Riverwood Commercial Properties, Inc. v. Cole

Decision Date26 July 1991
Docket NumberNo. 90-321,90-321
Citation593 A.2d 1153,134 N.H. 487
PartiesRIVERWOOD COMMERCIAL PROPERTIES, INC. v. Farnum W. COLE, and another.
CourtNew Hampshire Supreme Court

Castaldo, Hanna & Malmberg P.C., Concord (Steven L. Winer, on the brief and orally), for plaintiff.

Scotch & Zalinsky, Manchester (Bertrand A. Zalinsky, on the brief and orally), for defendants, Farnum W. Cole, Edward A. Cole, Caroline Phillips and Richard P.I. Cole.

THAYER, Justice.

The defendants appeal the order of the Superior Court (Mohl, J.) granting the petition of the plaintiff, Riverwood Commercial Properties, Inc. (Riverwood), to quiet title to a sixty-acre parcel of land in Pembroke. For the reasons that follow, we reverse and remand.

The dispute concerns a parcel of land known as the First Marston Lot (Marston Lot). On December 31, 1986, Riverwood petitioned the trial court for a declaration quieting title to the entire sixty-acre parcel of land in its name. Riverwood based its claim of full title to the Marston Lot on two theories. First, Riverwood asserted that it obtained title to the entire sixty-acre parcel through a series of conveyances that occurred between 1902 and 1979. Second, Riverwood alleged that, even if it did not possess good title by virtue of these conveyances, any other interest in the property would have since been lost to Riverwood's superior title under the doctrine of adverse possession.

The defendants disputed Riverwood's petition, and both parties waived their right to a trial and agreed to submit the case through memoranda of law, exhibits and a stipulated chain of title. According to the stipulated chain of title, the Marston Lot was initially owned in its entirety by Samuel Moore. In 1886, Mr. Moore conveyed the lot by deed to Frank S. Whitehouse and Charles B. Whittemore as tenants in common, granting to each an undivided one-half interest in the property. The chain of title which traces the Whitehouse half interest to Riverwood is undisputed and presents no issue in this case. Rather, the dispute between the parties in this petition narrowly focuses upon an alleged conveyance in the chain of title to the Whittemore half interest. Riverwood contends that in 1911 or 1912, Charles B. Whittemore conveyed his entire interest in the Marston Lot to his wife, Clara R. Whittemore. However, Riverwood did not produce a deed or any other direct evidence which proves this conveyance. Instead, Riverwood argued that although the deed is irretrievably lost, tax and probate records, as well as the conduct of the parties, sufficiently prove the conveyance from Charles B. Whittemore to his wife.

The defendants argued that, because the record did not contain a deed which evidenced this alleged conveyance, Riverwood could not establish its claim to the entire Whittemore half interest through its series of conveyances. In the absence of a conveyance from Charles B. Whittemore to Clara Whittemore, the defendants claim to be entitled to a fractional share of the property by virtue of the laws of descent and distribution from Charles B. Whittemore, who died intestate, and through the chain of title of his son, Charles F. Whittemore. The parties stipulated to the conveyances that preceded the alleged conveyance from Charles B. Whittemore to Clara Whittemore. They also stipulated to the contents of the probate and tax records upon which Riverwood relies to prove the alleged conveyance.

On June 12, 1990, the trial court found that title to the entire property belonged to Riverwood on the basis of the conveyances between 1902 and 1979. In its order, the trial court held that "[i]n light of the tax records, probate records and the conduct of the parties with respect to the [Marston] Lot, ... the plaintiff has met its burden of proving that it is more probable than not that Charles B. Whittemore conveyed his half interest in the Lot to Clara R. Whittemore." The trial court's order, however, does not reveal an initial finding that a deed evidencing the conveyance ever existed, nor did the trial court explicitly state whether Riverwood sufficiently established that the alleged deed was lost. In view of its decision, the court did not reach the issue of adverse possession.

On appeal, the defendants argue that the trial court erred in finding that Riverwood possessed title to the entire sixty acres of land, when there is no direct evidence of a duly executed deed or other writing which substantiates the alleged conveyance from Charles B. Whittemore to Clara Whittemore. Riverwood answers by arguing that the defendants failed to preserve their argument for appeal and, in the alternative, contends that the trial court was not required to find direct evidence of the existence of a deed, but could properly rely upon the evidence submitted to conclude that such a deed at one time existed and was lost. Riverwood also contends that the equitable circumstances that exist in this case compel this court to affirm the trial court's decision.

We first address the preservation issue. Riverwood asserts that the defendants cannot raise their statutory arguments as a defense for the first time on appeal. However, in an action to quiet title the petitioner bears the burden of proving good title as against all other interested parties. Seward v. Loranger, 130 N.H. 570, 574, 547 A.2d 207, 210 (1988); see RSA 498:5-a, :5-b. From the outset, the defendants in the case before us disputed Riverwood's claim to title to the Marston Lot. In order to carry its burden of proof under the stipulated chain of title, Riverwood had to prove its claim to title by virtue of the various requirements provided by New Hampshire statutes and case law. See RSA ch. 477; RSA ch. 506. Because the defendants disputed the alleged conveyance from Charles B. Whittemore to Clara Whittemore, the existence or nonexistence of a deed evidencing this alleged conveyance was clearly before the trial court and ultimately dispositive of its decision. Although the defendants did not cite a particular statute in making their argument to the trial court, we will not restrict a party only to those authorities cited to the trial court. See State v. Schachter, 133 N.H. 439, 440, 577 A.2d 1222, 1223 (1990); Chagnon Lumber Co. v. Stone Mill Const. Corp., 124 N.H. 820, 822, 474 A.2d 588, 589 (1984). The central theory underlying the defense to Riverwood's petition (the nonexistence of a deed evidencing the alleged conveyance) was raised before the trial court and fully addressed in its order. Therefore, we conclude that the defendants' arguments are properly before this court.

As a preliminary matter, we note the applicable standard of review. We will not disturb a trial court's decision unless it is erroneous as a matter of law or unsupported by the evidence. Johnson v. Nash, 131 N.H. 731, 734, 559 A.2d 842, 843 (1989). In the case before us, the trial court relied upon circumstantial evidence to find that "it is more probable than not that Charles B. Whittemore conveyed his half interest in the Lot to Clara R. Whittemore." However, the trial court did not make a finding as to the existence of a deed, its transfer or its subsequent loss or destruction. Given the lack of any direct evidence, the trial court could not properly have made any finding on this issue. See RSA 477:15, RSA 498:5-a, :5-b. Therefore, it was error to have found that Riverwood met its burden of...

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    • United States
    • New Hampshire Supreme Court
    • February 15, 2008
    ...the trial court's determination unless it is erroneous as a matter of law or unsupported by the evidence. Riverwood Commercial Prop's v. Cole, 134 N.H. 487, 490, 593 A.2d 1153 (1991). Moreover, we will not overturn the trial court's ruling on a mixed question of fact and law unless it is cl......
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    ...show that the trial court's decision is erroneous as a matter of law or unsupported by the evidence. Riverwood Commercial Prop's v. Cole, 134 N.H. 487, 490, 593 A.2d 1153, 1156 (1991). Count I of the counterclaim alleged that Clipper had intentionally interfered with Checovich's advantageou......
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    ...the trial court's determination unless it is erroneous as a matter of law or unsupported by the evidence. Riverwood Commercial Prop's v. Cole, 134 N.H. 487, 490, 593 A.2d 1153 (1991). In their cross-petition to quiet title, the Plonskis claimed no private rights to the paper street, but rat......
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