Shoer v. Daffe

• Decision Date: 21 April 1958
• Citation: 149 N.E.2d 625,337 Mass. 420
• Parties: Mandel SHOER v. J. Robert DAFFE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 625

149 N.E.2d 625

337 Mass. 420

Mandel SHOER v. J. Robert DAFFE et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Jan. 7, 1958.

Decided April 21, 1958.

Harry A. Simon, Salem (George A. Brown, Manchester, with him), for plaintiff.

Edward J. Bushell, Malden (John J. Irwin, Jr., Medford, with him), for defendants.

Before WILKINS, C. J., and RONAN, WILLIAMS, COUNIHAN and CUTTER, JJ.

WILLIAMS, Justice.

This is a suit to restrain the defendants from interfering with the plaintiff's possession of a parcel of land in Salem and to establish his ownership thereof by adverse possession. The facts, which have been found by a master, are as follows. The parties are adjoining owners of lots in a tract of land at the junction of Loring Avenue and Summer Road shown on a surveyor's plan recorded in book of plans 16, plan 16, Essex South District registry of deeds. The plaintiff has record title to lots 16 to 22 inclusive and the defendants to lots 23 to 26 inclusive. The land in dispute is a triangular area, known as the 'Flat Iron Piece,' containing 556 square feet which is a part of lot 23 and adjoins lot 22. All of these lots were formerly owned by the trustees of Loring Realty Company. At some time previous to October 20, 1922, the trustees conveyed lots 16 to 22 to William C. Stanley. In 1921 he erected a house on the property, now known as 114 Loring Avenue, and 'completely encompassed' all of his land including the triangular area with a privet hedge. The locus 'was planted to lawn and still is a part of the spacious grounds in the rear' of the plaintiff's house.

On October 20, 1922, Stanley conveyed the lots to his wife, Felixia Stanley. Mrs. Stanley mortgaged them to National City Bank of Lynn in 1924. The bank entered to foreclose on November 7, 1929, and sold the property at foreclosure sale on November 19, 1929. It bought in the property at the sale. Thereafter the Stanley family continued in possession of the property by arrangement with the bank for three or four months. From the time Stanley left the property it was occupied continuously by a succession of tenants of the bank. On October 1, 1942, the bank conveyed the lots to William L. Shoer and on the following December 9 he conveyed them to the plaintiff who is now the record owner.

The defendants hold record title to lots 23-26 through a series of mesne conveyances stemming from a deed of the surviving trustee of Loring Realty Company to one Amanda Flynn on April 20, 1938.

In conclusion the master found that 'on all the evidence * * * Mandel Shoer and his predecessors in title have been in actual possession of the premises in question for a period of some thirty-three years. The evidence is uncontradicted that the acts of the plaintiff and those claiming prior to him manifested the intent to hold the land openly and exclusively under claim of right adverse to that of J. Robert Daffe and Marie Daffe and their predecessors in title. The continuity of physical possession of the area clearly marked by visible boundaries, i. e. the hedge, together with the continuous use of the area showed an intent to control and claim the whole of that area that has been referred to as the 'Flat Iron Piece.' The owners of lots 16 to 22 (now owned by Mandel Shoer) by the cultivation and use of the entire area appurtenant to the premises numbered 114 Loring Avenue without the consent of the owner or owners of lots 23 to 26 has resulted in the perfecting of a title by adverse possession in Mandel Shoer.'

The defendants filed objections to the master's report. An interlocutory decree was entered ordering that their second and third exceptions (objections) be sustained; that 'the conclusion of the master that the petitioner and his predecessors in title had had continuous actual possession of the disputed area for more than twenty years, openly and without the consent of the record owner, under a claim of right which has been uninterrupted, be stricken from the report and there be substituted in place thereof the following conclusion: That the continuity of possession of the petitioner of the disputed area, under a claim of right to the title, was interrupted by the possession of said area from 1929 to 1942 by tenants of a mortgagee thereof and the grantor of the petitioner. In consequence thereof, the petitioner has not acquired title by adverse possession to said premises. And that the report of the master, as so modified, be and hereby is confirmed; and a final decree may be entered, dismissing the petition and for costs.'

The plaintiff filed a claim of exceptions, which does not appear to have been prosecuted,...