COMMONWEALTH vs. NICHOLAS D'AGOSTINO (and a companion case. )

MARY E. DUGAN & others vs. VIRGINIA WELLOCK.

348 Mass. 778

December 3, 1964

The Land Court ordered title to certain land in Brewster (the locus) registered as belonging to the substitute petitioners. Because the case is here by appeal, rather than on a bill of exceptions, the sole question is whether the judge's order is correct on the facts stated, or incorporated by reference, in the decision. Harrington v. Anderson, 316 Mass. 187 , 192-193; Comeau v. Manzelli, 344 Mass. 375 , 376. The judge found that in 1917, one Saint, the respondent's predecessor in title, sought to register title to the locus, claiming by adverse possession. That petition, to which Dennis E. Dugan (the original petitioner in the present case) was a party, was dismissed, thus establishing, as between the parties to that petition and their privies, that Saint's attempted acts of dominion gave him no title to the locus. See G. L. c. 185, Section 44. The present petition, filed in 1924, terminated any acquiescence by Dugan (and those claiming

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under him) in subsequent attempted acts of dominion. Baumgartner v. Doherty, 286 Mass. 583 , 586. Although exhibits in evidence have been incorporated in the decision by reference for purposes of this appeal, the record does not show that all the evidence is before us. The judge found that the substitute petitioners hold title to the locus as tenants in common. Facts found by him warrant the conclusion that they hold it by adverse possession, even if it be assumed that they do not have a clear record title. The judge's conclusions are consistent with, and are warranted by, the facts stated in the decision.

Decision affirmed.