NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-260
CHELLISE L. SEXTON & another 1
vs.
WELLFLEET HOUSING AUTHORITY & others. 2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs Chellise L. Sexton and Kevin M. Sexton filed
this action in Land Court to establish their record title to a
parcel located at 324 Old Kings Highway in Wellfleet (locus) and
thus to obtain a writ of entry. After trial, in a meticulously
detailed decision, a judge ruled that the deed under which the
Sextons claim title does not describe the locus with sufficient
particularity to constitute a valid conveyance. He thus
concluded that the Sextons do not have record title, and that
1 Kevin M. Sexton.
2Town of Wellfleet, Lower Cape Cod Community Development Corporation, Commonwealth of Massachusetts, Barnstable County, United States of America, Verizon New England, Inc., and NStar Electric Company, formerly known as Commonwealth Electric Company; Wendy Drobnyk and Stephen Soumerai, interveners. the interveners, see note 2 supra, have a valid easement over
the locus through a chain of title that does not include the
Sextons. On the Sextons' appeal, we affirm the judgment.
Background. We summarize the most pertinent findings of
fact, none of which is claimed to be clearly erroneous.
The Sextons base their claim of title on a 1922 deed from
Laura M. Lamson to Edwin P. Cook. The competing claim of the
Wellfleet Housing Authority (WHA) depends on the 1922 deed's
having been insufficient to convey title to Cook, which, if
true, would mean the locus passed by intestacy to Lamson's
daughter and then, through a series of conveyances and takings,
to the WHA. The WHA in turn conveyed an easement over the locus
to the predecessors in title of the interveners, who use the
easement for access to their nearby registered land.
The 1922 deed from Lamson to Cook, under which the Sextons
claim title, describes a property bounded on the west by King's
Road (now known as Old King's Highway) and on the east by
Covell's Way. For the northern and southern bounds, however,
the deed uses "abutter calls" to property owned by Edwin P.
Cook. 3 The question at trial was whether this deed sufficiently
describes the locus to which the Sextons claim title.
3The judge explained that an abutter call is a reference to an abutting property. Here, the northern abutter call actually referred to "property owned by Edwin P. Cook and parties unknown." The judge did not find, and no party contends, that
2 After trial, the judge found that, at the time of the deed,
none of Cook's properties abutted the locus. The actual
abutters were Sally Newcomb or her heirs to the north and the
heirs of Cornelius Hamblin to the south. Although Cook owned
properties well to the north and the south of the locus, they
did not abut the locus itself. In other words, the judge found,
the abutter calls do not describe bounds to the locus. Rather,
the judge concluded, "the deed describes some other property,
not the locus, and could not be a source of title for the
Sextons."
More specifically, as to the 1922 deed's northern abutter
call, the judge found that at the time of the deed, the closest
land owned by Cook to the north of the locus was a parcel
approximately 425 feet away, separated from the locus by at
least four other parcels. 4 The judge did "not credit the
testimony that [Cook's northern property], removed by at least
four parcels from the locus, served to form the northern abutter
call in the 1922 [d]eed." As to the 1922 deed's southern
the phrase "and parties unknown" adds anything to the requisite certainty of the property description in the 1922 deed, and thus we do not discuss it further. We note that Lamson traced her title to an 1829 deed that did not rely on abutter calls for its northern and southern boundaries, relying instead on lines described by monuments, distances, and courses.
4 Cook's parcel in turn was comprised of smaller lots previously known, in order from south to north, as the Chipman, Freeman, Hamblen, and Nicholson lots.
3 abutter call, the judge found that, at the time of the deed, the
closest land that might have been owned by Cook to the south of
the locus was a parcel previously known as the Alfred Smith lot,
separated from the locus by one parcel. 5
The 1922 deed's description -- an area bounded by Old
King's Highway on the west, Covell's Way on the east, and lands
of Cook to the north and south -- thus encompassed a large area
comprised of six parcels: the locus, four parcels to its north,
and one parcel to its south. But the 1922 deed's description
also fit "with certainty" a parcel, known as the Freeman lot, to
the north of the locus and of the six-parcel area just
described. See note 5, supra. The judge did not find with
certainty that the Freeman lot was the parcel conveyed -- a John
W. Freeman had already conveyed title to that lot to Cook in
1884 -- only that the fit between the 1922 deed and that lot
"serve[d] to demonstrate the patent ambiguities in the
description provided in the 1922 [d]eed."
The judge, having found that the 1922 deed did not
adequately describe the locus, concluded that the Sextons could
not show the superior record title necessary to obtain a writ of
entry. It followed that the Sextons lacked standing to
5 There was some question, which the judge found unnecessary to resolve, whether Cook had conveyed the Alfred Smith lot to his (Cook's) son in 1905.
4 challenge the validity of the interveners' easement over the
locus and did not prove its invalidity, as was their burden.
Judgment entered accordingly, and the Sextons appealed.
Discussion. "In order to make a valid conveyance of land,
it is essential that the land itself, the subject of the
conveyance, be capable of identification, and, if the conveyance
does not describe the land with such particularity as to render
this possible, the conveyance is absolutely nugatory." McHale
v. Treworgy, 325 Mass. 381, 385 (1950), quoting Tiffany, Real
Property § 990 (3d ed. 1939). In McHale, supra at 385, a deed
conveying 19,340 square feet of land in a certain lot, without
specifying where on that lot the land at issue lay, "described
no land at all and therefore conveyed no land."
Here, the 1922 deed does not describe the locus. The
stated boundaries could be taken to describe a larger, six-
parcel area that includes the locus. But the stated boundaries
also describe with certainty the Freeman lot, which lies to the
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-260
CHELLISE L. SEXTON & another 1
vs.
WELLFLEET HOUSING AUTHORITY & others. 2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs Chellise L. Sexton and Kevin M. Sexton filed
this action in Land Court to establish their record title to a
parcel located at 324 Old Kings Highway in Wellfleet (locus) and
thus to obtain a writ of entry. After trial, in a meticulously
detailed decision, a judge ruled that the deed under which the
Sextons claim title does not describe the locus with sufficient
particularity to constitute a valid conveyance. He thus
concluded that the Sextons do not have record title, and that
1 Kevin M. Sexton.
2Town of Wellfleet, Lower Cape Cod Community Development Corporation, Commonwealth of Massachusetts, Barnstable County, United States of America, Verizon New England, Inc., and NStar Electric Company, formerly known as Commonwealth Electric Company; Wendy Drobnyk and Stephen Soumerai, interveners. the interveners, see note 2 supra, have a valid easement over
the locus through a chain of title that does not include the
Sextons. On the Sextons' appeal, we affirm the judgment.
Background. We summarize the most pertinent findings of
fact, none of which is claimed to be clearly erroneous.
The Sextons base their claim of title on a 1922 deed from
Laura M. Lamson to Edwin P. Cook. The competing claim of the
Wellfleet Housing Authority (WHA) depends on the 1922 deed's
having been insufficient to convey title to Cook, which, if
true, would mean the locus passed by intestacy to Lamson's
daughter and then, through a series of conveyances and takings,
to the WHA. The WHA in turn conveyed an easement over the locus
to the predecessors in title of the interveners, who use the
easement for access to their nearby registered land.
The 1922 deed from Lamson to Cook, under which the Sextons
claim title, describes a property bounded on the west by King's
Road (now known as Old King's Highway) and on the east by
Covell's Way. For the northern and southern bounds, however,
the deed uses "abutter calls" to property owned by Edwin P.
Cook. 3 The question at trial was whether this deed sufficiently
describes the locus to which the Sextons claim title.
3The judge explained that an abutter call is a reference to an abutting property. Here, the northern abutter call actually referred to "property owned by Edwin P. Cook and parties unknown." The judge did not find, and no party contends, that
2 After trial, the judge found that, at the time of the deed,
none of Cook's properties abutted the locus. The actual
abutters were Sally Newcomb or her heirs to the north and the
heirs of Cornelius Hamblin to the south. Although Cook owned
properties well to the north and the south of the locus, they
did not abut the locus itself. In other words, the judge found,
the abutter calls do not describe bounds to the locus. Rather,
the judge concluded, "the deed describes some other property,
not the locus, and could not be a source of title for the
Sextons."
More specifically, as to the 1922 deed's northern abutter
call, the judge found that at the time of the deed, the closest
land owned by Cook to the north of the locus was a parcel
approximately 425 feet away, separated from the locus by at
least four other parcels. 4 The judge did "not credit the
testimony that [Cook's northern property], removed by at least
four parcels from the locus, served to form the northern abutter
call in the 1922 [d]eed." As to the 1922 deed's southern
the phrase "and parties unknown" adds anything to the requisite certainty of the property description in the 1922 deed, and thus we do not discuss it further. We note that Lamson traced her title to an 1829 deed that did not rely on abutter calls for its northern and southern boundaries, relying instead on lines described by monuments, distances, and courses.
4 Cook's parcel in turn was comprised of smaller lots previously known, in order from south to north, as the Chipman, Freeman, Hamblen, and Nicholson lots.
3 abutter call, the judge found that, at the time of the deed, the
closest land that might have been owned by Cook to the south of
the locus was a parcel previously known as the Alfred Smith lot,
separated from the locus by one parcel. 5
The 1922 deed's description -- an area bounded by Old
King's Highway on the west, Covell's Way on the east, and lands
of Cook to the north and south -- thus encompassed a large area
comprised of six parcels: the locus, four parcels to its north,
and one parcel to its south. But the 1922 deed's description
also fit "with certainty" a parcel, known as the Freeman lot, to
the north of the locus and of the six-parcel area just
described. See note 5, supra. The judge did not find with
certainty that the Freeman lot was the parcel conveyed -- a John
W. Freeman had already conveyed title to that lot to Cook in
1884 -- only that the fit between the 1922 deed and that lot
"serve[d] to demonstrate the patent ambiguities in the
description provided in the 1922 [d]eed."
The judge, having found that the 1922 deed did not
adequately describe the locus, concluded that the Sextons could
not show the superior record title necessary to obtain a writ of
entry. It followed that the Sextons lacked standing to
5 There was some question, which the judge found unnecessary to resolve, whether Cook had conveyed the Alfred Smith lot to his (Cook's) son in 1905.
4 challenge the validity of the interveners' easement over the
locus and did not prove its invalidity, as was their burden.
Judgment entered accordingly, and the Sextons appealed.
Discussion. "In order to make a valid conveyance of land,
it is essential that the land itself, the subject of the
conveyance, be capable of identification, and, if the conveyance
does not describe the land with such particularity as to render
this possible, the conveyance is absolutely nugatory." McHale
v. Treworgy, 325 Mass. 381, 385 (1950), quoting Tiffany, Real
Property § 990 (3d ed. 1939). In McHale, supra at 385, a deed
conveying 19,340 square feet of land in a certain lot, without
specifying where on that lot the land at issue lay, "described
no land at all and therefore conveyed no land."
Here, the 1922 deed does not describe the locus. The
stated boundaries could be taken to describe a larger, six-
parcel area that includes the locus. But the stated boundaries
also describe with certainty the Freeman lot, which lies to the
north of the six-parcel area. The Sextons make three essential
arguments as to why this ambiguity should not be fatal. 6
6 The judge noted that the location on the ground today of property described in deeds a century or more old "presents a question of fact." Bernier v. Fredette, 85 Mass. App. Ct. 265, 268 (2014). See also McHale, 325 Mass. at 384 (for purposes of tax title statute, "whether an error in the description of land is [']substantial or misleading['] is commonly a question of fact"). We nevertheless assume in the Sextons' favor, without deciding, that whether a description in a deed is sufficient to
5 1. Overinclusivity. The Sextons concede that the 1922
deed "describes more land than was owned by [Lamson], creating,
on its face, uncertainty as to what [Lamson] intended to
convey." They contend, however, that "[i]t is long established
in the Commonwealth [that] where the boundaries described in a
deed enclose both property owned by the grantor and property not
owned by the grantor, the deed is effective to convey the
property owned by the grantor included within the larger
boundary description." In short, they assert, "[i]n
overinclusive deeds, the deed conveys what the grantor owns."
This proposition might help the Sextons if the 1922 deed's
description of boundaries were otherwise unambiguous, i.e.,
described only one area of land, and the problem was merely that
Lamson owned only some subset of that area. But the 1922 deed
is ambiguous. And neither of the Massachusetts cases the
Sextons rely on involved an ambiguous boundary description.
The first of these cases, Powell v. Clark, 5 Mass. 355, 357
(1809), holds only that where a deed describes land both by its
boundaries and by its quantity and the two descriptions
conflict, the description by boundaries controls. The deed
conveys the grantor's interest in the land within the stated
render the subject land "capable of identification" (citation omitted), id. at 385, is a question of law, reviewed de novo.
6 boundaries, not any larger (or smaller) quantity of land stated
in the deed. 7 Id.
The second case, Atkins v. Bean, 14 Mass. 404 (1817),
similarly misses the mark. In Atkins, supra at 407-408, there
was no ambiguity in the description of the land, only an error
in describing the precise extent of a debtor's undivided
interest in it. Thus, where a judgment creditor purported to
levy an execution on the debtor's one-seventh interest in the
land but the debtor owned only some lesser interest, the levy
was held good for what the debtor actually owned. 8 Id. at 407.
The Sextons also cite numerous treatises and cases from
other jurisdictions for the proposition that where a deed
describes and purports to convey both land owned by the grantor
and land not owned by the grantor, the deed validly conveys what
the grantor owns. We have carefully examined those authorities,
however, and none of them discusses deeds like the 1922 deed at
issue here, in which a description of a property's boundaries is
not merely overinclusive but also ambiguous.
7 This reflects the hierarchy of priorities governing deed interpretation. "Descriptions that refer to monuments control over those that use courses and distances; descriptions that refer to courses and distances control over those that use area; and descriptions by area seldom are a controlling factor." Paull v. Kelly, 62 Mass. App. Ct. 673, 680 (2004).
8 Atkins, supra is not entirely clear whether the debtor owned a one-eighth interest or a nine sixty-fourths interest. The point is immaterial for present purposes.
7 2. Reference to land grantor owns. The Sextons next argue
that "[a]n imprecise description of land to be conveyed does not
render a deed ineffective if reference to the land actually
owned by the grantor clears up any uncertainty." As with their
first argument, however, the cases they cite for this
proposition do not involve ambiguous boundary descriptions of
the type at issue here. In Hurley v. Brown, 98 Mass. 545, 546
(1868), a buyer sought specific performance of a contract to
convey "a house and lot of land situated on Amity Street, Lynn,
Mass." The seller asserted that the description "would be
satisfied by . . . any house and lot on that street" and was
therefore too vague. Id. But, because the seller owned only
one such house and lot, the court held the agreement
enforceable:
"We think that the presumption is strong that a description which actually corresponds with an estate owned by the contracting party is intended to apply to that particular estate, although couched in such general terms as to agree equally well with another estate which he does not own.
. . .
"If the party who enters into the agreement in fact owns a parcel answering to the description, and only one such, that must be regarded as the one to which the description refers." (Emphasis added.)
Id. at 547.
But unlike in Hurley, 98 Mass. at 547, here the 1922 deed
did not contain "a description which actually corresponds with
8 an estate owned by" the grantor, Lamson. Lamson did not "in
fact own[] a parcel answering to the description, and only one
such." Id. Here, the description corresponded both to a six-
parcel area, within which Lamson owned only one parcel, and to
the Freeman lot, which Lamson did not own in 1922.
To similar effect as Hurley, 98 Mass. at 547, and no more
helpful to the Sextons, is Danforth v. Chandler, 237 Mass. 518
(1921). There, where the seller owned no other land in
Pembroke, an agreement to convey a forty-acre farm in Pembroke
was held enforceable. Id. at 521. The court repeated what it
had said in Hurley, that "[i]f the party who enters into the
agreement in fact owns a parcel answering to the description,
and only one such, that must be regarded as the one to which the
description refers." Id., quoting Hurley, supra. Again, the
principle applies where the seller in fact owns one and only one
parcel answering to the description, which is not true of Lamson
and the 1922 deed here. Thus, contrary to the Sextons'
argument, this case is not "like Hurley and Danforth."
Danforth, 237 Mass. at 522, further states that "[w]hile
the terms of the memorandum cannot be contradicted or varied,
parol evidence is admissible to show what real property the
[grantor] had, and to apply the contract to it." Applying this
same principle to the 1922 deed, Lamson's ownership of the locus
is undisputed, but that does not change the fact that the
9 description in the deed does not correspond to the locus. To
interpret that description as applying to the locus would
impermissibly contradict the abutter calls to parcels some
distance away, or vary them by substituting calls to the actual
abutters as of 1922.
3. General principles. The Sextons finally rely on
general principles of deed interpretation to argue that the
ambiguous deed should be interpreted in their favor. "The basic
principle governing the interpretation of deeds is that their
meaning, derived from the presumed intent of the grantor, is to
be ascertained from the words used in the written instrument,
construed when necessary in the light of the attendant
circumstances" (citation omitted). Patterson v. Paul, 448 Mass.
658, 665 (2007). We may assume that Lamson intended to convey
something to Cook -- although the judge found that he could not
ascertain what she intended to convey -- and that her ownership
of the locus was one of the attendant circumstances. "And if
the words used will permit, and if no positive rule of law
prevents, a construction which will accomplish a reasonable
object should be preferred to one which will render the whole
attempt void." Brackett v. Pitcher, 296 Mass. 295, 297 (1936).
But we are not persuaded that those general principles
suffice to overcome the ambiguity here. No doubt the court in
McHale considered them, yet the court nevertheless ruled that a
10 deed conveying 19,340 square feet of land in a certain lot,
without specifying where on that lot the land at issue lay, was
insufficient. McHale, 325 Mass. at 385. The McHale court also
relied on Conners v. Lowell, 209 Mass. 111, 122 (1911), in which
descriptions were held insufficient as follows:
"[I]n each [deed] the land was described only by its area in square feet, more or less, the street and side thereof on which it was located, and the number of the lot without reference to any plan. In fact, there was a private plan on record at the registry of deeds and a plan at the office of the city engineer, on which the several lots could be sufficiently identified. This description was insufficient. . . . [T]he names of no abutting owners were given, nor was there anything to show the shape of the parcel. The designation of it by a lot number without naming the plan or showing where it might be found or giving any other descriptive circumstance was too indefinite."
McHale, supra, quoting Connors, supra.
The Sextons also cite the principle that a deed is
construed against the grantor, and "[i]f, therefore, there be
two descriptions of the land conveyed, which do not coincide,
the grantee is entitled to hold by that which will be most
beneficial to him" (citation omitted). Bernard v. Nantucket
Boys' Club, Inc., 391 Mass. 823, 827 (1984). But the 1922 deed
does not contain two descriptions. It contains one ambiguous
description, and each proposed resolution of that ambiguity is
problematic.
Because we agree with the judge that the 1922 deed does not
describe the land with such particularity as to make it capable
11 of identification, see McHale, 325 Mass. at 385, we need not
address the Sextons' challenge to the judge's further reliance
on post 1922 actions by interested persons who were not parties
to the deed. And, because the Sextons make no argument that
they still have a viable challenge to the interveners' easement
even if the 1922 deed is invalid, we need not discuss the
easement issue further.
Judgment affirmed.
By the Court (Sacks, Hershfang & Tan, JJ. 9),
Clerk
Entered: June 23, 2025.
9 The panelists are listed in order of seniority.