Lyon v. Parkinson

• Decision Date: 03 July 1953
• Citation: 330 Mass. 374,113 N.E.2d 861
• Parties: LYON et al. v. PARKINSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 861

113 N.E.2d 861

330 Mass. 374

LYON et al. v. PARKINSON.

Supreme Judicial Court of Massachusetts, Worcester.

Argued April 7, 1953.

Decided July 3, 1953.

John G. Brackett, Boston, for petitioners.

John M. Boyle, Boston, for respondent.

Before QUA, C. J., and LUMMUS, WILKINS, WILLIAMS and COUNIHAN, JJ. WILLIAMS, Justice.

This is a petition by Otto S. Lyon and his wife Annie B. Lyon for the registration of title under the provisions of G.L. (Ter.Ed.) c. 185 to a parcel of land on Nipmuck Pond in Mendon bounded and described as follows: 'Southeasterly, by the end of a twenty foot right of way and land of Otto Lyon, Trustee, one hundred eighty-five (185.) feet, plus or minus; Westerly, Northwesterly, Northerly, Northeasterly, Southeasterly and Northeasterly by Nipmuck Pond, three hundred eighty-six (386) feet, plus or minus; Northeasterly, by land of Gertrude Wright, one hundred six (106) feet, plus or minus; Said parcel contains and area of 24,750 square feet, more or less, and is more particularly shown on a plan to be filed herewith.' The respondent in his answer objects to the registration because the land is subject to a right of way to the pond and because the 'metes and bounds set forth in the petition are not proper or correct.' A judge of and Land Court made findings of fact, denied certain rulings requested by the respondent, and ruled that the petitioners were entitled to registration. The case is here on the respondent's exceptions to the denial of his requests for rulings. Only questions of law are presented and the findings of fact must stand if warranted on any view of the evidence with its justifiable inferences. Erickson v. Ames, 264 Mass. 436, 441, 163 N.E. 70; Sutcliffe v. Burns, 294 Mass. 126, 132, 1 N.E.2d 23.

One of the respondent's contentions is that the petition should be dismissed because he was not named therein as an adjoining owner. It appears that after the petition was filed, he was named as an abutter in the order for publication made pursuant to § 38 of the statute, and received notice of the petition. Thereafter he filed an answer and participated in the trial. Having had full opportunity to be heard, his rights have not been affected and he is not aggrieved. Prentiss v. City of Gloucester, 236 Mass. 36, 56, 127 N.E. 796. He also urges the dismissal of the petition on the ground that Annie B. Lyon did not make oath to it. Section 28 provides that the petition shall be sworn to by each petitioner. If the absence of Mrs. Lyon's oath had seasonably been rought to the attention of the court, the petition might have been dismissed. We think, however, that after a trial upon the merits at which the facts alleged in the petition presumably were verified under oath this defect in form does not justify dismissal. See Welsh v. Briggs, 204 Mass. 540, 553, 90 N.E. 1146.

The issues raised by the answer concern the correctness of the northeasterly and southeasterly boundaries of the land sought to be registered and the existence of a right of way to which, it is alleged by the respondent, it is subject. It is stated in the petition that the locus is bounded northeasterly by land of Gertrude Wright and southeasterly by land of Otto Lyon, trustee. From the evidence it appeared that the locus included land to which the petitioners claim record title and also a strip 4.93 feet wide along its northeasterly boundary to which they claim title by adverse possession. The respondent owns land lying generally south and east of the locus. Both the locus and the respondent's land were formerly part of a large tract owned by one Alanson Freeman. In 1924 he conveyed two parcels, referred to in his deed as tracts 1 and 2, to Fred R. Phipps. Tract 2 was described as 'Beginning at a stake on the shore of * * * Nipmuck Lake thence running S. 26~25' west, 130 feet to a stake bounding east on roadway of grantor; then S. 65~> 35' W. 145 feet to a stake at the shore of said Lake, bounding south on land of grantor; thence along the shore of said lake to point of beginning.' Phipps conveyed tract 2 by a deed containing substantially the same description to the petitioner Otto S. Lyon in 1925. On January 21, 1931, Lyon conveyed it to Howard K. Hobbs who on the same day reconveyed it to the petitioners Lyon and his wife Annie B. Lyon to hold as tenants by the entirety. The petitioners have owned this land since that date. The 'stake on the shore of' the lake which was the point of beginning of the descriptions in the aforementioned deeds was found by the judge to be correctly located on the plan at a point marked in red ink 'Old Stk & Stones.' See Holmes v. Barrett, 269 Mass. 497, 500, 169 N.E. 509. He found that the boundary line which from that point ran '130 feet to a stake bounding cast on roadway of grantor' was, because of a scrivener's error, erroneously stated in the deed as running S 26~25' W and that the intended course was S 26~25' E. He found that 'To adhere to a SW course would bring the second bound well into the lake,' and that examination of the deeds of adjoining owners showed a southeast course to be 'the only reasonable construction and all parties have so treated it as the true boundary in fact.' See Parks v. Loomis, 6 Gray 467, 472. This northeasterly bound with the course corrected to run southeast is shown on the plan by a line drawn in red ink. It runs 130 feet to a point marked 'bolt.' The southeasterly boundary of the land to which the judge referred as 'the second bound' is indicated on the plan by a black line and runs from the bolt in accordance with the description in the deeds S 63~35' W to the shore of the pond. This line is approximately 180 feet in length; whereas the southeasterly bound of the land stated in the deeds to be 145 feet long. The position of the bolt having...