VINEYARD CONSERVATION SOCIETY, INC. v. JAIME LOBO BAPTISTE & Others.

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

23-P-325

VINEYARD CONSERVATION SOCIETY, INC.

vs.

JAIME LOBO BAPTISTE & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

As described in Kitras v. Aquinnah, 474 Mass. 132, 137-138,

cert. denied, 580 U.S. 1000 (2016), in 1879, court-appointed

commissioners completed a partition of over 500 lots in the town

of Aquinnah "for the residents to hold in severalty."2 The

plaintiff, Vineyard Conservation Society, Inc. (VCS), commenced

this action in 2016 pursuant to G. L. c. 240, § 6, to establish

title to lot 240, a 5.4-acre lot on the resulting partition

1 Byram Devine, Donna Devine, Herbert L. Devine, Jr., Joshua E.
Devine, Marie T. Devine, Marie W. Devine, Marlene Devine, Julia
R. Devine, Rebecca Devine, Tanya Devine, Stephanie Duckworth,
Sara Fiorenzo, provisional administratrix for the succession of
Zeb Devine, Shawne Gomes, Tanisha Gomes, Ralph Harding, II,
Elisa Kapell, Joseph Kapell, Robert Kapell, Brandhi M. Lobo,
Tyrone L. Lobo, Wayne Lobo, Kurtis Troy Small, Hillary L.
Swindell, and the unknown heirs of Louisa E. Pocknett, also
known as Louisa E. Devine.
2 The town of Aquinnah was known as "Gay Head" until 1997. See
Kitras, 474 Mass. at 133.
plan. A judge of the Superior Court, after a trial, concluded

that VCS is the fee owner of lot 240, and the defendants

appealed. We affirm.

Background. We draw the facts from the trial judge's

findings and the trial exhibits, supplemented at times by

undisputed testimony. See McLaughlin v. Zoning Bd. of Appeals

of Duxbury, 102 Mass. App. Ct. 802, 804 (2023); Fish v.

Accidental Auto Body, Inc., 95 Mass. App. Ct. 355, 356 (2019).

"Upon appeal, we accept a trial judge's findings of fact unless

they are 'clearly erroneous,' . . . and do not review questions

of fact if any reasonable view of the evidence and the rational

inferences to be drawn therefrom support the judge's findings."

Martin v. Simmons Props., LLC, 467 Mass. 1, 8 (2014). "[T]he

trial judge's ultimate interpretation of the [deed] is a

question of law . . . that we review de novo." Mazzola v.

O'Brien, 100 Mass. App. Ct. 424, 427 (2021).

It is undisputed, and the judge so found, that as a result

of the 1879 partition, lot 240 was assigned to "Louisa E. Divine

-- Census No. 3."3 Although Louisa died in 1874, before the

partition plan was completed, because the land was divided and

assigned based on residency in the 1870 census, her estate would

3 The partition document spells Louisa's surname "Divine," but
the judge and the parties refer to her as "Devine." None of the
parties contend that any issue turns on the spelling.

2
have received lot 240. Louisa died without a will, leaving her

husband and several children. Her husband, Patrick, died in

1890, survived by some of their children.

The judge found that there was a deed to lot 240 from

"Louisa E. Divine" to Ephraim Mayhew dated July 21, 1887. Where

Louisa, however, had died in 1874 and could not have signed the

deed in 1887, the judge found that her daughter, Eliza (also

known as Louisa), had executed the deed -- at a time when Eliza

did not solely own lot 240. The judge concluded that there was

no evidence to support reforming the 1887 deed to reflect that

Eliza, and her father and siblings, intended the 1887 deed to

convey all of their interests in lot 240 to Mayhew. The judge

found, therefore, that the 1887 deed was ineffective, that the

Mayhew chain of title was invalid, and that lot 240 passed to

Louisa's heirs. On appeal the defendants agree with the judge's

analysis on this point. VCS claims that it holds title under

both the Mayhew chain of title and what has been described as

the Devine/Cronig chain of title, discussed below.

Concluding that lot 240 was retained by Louisa's heirs, the

judge traced the title from all of Louisa's heirs to VCS (the

Devine/Cronig chain of title).4 Perhaps because of the 1887 deed

4 There does not appear to be any dispute about the identities of
Louisa's and Patrick's heirs. Testimony of a title expert at
trial revealed that two of their children died unmarried and
without children in 1888 and 1916. The only surviving heirs

3
and its progeny, there is no deed that specifically identified

lot 240, but each of the pertinent heirs and their grantees used

broad language and transferred to VCS's predecessors "all and

every other piece, parcel, lot, and interest in land in said Gay

Head which I have any interest in," or words to that effect.5 A

total of six deeds leading to the deed to VCS used similar

language, which the judge concluded was unambiguous "and that

. . . each [deed] had the effect of passing on the grantor's

interest in [l]ot 240 to the grantee."

Discussion. The defendants' primary argument on appeal is

that the general language in the deeds in the Devine/Cronig

chain of title was insufficient to transfer lot 240 because

interpretation of a deed turns on the grantor's intent viewed in

light of the attendant circumstances, and "the attendant

circumstances" were such that the heirs were or should have been

were Jeannette, Eliza, Grafton, and Mercy. Jeannette died in
1929 and left everything she owned to Eliza. Mercy married, but
she, her husband, and her sons predeceased her son Joseph, and
when Joseph died (unmarried and without issue) in 1923, his
interest in the Gay Head property went to his aunts and uncle,
Eliza, Jeannette, and Grafton. In 1937, Eliza conveyed all her
property (and Jeannette's) on Gay Head to her nephew, Horace
Devine. Grafton died in 1932 and his surviving wife and
children also transferred all interest they had in any property
in Gay Head to Horace Devine. Thus, all of Louisa's heirs'
interests in lot 240 were transferred to Horace Devine. In
1945, Horace conveyed all of his right, title, and interest in
any property in Gay Head to Henry Cronig, thereby commencing the
Devine/Cronig chain of title.
5 There is no argument that the modest differences in the

language used in each deed are relevant.

4
aware of the 1887 deed to lot 240, and thus could not have had

the specific intent to transfer lot 240. In other words, the

defendants argue that the heirs' presumed knowledge of the 1887

deed meant that the heirs could not have later intended to

transfer any interest in lot 240 because they would have

believed that the 1887 deed had already conveyed lot 240 to

Mayhew. The defendants fail to consider that if the heirs were

aware of the 1887 deed, they may have been equally aware of

Eliza's lack of authority to execute it on behalf of her

mother's estate or her mother's heirs, resulting in the 1887

deed being void. See Bongaards v. Millen, 55 Mass. App. Ct. 51,

55 (2002) (deed from individual who did not own property "could

convey nothing, and thus was a nullity"). Nor do they support

their contention that a void deed nonetheless provides

constructive notice of a competing title claim. In any event,

the heirs' presumed knowledge of the 1887 deed does not assist

the defendants where the clear intent of the plain language of

the deeds in the Devine/Cronig chain of title was to divest the

grantors of their interest in all property in Gay Head.

It is true that "[t]he general principle governing the

interpretation of deeds" is "that the intent of the parties in

each instance was ascertained from the words used in the written

instrument interpreted in the light of all the attendant facts."

Hickey v. Pathways Ass'n, 472 Mass. 735, 744 (2015), quoting

5
Suburban Land Co. v. Billerica, 314 Mass. 184, 189 (1943). To

be sure, the language in the deeds is not exacting, and the

grantors took risks using it. Cf. Fitzgerald v. Libby, 142

Mass. 235, 238-239 (1886) (mortgagee took risk where general

description of land used). However, the language of a deed is

construed most strongly against the grantors, see Kettle Brook

Lofts, LLC v. Specht, 100 Mass. App. Ct. 359, 373 (2021), and if

in using such broad language the heirs transferred property they

did not know they owned, that was the result of the plain

language they chose to use.

We need not consider whether admission of extrinsic

evidence was proper here, because even considering it, the judge

concluded that title to lot 240 is in VCS. The deeds express

the specific intent to transfer the grantors' interests in all

land on Gay Head -- there is no exception for property that they

did not know they owned. The language, "all and every . . .

parcel . . . in Gay Head which I have any interest in," includes

parcels that the grantors did not know they owned. Thus, even

accepting that the heirs all believed that Eliza had validly

sold off lot 240 and they had no remaining interest in it, the

broad language they used encompasses the possibility that a deed

had been ineffective or invalid or a transfer had been otherwise

ineffective. We discern no impediment to enforcing their intent

6
to divest themselves of all of their interests in all land in

Gay Head in which they had an interest.

Even assuming, without deciding, that it is appropriate to

consider the extrinsic evidence offered by the defendants

notwithstanding the plain language of the deeds, we agree with

the judge that that evidence would not change the result. The

defendants incorrectly assert that the judge did not consider

other "attendant circumstances," including that certain tax

takings showed that the town did not treat lot 240 as owned by

the heirs and their grantees. The judge specifically rejected

the argument that the transfer of lot 276 on the partition plan

in 1947 was proof that the grantor did not intend in 1945 to

make a conveyance of all his lands, including lot 240, by the

general language transferring all of the grantor's interest in

all Gay Head property. The judge found that the deed to lot 276

in 1947 simply confirmed the earlier transfer of that lot, and

7
we discern no error in that conclusion.

For all of the foregoing reasons, we affirm the judgment.

Judgment affirmed.

By the Court (Desmond, Shin &
Singh, JJ.6),

Assistant Clerk

Entered: March 14, 2024.

6 The panelists are listed in order of seniority.

8