LORRAINE POWELL and BARBARA WALTERS, v. AARON ASHLEY, A. ERROL JONES, and ANTHONY CLAYBORNE JONES, JR.

In 1979, Anthony Clayborne Jones, Jr., a/k/a Clayborne Jones, a/k/a Anthony C. Jones, Jr. ("Jones") recorded a deed at the Suffolk County Registry of Deeds ("Registry") that purported to be a conveyance, for consideration of $400.00, by Kenneth and Shirley Thompson, of the garage at 29 Vassar Street in the Dorchester neighborhood of Boston to Jones, who owned the neighboring property at 25 Vassar Street. The deed was dated December 12, 1973, but the notary public's commission noted on the deed expired in 1984, meaning that the earliest the notary could have actually witnessed the deed was 1977. [Note 1] Among the deed's other infirmities was that it purported to convey "the garage and the land it is located on" without the benefit of a metes and bounds description or reference to any plan subdividing the garage from the rest of the 29 Vassar Street parcel. The deed also conveyed the garage, if at all, subject to an existing mortgage. Furthermore, the grantors, the Thompsons, had lost their property at 29 Vassar Street, including the garage, when the mortgagee foreclosed on the mortgage in 1978, and the property was sold to a third party a week before the deed was recorded, so by the time the deed was recorded in 1979, the Thompsons, who never had more than an equity of redemption in the garage, did not own the garage. This deed, and Jones' subsequent occupation and use of the garage, is at the root of this dispute.

The plaintiffs, Lorraine Powell ("Powell") and Barbara Walters ("Walters"), who are the current record owners of the Locus, seek summary judgment declaring them to be the owners of the garage, free of Jones' claims of record ownership and his claims of ownership by adverse possession. Jones asserts by way of defense to plaintiffs' claims, that he has good record title, that in the alternative he has established title by adverse possession, and that these claims cannot be adjudicated without the necessary presence in this action of the other two defendants, his son A. Errol Jones and his godson, Aaron Ashley, neither of whom could be found by the plaintiffs and have never been served.

The plaintiffs commenced this action on April 8, 2003. Jones filed an answer on October 14, 2003, initially representing himself. While this litigation was ongoing, the plaintiffs commenced a summary process action against the same defendants in the Housing Court. Jones appeared, A. Errol Jones and Aaron Ashley were defaulted, and after a trial in which Jones participated, the Housing Court (Winik, J.) issued findings of fact and rulings of law and entered judgment in the plaintiffs' favor on August 23, 2007. See Powell v. Jones, No. 07-SP-/0/2/9/9/1 (Boston Hous. Ct. Feb. 23, 2007). On December 7, 2015, a status conference in the present action was held and the plaintiffs were ordered to either complete service on the other defendants or to voluntarily dismiss them. By February 29, 2016, the plaintiffs were to file and serve a motion for summary judgment, pursuant to Rule 56 and Land Court Rule 4, on (1) whether the prior adjudication in Housing Court has a preclusive effect on the litigation in Land Court, and (2) whether there is any legal impediment to the defendant's defensive claim of title by adverse possession. The plaintiffs filed a motion for summary judgment on February 29, 2016. With leave of court, Jones filed an opposition and a cross-motion for summary judgment on July 15, 2016. The summary judgment hearing was held on July 26, 2016, and the plaintiff was given until August 15, 2016 to file an opposition to the defendant's cross-motion, and the defendant until August 25, 2016 to file a reply to the plaintiff's opposition. On August 25, 2016, I took the matter under advisement.

For the reasons stated below, the plaintiffs' motion for summary judgment is ALLOWED, and the defendant's cross-motion for summary judgment is DENIED.

FACTS

The following material facts are found in the record for the purposes of Mass. R. Civ. P. 56, and are undisputed for the purposes of this motion:

PARTIES

1. The defendants are Jones, Anthony Errol Jones ("A. Errol Jones"), and Aaron Ashley. Jones currently resides at 25 Vassar Street, and was the first of his family to purchase the property at 25 Vassar Street.

2. A. Errol Jones, Jones' son, has not been served in this action. At the summary judgment hearing on July 26, 2016 the court was informed that A. Errol Jones died sometime in the past three to four years, although it was unclear why his father neglected to so inform the court of this at prior proceedings, and for purposes of the record he is considered to be a defendant who has simply not been served. [Note 2]

3. Aaron Ashley is Jones' godson. Aaron Ashley also has not been served with this action due to the plaintiffs' inability to locate him. [Note 3]

4. The plaintiffs are Lorraine Powell ("Powell") and Barbara Walters ("Walters"), the current owners of record of the property at 29 Vassar Street. They are mother (Walters) and daughter (Powell).

CHAIN OF OWNERSHIP TO 29 VASSAR STREET [Note 4]

5. The relevant conveyances of 29 Vassar Street begin with a deed dated December 29, 1971, with the Department of Housing and Urban Development ("HUD") conveying 29 Vassar Street, Dorchester ("Locus") to the Samms, a married couple, as tenants by the entirety. The deed was recorded in the Registry on February 4, 1972 in Book 8509, Page 733.

6. On January 28, 1972, the Samms granted a mortgage on the Locus to the Federal National Mortgage Association ("FNMA"). The mortgage was recorded in the Registry on February 4, 1972 in Book 8509, Pages 734-36.

7. On August 20, 1973, the Samms conveyed the Locus to a married couple, the Thompsons, as tenants by the entirety, in a deed subject to the FNMA mortgage. The deed was recorded in the Registry on August 28, 1973 in Book 8655, Page 501.

8. The Thompsons deeded the Locus' garage and the land it is located on to Jones of 25 Vassar Street. The deed was dated December 12, 1973; however, it was notarized by a notary whose commission expired on June 28, 1984. In Massachusetts notaries' commissions expire after seven years. Accordingly, the earliest the notary could have been commissioned, and therefore the earliest date the deed could have actually been signed, was June, 1977. The garage deed was not recorded until July 2, 1979, when it was recorded in the Registry in Book 9195, Page 654.

9. On January 6, 1977 and August 9, 1978, FNMA gave the Thompsons notice preliminary to foreclosure of the FNMA mortgage. These notices were recorded in the Registry on January 14, 1977 in Book 8927, Page 706 and on August 11, 1978 in Book 9084, Page 537, respectively.

10. The Land Court issued a Servicemembers' Act judgment preliminary to the foreclosure of the FNMA mortgage on October 3, 1978. The judgment was recorded in the Registry on January 18, 1979 in Book 9140, page 156.

11. FNMA made entry on November 9, 1978, completed the foreclosure, and conveyed the Locus to itself. The deed was recorded in the Registry on January 18, 1979 in Book 9140, Page 158-60.

12. On December 19, 1978, FNMA deeded the Locus to the Secretary of the Department of Housing and Urban Development ("HUD"). The deed was recorded in the Registry on January 22, 1979 in Book 9141, Page 144.

13. On June 27, 1979, HUD conveyed the Locus to Doreen Powell. The deed was recorded in the Registry on July 2, 1979 in Book 9156, Page 154.

14. On July 29, 2002, Doreen Powell conveyed the Locus to the plaintiffs. The deed was recorded in the Registry on July 30, 2002, in Book 29009, Page 331. The plaintiffs currently have two mortgages on the Locus, recorded respectively on July 30, 2002 in Book 29009, Page 332, and on April 17, 2007 in Book 41634, Page 110.

CHAIN OF OWNERSHIP TO 25 VASSAR STREET [Note 5]

15. The relevant conveyances of 25 Vassar Street begin on February 17, 1972, when Joseph R. Butler conveyed the property at 25 Vassar Street to Bernice Butler. The deed was recorded in in the Registry on February 17, 1972 in Book 8512, Page 402.

16. Bernice Butler conveyed 25 Vassar Street to Jones on April 13, 1976. The deed was recorded in the Registry on April 13, 1976 in Book 8861, Page 577.

17. On June 1, 1990, notwithstanding the previous conveyance to Jones, a deed professing to be from Bernice Butler, but signed by Jones, purported to convey 25 Vassar Street to A. Errol Jones and Aaron Ashley as joint tenants. [Note 6] The deed was recorded in the Registry on June 1, 1990 in Book 16307, Page 52. On June 5, 1990, a confirmatory deed corrected the conveyance to show that Jones conveyed 25 Vassar Street to A. Errol Jones and Aaron Ashley. [Note 7] The deed was recorded in the Registry on June 5, 1990 in Book 16312, Page 73.

18. Jones did not live at 25 Vassar Street until at least 1993, due to the repairs needed on the property. He resided at 205 West Newton Street, Boston, Massachusetts until the house was in better condition. [Note 8]

19. On September 25, 1997, A. Errol Jones purported to convey the land at 25 Vassar Street described in the deed from Bernice Butler to Jones, plus the garage and the land it is located on at 29 Vassar Street, to Vivian Jones and Aaron Ashley as joint tenants. [Note 9] The deed was recorded in the Registry on October 2, 1997 in Book 21786, Page 8.

20. On April 12, 2002, Denise Maxwell, under power of attorney for Vivian Jones, and Aaron Ashley conveyed 25 Vassar Street and the garage to Jones and Aaron Ashley. [Note 10] The deed was recorded in the Registry on July 17, 2003 in Book 32087, Pages 178-79.

CHAIN OF OWNERSHIP TO DISPUTED GARAGE

21. By deed purportedly dated December 12, 1973, the Thompsons conveyed the garage and the land the garage rests on to Jones. The notary's commission expired in 1984. As notaries have a commission of seven years, the deed could have been notarized no earlier than June, 1977. The deed was recorded in the Registry on July 2, 1979 in Book 9195, Page 654. [Note 11]

a. This conveyance could not have occurred in 1973. It is likely that the conveyance occurred in 1977 or 1978, and the date on the deed was changed to 1973 or that the deed was fraudulently back-dated when it was first drafted. If the true date was December 12, 1977, the Thompsons had already been served with notice preliminary to foreclosure, and were aware that whatever equitable interest they had to give Jones was about to be foreclosed upon. If the true date was December 12, 1978, FNMA had already received authorization to foreclose on the home, and the Thompsons no longer had any interest in the property to convey. By the time the deed was recorded on July 2, 1979, the Locus had already been conveyed to Doreen Powell. [Note 12]

b. Jones testified in his deposition that he had been paying off the garage, and the reason the deed was recorded in 1979 was because he had finished paying it off but for the remaining four hundred dollars. [Note 13] If this is true, then the deed improperly failed to disclose the full consideration for the conveyance, in violation of G. L. c. 183, §6.

c. As purportedly conveyed, the garage was not described as being on a separate parcel of land, nor was 29 Vassar Street submitted to the provisions of the condominium act, G. L. c. 183A; there was no plan recorded with the deed or referenced in the deed, and there is no metes and bounds property description of the parcel purportedly being conveyed.

22. On April 9, 1993, Jones purported to convey the garage and the land on which it stood to A. Errol Jones and Aaron Ashley as joint tenants. His address on the deed was still 205 W. Newton Street. The deed was recorded in the Registry on April 9, 1993 in Book 18147, Page 302.

23. On September 25, 1997, A. Errol Jones purported to convey the garage and associated land to Vivian Jones and Aaron Ashley as joint tenants. [Note 14] The deed was recorded in the Registry on October 2, 1997 in Book 21786, Page 8. Vivian Jones was Jones' mother. Vivian Jones never lived at 25 Vassar Street.

24. On April 12, 2002, Denise Maxwell, acting under a power of attorney for Vivian Jones, and Aaron Ashley, purported to convey the garage and the land on which it stood, as well as 25 Vassar Street, back to Jones and Aaron Ashley. The deed was recorded in the Registry on July 17, 2003 in Book 32087, Page 178.

25. A. Errol Jones, Vivian Jones, and Aaron Ashley never took possession of the garage. The garage was conveyed to them in lieu of Jones making a will or for some reason associated with tax assessment. [Note 15]

PRIOR LITIGATION

26. On April 8, 2003, the plaintiffs commenced the present action by filing a complaint in Land Court to resolve the title issue concerning the garage on the Locus.

27. On July 20, 2007, the plaintiffs commenced a summary process action against the same defendants as in the Land Court case, and served the defendants at 25 Vassar Street. The entry date for the summary process action in the Boston Housing court was July 30, 2007.

28. Jones filed an answer in the summary process action in which he referred to his 30 years of ownership, which would place his ownership as beginning in 1977.

29. After trial of the summary process action, on August 23, 2007, the Housing Court (Winik, J.) issued findings of fact and rulings of law, in which the court concluded that none of the defendants had acquired any right, interest, or title to any portion of the land or buildings at 29 Vassar Street, including the garage. The court ruled that the defendants were trespassers and awarded possession of the garage to the plaintiffs. [Note 16]

30. Judgment for possession was issued in favor of the plaintiffs on August 24, 2007.

31. The defendant filed a notice for appeal on August 28, 2007, and several motions (for stay of execution, transfer to Land Court, and a motion to waive appeal bond), and introduced his claim to ownership by adverse possession for the first time. The Housing Court (Muirhead, J.) denied Jones' motion to waive the appeal bond. [Note 17]

32. A single justice of the Appeals Court affirmed the order of the Housing Court denying Jones' request to waive the appeal bond on December 5, 2007. [Note 18]

33. On December 21, 2007, a single justice of the Supreme Judicial Court ("SJC") (Cowin, J.) denied without hearing Jones' petition to reverse the Housing Court decision denying a waiver of the appeal bond. Jones appealed this decision to the full SJC. [Note 19]

34. The plaintiffs levied on the execution issued December 28, 2007 and the defendants vacated the garage sometime in 2008.

35. In a decision dated June 4, 2008 and by a rescript issued July 9, 2008, the SJC affirmed the single justice decision denying Jones' petition on the basis that his petition failed to establish a basis for relief, and directed that final judgment in favor of the plaintiffs in the Housing Court action be affirmed. [Note 20]

DISCUSSION

"Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law." Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638 , 643-44 (2002); Mass. R. Civ. P. 56(c). "The moving party bears the burden of affirmatively showing that there is no triable issue of fact." Ng Bros. Constr., Inc. v. Cranney, supra, 436 Mass. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney Gen. v. Bailey, 386 Mass. 367 , 371 (1982), cert. denied, 459 U.S. 970. Whether a fact is material or not is determined by the substantive law, and "an adverse party may not manufacture disputes by conclusory factual assertions." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros. Constr., Inc. v. Cranney, supra, 436 Mass. at 648. When appropriate, summary judgment may be entered against the moving party and may be limited to certain issues. Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

The pending motion and cross-motion for summary judgment present the following issues: (1) whether the defendant had a valid claim of record title to the disputed garage, (2) whether the defendant's adverse possession claim can meet the required elements, and (3) whether the defendant's defenses and counterclaim of adverse possession are barred by the principles of res judicata, based on the prior Housing Court judgment. Although, upon a ruling that the defendant's defenses and counterclaim are barred by the doctrine of res judicata, it is unnecessary to address the remaining issues, all three of these issues are addressed herein.

RES JUDICATA

"Res judicata is the generic term for various doctrines by which a judgment in one action has a binding effect in another." Heacock v. Heacock, 402 Mass. 21 , 23 n.2 (1988). The doctrines of "issue preclusion" and "claim preclusion" are encompassed within the term "res judicata." Kobrin v. Bd. of Registration in Med., 444 Mass. 837 , 843 (2005); DeGiacomo, Trustee, v. City of Quincy, No. SJC-11940, slip op. at 7 (Mass. Nov. 15, 2016). The plaintiffs contend that Jones is barred from litigating his defense that he has good record title or that he has acquired title by adverse possession because these issues were litigated, or could have been litigated, in the Housing Court action.

The summary process action was filed in Housing Court after the present Land Court action, but was resolved by the court's final order prior to the resolution of the present case. "It is the general rule that when two different actions involving the same parties and the same claim are pending at the same time, the final judgment first rendered is entitled to res judicata effect in the second action, regardless of which was commenced first." Wright Machine Corp. v. Seaman- Andwall Corp., 364 Mass. 683 , 690 (1974). It remains then to assess whether the judgment issued in the summary process action meets the requirements for application of the doctrine of res judicata.

Issue Preclusion

Issue preclusion "prevents relitigation of an issue determined in an earlier action where the same issue arises in a later action, based on a different claim, between the same parties or their privies." Heacock v. Heacock, supra, 402 Mass. at 23 n.2. "In order to preclude a party from relitigating an issue the court must conclude that (1) there was a final judgment on the merits in the prior action, (2) the party against whom preclusion is asserted was a party to that final judgment, (3) the issue in the prior litigation was identical to the current issue, and (4) the issue in the prior litigation was essential to the judgment and actually litigated." Hauer v. Casper, 20 LCR 125 , 129 (2012) (Grossman, J.), quoting Kobrin v. Bd. of Registration in Medicine, supra, 444 Mass. at 843-44; see also Petrillo v. Zoning Bd. of Appeals of Cohasset, 65 Mass. App. Ct. 453 , 457 (2006).

Identity of the parties and of the issues. There is no dispute that the parties in both cases are identical. The same plaintiffs as in the present matter initiated the action against the same defendants in the Housing Court case. In the Housing Court case, the plaintiffs sought to recover possession of the garage on their property and in the context of that summary process action sought a judgment that they had good title and that the defendants did not have any legal or equitable right to occupy or use the garage. The Housing Court action resulted in findings of fact, rulings of law, and an order of judgment ruling that the plaintiffs owned the Locus and were entitled to possession, none of the defendants retained or acquired any right, title, or interest to any portion of the land or buildings at the Locus, and that the defendants were trespassers occupying the garage unlawfully. This judgment necessarily turned upon the issues of plaintiffs' title to the Locus, and defendants' lack of legal or equitable right to occupy or use the garage. See Powell v. Jones, No. 07-SP-/0/2/9/9/1, at 1 (Boston Hous. Ct. Aug. 23, 2007) (Winik, J.). These are the precise issues in the present action, in both plaintiffs' claim to clear the cloud on their title, and defendant's counterclaim for adverse possession. The second and third prerequisites for a finding of issue preclusion are therefore established.

Whether the issue was essential and was actually litigated. The appropriate question is whether the issue was presented to the adverse party with a full and fair opportunity to litigate the issue the first time, or whether other circumstances justify affording the party an opportunity to relitigate the issue. See Comm'r of the Dep't of Employment & Training v. Dugan, 428 Mass. 138 , 143 (1998); Green v. Brookline, 53 Mass. App. Ct. 120 , 123 (2001); Alba v. Raytheon Co., 441 Mass. 836 , 844 (2004). As long as the party who should have had an interest in litigating the issue in the first case had an ample opportunity to do so, that party may not relitigate the issue in a later case: "[t]he doctrine of res judicata precludes relitigating not only the issues raised in the prior action, but the issues that could have been raised." Brennan v. Harmon Law Offices, P.C., 81 Mass. App. Ct. 1125 (2012), citing Anderson v. Phoenix Inv. Counsel of Boston, Inc., 387 Mass. 444 , 449 (1982); Baby Furniture Warehouse Store, Inc. v. Muebles D&F Ltée, 75 Mass. App. Ct. 27 , 35 (2009). See also Bagley v. Moxley, 407 Mass. 633 , 638 (1990) ("We find it unnecessary…to determine whether [the] claim was actually presented in [the earlier case] because…we believe that this claim was capable of being raised in [the earlier case] and should have been raised in the context of that case.")

In the Housing Court action, the parties actually litigated the issue of plaintiffs' title to the Locus. That issue was essential to plaintiffs' claim for possession. Defendants therefore may not relitigate plaintiffs' title as a defense to plaintiffs' claim in the present action. The defendants also had the full and fair opportunity to litigate the issue of adverse possession as a defense to the plaintiffs' claim of entitlement to possession. The defendant had the opportunity to have his claim of adverse possession heard as a defense in the Housing Court, and neglected to raise the issue until he filed an appeal of the judgment. Although the defendant focused on the validity of his deed to the garage in the Housing Court case, he was obligated to raise in the Housing Court case every issue that could serve as a basis for his defense that he, and not the plaintiffs, had valid title to the garage. "[I]t was incumbent on the [defendant] to present to the court [in the earlier case] all of the legal theories on which [he] based [his] claim…The [defendant was] not entitled to pursue [his] claim…through piecemeal litigation, offering one legal theory to the court while holding others in reserve for future litigation should the first theory prove unsuccessful." Id. at 638. Like the plaintiffs in Bagley v. Moxley, supra, who impermissibly sought to litigate their claims of ownership of a private way one theory at a time in successive lawsuits, the defendant Jones in the present action has impermissibly sought to reserve different theories of his claim to the garage for successive lawsuits. See id.

"The rule of res judicata is designed to forestall a plaintiff from getting 'two bites at the apple.'" Anderson v. Phoenix Inv. Counsel of Boston, Inc., 387 Mass. 444 , 452 (1982). To the extent that Jones failed to fully litigate the adverse possession issue in Housing Court, the court "cannot countenance a plaintiff's action in failing to plead a theory in [one case] in the hope of later litigating the theory in [another case]." Id.

Finality of the Housing Court Decision. In order for res judicata to apply, the prior action must have resulted in a final judgment on the merits. Kobrin v. Bd. of Registration in Med., supra, at 843-44. The Housing Court conducted a full trial, and fully adjudicated the merits of the case. The court also denied the defendant's G. L. c. 239, §5 motion to waive the appeal bond. A single justice of the Appeals Court denied his appeal of that decision, a single justice of the SJC denied a petition under G. L. c. 211, §3, and the SJC denied his appeal of that decision as well. Thus, the Housing Court decision dated August 23, 2007, decided in the plaintiffs' favor, operates as a final judgment on the merits.

The four elements of issue preclusion are accordingly satisfied with regard to the issues of plaintiffs' title to the property and defendants' defense of adverse possession, and these issues are determinative of the claims here. As the Housing Court entered a final judgment in plaintiffs' action for possession, and found that plaintiffs did indeed have title to the Locus, plaintiffs are entitled to their claim in the present action for a declaration of the same. Jones is likewise precluded from asserting adverse possession either as a defense to plaintiffs' claim or as his own counterclaim.

Even without the binding effect of my determination that the defendant's defenses and counterclaim are barred by principles of res judicata, Jones has no record title to the Locus, as Judge Winik has already found, and on the summary judgment record, he is not entitled, as a matter of law, to a judgment of adverse possession.

RECORD TITLE CLAIM

Assuming the validity of the unrecorded 1973 deed from the Thompsons to Jones, since the deed remained unrecorded until 1979, prior to recording it remained valid only as between the Thompsons and Jones. "A conveyance of an estate in fee simple…shall not be valid as against any person, except the grantor…his heirs and devisees and persons having actual notice of it, unless it, or an office copy…is recorded in the registry of deeds…" G. L. c. 183, §4. "The recording statute, G. L. (Ter. Ed.) c. 183, §4, does not affect the validity upon delivery of an unrecorded deed as between the parties to it or as to persons with notice." Aronian v. Asadoorian, 315 Mass. 274 , 276 (1943). There is no suggestion in the record that the plaintiffs or their predecessors had notice of the 1973 deed at any time before it was recorded. Therefore, it was not effective except as between the Thompsons and Jones. It was, in any event, subject to the Thompsons' mortgage to FNMA. Due to the mortgage on the property, the grantors were not able to grant title to the garage; they could only convey what they had, an equity of redemption. When the mortgage was foreclosed in 1978, the Thompsons' equity of redemption was wiped out and the defendant as well lost all claim of record title to the garage. "The equity of redemption is barred as soon as the property is knocked down at the foreclosure sale." Outpost Café, Inc. v. Fairhaven Sav. Bank, 3 Mass. App. Ct. 1 , 7 (1975) (omitting ellipses). As the foreclosure sale closed on November 8, 1978, and the disputed deed was not recorded until July 1979, the defendant never had title or even a right of redemption and has no record title to the garage.

ADVERSE POSSESSION

The defendant's sole remaining claim to ownership of the disputed garage is based on his assertion that he has acquired title by adverse possession. "Title by adverse possession can be acquired by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years." Ryan v. Stavros, 348 Mass. 251 , 262 (1964); Holmes v. Johnson, 324 Mass. 450 , 453 (1949). "The required twenty-year period for adverse possession can be reached by tacking a predecessor's period of adverse possession, if privity of estate exists between the Plaintiff and the [previous] adverse possessors." Nauset Road, LLC. v. Chaves, 18 LCR 438 , 440 (2010) (Registration Case No. 99 REG 43314) (Trombly, J.), citing Luce v. Parsons, 192 Mass. 8 , 12 (1906).

"The burden of proving adverse possession is on the person claiming title thereby and 'extends to all of the necessary elements of such possession.'" Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003), quoting in part Mendonca v. Cities Service Oil Co. of Pa., 354 Mass. 323 , 326 (1968). The "necessary elements of such possession include[] the obligation to show that it was actual, open, continuous, and under a claim of right or title." See Mendonca v. Cities Service Oil Co. of Pa., supra, 354 Mass. at 326, quoting Holmes v. Johnson, 324 Mass. 450 , 453 (1949). "The acts of the wrongdoer are to be construed strictly and the true owner is not to be barred of his right except upon clear proof." Tinker v. Bessel, 213 Mass. 74 , 76 (1912), quoting Cook v. Babcock, 65 Mass. 206 (1853). "If any of the elements remains unproven or left in doubt, the claimant cannot prevail." Sea Pines Condominium III Ass'n v. Steffens, 61 Mass. App. Ct. 838 , 847 (2004). "One claiming a title by adverse possession…[o]nly has to prove his case by a fair preponderance of the evidence." Inhabitants of Cohasset v. Moors, 204 Mass. 173 , 178-79 (1910).

The requirement that the use be under a claim of right simply means that the occupancy must be "with an intention to appropriate and hold the same as owner, and to the exclusion, rightfully or wrongfully, of every one else." Lawrence v. Town of Concord, supra, 439 Mass. at 421, n. 5, quoting Bond v. O'Gara, 177 Mass. 139 , 144 (1900). "[C]ourts must look to the physical facts of entry and possession as evidence of an intent to occupy and to hold property as of right." Kendall v. Salvaggio, 413 Mass. 619 , 624 (1992).

"A judge must look to the nature of the occupancy in relation to the character of the land." Id. "Acts of possession which are 'few, intermittent and equivocal' do not constitute adverse possession." Id. at 624, quoting in part Parker v. Parker, 83 Mass. 245 , 247 (1861). "A person claiming title by adverse possession need not personally occupy the land for twenty years. He may rely on the possession of his tenants, whose possession is his own." Sanford-Harris v. Horsley, 17 LCR 483 , 485 (2009) (Piper, J.). If, however, the adverse possessor sells or takes steps to sell or convey the property and there is "evidence in the record to support a conclusion that [the adverse possessor] was aware that the boundaries of the property described in the listing agreement [or the deed, in the present case] included the area encompassed by [his] claim for adverse possession," the adverse possessor can be described as "having disclaimed…[his] claim to the area [he] possessed adversely." Everett v. Tavares, No. 10-P-1302, 2011 Mass. App. Unpub. LEXIS 584, at *2 (2011).

In the present action, Jones began running the twenty-year clock on his adverse possession claim no earlier than 1979, upon the recording of the deed purporting to convey the garage from the Thompsons to Jones. Prior to that, and in particular prior to the foreclosure on the mortgage, the grantors of the garage, the Thompsons, held their interest subject to the mortgage on the property when the garage was purportedly conveyed to the defendant, and "neither the mortgagor nor his grantee holds adversely to the mortgagee, until he has distinctly disclaimed holding under him and asserted title in himself." Ramos v. Mello, 328 Mass. 320 , 322 (1952). Once Jones began occupying the garage in 1979, the possession was open, and the owners of the Locus were or should have been aware of Jones claiming the garage as his own, as he kept a padlock on the door and stored various items in the garage.

Beginning in July, 1979, and until the conveyance of the Locus to the plaintiffs in 2002, the record owner of the Locus was Doreen Powell. Notwithstanding Doreen Powell's record ownership of the Locus, including the garage, Jones purported to convey ownership of the garage to his son and godson prior to the ripening of his adverse possession claim. He conveyed 25 Vassar Street to A. Errol Jones and to Aaron Ashley on June 5, 1990, and by a deed dated April 9, 1993, Jones purported to convey the garage and the land on which it stood to his son and godson. As the adverse possession claim began to run no earlier than 1979, a full twenty years had not passed and therefore Jones had no interest in the garage to convey. More importantly, by attempting to convey the garage to his son and godson, Jones was disclaiming any further claim of his own to the garage. If there is "evidence in the record to support a conclusion that [the adverse possessor involved in a conveyance] was aware that the boundaries of the property described in the [conveyance] included the area encompassed by [his] claim for adverse possession," the adverse possessor can be described as "having disclaimed…[his] claim to the area [he] possessed adversely." Everett v. Tavares, supra, at *2. Although Jones may have continued to use the garage after 1993, by attempting to deed the garage to his son and godson, he was demonstrating that he did not intend to hold the garage as owner. See Lawrence v. Town of Concord, supra, 439 Mass. at 421, n. 5. By conveying the garage, Jones demonstrated that he no longer owned or claimed ownership of the garage, and "[w]henever one quits the possession, the seizin of the true owner is restored, and an entry afterwards by another, wrongfully, constitutes a new disseizin." Melvin v. Proprietors of Locks & Canals, 5 Met. 15 , 32 (Mass. 1842). Each time Jones or his son or godson attempted to convey the garage, they restarted the statute of limitations on adverse possession.

The adverse possession claim would still be valid by utilizing the concept of tacking, despite the conveyances, since Jones and his son and godson would have been in privity with each other, if the son and godson had taken possession and used the garage as if they intended to act as the true owner of the garage. However, there is no evidence or even suggestion in the record that either of the 1993 grantees, or the later grantee Vivian Jones, or anyone other than Jones, ever used the garage, and therefore Jones has failed to establish continuous or uninterrupted possession for a sufficient period. "An adverse possession claim requires that possession be 'actual' in nature, meaning that the possessor must actually be utilizing the land that he or she is claiming." Chew v. Kwiatkowski, 19 LCR 88 , 91 (2011) (Trombly, J.). Although Jones may have been using the garage during the entire twenty years, by conveying the garage to his son and godson he was disclaiming his adverse interest in the property, and there is no evidence that the son or godson utilized the garage during the time they claimed to own it. As none of the other grantees used the garage, Jones cannot tack to establish the twenty-year period. See Bouchie v. Arbeene, 1 LCR 61 , 62 (1993) (Cauchon, J.).

A. Errol Jones conveyed the garage and associated land on September 25, 1997 to Vivian Jones and Aaron Ashley. This action again restarted the adverse possession time period, as again, neither Vivian Jones nor Aaron Ashley ever used the garage. See id.

Denise Maxwell, under power of attorney for Vivian Jones, and Aaron Ashley conveyed 25 Vassar Street and purported to include the garage and associated land, to Jones on April 12, 2002. Once again, this action restarted the clock on the adverse possession claim. The filing of the complaint in Land Court in 2003 was the final interruption of the claim.

Based on the undisputed evidence in the record, the defendants did not occupy the disputed garage "without the permission of the true owner, continuously for twenty years, exclusively, openly, notoriously, and adversely to the true owner, thereby giving notice to the world of [their] possession." Lawrence v. Town of Concord, supra, 439 Mass. at 425. The defendant's claim for adverse possession fails.

CONCLUSION

For the foregoing reasons, the plaintiffs' motion for summary judgment is ALLOWED, and the defendant's motion for summary judgment is DENIED. Pursuant to Mass. R. Civ. P. 56, summary judgment is rendered for the plaintiffs, and against the defendant Anthony Clayborne Jones, Jr.

Judgment will enter accordingly.