ANTHONY CORRENTI and LOUIS CORRENTI v. VITA M. CALLARI f/k/a VITA CORRENTI.

Whether "Signed, Sealed, Delivered" [Note 1] can be its theme song is the question posed by this internecine sibling dispute over title to the home occupied by the same family for three generations. The dispute is between two older brothers and their younger sister over the ownership of property located at 126 Leyden Street in East Boston ("East Boston Property"). The three siblings each received a remainder interest in this property from their maternal grandfather, Luigi Maestri [Note 2] ("Luigi"), subject to a life estate to Luigi's only daughter and the parties' mother, Rosina Correnti ("Rosina"). Plaintiffs Anthony Correnti ("Anthony") and Louis Correnti ("Louis") claim title to this property by virtue of an executed, but unrecorded deed, and alternatively by ouster. Their sister, defendant Vita Callari ("Vita") claims that she did not convey her remainder interest in the East Boston Property, and that the deed was not signed by her.

For the reasons that follow, I find and rule that Vita signed the deed relinquishing her remainder interest in the East Boston Property to her brothers on January 4, 1982. While this deed was never recorded, I find that the deed was delivered to the plaintiffs and that the plaintiffs accepted the deed through their conduct. Additionally, I find and rule that the plaintiffs have established their claim of ouster.

The plaintiffs filed the present action on September 16, 2016 seeking to quiet title to the East Boston Property, and also making an alternative claim of ouster. On April 24, 2018, I denied plaintiffs' motion for summary judgment, finding a dispute of material fact with respect to the deed alleged to have conveyed the defendant's interest to the plaintiffs. A trial was held before me on November 28, 2018 and November 29, 2018, at which five witnesses testified and 42 exhibits were admitted into evidence. Following the submission of post-trial briefs, proposed findings of fact and rulings of law, and closing arguments, I took the matter under advisement on April 26, 2019.

FACTS

Based on the facts stipulated by the parties, the documentary and testimonial evidence admitted at trial, and my assessment as the trier of fact of the credibility, weight, and inferences reasonably to be drawn from the evidence admitted at trial, I make factual findings as follows:

1. Luigi, now deceased, the maternal grandfather of the present parties, owned a "triple-decker," three-family dwelling located at 126 Leyden Street in East Boston; an undeveloped 1 ¼ acre property located on Ballard Street in Tewksbury ("Ballard Street Property"); and an undeveloped 10-acre parcel of land ("10-Acre Property") abutting the Ballard Street Property in Tewksbury. [Note 3]

2. Luigi's daughter Rosina lived in the East Boston Property with her four brothers, father and mother, and later resided there with her husband, her two sons, Anthony and Louis, and her daughter, Vita. [Note 4]

3. Luigi conveyed the Ballard Street Property to Rosina by deed recorded with the Middlesex North District Registry of Deeds ("Middlesex North Registry") on March 15, 1949 in Book 1111, Page 237. [Note 5]

4. The next year, on May 5, 1950, Luigi executed a Last Will and Testament (the "Will") leaving a life estate in the 10-Acre Property to his son, Salvatore, with the remainder to Salvatore's issue. The Will further provided that if Salvatore should die without issue, the remainder was to go to Luigi's children then living, in equal shares. [Note 6]

5. Salvatore Maestri died in 1992 without any children. Salvatore's remaining three brothers, Fausto, Armando, and Massimiliano predeceased him, leaving Rosina as the only other surviving child of Luigi. Upon Salvatore's death without issue in 1992, Rosina's remainder interest in the 10-Acre Property vested. [Note 7]

6. Luigi's Will granted a life estate in the East Boston Property to Rosina, with the "remainder to go to her issues [sic] surviving her." [Note 8]

7. On November 30, 1981, Rosina and Louis met with Attorney John Maiona at his office. Rosina executed a deed conveying all right, title, and interest in her life estate in the East Boston Property to her sons Louis and Anthony. This deed was left unrecorded for almost nine years. On June 27, 1990, it was recorded with the Suffolk County Registry of Deeds ("Suffolk Registry") in Book 16348, Page, 263, after the Tewksbury Housing Authority sent a letter questioning Rosina's Tewksbury residency, having discovered her ownership of the East Boston Property. [Note 9]

8. Also on November 30, 1981 at Attorney Maiona's office, Rosina signed a deed conveying the Ballard Street Property to Vita. This deed was not recorded immediately. It was recorded with the Middlesex North Registry on January 6, 1982, in Book 2517, Page 410. [Note 10]

9. "[A]t that very moment in that very office," and in Louis's presence, Rosina called Anthony to inform him that she had executed these deeds and that the "transfer [of the East Boston Property to the plaintiffs and the Ballard Street Property to Vita] was completed." [Note 11]

10. Rosina delayed the recording of the deed for the East Boston Property to Anthony and Louis in order to claim a $500 "widows'" tax abatement from the City of Boston, even though she no longer had an ownership interest in the property. At the same time she claimed to be a resident and owner of the East Boston Property, Rosina claimed to be a resident of Tewksbury for the purpose of obtaining subsidized housing through the Tewksbury Housing Authority. [Note 12]

11. I find, based on the evidence at trial, and for reasons discussed below, that on January 4, 1982, Vita executed a deed relinquishing her remainder interest in the East Boston Property to her brothers Louis and Anthony in exchange for her mother's conveyance to her of the Ballard Street Property in Tewksbury. The original of this deed was never recorded with the Suffolk Registry, and was apparently lost. [Note 13]

12. On June 11, 1984, Rosina executed a Last Will and Testament ("Rosina's Will") naming Anthony as her executor. Rosina's Will provided in relevant part:

"During my lifetime, I have provided for my daughter, VITA CORRENTI, wherein I transferred to her by deed title to a parcel of land located on Ballard Street in Tewksbury. In consideration of this gift to my daughter, VITA CORRENTI, she has relinquished all right, title and interest to property located at 126 Leyden Street, East Boston, Massachusetts. Therefore, no provision is made for her under the terms of this Will.

Furthermore, during my lifetime I have provided a deed to property located at 126 Leyden Street, East Boston, Massachusetts, by way of gift to my two (2) sons, ANTHONY CORRENTI and LOUIS CORRENTI wherein I transferred all right, title and interest that I have to a life estate in said property." [Note 14]

13. On May 2, 1985, Vita conveyed the Ballard Street Property back to Rosina after Vita's husband, Paul Callari ("Paul"), who had no medical insurance, was diagnosed with leukemia, in an effort to hide this asset, so as to qualify for Medicaid benefits. This deed was recorded with the Middlesex North Registry on August 12, 1985, in Book 3135, Page 35. [Note 15]

14. After Paul became "healthy enough," Rosina conveyed the Ballard Street Property back to Vita and Paul on December 1, 1987. This deed was recorded with the Middlesex North Registry on December 18, 1987, in Book 4356, Page 69. [Note 16] The deed was notarized by John Sylvester.

15. Rosina moved out of the East Boston Property in 1988, and moved in with Vita and Paul at the Ballard Street Property in order to establish her residency in Tewksbury for the purpose of obtaining subsidized housing through the Tewksbury Housing Authority. [Note 17]

16. Rosina died in 1996, with her husband having predeceased her in 1979. At the time of Rosina's death, she had three living children, Anthony, Louis, and Vita. [Note 18]

17. Anthony moved out of the East Boston Property in 1974, when he was approximately 25 years old; Louis moved out in 1980 or 1981; Rosina moved out in 1988; and Vita moved out sometime before Rosina. [Note 19]

18. Anthony first took over the general maintenance and upkeep of the house in 1981 with some help from his brother, Louis. Anthony cut the grass and took out the trash. [Note 20]

19. After Rosina moved out in 1988, Louis and Anthony (but mostly Anthony) maintained the East Boston Property and managed the rental of the three units at the Property. [Note 21]

20. After Rosina moved out of the East Boston Property in 1988, Anthony performed significant improvements and repairs to the East Boston Property, including the removal of lead paint, removal and replacement of lead water pipes, installation of new windows, replacement of the roof, and replacement of the heating system. [Note 22]

21. Anthony has claimed the East Boston Property on his joint tax returns and paid the real estate taxes on this property since at least 2000. Neither Louis nor Vita paid the real estate taxes nor have they ever claimed the East Boston Property on their own tax returns. [Note 23]

22. Rosina continued to receive the rental income after she moved out of the East Boston Property in 1988. After Rosina's death in 1996, Anthony began collecting the rental income from the East Boston Property and reported this income on his joint tax returns. [Note 24]

23. Vita never received a portion of the rental income proceeds nor did she inquire about the rental income generated from the East Boston Property. At no time from 1981 on did Vita inquire about insurance, repairs or other expenses or obligations of operating the East Boston Property, nor did she take any role in the upkeep or maintenance of the property. [Note 25]

24. Although no formal agreement was entered into by the plaintiffs, both Anthony and Louis jointly paid for the eviction of tenants when necessary and attended court hearings for these eviction proceedings. [Note 26]

25. Anthony has made approximately $98,000 in improvements on the property, paid for solely by him from his personal account. [Note 27]

26. It is undisputed between the parties that the deed transferring Vita's remainder interest in the East Boston Property to the plaintiffs was never recorded. The original of the deed has never been found. The photocopy of the deed in evidence in this case was found by the plaintiffs in Rosina's effects years after her death and after the commencement of the present action. The photocopy includes Rosina's original handwritten notes in the lower left-hand corner of the document.

27. I find that while the deed conveying Vita's remainder interest in the East Boston Property was neither recorded, nor was it physically handed to the plaintiffs, it was nonetheless delivered to them and accepted by them. They understood from the series of transactions effected by their mother, and by what she informed them of with respect to the East Boston Property and the Ballard Street Property, that Vita had been given the Ballard Street Property, and that they had been given full ownership of the East Boston Property. This series of communications with their mother, combined with Vita's conduct demonstrating knowledge of and acquiescence to these transfers, constituted the delivery of the deed that Vita signed on or about January 4, 1982. By their subsequent conduct in maintaining, improving, and operating the East Boston Property without Vita's participation, Anthony and Louis accepted the delivery of the deed. By continuing their open and notorious, actual, exclusive occupation of the East Boston Property for at least 28 years, they have also ousted Vita from the property.

28. Anthony and Louis first learned from Michael Hayes, their attorney retained to sell the East Boston Property, that the January 4, 1982 deed conveying Vita's remainder interest in the East Boston Property to the plaintiffs was not recorded, after receiving an offer to purchase and conducting a title search. [Note 28]

29. I credit Anthony's testimony that after moving out of the East Boston Property in 1974, he continued to maintain the property by visiting the property approximately once each week to throw out the trash and cut the grass. [Note 29] I find that from 1974 up to and including 1981, the maintenance and repairs performed by the plaintiffs on the East Boston Property were consistent with their remainder interest. From 1981 or early 1982, (when the plaintiffs first learned Vita executed a deed relinquishing her remainder interest in the East Boston Property) up to the present day, Anthony continued to cut the grass and take out the trash. [Note 30] However, in 1988, the plaintiffs took on a more significant role in maintaining the East Boston Property including the removal of lead paint, removal and replacement of lead water pipes, installation of new windows, replacement of the roof, and replacement of the heating system. [Note 31] I find that this behavior beginning in 1988 was consistent with their belief that they were the sole owners of the East Boston property as tenants in common and exclusive of the defendant.

DISCUSSION

I. THE PLAINTIFFS HAVE DEMONSTRATED THAT THEY HOLD TITLE TO THE EAST BOSTON PROPERTY.

The Signature

This court must first determine whether the deed relinquishing Vita's remainder interest in the East Boston Property, although not recorded, was in fact signed by the defendant. The deed, dated January 4, 1982, exhibits the signature of "Vita Correnti" and the signature is acknowledged by John Sylvester, a notary public. The acknowledgment of a signature on a deed by a notary public creates a presumption that the deed was properly signed in accordance with legal requirements, and this presumption must be overcome by clear and convincing evidence. Keville v. McKeever, 42 Mass. App. Ct. 140 , 157 (1997).

At trial, Eileen Page, MA, MGA, plaintiffs' expert, testified that she examined exemplars of the defendant's signature on several documents, including original inked checks and an automobile loan dated January 12, 1981, all signed by "Vita Callari," in order to make a determination as to the authenticity of the signature on the copy of the deed dated January 4, 1982. [Note 32] Ms. Page concluded that the deed was in fact signed by Vita, based on a comparison between known and questioned signatures of Vita analyzing her writing behavior patterns, including as assessment of such factors as "1. Style variations in the capital and lower case letter formations. 2. Consistency in writing behavior patterns and legibility. 3. Baseline placement. 4. Letter size and proportion to other letters. 5. Overall rhythm, slant, and spacing of various individual letters and words. 6. Unique style idiosyncrasies[.]" [Note 33]

After viewing Ms. Page's report and its attached exhibits as well as other documents listed in the report, defendant's expert, Nancy McCann criticized the methodology used by Ms. Page, opining that she relied on an insufficient number of exemplars of Vita's signature contemporaneous to the time the deed was alleged to have been executed. [Note 34] Ms. McCann testified that Ms. Page's reliance on a limited number of exemplars of poor quality should have been factored into Ms. Page's assessment of authenticity. [Note 35] She did not herself opine that Vita did not sign the deed. Instead, Ms. McCann stated that she had an "inconclusive" opinion as to whether Vita signed the deed, and opined that Ms. Page should likewise not have been able to reach any conclusion with respect to the validity of the signature. [Note 36] "Faced with a battle of experts, the fact finder may accept one reasonable opinion and reject the other." Delta Materials Corp. v. Bagdon, 59 Mass. App. Ct. 439 , 441 (2003), quoting Fechtor v. Fechtor, 26 Mass. App. Ct. 859 , 863 (1989).

I found Ms. Page more persuasive than Ms. McCann, and credit Ms. Page's testimony and opinion. Ultimately, however, I rely primarily neither on Ms. Page's opinion that the signature on the copy of the deed in evidence was in fact Vita's, nor Ms. McCann's opinion that there was an insufficient number of exemplars from which to draw a valid conclusion as to the validity of the signature. In concluding and finding, as I do, that the signature on the deed dated January 4, 1982 is Vita's, I rely on Vita's own testimony, which I find to be an admission that it is indeed her signature on the deed and that she signed the deed, and not some other document from which her signature was transferred to the deed.

The transcript does not adequately convey the effect of Vita's testimony, which was to convey her admission that the signature is hers. Her attorney, clearly seeking at the very outset of her direct testimony, an explicit, outright denial that the signature was hers, asked Vita, "Is that your signature?" Instead of the outright, simple denial he must have been expecting, Vita's equivocating response was, "[n]o. It is – I'm going to say it may be my signature, but I did not sign this." [Note 37] Her attorney, appearing to this observer to be visibly stunned by her answer, attempted damage control with an improper, but un-objected-to leading question: "In other words, it's not your signature that you signed; correct?" The answer did not help: "It may be the signature that – it may be my signature, but I did not sign this. I want to make that clear." [Note 38] When asked by her attorney what she meant by that statement "so that we're clear for the record," she repeated, "…it may be my signature, but I did not sign this." [Note 39] When her attorney, still trying to lead her away from this admission, asked another leading question suggesting otherwise: "In other words, someone else could have signed your name, --" she reiterated instead that it was her signature, but suggested that someone had, "superimposed it, whatever." [Note 40] This suggestion that Vita's genuine signature had been superimposed on the January 4, 1982 deed was inconsistent with the defendant's theory of the case as outlined to the court by the defendant throughout the trial. [Note 41]

More importantly, the defendant never offered any evidence in support of such a theory, other than Vita's unsupported suggestion that her signature had been superimposed on the deed. The only evidence offered by the defendant in this regard is the subsequent forgery conviction of the notary public, Attorney John Sylvester, in an unrelated matter. [Note 42] I do not accept Attorney Sylvester's conviction for forgery of tax returns in 1987 and his subsequent resignation from the bar in the face of disbarment proceedings as evidence that his signature on the acknowledgment of the January 4, 1982 deed was part of a forgery scheme. Contrast, Braxton v. City of Boston, 26 LCR 119 (2018) (Vhay, J.) (forgery of deed proved by proof of photocopying or "Photoshopping" of genuine signature and notary acknowledgment onto forged deed from another recorded document).

Furthermore, Vita, in addition to her admission that the signature on the deed was hers, offered what can only be characterized as equivocations when asked about the notarization of her signature on the deed. She denied signing the deed in front of the notary, Attorney John Sylvester, and denied knowing him, but also testified that she did not remember him, and acknowledged that he notarized her mother's signature on the 1987 deed re-conveying the Ballard Street Property to her and her husband Paul, a deed the validity of which she does not dispute. [Note 43]

The Deed

The parties do not dispute that the deed was not recorded with the Suffolk Registry nor do they dispute that the copy of the deed was not physically delivered to the plaintiffs (more accurately, discovered in their mother's effects) until after the commencement of this litigation in 2016. The question now is whether the deed signed by Vita in 1982 was delivered and accepted by the plaintiffs either expressly, or implicitly, based on their conduct.

When a deed has been properly recorded, an office copy of a lost deed is competent secondary evidence thereof, in favor of the grantee. Perkins v. Richardson, 93 Mass. 538 (1866). Even then, copies of deeds generally are only valid if they have been properly recorded and then issued by the Registry as office copies. Scanlan v. Wright, 30 Mass. 523 , 526 (1833). Where an original deed is lost or mislaid, a copy from the registry is admissible in evidence. Hathaway v. Spooner, 26 Mass. 23 , 26 (1829). Here, because the deed was never recorded, the copy of the executed, but unrecorded deed must be proved to be valid other than by proof of recording. Nevertheless, a conveyance even by an unrecorded deed, and by proof of that deed and its delivery and acceptance, remains effective as between the parties to the conveyance and as to those with knowledge of the conveyance. "Recording of [a] deed [is] not required to complete [a] conveyance. The deed, being duly executed and delivered, [is] 'sufficient, without any other act or ceremony, to convey [the property].'" Solans v. McMenimen, 80 Mass. App. Ct. 178 , 181 (2011), quoting G.L. c. 183, § 1. "It is well settled that a deed duly signed, sealed and delivered is sufficient as between the original parties to it to transfer the whole title of the grantor to the grantee, although the instrument is not acknowledged or recorded." Cooper v. Monroe, 237 Mass. 192 , 198 (1921); Aronian v. Asadoorian, 315 Mass. 274 , 276 (1943) ("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.")

The Delivery

Having found that the January 4, 1982 deed was in fact signed by Vita, the question then becomes whether it was delivered to the plaintiffs and whether they accepted the deed either expressly, or implicitly, based on their conduct. In order to effect a conveyance of property, a deed must be delivered by the grantor and accepted by the grantee. Juchno v. Toton, 338 Mass. 309 , 311 (1959); Hawkes v. Pike, 105 Mass. 560 , 562 (1870). "[D]elivery of a deed is essential to its validity and a deed becomes effective only at the time of its delivery." Town of Lexington v. Ryder, 296 Mass. 566 , 568 (1937). "The factors essential to delivery are that the grantor intend the deed to effect a present transfer of the property and that the grantee by his conduct assent to the conveyance. Whether there has been a delivery of a deed is ordinarily a question of fact." Frankowich v. Szczuka, 321 Mass. 75 , 77 (1947) (internal citations omitted).

Particularly important here, "it is settled that 'manual delivery of a recorded deed is not required to work a transfer, and that acts of the grantee when coupled with a purpose of the grantor to treat the deed as delivered are sufficient to pass the title.'" Bianco v. Lay, 313 Mass. 444 , 448 (1943), quoting Sullivan v. Hudgins, 303 Mass. 442 , 447 (1939). The date of a deed is prima facie evidence of the date of its delivery. Ashkenazy v. R.M. Bradley & Co., 328 Mass. 242 , 247 (1952).

At the November 30, 1981 meeting, Rosina, Louis, and Attorney John Maiona were present when Rosina executed a deed relinquishing her life estate in the East Boston Property to Anthony and Louis. [Note 44] That deed was not recorded with the Suffolk Registry until June 27, 1990 for the purpose of retaining Rosina's $500.00 tax abatement from the City of Boston. [Note 45] At that same meeting, Rosina executed a deed conveying the Ballard Street Property to Vita. [Note 46] This was known as and referred to as the "exchange." [Note 47] The plaintiffs first learned of this "exchange" in 1981 when, in Louis's presence, Rosina called Anthony "at that very moment in that very office" after executing these deeds and informed him that the East Boston Property belonged to the plaintiffs. [Note 48] An important part of this "exchange" was Vita's signature on the deed relinquishing her remainder interest in the East Boston Property. Although Louis testified that he became aware of Vita's signing of the deed on November 30, 1981, the same date the two other deeds were signed, that deed is in fact dated January 4, 1982, more than a month later. Although it is possible the deed was signed, despite the date, on November 30, 1981, I do not find this to be the case, as Louis did not testify that Vita accompanied Rosina and him to John Maiona's office, where the other two deeds were executed. Furthermore, the deed signed by Vita was not notarized by the same notary public who notarized the other two deeds. [Note 49] Rosina, in her handwritten notes, is also unclear about the date Vita signed the deed: "Vita signed the release of house at 126 Leyden St. to Anthony and Louis. In John Maiona's office in the presence of a Notary 11/30/81[.]" [Note 50] By separating these two clauses into two sentences, Rosina leaves unclear whether Vita was at John Maiona's office on November 30, 1981. I find that she was not, but that rather, she signed the deed elsewhere, on or about January 4, 1982.

Louis understood the execution of Vita's deed to the East Boston Property to mean that "[s]he was transferring her interest, her ownership in the Leyden Street property." [Note 51] According to Rosina's handwritten notes, and according to Rosina's Will, the Ballard Street Property was deeded to Vita in exchange for her giving up her remainder interest in the East Boston Property so that Rosina could treat each of her children equally with respect to real estate. [Note 52]

Further evidence of the quid pro quo represented by this exchange of property interests among Rosina and her children was the timing of the recording of the deed for the Ballard Street Property. As Rosina stated in her Will, she intended that Vita would get the Ballard Street Property, but would have to give up her interest in the East Boston Property in return. Vita signed the deed relinquishing her interest in the East Boston Property on January 4, 1982; the deed conveying the Ballard Street Property to Vita, executed on November 30, 1981, was recorded on January 6, 1982. I find that the recording of the deed of the Ballard Street Property from Rosina to Vita two days after Vita signed the deed relinquishing her interest in the East Boston Property was no coincidence. Rosina wanted to insure her daughter's compliance with her wishes in effecting the exchange of properties among her children.

I find that Vita's subsequent conduct constituted delivery and an acknowledgment of her delivery of the deed to her brothers. A few years after Rosina's death in 1996, Vita went by the East Boston Property, saw her brother Anthony taking out the trash, and said to him, "you still own the house?" [Note 53] I find Anthony's testimony regarding this conversation to be credible. Even Vita's version of this conversation is not inconsistent with my finding that she acknowledged her brothers' ownership. She recalls going by the house, finding Anthony taking out the trash, and saying, "Why are you taking the garbage out?" [Note 54] This is consistent with my finding that she understood that she no longer had an interest in the property, and is consistent with Anthony's testimony, which I find to be credible, that she was surprised to see that he still was maintaining, and thus owned, the house.

I find that delivery of the East Boston Property deed to the plaintiffs dated January 4, 1982 occurred, evidenced by the circumstances surrounding the exchange of the Ballard Street Property to Vita; the simultaneous conveyance of the East Boston Property to the plaintiffs by Rosina; and the conveyance about one month later by Vita to her brothers. These conveyances, and the conduct of the parties, show Vita's then intent to convey her right, title, and interest in the East Boston Property to the plaintiffs in exchange for obtaining Rosina's right, title, and interest in the Ballard Street Property.

The Acceptance

The final prong in this analysis considers whether the plaintiffs accepted the deed to the East Boston Property. Where there was no physical document to accept, the plaintiffs may demonstrate their acceptance of the deed by their conduct. Juchno v. Toton, supra, 338 Mass. at 311. Acceptance requires knowledge of a delivery and can be actual or "may be implied from the grantee's conduct . . . But there can be acceptance by conduct only if the grantee had knowledge of the conveyance at the time he acted." Id. Delivery of a deed is only complete upon acceptance by the grantee. Hawkes v. Pike, supra, 105 Mass. at 562.

The relevant time period at issue here begins on November 30, 1981, the date Rosina executed the two deeds conveying her interest in the East Boston Property to the plaintiffs and conveying the Ballard Street Property to Vita as the first two deeds in the exchange of properties intended by Rosina. [Note 55] Ashkenazy v. R.M. Bradley & Co., supra, 328 Mass. at 247 (The date of a deed is prima facie evidence of the date of its delivery). The execution of the deed by Vita to her brothers a little more than one month after Rosina executed the deed conveying the Ballard Street Property to Vita was effectively part of the same transaction, especially where, as I find, Rosina withheld the recording of the deed for the Ballard Street Property until Vita signed the deed for the East Boston Property. I credit Louis's testimony that from 1981 to 1988, Anthony took care of and maintained the property "99 percent [of the time with Louis] … pitch[ing] in every now and then." [Note 56] I further credit Anthony and Louis's testimony that they understood themselves to be the sole owners of the East Boston Property from the date Rosina effected her part of the agreed-upon "exchange" by executing the deed of her interest in the East Boston Property to Anthony and Louis and the deed of the Ballard Street Property to Vita on November 30, 1981, notwithstanding that the deed from Vita relinquishing her interest in the East Boston Property, completing the exchange, was not signed until January 4, 1982.

The conduct of Anthony, Louis, and Vita, including Vita's later acknowledgment of her brothers' ownership of the East Boston Property as discussed above, all support my finding that Anthony and Louis accepted delivery of the deed to the East Boston Property by their conduct, and that Vita acknowledged this acceptance of the deed.

Anthony would visit the East Boston Property once a week in order to perform general maintenance on the home such as throwing out the trash and cutting the lawn. [Note 57] In 1988, after Rosina moved out of the East Boston Property, and after Vita and her husband moved to Tewksbury, Anthony performed significant repairs and maintenance on the East Boston Property by removing the lead paint, removing and replacing lead water pipes, installing new windows, replacing the roof, and replacing the heating system. [Note 58] Anthony was the primary point of contact, with some help from Louis, in evicting tenants from the East Boston Property. At one point when Anthony was having trouble with a tenant, Rosina told Anthony, in Vita's presence, "[i]f you're having this much trouble, I want you to sell the house." [Note 59]

Anthony not only maintained and performed repairs on the East Boston Property, but he was also responsible for the financial component of maintaining and operating the property as well. [Note 60] Anthony claimed the East Boston Property on his tax returns, paid for the real estate taxes on the property and bore sole financial responsibility when there were shortfalls. [Note 61] After Rosina moved out of the East Boston Property in 1988, Anthony collected the rental income from the Property and gave these checks to Rosina. [Note 62] No later than 1996, the date of Rosina's death, Anthony began keeping these rental income checks himself. [Note 63] Neither Vita nor Louis requested their interest in the rental income collected by Anthony generated by the East Boston Property. [Note 64]

For all of the foregoing reasons, I find that the plaintiffs accepted the deed through their conduct. From 1974 up to and including 1981, the maintenance and repairs performed by the plaintiffs on the East Boston Property were consistent with their remainder interest. From 1981 (when the plaintiffs first learned of the deeds conveying Rosina's interest in both properties, and certainly from no later than January, 1982, when Vita executed a deed relinquishing her remainder interest in the East Boston Property) up to the present day, Anthony continued to cut the grass and take out the trash. [Note 65] However, in 1988, the plaintiffs took on a more significant role in maintaining the East Boston Property including the removal of lead paint, general repairs, removal and replacement of lead water pipes, installation of new windows, replacement of the roof, and replacement of the heating system. [Note 66] I find that this behavior of the plaintiffs beginning in 1988 was consistent with their belief that they were the sole owners of the East Boston Property as tenants in common and exclusive of the defendant.

II. THE PLAINTIFFS HAVE CARRIED THEIR BURDEN ON THEIR CLAIM OF OUSTER.

The plaintiffs claim, as an alternative legal theory, that if they have not established their title to the East Boston Property by reason of the deed executed by Vita on January 4, 1982, then they have ousted her from her cotenancy of the East Boston Property. Although I do not need to reach this issue, I find and rule that the plaintiffs have by a preponderance of the evidence demonstrated that, to the extent Vita had any remaining interest in the East Boston Property, they have ousted her.

As an element of adverse possession, one must prove that possession of the property was adverse to the true owner. See Ryan v. Stavros, 348 Mass. 251 , 262 (1964). Where property is held by cotenants, however, the simple act of sole possession by one cotenant is not by itself necessarily adverse to the remaining cotenants, as sole possession may still be consistent with their rights. See Allen v. Batchelder, 17 Mass. App. Ct. 453 , 456 (1984). A cotenant must therefore prove ouster as an additional element of adverse possession. See Wulsin v. Bainton, 80 Mass. App. Ct. 1106 (2011); see also Nickerson v. Nickerson, 235 Mass. 348 , 352 (1920). Acts constituting ouster "must be decisive and unequivocal and evince a settled purpose to exclude the contenant [sic] from all enjoyment of his title. Facts sufficient to show such a purpose will vary with each case and no universal test can be formulated." Inhabitants of Ipswich v. Proprietors of Jeffries Neck Pasture, 218 Mass. 487 , 491 (1914). Massachusetts has nonetheless recognized two types of ouster: ouster can be either actual, where a cotenant has taken a definitive act to exclude others, or constructive, where the cotenant has solely possessed the property for an extended period of time. See id.

A constructive ouster, unlike an actual ouster, requires no particular overt act asserting exclusive possession; rather, a "long exclusive and uninterrupted possession by one cotenant without any possession or claim of profits by the other" can operate as an ouster. Wulsin v. Bainton, supra, 80 Mass. App. Ct. at 1106; Allen v. Batchelder, supra, 17 Mass. App. Ct. at 456. The length of time in which the occupier enjoys exclusive possession is the essential element of constructive ouster. See Nagle v. Lombard, 12 LCR 92 (2004) (Scheier, C. J.). Given that exclusive possession is generally consistent with the rights of cotenants, the elapsed time should be long enough to conclude that "men do not ordinarily sleep on their rights for so long a period…" Lefavour v. Homan, 85 Mass. 354 , 355 (1862). The exact length of the period will depend on the particular circumstances of the case. See Ingalls v. Newhall, 139 Mass. 268 , 274 (1885).

Subsequent cases have nonetheless provided some guidance on what will be a sufficient period of possession. In Ingalls, the Supreme judicial Court implied that the period for constructive ouster must be longer than the typical twenty year period for adverse possession, because "[w]ere it otherwise, the same acts which would be sufficient to acquire a title by possession on behalf of a stranger would suffice on behalf of a co-tenant, and tenants in common would be no further protected against the acquisition of a title by a co-tenant, whose entry was rightful, and not in its nature adverse, than by a stranger, whose entry was distinctly wrongful." Id. at 273–74. The Court in Wulsin later acknowledged that "[t]he period of exclusive and uninterrupted possession sufficient to establish constructive ouster is not fixed, but time periods in excess of thirty years have constituted an ouster." See Wulsin v. Bainton, supra, 80 Mass. App. Ct. at 1106. See also Allen v. Batchelder, supra, 17 Mass. App. Ct. at 456 (noting that the cases finding ouster through exclusive possession concerned periods of between thirty and forty-seven years). The Land Court has likewise found ouster through cotenants' possession of over thirty years. See Henry v. Mainini, 17 LCR 396 (2009) (Trombly, J.); Fitzpatrick v. Yeaman, 16 LCR 601 (2008) (Long, J.). This indicates that thirty years will most likely be sufficient to show constructive ouster and consequently satisfy the requirement that the possession be adverse. However, this does not mean that thirty years is necessarily a required minimum.

In the present case, Vita has been constructively ousted by Louis and Anthony's exclusive possession of the East Boston Property since no later than 1988, when Rosina moved to Tewksbury. Since that time, Anthony, with Louis's participation, has exclusively maintained, improved, and operated the East Boston Property; he has performed repairs and improvements, he has managed the rental of the three units, he has collected the rents, and he has claimed the property on his tax returns. He has done this with some participation from Louis and with the agreement between the two brothers that they own the property together. Vita, who moved to Tewksbury sometime prior to 1988, has never inquired about or participated in the maintenance or operation of the property; she has not participated in either receiving income from the property or contributing to any expenses involved in maintaining or improving the property. Her statements to Anthony indicate that she understood that she was no longer an owner of the property. This has gone on for a period of no less than twenty-eight years (1988 to the filing of this action in 2016), and to some extent for a longer period, since Anthony and Louis have been maintaining and operating the property since at least 1981. Louis and Anthony's possession during this entire period has been actual, open, notorious, exclusive and adverse. Ryan v. Stavros, supra, 348 Mass. at 262.

Based on these facts, I find and rule that Vita has been constructively ousted, and that she consequently no longer has an interest in the East Boston Property.

CONCLUSION

For the reasons stated above, judgment will enter in favor of the plaintiffs.