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COMMONWEALTH OF MASSACHUSETTS
LAND COURT DEPARTMENT
OF THE TRIAL COURT
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| SUFFOLK, SS. |
CIVIL ACTION
NO. 110046 |
JAMES W. PADULA and NANCY A. PADULA, Plaintiff(s)
Vs. GRACE M. QUINN (address); E. NAOMI STRATTON (address); WILBUR C. FAY (address); All Persons Claiming under HATTIE R. COOPER, deceased; All Persons Claiming under IRENE FAY BENSON, deceased; All Persons Claiming Under MABEL FAY LEE, deceased; All Persons Claiming Under EVA B. FAY, deceased; All Persons Claiming Under RHODA FAY MEIGHAN, deceased; All Persons Claiming Under THOMAS H. MEIGHAN, deceased; All Persons Claiming under WILBUR FAY, deceased; All Persons Claiming Under FOSTER FAY, deceased.
Defendants
1. The plaintiffs, James W. Padula and Nancy A. Padula, claim to have possession of and legal title to the following parcels of land in Grafton, County of Worcester, Commonwealth of Massachusetts, bounded and described as follows:
TRACT 1: Beginning at a point on the Westerly line of George Hill Road, at a stone wall at corner of land now or formerly of one Robert Snyder:
 Thence running along the stone wall and land of said Snyder north 67� west 14 rods 7 links to a corner of walls;
Thence turning and running along the stone wall and land of said Snyder south 70� west 14 rods 6 links to a corner of walls;
Thence turning and running along the stone wall and land of said Snyder south 15-1/2� west 2 rods 23 links to a point at land now or formerly of Hattie E. Cooper;
Thence turning and running south 60� east 24 rods 6 links to a point on the westerly line of George Hill Road;
Thence turning and running northerly along the westerly line of George Hill Road north 27� east 16 rods 21 links to the point of beginning.
Said Tract contains about 2 acres 40 rods and is the first lot set off to Otis C. Fay by decree of the Probate Court, confirming the report of the Commissioners in partition recorded in Worcester Probate Court Volume 339, Page 107.
TRACT 2: Beginning at the corner of the stone walls at the north-east corner of Tract 3 below described:
Thence running south 71� east along the southerly line of land now or formerly of one Casey most of which is along a stone wall 72 rods to a stake and stones;
Thence turning and running southerly 13-1/2 rods to a stake and stones at corner of land set off to Harriet R. Cooper by the Commissioners in partition with the Probate, Volume 339, Page 107;
Thence turning and running north 71� west along the northerly line of said Harriet R. Cooper land 72 rods to a stone wall at the easterly line of Tract 3 below described;
Thence turning and running along the stone wall north 21-1/2� east along the easterly line of Tract 3 below described 12 rods 3 links to the point of beginning.
Said lot contains 5 acres 120 rods of land and is the second lot set off to Otis C. Fay by decree of the Probate Court confirming the report of the Commissioners in partition recorded in Worcester Probate Court, Volume 339, Page 107.
TRACT 3: Beginning at a point on the easterly line of George Hill Road at a stone wall at corner of land now or formerly of Robert Snyder;
Thence running easterly along the stone wall and land of said Snyder and on e Casey south 74 east 96 rods to a corner of stone walls;
Thence turning and running south 17� 30 minutes east by said stone wall 25 rods to a corner of stone walls at land now or formerly of one Lemieux;
Thence turning and running north 74 west by the northerly line of said Lemieux land and partly by said stone wall 97 rods 13 links to a point on the easterly line of George Hill Road;
Thence turning and running northerly along the easterly line of George Hill Road 425 feet more or less to the point of beginning.
Said Tract 3 contains 15 acres 20 rods of land more or less.
Said Tract 3 is the remaining portion of the land conveyed by Jonathan E. Forbush to David Fay 1 April 1824 and recorded in the Worcester District Registry of Deeds, Book 237, Page 161, which was omitted from the decree of the Probate Court of Worcester partitioning the land of David Fay. See Worcester Probate Book 339, Page 107.
All of said land is shown on plan of "Land in Grafton, Mass., prepared for James W. Padula" dated January 6, 1983, and recorded in the Worcester District Registry of Deeds, Plan Book 502, Plan 117. See Exhibit 1.
1. David Fay obtained legal title to all the land in question by two deeds of Jonathan E. Forbush, the first dated 1 April 1824 and recorded in the Worcester District Registry of Deeds, Book 237 Page 161 and the second dated 2 May 1825 and recorded in the Worcester District Registry of Deeds Book 278, Page 192. See Exhibit 2 and 3.
3. David Fay deeded to his son, Otis C. Fay, by deed dated 31 March 1848 and recorded in the Worcester District Registry of Deeds Book 437, Page 161 an undivided one-half interest in the land and buildings involved in this petition, subject to a mortgage thereon. See Exhibit 4
4. Said David Fay died 21 October 1874 Worcester Probate No. 20232A without a Will and left the following heirs:
(a) Otis C. Fay - son;
(b) Harriet R. Cooper (a/k/a Hattie R. Cooper) - daughter.
5. The administrator of the Estate of said David Fay filed the following inventory:
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One-half personal property of David Fay |
-- $ 75.00 |
| One cow |
-- 25.00 |
| One-half real estate of late David Fay |
-- $1,400.00 |
| Mortgage on entire estate |
--600.00 |
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See Exhibit 5.
6. Hattie R. Cooper on 28 March 1878 filed a Petition for Partition of all the interest of David Fay in the Tracts of land in question with the buildings thereon. See Exhibit 6.
7. The decree, dated 2 July 1878 confirming the report of the Commissioners set off to Otis C. Fay and Harriet R. Cooper each one lot of land on the west side of the road and a wood lot at the east end of the farm. The two lots set off to Otis C. Fay in the decree in partition are tracts 1 and 2 now claimed to be owned by the plaintiffs. See Exhibit 7.
8. Although Hattie R. Cooper had filed a petition for partition of all the land with the buildings thereon owned by her father, David Fay, on his decease, and although the report of the Commissioners in partition as confirmed and established by the Court states that the partition was of all the land of David Fay and was properly made----- (IN FACT TRACT 3 CONSISTING OF A ONE-HALF INTEREST IN THE HOMESTEAD AND 15 ACRES AND 20 RODS OF LAND WERE OMITTED FROM THE COMMISSIONERS REPORT AND THE DECREE IN PARTITION).
9. The petition for partition asks for a partition of the one-half interest of David Fay and the legal result of the partition decree left Otis C. Fay owning the entire interest in tract 1 and tract 2 and a three-quarter undivided interest in tract 3 of this Complaint and left his sister, Harriet R. Cooper, owning a one-quarter interest in tract 3.
10. The plaintiffs' title comes from Grace M. Quinn, the only living child of Otis C. Fay and they claim that titles to the land in question was perfected by adverse possession of said land from 2 July 1878, the date of the Probate Court decree confirming and establishing the report of partition and that said adverse possession has continued up to this date. Said adverse possession was made by Otis C. Fay from 1878 to the date of his death in 1911. Said adverse possession continued by the Widow and children of Otis C. Fay until 29 January 1982 the date of a deed from Grace M. Quinn to your plaintiffs. The plaintiffs have continued said adverse possession up to and including the date of this Complaint and said adverse possession has never been challenged from 1878 to this date.
11. The plaintiffs claim that more than 100 years preceding the commencement of this action, Otis C. Fay and his heirs were in the actual peaceable, exclusive, open, notorious, visible, hostile, continuous and uninterrupted adverse possession of the whole of the property against Hattie R. Cooper and her heirs for the following reasons:
(a) David Fay, father of Otis C. Fay, had mortgaged all of the land in question to Rufus Pike on 1 April 1853 by mortgaged deed recorded in the Worcester District Registry of Deeds Book 509 Page 302. See Exhibit 8. On 30 March 1880 Rufus Pike made an unopposed entry of this mortgage recorded in Worcester District Registry of Deeds Book1070, Page 217. On 30 March 1880 Rufus Pike transferred and assigned the premises described in the mortgage with the note and possession to Elizabeth T. Putnam which was recorded in Worcester District Registry of Deeds Book 1070, Page 218.
(b) David Fay and Otis C. Fay mortgaged to Frederick A. Stowe on 1 April 1859 the 21 acres conveyed to David Fay by deed recorded in Worcester District Registry of Deeds Book 237 Page 161 (Exhibit 2) subject to the previous mortgage to Rufus Pike by mortgage deed recorded in the Worcester District Registry of Deeds Book 618 Page 208.
On June 18, 1881, this mortgage of David Fay and Otis C. Fay was discharged by instrument recoded in Worcester District Registry of Deeds Book 1099 Page 63. See Exhibit 9.
(c) on June 18, 1881 Elizabeth T. Putnam quitclaimed to George W. Peters the two lots set off to Hattie R. Cooper by the Commissioners in Partition of the Estate of David Fay by deed recorded in the Worcester District Registry of Deeds Book 1099 Page 64. See Exhibit 9. This deed was given as a partial release of the mortgage held by her as assignee of the Rufus Pike mortgage.
(d) On June 18, 1881, Harriet R. Cooper transferred the land near and opposite the house now occupied by Otis C. Fay meaning and intending to convey by this deed the land set off to her by partition of the David Fay estate by deed recorded in the Worcester District Registry of Deeds Book 1099 Page 65. See Exhibit 9.
(e) On April 16, 1892, Elizabeth Putnam conveyed to Otis C. Fay all the land now claimed by the plaintiffs, namely, all the land obtained by foreclosure of the mortgage of David Fay to Rufus Pike except the land set off to Harriet C. Cooper by partition of the David Fay estate by deed recorded in the Worcester District Registry of Deeds Book 1384 Page 246. See Exhibit 10.
(f) On April 16, 1892, Otis C. Fay mortgaged to Elizabeth T. Putnam all of the land claimed by the plaintiffs by mortgage deed recorded in Worcester District Registry of Deeds Book 1382 Page 1490. See Exhibit 11.
(g) By these instruments, Harriet R. Cooper, by her deed had denied that Otis C. Fay had any interest in the land set off the her by the Commissioners in Partition and David C. Fay by his mortgage denied that Harriet C. Cooper had any interest in the land now claimed by the plaintiffs and both parties had notice of and acquiesced in the other acts, all apparently because of a mutual mistake occasioned by the decree in partition.
(h) In any event, Harriet Cooper died January 24, 1899 in Upton, Massachusetts. She was at that time a widow without children and her heirs at law were the issue of Otis C. Fay. Her estate was never probated. See Exhibit 11.
12. On April 16, 1892, as stated in paragraph 11E of this Complaint, Elizabeth Putnam conveyed to Otis C. Fay all the land now claimed by the plaintiffs by virtue of her foreclosure of the mortgage given by David Fay to Rufus Pike on 1 April 1853. See paragraph 11(a) of this Complaint.
On April 16, 1892, Otis C. Fay again mortgaged all the land now claimed by the plaintiffs to Elizabeth T. Putnam. See Exhibit 12.
13. On 20 June 1894, Charles C. Putnam, as Administrator of the Estate of Elizabeth T. Putnam, made a peaceable entry on said land to foreclosed this mortgage which was recorded in Worcester District Registry of Deeds Book 1444, Page 601.
14. On 7 June 1897 Charles C. Putnam, as Administrator of the Estate of Elizabeth T. Putnam, assigned this mortgage, deed, the real estate thus conveyed, and the note and claim to Clara M. Putnam, which was recorded in Worcester District Registry of Deeds Book 1537, Page 608.
15. On 29 June 1898, Otis C. Fay gave a second mortgage on the land in question to Catherine F. Weld, which was recorded in the Worcester District Registry of Deeds Book 1582 Page 477.
16. On 11 June 1907 Clara M. Putnam as assignee of the mortgage of Otis C. Fay to Elizabeth T. Putnam, dated April 16, 1892 and recorded in the Worcester District Registry of Deeds Book 1382, Page 149, assigned the mortgage deed, the real estate thereby conveyed, and the note and claim to Rhoda A. Fay, which was recorded in the Worcester District Registry of Deeds, Book 1855, Page 482. See Exhibit 13.
17. Rhoda A. Fay, above mentioned, was the daughter of Otis C. Fay and the mortgage so assigned to her has never been discharged of record.
18. On 11 August 1916 the second mortgage of Otis C. Fay to Catherine F. Weld was discharged by recording in the Worcester District Registry of Deeds Book 2145, Page 92.
19. From April 16, 1892 to date, therefore, there is a cloud on the title to the land in question by virtue of the mortgage of Otis C. Fay to Elizabeth Putnam (Exhibit 11) and the assignment of said mortgage to Rhoda A. Fay (Exhibit 13).
20. The plaintiffs claim that for more than 100 years preceding the commencement of this action, Otis C. Fay and his heirs were in the actual, peaceable, exclusive, open, notorious, visible, hostile, continuous and uninterrupted adverse possession of the whole of the property against all persons for the following reasons:
(a) Since the date of the death of his father, 21 October 1874, Otis C. Fay occupied the land in question exclusively to the date of his death, February 20, 1911, and the seven children of Otis C. Fay were all born in the farmhouse on said land.
(b) The plaintiffs grantor, Grace M. (Quinn), was one of the seven children of Otis C. Fay and she lived in the land in question until the widow of Otis C. Fay and the remaining members of the family moved to East Walpole, Mass. in 1912.
(c) From 1912 to 1934 the family exercised dominion over the farm by visiting there and staying up to a week at a time, by harvesting the fruit, by allowing the neighbors to cut hay on the farm and by allowing an Indian, by the name of Amos, to live there until 1934, when the house burned;
(d) From 1934 to 1981, Grace M. Quinn allowed the adjoining neighbor, Robert Snyder to cut the hay on the farm.
(e) Since the plaintiffs purchased the land in question from Grace M. Quinn they have erected a no-trespassing sign on the premises and no one has ever questioned the ownership of this land since 1874 up to and including this date.
(f) Taxes were assessed and paid on this real estate in the name of Otis C. Fay from 1878 to his death in 1911. From 1912 to 1982 the real estate taxes were assessed to the estate of Otis C. Fay and from 1912 to 1982, the taxes on this property were paid by Wilbur Fay until his death in 1957 and from 1957 to 1982 these taxes were paid by Grace M. Quinn.
21. Otis C. Fay had seven children who were all born on the premises in question. He died February 20, 1911, and his estate was never probated. His legal heirs at the time of his death were as follows: Elizabeth Fay, widow; Irene Fay Benson, born in 1849; Mabel Fay Lee, born in 1872; Wilbur Fay, born in 1877; Rhoda Fay Meighan, born in 1881; Foster Fay, born in 1884; Grace M. Fay Quinn, born in 1894; and Eva B. Fay, born 1897.
22. Irene Fay Benson and Mabel Fay Lee were not the issue of the widow, Eliza Fay. They both died in Grand Rapids, Michigan, widowed and without issue. Irene Fay Benson died more than 50 years ago and Mabel Fay Lee more than 40 years ago. See exhibit 13 A&B.
23. Eliza Fay, the widow of Otis C. Fay, died September 27, 1917 in East Walpole, Mass, and her estate was never probated.
24. Eva B. Fay, daughter, died September 1, 1937, in Norwood, Mass. without a Will, leaving as heirs, Wilbur C. Fay, Grace Quinn, Rhoda Meighan, and Foster O. Fay, Norfolk No. 90798, see Exhibit 14.
25. Rhoda Fay Meighan died July 24, 1950 in Framingham, Mass. without a Will, leaving a husband Thomas H. Meighan, who died January 9, 1951. The husband left no known relatives, and the estate of Rhoda Meighan was probated, Middlesex Probate No. 300446 leaving Wilbur C. Fay, Foster O. Fay, and Grace M. Quinn as heirs. See Exhibit 15.
26. Wilbur C. Fay died 21 August 1957 in Walpole, Mass. leaving as heirs, his brother, Foster Fay and Grace M. Quinn, and by Will, left the residue of his estate to them, Norfolk Probate No. 142228. See Exhibit 16.
27. Foster D. [sic] Fay died July 17, 1976 in Hyannis, Mass., leaving as his hiers [sic] at law, Wilbur C. Fay, son, and E. Naomi A. Stratton, of Seminole, Florida.
28. The two heirs at law of Foster D. Fay, gave a deed to the premises in question to Grace M. Quinn, by deed recorded in the Worcester District Registry of Deeds, Book 7407, Page 177 and Page 178. See Exhibits 17 and 18.
29.. Grace M. Quinn gave a deed to the premises in question to your petitioners by deed recorded in the Worcester District Registry of Deeds, Book 7407, Page 179. See Exhibit 19.
30. The plaintiffs, James W. Padula and Nancy A. Padula, bring this action against said defendants to establish their title to the land in question
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Signed...
J. Oscar Rocheleau, Esquire
Healy and Rocheleau, P.C.
390 Main Street, Suite 800
Worcester, Massachusetts 01608-2585
(617) 791-6287
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Dated: Febr. 28, 1983 |
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