Devine v. Town of Nantucket

• Citation: 449 Mass. 499,870 N.E.2d 591
• Parties: William J. DEVINE, trustee,<SMALL><SUP>1</SUP></SMALL> v. TOWN OF NANTUCKET & another.<SMALL><SUP>2</SUP></SMALL>
• Decision Date: 19 July 2007
• Court: United States State Supreme Judicial Court of Massachusetts

870 N.E.2d 591

449 Mass. 499

William J. DEVINE, trustee,¹ v. TOWN OF NANTUCKET & another.²

Supreme Judicial Court of Massachusetts, Nantucket.

Argued April 3, 2007.

Decided July 19, 2007.

Robert D. Hillman, Boston, for town of Nantucket.

Philip H. Graeter, Boston (J. Owen Todd with him) for the plaintiff.

Henry H. Thayer, Boston, for Real Estate Bar Association for Massachusetts, Inc., & another, amici curiae, submitted a brief.

Michael E. Malamut, Boston, Martin J. Newhouse, & Jo Ann Shotwell Kaplan, for New England Legal Foundation, amicus curiae, submitted a brief.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & CORDY, JJ.

MARSHALL, C.J.

In 1968, the town of Nantucket (town) took certain property (locus) by eminent domain for purposes related to Nantucket Memorial Airport (airport). At that time the locus was listed as "owners unknown" on the town's tax rolls, even though there was in fact an identifiable record owner. In 1985, an attorney acting on behalf of William J. Devine, trustee of the Loomis Realty Trust (trust), purchased the record owner's title and subsequently conveyed it to the trust. Neither the record owner, the attorney, nor Devine had actual notice of the 1968 taking. Nor could the order of taking have been found in the chain of title to the locus by searching the grantor index. Further, after the 1985 purchase, the town restored the locus to the tax rolls, assessed and collected taxes on it, commenced tax takings, allowed a tax abatement, and issued building permits to Devine for construction on the locus. The question presented is whether in these circumstances Devine, as trustee, has good title to the locus.

Devine commenced this action in the Superior Court, seeking an order to quiet title to the locus, as well as other relief. After a jury-waived trial, a judge in the Superior Court made careful and comprehensive findings of fact and rulings of law, pursuant to which a judgment entered declaring that Devine, as trustee, "is owner in fee simple of the Locus" and that "[p]ursuant to G.L. c. 240, § 6, title to the Locus is hereby quieted and established to be in" him. The town appealed, and we transferred the case here on our own motion.³ We affirm.⁴

1. Facts. We begin with the judge's findings, which we accept unless they are clearly erroneous. Mass. R. Civ. P. 52(a), as amended, 423 Mass. 1402 (1996). See, e.g., Kendall v. Selvaggio, 413 Mass. 619, 620, 602 N.E.2d 206 (1992), and cases cited. The locus consists of a parcel of land, of approximately 25,000 square feet, identified as Lots 17-26 of block 285 as shown on a plan entitled "Plan of the Nobadeer Section of Surf-side, Nantucket, Mass., made by Codd & Allen Surveyors," dated May, 1890. The locus is also identified as parcel no. 62 on sheet 88 in the records of the town's assessor of taxes. The locus was once part of a large parcel of land owned by the Nantucket Surfside Company. In 1889, the trustees of that company executed a foreclosure deed to Francis Doane, who in turn conveyed the large parcel to Seth Doane. Seth Doane then conveyed the large parcel to Daniel McKeever, who subdivided the large parcel and recorded the Codd & Allen plan. McKeever conveyed the locus to George L. Loomis by a deed dated May 9, 1890, recorded in the Nantucket registry of deeds.

In 1923, or shortly before, Loomis died and left a will in which he devised the locus to his sisters, Mary Loomis and Caroline Loomis. The will was probated in Somerset County, New Jersey, where Loomis apparently was living at the time of his death. No ancillary probate proceedings were ever commenced in Nantucket County. Mary Loomis and Caroline Loomis conveyed the locus to Lewis Popham Carmer by a deed dated November 22, 1923, and recorded in the Nantucket registry of deeds. The deed from the Loomis sisters to Carmer was listed in the grantor index under the names "Mary Loomis" and "Caroline Loomis." That was the only deed from anyone named "Loomis" listed in the grantor index from 1980 back to 1923. No other conveyances from persons named "Loomis" appeared in the grantor index.

For unknown reasons, the locus was removed from the town's tax rolls sometime after 1923. According to the former town counsel, the town's tax records are not historically accurate. Some parcels of property simply dropped off the tax rolls in the 1920's and 1930's, particularly in the Surfside area of the town. When that happened, the property was listed in the tax records as "owners unknown."

The locus is in close proximity to the airport, at the southern end of a runway. Members of the Nantucket Airport Commission (commission) have for some time considered it advantageous to acquire property near the airport in order to prevent construction in that area. On September 10, 1968, the commission voted to take the locus by eminent domain. An order of taking reflecting that vote was recorded in the registry of deeds on October 3, 1968. The order of taking indicates that the commission acquired an "avigation easement" over two parcels (parcels 1 and 2) and a fee simple interest in two other parcels (parcels 3 and 4). Parcel 3 is described as "[l]and shown as Block 285 on Plan of Surfside lots recorded in Nantucket Registry of Deeds. Present owners unknown," and includes the locus. The order of taking also indicates that the sum of $1,000 was awarded for the taking of parcel 3.

On June 24, 1970, the commission recorded an amended order of taking. The reason for that amendment was "to clarify the [a]vigation [e]asement and describe the rights taken therein." That amendment did not affect the locus, which was again described as "Land shown as Block No. 285 on Plan of Surfside Lots recorded in the Nantucket County Registry of Deeds."

On December 8, 1970, the commission recorded another amended order of taking. The reason stated for this amendment was that "possibly some requirements of the pertinent statutes of the Commonwealth were not complied with." In that amended order of taking, parcel 3 was described as, "Land shown as Block 265 on Plan of Surfside [l]ots recorded in Nantucket County Registry of Deeds" (emphasis added). However, the December, 1970, amendment specifically referenced both the original 1968 order of taking and the June, 1970, amendment. The judge found that the reference to "Block 265," rather than "Block 285," in the December, 1970, amendment was a scrivener's error and that anyone who examined the original order of taking and the two amendments would see that the December, 1970, amendment contained an error. Those findings have not been challenged on appeal.

The December, 1970, amendment also provided that the sum of $200, rather than $1,000, was awarded for the taking of parcel 3. That discrepancy is not explained on this record, but it is immaterial to our decision. Because the takings were considered to be from "owners unknown," there was no reference to the takings in any of the grantor indices of persons in the chain of title to the locus, up to and including Carmer, the individual who had acquired the locus from the Loomis sisters in 1923.⁵

Prior to trial, representatives of the town searched the commission's files for records pertaining to the taking and were not able to find any. Nor were they able to locate minutes of the commission's meetings in 1968 or 1970. Therefore, there was no evidence as to what the commission actually did to effect the taking, other than the current (at the time of trial) commission chairman's testimony that he thought the town would have done "whatever is necessary for the taking." The judge inferred that, at the time of the taking, the town did little to ascertain the true owner of the locus. It may have done little more than check the tax records, which listed the owner of the locus as unknown. The judge also found that, for reasons that will be discussed later in greater detail, a reasonably prudent title examiner in 1968 would have found the 1923 deed conveying the locus to Carmer, and that, if the town had examined the grantor index for deeds from the subdivider (McKeever), it would have discovered that the record owner in 1968 was Carmer.

Devine is an experienced genealogist and has particular skills in finding both flaws in land titles and persons who may be heirs with standing to assert rights in connection with such flaws. He conducts business under the name Genealogical Search, Inc. As he testified, his business is to "try to clear up titles when [he] find[s] out they are either tax title properties or they could be owners unknown property." Devine's normal practice in the 1980's was to locate an heir who would have standing to assert a claim with respect to a title defect, and then propose to that heir that a joint venture or partnership be established in order to assert the heir's rights, with Devine agreeing to pay all legal fees and costs associated with the potential litigation. If the claim was successfully concluded, Devine and the heir would divide the profit equally.⁶

In 1985, Paul Vozella, an attorney who performed title services for Devine, brought the locus to Devine's attention, possibly because it was still listed as "owners unknown" in the town's tax records. Devine commissioned him to perform a title search, and thereafter Vozella informed Devine that Carmer was the record owner of the locus. Devine contacted Carmer by telephone and proposed a joint venture to him. Carmer responded that he was not interested in a joint venture, but that he would sell the locus to Devine for $7,500. Devine agreed and instructed Vozella to purchase the locus from Carmer on Devine's behalf. By deed dated August 16, 1985, and recorded in the Nantucket registry of deeds, the locus was conveyed to Vozella. Carmer died approximately one month later. Other than the reference to that deed, Carmer's name does not appear in the grantor indices of the Nantucket registry of deeds between 1923 and 1985. The judge...