J. FLEET COWDEN, trustee, vs. ROGER CUTTING & others.

WHITTEMORE, J. The defendant Matilda M. O'Rourke has appealed from the final decree of the Land Court in a suit to remove a cloud on title under the provisions of G. L. c. 185, Section 1 (k), and c. 240, Sections 6-10. The judge made full and extensive voluntary findings and the evidence is reported. We are to decide the case according to our judgment of the facts, accepting the findings below unless we determine that they are plainly wrong. Lowell Bar Assn. v. Loeb, 315 Mass. 176, 178. Carroll v. Markey, 321 Mass. 87-88. Skil Corp. v. Barnet, 337 Mass. 485, 488 ("giving due weight to the judge's findings"). This being a suit in equity such as may be brought in the Supreme Judicial Court or the Superior Court as well as the Land Court, the rule stated for a decision in statutory Land Court proceedings (Mahoney v. Wilson, 260 Mass. 412, 414) that the Land Court "decision will not be disturbed unless unsupported by evidence" does not apply.

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The locus is a strip of unenclosed woodland in Sudbury lying in the northwest corner of Old Lancaster Road and Peakham Road.

The plaintiff's title is shown in three deeds delivered and recorded in 1953. The alleged cloud arose in a deed from Albert P. Willis to Lucius P. Bent dated March 26, 1904, which conveyed two parcels other than the locus and whatever was encompassed in the following generality: "and meaning hereby to convey all my rights, title and interest to any and all real estate situated in said Sudbury, acquired by me as one of the three heirs of the late Charles P. Willis."

The six defendants originally named were described as the sole parties known to the plaintiff whose interests derive from Lucius P. Bent and there was notice by publication to all others claiming under him. A guardian ad litem and the six defendants assented to a final decree for the plaintiff and such was entered. Thereafter a petition by O'Rourke to vacate the decree was allowed; O'Rourke was made a defendant; and the issues raised by her answer were tried. O'Rourke (hereinafter the defendant) contends that the plaintiff has no title because long before the deeds to the plaintiff the title held by the then owners of the locus was conveyed away in partition proceedings, and because of allegations in the bill of complaint, that the plaintiff does not have possession, and that the defendant has title by adverse possession.

1. The defendant's lack of interest in the title, and in the proceedings to quiet it, is established by the conclusion of the judge, if it is right, that "[t]he acts done by the defendant and her predecessors in title . . . were insufficient to establish title by disseisin." We are unable to rule that this conclusion, so far as it is of fact, is wrong. In its aspect as a ruling it is correct. The judge heard and saw the witnesses and was in a position to judge the weight and credibility to be given to the testimony of each. The defendant is the owner of land adjacent to the locus on the west inclusive of a pond, the easterly shore of which is at or near the common boundary. It was conveyed by the guardian of the

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minor children of Charles P. Willis to Johnston Lumber Company on December 18, 1897. Willis's widow had previously conveyed her rights. By mesne conveyances, title to this adjacent land came to the defendant's father in 1924. He conveyed it to the defendant on June 7, 1943. The defendant later conveyed to one Bacon and thereafter, by mesne conveyances and foreclosure of a mortgage, title came back to the estate of the defendant's father and was inherited by the defendant. In each of these deeds, including that to the defendant, the description of the property begins "on the North side of said road at the pond at land of heirs of Charles P. Willis, now or formerly" or with similar words.

The judge found that the "locus was never fenced in so as to give the appearance of being conveyed with the adjoining land," and it was never cultivated. There are detailed findings in respect of the subsequent use of the land. The Johnston Lumber Company erected bunkhouses on the locus which stood for several years while its mill was operating. The mill burned about fifty years ago. The company used a small part of the land for storing barrels. The company put in a road alongside the pond and used it for hauling barrels and logs. The next two owners of the defendant's adjacent land had some firewood cut off the locus in each year of their ownership (1903 to 1923). The next owner of the adjacent land had several thousand feet of lumber cut from the locus and sold. The defendant's father erected a cottage on the adjacent land at the edge of the pond. He brought in building materials and furnishings across a road on the locus. At some time or other he put gravel on this way and removed some tree roots on or near the way. He put up "no trespassing" signs. He cleared off some of the underbrush and cut some firewood but not for sale. The father for years lived in the cottage in the summer and visited it week ends during the rest of the year. He put up a mail box at the corner of Lancaster and Peakham roads. Following the hurricanes he caused broken tree tops to be removed and about 30,000 feet of fallen trees taken out as a precaution. Bacon rebuilt the road from Peakham Road

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northerly beside the pond to the cottage. He attempted to sell a portion of the locus and the buyer started to build, but stopped after a foundation or cellar was built as both Bacon and the buyer learned that they did not have record title. The defendant in 1951 or 1952 knew she did not have record title. The defendant erected "no trespassing" signs. In the early part of 1954, she had a survey made. The locus had been used by the public as a means of access to the pond shore for picnic grounds and to the pond and surrounding area for fishing and hunting. This was prior to the ownership of the defendant's father. The evidence showed that the road across the locus was regularly used for access. There was testimony of some other use such as that a fence was at one time erected along a side of the locus and that the defendant rode and walked through the locus. There was testimony that "[i]t was generally known in the community" that the locus was the property of the defendant's father. The evidence indicates that taxes were not paid on the locus for many years.

The judge concluded, "I find on all the evidence that the locus was open and unenclosed woodland . . . that the acts of possession were few, intermittent, and equivocal." Many of the acts done were consistent with the assertion only of an easement of passage.

It is well established that acts such as those found by the judge or shown by the evidence do not require a conclusion of disseisin of wild or wood land not fenced or reduced to possession by cultivation. Bates v. Norcross, 14 Pick. 224, 228. Coburn v. Hollis, 3 Met. 125, 128-129. Slater v. Jepherson, 6 Cush. 129, 131-132. Cook v. Babcock, 11 Cush. 206, 210. Parker v. Parker, 1 Allen 245, 247. Morrison v. Chapin, 97 Mass. 72, 76. Morris v. Callanan, 105 Mass. 129, 133. McDonough v. Everett, 237 Mass. 378, 383-384. Dow v. Dow, 243 Mass. 587, 593 ("It is generally held that a title by adverse possession cannot be shown to wild or woodland that has always been open and unenclosed"). Bates v. Cohasset, 280 Mass. 142, 153. Compare Keith v. Kennard, 222 Mass. 398, and Phipps v. Crowell, 224 Mass.

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342, where fences were built across the necks of promontories, serving to enclose them; LaChance v. First Natl. Bank & Trust Co. 301 Mass. 488.

We do not find it necessary to consider whether the defendant is able to "tack" the predecessor titles (see Wishart v. McKnight, 178 Mass. 356, and 184 Mass. 283) or the effect of the evidence of insanity of Adeline M. Willis, one of the three owners in common by inheritance from Charles P. Willis, throughout the period of claimed adverse possession. See Edson v. Munsell, 10 Allen 557.

2. The parties have fully argued other issues and we decide them. The first of these is the effect of the partition proceedings. We rule that those proceedings did not transfer the locus out of the plaintiff's chain of title.

A petition for partition was filed February 26, 1904, by two daughters of Charles P. Willis, deceased. It prayed that partition "may be made of all the real estate" of Charles P. Willis lying in the Commonwealth, and that the commissioner "be ordered to make sale and conveyance of said real estate at public auction for cash." The decree so directed. The commissioner filed an affidavit that he had given notice and had "made sale and conveyance of the lands therein described" to Lucius P. Bent. The notice read that the commissioner would make "sale of all the real estate of Charles P. Willis deceased." There followed in the notice a description of two tracts which did not include the locus, one of them lying in the northeast corner of the two roads and the other lying south of Peakham Road. The commissioner's deed dated April 25, 1904, did not include the locus. There is no evidence of the reason for the omission. The Probate Court entered a decree on the commissioner's report and account "that the same be accepted and the partition confirmed and established." One third of the proceeds of the partition proceedings were paid to Lucius P. Bent who already, by the deed of Albert P. Willis on March 26, 1904, had title to a one-third interest in land described in the commissioner's deed.

The operative instrument in a partition by sale was, in

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1904, as it is now, the deed of the commissioner. R. L. c. 184, Section 47 ("The conveyance shall be conclusive . . ."). G. L. c. 241, Section 18. Buron v. Brown, 336 Mass. 734, 735. Neither the direction to the commissioner nor his report of his doings pursuant to the decree enlarged the actual conveyance. So far as he did not conform, the matter could have been recommitted for further action or a new commissioner appointed. Brown v. Bulkley, 11 Cush. 168. Or the incomplete partition being later discovered, new partition proceedings could be had. Barnes v. Boardman, 157 Mass. 479, 480-481.

The final determination which the partition proceedings made was of the individual rights and interest of the common owners in the property (Brown v. Bulkley, 11 Cush. 168, 169). That is irrelevant to the question of what the deed of the commissioner actually conveyed. It is only in partition by division (act of commissioner and subsequent decree of the court confirming it) that the court's decree operates to transfer the property. R. L. c. 184, Sections 34, 39, 40, 45. G. L. c. 241, Sections 16, 18. See Carpenter v. Green, 11 Allen 26; Buron v. Brown, 336 Mass. 734, 735.

The jurisdiction of the Probate Court, contrary to the defendant's contention, did not depend upon the effectiveness of the deed to convey all the real estate. There is no such implication in the statute. [Note page170-1] See Barnes v. Boardman, 157 Mass. 479, 480. In any event such an implication as the defendant urges could not broaden the effect of the commissioner's deed.

It is irrelevant that by R. L. c. 148, Section 19, no sale of real property under a license of the court "shall be avoided . . . on account of any irregularity" if certain provisions are met. The sale, and the title which it conveyed, are not avoided

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by a decree which recognizes that certain land was not included in the sale or deed.

3. The defendant also argued the issue of the plaintiff's possession. The judge noted the rule that a bill to remove a cloud on title may not be maintained "unless both actual possession and the legal title are united in the plaintiff" (First Baptist Church of Sharon v. Harper, 191 Mass. 196, 209; Vitelli v. Ryder, 329 Mass. 119, 123; MacNeil Bros. Co. v. State Realty Co. of Boston, Inc. 333 Mass. 770) and found the necessary possession in the plaintiff. The evidence permitted this finding. The plaintiff recorded his three title deeds on December 18, 1953. Within a day or two thereafter he put up several "no trespassing" signs and removed a sign which bore the defendant's name. After 1953 he paid taxes on the locus. See Blanchard v. Lowell, 177 Mass. 501. In March, 1954, he informed the defendant and her attorney of his ownership and said his title was clear and asked the defendant what her surveyor was doing on the land. In March, 1954, he brought in the Land Court an action of trespass against the defendant. The defendant in disputing the plaintiff's possession relies only on the allegation of the bill that the parcel "is undeveloped woodland and has not at any time been occupied or used by any person or persons." There is nothing in this contention. This allegation is not inconsistent with the acts of the plaintiff which show his possession. His acts were sufficient to show possession in the owner of wild land which has not been occupied by another. Proprietors of Kennebeck Purchase v. Call, 1 Mass. 483. Proprietors of Kennebeck Purchase v. Springer, 4 Mass. 416, 418. Percival v. Chase, 182 Mass. 371, 374. Stone v. New England Box Co. 216 Mass. 8, 11-12. Restatement: Torts, Section 157; Property, Section 7, comment c. Tiffany, Real Property (3d ed.) Section 94 (possession is necessarily exclusive).

4. The defendant's brief does not specify error in the ruling of the judge that the deed of Albert P. Willis to Lucius P. Bent dated March 26, 1904, did not convey any interest in the locus or in the provision of the decree which adjudicates

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that the plaintiff has title to the one-third interest which that deed would have conveyed to Bent if the generality therein ("all my rights, title and interest to any and all real estate situated in said Sudbury") had operated to enlarge the grant. There is no contention that the bill must fail because the grant in the deed means that the plaintiff has less than full legal title. See Daley v. Daley, 300 Mass. 17, 21. The known heirs of Lucius P. Bent and the guardian ad litem assented to the entry of a decree for the plaintiff and have not appealed. See G. L. c. 240, Section 10. The defendant's possible interest has, as noted, been disposed of by the correct rulings for the plaintiff on the issue of adverse possession. Our cases appear to support the conclusion, necessarily implicit in the decree below, that the controlling intention of the generality in the deed of March 26, 1904, was to state what the parties understood the two expressly described parcels to be rather than to enlarge the grant, [Note page172-1] but in the circumstances noted we find no occasion to review the decree in that aspect.

5. We have considered all points argued including those not discussed. The contention of the defendant is frivolous that by language in the bill the plaintiff has recognized that he does not have title and that it is in the heirs of Lucius P. Bent.

6. The final decree ruled only in respect of the one-third interest which the plaintiff acquired from the estate of Albert P. Willis presumably because that was the only interest affected by the alleged cloud. The legal title to the other two undivided one-third interests is unquestionably in the plaintiff because of his title deeds. The plaintiff not

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having appealed, we see no occasion to broaden the words of the final decree, which, with this decision, shows the true state of the title.

Decree affirmed.