McHale v. Treworgy

• Decision Date: 02 March 1950
• Citation: 325 Mass. 381,90 N.E.2d 908
• Parties: McHALE et al. v. TREWORGY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

325 Mass. 381

90 N.E.2d 908

McHALE et al. v. TREWORGY et al.

Supreme Judicial Court of Massachusetts, Middlesex.

March 2, 1950

Argued Oct. 6 1949.

J P. Cassidy, Lowell, for plaintiffs.

F. S. Harvey Lowell, for defendants.

Before QUA, C. J and RONAN, WILKINS, SPALDING and COUNIHAN, JJ.

COUNIHAN, Justice.

This is a suit in equity by which the plaintiffs seek to compel the defendants to remove certain structures and installations which they allege encroach and trespass on their land in Billerica, and to establish a division line between their land and the land of the defendants adjoining.

The plaintiffs claim title under a deed from the treasurer of the town of Billerica. G.L.(Ter.Ed.) c. 60, § 79, as appearing in St.1941, c. 594, § 1. The defendants in substance admit that they are the owners of the land adjoining the land alleged to be owned by the plaintiffs and that part of their structures encroach on this land, but deny that the plaintiffs have good title to this land. The defendants base their contention upon the ground that the deed upon which the title of the plaintiffs depends is invalid and conveyed no title whatever for two reasons: first, because the collector's notice of sale and tax deed did not contain a substantially accurate description of the land to be sold as required by G.L. (Ter.Ed.) c. 60, § 40, and, second, because the description in the tax deed is not sufficiently definite on general principles of interpretation of a deed.

This suit was submitted on a statement of agreed facts. The judge made a report of material facts and ordered the entry of a decree granting the plaintiffs the relief they sought. From the decree so entered the defendants appeal.

This suit having been heard on a statement of agreed facts, on appeal we consider the questions involved without reference to the decision or findings of the trial judge. Sewall v. Elder, 279 Mass. 473, 476, 181 N.E. 720. It appears from the statement of agreed facts that the plaintiffs' land, the title to which is now in question, and the defendants' land together constituted lot 18 unit 4, as shown on a plan entitled 'Plan of River Pines, Billerica, Mass.,' surveyed May, 1927, by R. F. Smith, surveyor, and recorded with Middlesex North District registry of deeds, plan book 52, plan 10, and containing nineteen thousand three hundred forty square feet. This plan is not in the record but it is agreed that the 'Plan of Lot No. 18 Unit No. 4. River Pines, Billerica,' by Dana F. Perkins, surveyed September 17, 1947, as shown in the record, substantially sets forth the lot lines of the two parcels of land in question and shows the extent of the encroachment on the lot alleged to be owned by the plaintiffs, 18A, of the building on the defendant's lot, 18B.

The statement of agreed facts further shows that on May 11, 1938, one George Wolfe was, and had been for many years, the owner of lot 18 unit 4 as it appears on both plans; that on that day he conveyed to James F. Wolfe by deed with metes and bounds the parcel of land now owned by the defendants, with a recital in the deed that it was part of lot 18 unit 4 on the Smith plan; that James F. Wolfe by deed dated July 31, 1946, duly recorded, conveyed the same premises to the defendants; that on January 1, 1940, the town of Billerica assessed to George Wolfe a tax on real estate as follows: 'George Wolfe: 19,340 square feet of land, more or less, with the buildings thereon being part of lot numbered 18, Unit 4, on a plan of land entitled, 'River Pines' and recorded in said Registry [Middlesex North District], Plan Book 52, Plan 10 [the Smith plan]. Tax of 1940 $12.01'; that by a deed dated April 25, 1942, duly recorded in Middlesex North District registry of deeds, book 978, page 559, the collector of taxes of the town of Billerica 'conveyed to the town of Billerica for nonpayment of taxes assessed to said George Wolfe for the year 1940' the premises as they were described in the assessment; that the affidavit of the collector, as provided in G.L. (Ter.Ed.) c. 60, § 57, was duly recorded, with copies of the advertisement and notice annexed; that the description in the notice, as posted and published, was the same as in the tax deed; that on June 5, 1947, the commissioner of corporations and taxation made an affidavit of his finding as to low value lands required by G.L. (Ter.Ed.) c. 60, § 79, which was duly recorded; that in this affidavit the premises are described as 'Part of lot 18, Unit 4, River Pines Place,' with a reference to the tax deed recorded in said registry of deeds, book 978, page 559; that on July 23, 1947, the treasurer of the town of Billerica by deed duly recorded conveyed the premises to the plaintiffs, G.L. (Ter.Ed.) c. 60, § 79; and that in this deed the premises were described as owned by George Wolfe, "River Pines' Lot 18,' and reference was made to the tax title deed recorded in book 978, page 559. The defendants rely solely upon inaccurate and misleading descriptions in the instruments on which the plaintiffs rest their claim of title.

The descriptions in the assessment by the tax collector, in the notice of sale as published and posted, in the collector's deed to the town of Billerica, in the affidavit of the commissioner, and in the deed of the treasurer of the ...