue, Lexington.”

3. On March 17, 1949, Bavel L. Cummings, Ada H. Melick, and Phoebe A. Burtt (the “Cummings Siblings”) executed a deed to their father, Charles A. Cummings (the “1949 Deed”). The 1949 Deed stated the Cummings Siblings’ intent “to convey and release to the grantee all of our right, title and interest in and to the above described parcels of land with the buildings thereon as heirs-at-law and next-of-kin of Theresa B. Cummings late of Lexington in the County of Middlesex.” [Emphasis added]. The 1949 Deed, recorded at Book 7412, Page 167, sets forth unambiguous metes-and-bounds descriptions of two, discrete parcels of land: a five-sided, 7/8-acre parcel and a rectangular, 93 ¾-sq. rod [Note 4] parcel (the “Two Parcels”). [Note 5] The Deed descriptions of the Two Parcels do not incorporate the area of land comprising the Subject Parcel. The 1949 Deed provides title references for each of the Two Parcels, but includes no reference to either the 1924 Deed or the 1914 Plan.

4. Charles A. Cummings died intestate in 1957, predeceased by his daughter Phoebe A. Burtt. [Note 6] In 1961, Charles’ son, Bavel L. Cummings, petitioned the Probate Court and was appointed administrator of his father’s estate. The petition named Bavel L. Cummings, Ada H. Melick, and Charles’ grandson, David B. Burtt, as the only heirs-at-law and next of kin of Charles A. Cummings. The inventory of real estate for the Charles A. Cummings estate listed only one property: “The home place consisting of land and buildings, Massachusetts Avenue, Lexington, Massachusetts, described in a deed recorded in Middlesex South District Deeds in Book 7412, Page 167.” The referenced deed is the 1949 Deed, which described only the Two Parcels. No reference was made in the inventory to the 1924 Deed or to the Subject Parcel. [Note 7]

5. In 1964, David B. Burtt conveyed his interest in the Two Parcels to Bavel L. Cummings. [Note 8] In 1966, Ada H. Melick conveyed her interest in the Two Parcels to Bavel L. Cummings. [Note 9]

6. By deed dated August 23, 1966, Bavel L. Cummings conveyed the Two Parcels to George H. Lawless and Cecilia M. Lawless. [Note 10] Then, in 1968, the Lawlesses conveyed the Two Parcels to Robert O. Tillinghast and Ann R. Tillinghast, as Trustees of ORA Realty Trust. [Note 11]

7. In 1973, a plan entitled “Plan of Land in Lexington, Mass.” by Albert A. Miller and Wilbur C. Nylander was recorded at Book 12363, Page 205 (“the 1973 Plan”). The 1973 Plan, which was “compiled from various sources,” appears to combine the Subject Parcel with the Two Parcels conveyed to ORA Realty Trust in 1968 into a single, 1.71 acre lot. [Note 12] However, there is no deed on record purporting to convey the Subject Parcel to ORA Realty Trust, and no other indication of the “various sources” used to compile the 1973 Plan.

8. In 1981, Ja Sam Koo, as successor Trustee of ORA Realty Trust, executed a quitclaim deed to Manfred P. Friedman and Winifred L. Friedman, purporting to convey the land shown on the 1973 Plan (the “1981 Deed”). The 1981 Deed, which was recorded at Book 14244, Page 421, makes reference to the recorded 1973 Plan, as well as to the 1968 deed from Lawless to the then- trustees of ORA Realty Trust. There are no references to the 1924 Deed. The 1981 Deed contains a single metes-and-bounds description of the 1.71 acre lot shown on the 1973 Plan.

9. On June 4, 1982, Manfred P. Friedman and Winifred L. Friedman conveyed the land described in the 1981 Deed to themselves, as Trustees of the Number Four-Sixty-Five Realty Trust. The 1982 Deed, recorded at Book 14633, Page 224, references the 1981 Deed and repeats the property description contained in the 1981 Deed.

10. On May 7, 1987, Winifred L. Friedman appointed Walter M. Friedman to succeed Manfred P. Friedman as a trustee of the Number Four-Sixty-Five Realty Trust. The Trustees then executed a Master Deed, recorded at Book 18110, Page 534, creating the Lexington Villas Condominium pursuant to the provisions of Chapter 183A. The Master Deed describes the Condominium land as the 1.71 acre parcel shown on the 1973 Plan.

11. On June 3, 1987, Ada Melick and Bavel Cummings executed a deed, recorded at Book 18258, Page 589 (the “1987 Deed”), purporting to convey their interests in the Subject Parcel to the Trustees of Number Four-Sixty-Five Realty Trust. Recorded with the 1987 Deed is a G.L. c. 183 § 5(b) Affidavit, executed by Ada H. Melick and Bavel C. [sic] Cummings on June 3, 1987 (the “1987 Affidavit”). In the 1987 Affidavit, Melick and Cummings state that they inherited the Subject Parcel from their mother, Theresa Cummings, and that the Subject Parcel “was inadvertently omitted” from the 1949 Deed to their father. The affiants further state that:

“[i]t was our intent and the intent of our sister, Phoebe A. Burtt, who inherited her interest in the Premises from Theresa B. Cummings, our mother, to convey our full interest in the Premises, later shown on [the 1973 Plan] to Charles A. Cummings, our father, by the deed referenced above, recorded with said deeds in Book 7412, Page 167.” [Note 13]

The 1987 Affidavit was recorded at Book 18258, Page 590.

12. On June 22, 1987, Winifred L. Friedman individually, and Winifred L. Friedman and Walter M. Friedman, as Trustees of Number Four-Sixty-Five Realty Trust, executed a Confirmatory Master Deed, recorded at Book 18259, Page 002, to correct certain errors in, and to confirm, the Master Deed for the Lexington Villas Condominium. [Note 14] The Confirmatory Master Deed does not, however, alter or purport to correct the property description contained in the original Master Deed. The Confirmatory Master Deed makes no reference to either the 1987 Deed or the 1987 Affidavit recorded just weeks before.

Discussion

The Plaintiffs’ argument for reformation of the 1949 Deed rests on two key, but unsupported, premises. The first premise is that Charles A. Cummings, Bavel L. Cummings, Ada H. Melick, and Phoebe A. Burtt each inherited a partial interest in the Subject Parcel upon the death of Theresa B. Cummings. The second premise (which depends upon the first being correct) is that the Cummings Siblings intended to convey their (inherited) interests in the Subject Parcel to their father, Charles A. Cummings, when they executed the 1949 Deed, but the Subject Parcel was inadvertently omitted from the deed description. The record before the court, however, is insufficient to support either of these two premises.

First, neither the uncontroverted factual allegations in the Complaint, nor the supplemental documentation submitted by the Plaintiffs in support of their Request for Default Judgment, establish that Charles, Ada, Bavel, and Phoebe acquired any interests in the Subject Parcel when Theresa died. There is no evidence before the court which unequivocally establishes that Theresa B. Cummings still owned the Subject Parcel at the time of her death in 1949. [Note 15] Moreover, the probate petition for the Theresa B. Cummings estate lists only two properties — “House and land at 475 Massachusetts Avenue, Lexington” and “House and land at 465 Massachusetts Avenue, Lexington” — with no title references or other descriptions from which to ascertain that the Subject Parcel was included as part of either of the two listed property addresses.

But even if the Cummings Siblings and their father had inherited the Subject Parcel from Theresa Cummings, the Plaintiffs cannot overcome the clear and unambiguous bounding descriptions in the 1949 Deed, describing only the Two Parcels. Nor is there anything in the 1949 Deed which suggests that any other land was intended to be included in the grant. “When the description in a deed or devise 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.” Panikowski v. Giroux, 272 Mass. 580 , 583 (1930), quoting Cook v. Babcock, 61 Mass. 526 , 528 (1851). Thus, any intentions the three siblings and their father may have had in 1949 are irrelevant to the interpretation of the 1949 Deed, as are Theresa Cummings’ 1938 deed of easement and the copies of taking instruments and plans, submitted by the Plaintiffs in support of their Request for Default Judgment. As drafted, the 1949 Deed unequivocally conveys only the Cummings Siblings interests in the Two Parcels.

Notwithstanding the clear and unambiguous language in the 1949 Deed, however, the Plaintiffs allege that the parties to that Deed had an intention different from that expressed therein: “to convey and release to the grantee all our right, title and interest in and to the above described [Two Parcels] of land with the buildings thereon….” [Emphasis added]. Relying chiefly on the 1987 Affidavit, the Plaintiffs contend that the parties intended that the 1949 Deed also convey the Cummings Siblings’ interests in the Subject Parcel. The Plaintiffs argue that the Deed should therefore be reformed, as a matter of equity, to reflect those intentions, since it was only through mistake or scrivener’s error that the description of the Subject Parcel was inadvertently omitted. The record before the court, however, does not support reformation.

Reformation “to express the real intention of the parties” is an appropriate remedy if, because of mutual mistake, the deed did not convey the land the parties intended to convey. See Ward v. Ward, 70 Mass. App. Ct. 366 , 369 n.5 (2007) (noting that a deed may be reformed in cases of fraud by one party, a false statement of material fact, counsel’s negligence, a scrivener’s error, or a mistake that is mutual to the parties). See also Crowley v. Holdsworth, 264 Mass. 303 , 308 (1928). Parol evidence of intent is not barred in such circumstances. Polaroid Corp. v. Travelers Indem. Co., 414 Mass. 747 , 757 (1993). But, reformation of a deed due to mutual mistake requires clear and convincing proof “that the parties had the identical intention as to the terms to be embodied in a proposed written conveyance,” the “writing executed by them is materially at variance with that intention, … [and] innocent third persons will not be unfairly affected thereby.” See Franz v. Franz, 308 Mass. 262 , 266 (1941), quoting Am. Law Inst. Restatement: Contracts, § 504 [Emphasis added]. See also Polaroid Corp. v. Travelers Indem. Co., 414 Mass. at 756; McGovern v. McGovern, 77 Mass. App. Ct. 688 , 700-01 (2010). The Plaintiffs have not met their burden in this regard.

In particular, there is no clear and convincing proof of a mutual mistake by the parties to the 1949 Deed. The Plaintiffs’ reliance on the 1987 Affidavit to show a mutual mistake presents a number of evidentiary problems. The Affidavit was prepared some 38 years after the fact, undermining the credibility of the affiants’ recollections. More importantly, however, the 1987 Affidavit does not set forth any pertinent facts to demonstrate that mention of the Subject Parcel was “inadvertently omitted” through some mutual oversight or misunderstanding. The 1987 Affidavit, at best, may be used to show that two of the grantors (Ada and Bavel) intended and believed that the property interests conveyed to their father in 1949 included the Cummings Siblings’ interests in the Subject Parcel. The 1987 Affidavit does not, however, establish the intentions or understandings of the third grantor (Phoebe) or those of the grantee (Charles). Therefore, if admissible at all, the Affidavit evidences only a unilateral mistake – something that is not a proper basis for deed reformation. See Ward v. Ward, 70 Mass. App. Ct. at 369 (“Unlike trusts, contracts and deeds may only be rescinded or reformed because of mistake if the mistake is mutual to the parties.”).

The Plaintiffs’ alternative theory that omission of the Subject Parcel from the 1949 Deed resulted from a scrivener’s error, does not fare any better. A scrivener’s error arises when a deed does not embody within its terms “the clear intent of the parties as expressed to the scrivener.” Franz v. Franz, 308 Mass. at 265-66. Here, neither the 1987 Affidavit, nor any of the other documentation submitted by the Plaintiffs, relate to instructions given to the drafter of the 1949 Deed. Moreover, as there is no suggestion that the Plaintiffs would have any personal knowledge as to the facts surrounding the drafting and execution of the 1949 Deed, the Plaintiffs’ own, unverified allegations in this regard can only be viewed as conjecture, and not as fact.

Finally, it must be noted that, between the date of the 1949 Deed and Phoebe’s death in 1953, there was ample time for the Cummings Siblings to correct the alleged mistake or scrivener’s error, and convey any interests they may have had in the Subject Parcel to their father. This did not occur. Nor was any attempt made to rectify the alleged mistake or error by including the Subject Parcel in the subsequent deeds to Bavel.

The decision to enter a default judgment is a matter of discretion for the trial judge. Riley v. Davison Const. Co., Inc., 381 Mass. 432 , 441 (1980). After entry of default under Mass. R. Civ. P. 55(a), it is only the factual allegations in the complaint that are admitted as true. And it is only where those facts are sufficient to establish a legitimate claim that the plaintiff can prevail on a request for a default judgment. Because neither the admitted factual allegations, nor the supplemental documentation submitted in support of the Plaintiffs’ Request for Default Judgment, adequately demonstrate that the omission of the Subject Parcel from the 1949 Deed was the result of mutual mistake or scrivener’s error, the Plaintiffs are not entitled to a judgment reforming the 1949 Deed to include the Subject Parcel. Further, because the factual allegations and documentation do not establish that any of the Cummings Siblings or their father ever held any interests in the Subject Parcel or, if they did so, conveyed out all such interests, there is no basis for a declaration as to the Defendant heirs’ present interests in said Parcel.

Accordingly, the Plaintiffs’ Request for Entry of Default Judgment in their favor is, DENIED. Instead, judgment shall enter denying the Plaintiffs’ prayer for reformation of the 1949 Deed, and declaring that the Subject Parcel was not omitted from the 1949 Deed by mutual mistake or scrivener’s error. [Note 16] Additionally, the Plaintiffs’ claim for declaratory judgment respecting the interests of the Defendant heirs and subject parcel is DISMISSED.