McMullen v. Porch

• Citation: 286 Mass. 383,190 N.E. 835
• Parties: McMULLEN v. PORCH.
• Decision Date: 28 May 1934
• Court: United States State Supreme Judicial Court of Massachusetts

286 Mass. 383

190 N.E. 835

McMULLEN

v.PORCH.

Supreme Judicial Court of Massachusetts, Barnstable.

May 28, 1934.

Appeal from Land Court, Barnstable County; C. C. Smith, Judge.

Petition in the Land Court for registration of title to land by Lucile A. McMullen against Henry G. Porch. From a decision ordering a decree, respondent appeals.

Order for decree modified.

C. C. Paine, of Hyannis, for appellant.

J. H. Paine, of Harwich, and H. A. Harding, of Barnstable, for appellee.

CROSBY, Justice.

This is a petition to the Land Court dated June 27, 1925, seeking to register and confirm title to certain land in the town of Dennis under the provisions of G. L. (Ter. Ed.) c. 185. Citation thereon was issued November 9, 1926. Notice by registered mail to the respondent Porch was received November 16, 1926, and notice was posted on the land November 19, 1926. On motion of Lucile A. McMullen, to whom the petitioner had conveyed the locus by deed since the filing of the petition, she was substituted as the person in whose name the land should be registered. The respondent, Harry G. Porch, by answer filed December 18, 1926, claims title to the land under a certain deed, and says that he has had adverse possession for more than twenty years.

The case was heard in the Land Court on May 4, 1933. The judge found the following facts: The locus is wild land which has never been improved or built upon. In 1822 Thomas Howes, Sr., acquired title to all the land in controversy, which was a long strip nine rods wide east and west. He died in 1871, and by his will devised the land in equal shares to his seven children, among whom were Thomas Howes, Jr., and Francis Howes. In 1876 six of the children, as part of a partition in pais, conveyed to the seventh child, Francis, the west part of the locus, five and one quarter rods wide east and west. In this deed the east boundary is by land of Thomas Howes ‘56 2/11th rods to the Sea.’ Later in the same year Francis conveyed to Thomas Howes, Jr., this west part of the locus. In this deed also the property was bounded on the east by land of Thomas Howes. There is no deed of record from the other heirs of the original Thomas Howes to Thomas Howes, the younger, of the east part of the locus. The judge found and ruled, however, that the description of the land in the deed to Francis, taken as a whole, is evidence of a lost grant and works an estoppel against both the grantors and the grantee from making a valid claim of ownership to the east portion of the locus. In 1895 Thomas Howes, Jr., conveyed the entire locus (including both the west part conveyed to him by Francis, and the east part called his in his deeds to and from Francis) to William H. Drury. In 1898 William H. Drury, by recorded deed, conveyed the entire locus to one Carter, under whom the petitioner rightly claims according to the examiner's report.

The judge states in his decision that the respondent Porch presented the following evidence supporting his claim of title. In 1905 William H. Drury, by a recorded deed conveyed to John R. Leavitt the entire locus bounding it on the east by land formerly of Nehemiah Wixon ‘being one of the parcels convey'd to me by deed of Thomas Howes dated Aug. 26, 1895, * * * and the same has not before been convey'd by me.’ Recent descriptions have bounded the locus on the east by land of Nehemiah Wixon, now land of Porch. The respondent put in evidence a deed from Wixon to John R. Leavitt, given in 1903 conveying land to the east of the locus. In 1908 Leavitt by recorded deed, conveyed to Herbert S. Newhall a parcel of land describing and intending to convey the westerly part of the land conveyed to him by Nehemiah Wixon, and also the land conveyed to him by Drury. In 1918 Newhall deeded the same described land to the respondent Porch. Porch also put in evidence two recent deeds to himself, one given in 1927, and the other in 1928, describing the east part of the locus, of two one-seventh interests therein formerly owned, one by Mary A. Gage, and the other by Ann A. Crowley, who were two of the seven children of the elder Thomas Howes, the grantors in said deeds alleging they were the sole heirs at law of Mrs. Gage and Mrs. Crowley.

The judge ruled that the respondent Porch took title with legal notice of the deed from Drury to Carter although he found that Porch had no actual notice of that deed until shortly before this petition was filed. Porch testified that he made no examination in the registry of deeds at the time of his purchase from Newhall in 1918. The judge further states in his decision that the respondent Porch offered evidence tending to show acquisition of title to the locus by adverse possession, but if the bringing of this petition was a legal interruption of possession, ‘sufficient time had not elapsed at that date * * * to accomplish an ouster of those claiming under the record title, starting from the date of the spurious deed to Newhall in 1908.’ No evidence of adverse possession was offered before that date. The judge ruled ‘as matter of law that the bringing of this petition and proceedings thereunder interrupted the respondent's disseisin not later than the time when notice was served on the respondent and also posted on the land. After these events the element called ‘peaceable’ no longer pervaded the respondent's occupation. * * * If the foregoing ruling is erroneous then the respondent's twenty years had run at the date of the trial-May 24, 1933-and he claims, because the land described in the spurious deed from Drury to Leavitt was by Leavitt included as one parcel (in his deed to Newhall) with the adjoining land on the east which the grantor owned, that his possession of the whole tract must be presumed, however pale the actual color of possession.' The judge found that the substituted petitioner has the title proper for registration, and ordered a decree subject to a public way over the locus, and a mortgage to the Bass River Savings Bank, and a second mortgage to the...