Belanger v. Belanger

STATE OF MAINE SUPERIOR COURT

CIVIL ACTION

YORK, ss. DOCKET NOS. RE-04-019

RE-04-026

LARRY BELANGER,

Plaintiff

Vv. ORDER

LEONEL BELANGER,

Defendant

This case comes before the Court on Larry A. Belanger’s Motion for Summary

Judgment and Leonel P. Belanger’s Motion to Dismiss.

FACTS

Larry Belanger (Larry) and Leonel Belanger (Leonel) are brothers engaged in a

dispute over their respective interests in property located on Berry Road in Saco, Maine.

Their parents, Albert and Alice Belanger, are deceased.

The property at issue, over 52 acres including a home, was conveyed by recorded

deed to Albert, Alice, and Leonel Belanger on June 23, 1945, before Larry was born. The

Grantor was Alice Belanger’s father. The deed grants the property to “Alice Victorine

Belanger, Albert N. Belanger and Leonel Belanger, their Heirs and Assigns forever.”

However, the habendum clause of the deed,’ which appears later in the document,

includes some preprinted language and some blank spaces. The habendum clause, as

filled in, reads: “To have and to hold the aforegranted and bargained premises with all

' A habendum clause in a deed “defines the extent of the interest being granted and any conditions

affecting the grant.” BLACK’S LAW DICTIONARY 716 (7th ed. 1999). It is also known as the “to-have-and-

to-hold clause.” Id. A granting clause consists of the “words that transfer an interest in a deed.” Id. at 707.

privileges and appurtenances thereof to the said Alice Victorine Belanger and Albert N.

Belanger to have during their natural life and upon the death of said Alice Victorine

Belanger and Albert N. Belanger thereunto to the said Leonel Belanger, his heirs and

assigns forever....” Larry Belanger was born in 1947.

In 1952, Albert Belanger died intestate. In 1965, Alice Belanger conveyed about

half of the Berry Road property to Leonel by deed. That deed includes an easement to

Alice that refers to the property as previously conveyed to Alice and “Albert N.

Belanger (deceased) to hold for the term of their natural lives.” When Alice Belanger

died in 1996, she left any real property she might have to Larry, stating she was

omitting a bequest to Leonel in her will “having previously deeded to him my interest

in a portion of the property situated on the Berry Road in Saco, Maine.” Her will was

never probated.

After Alice’s death, the brothers attempted to resolve their respective interests in

the Berry Road property, agreeing at least twice to settlements. Larry filed a lawsuit

(RE-00-096) in 2000. In 2002, the brothers agreed Leonel would convey a six-acre parcel

to Larry, and the suit was dismissed. That agreement was never realized, allegedly

because Leonel attempted to convey land that was unsuitable for building. In 2004,

after this suit was filed, the brothers agreed Larry would surrender all claims to the

property in exchange for $35,000. However, Leonel never paid Larry the money.

On April 12, 2004, Larry filed a complaint, seeking a declaratory judgment

concerning each brother's interest in the Berry Road property (Count I). Larry also

requested specific performance of the 2002 settlement agreement to convey six acres to

Larry. (Count II).

On May 19, 2004, Leonel filed his own complaint, also asking this Court to

determine the brothers’ respective interests in the Berry Road property and to quiet

title. (Count I). Leonel also claimed title to the entire property by adverse possession.

(Count II). Finally, Leonel brought a claim of malicious prosecution in the matter of the

suit Larry filed in 2000. (Count III). The two cases were consolidated on June 28, 2004.

On June 22, 2004, Larry requested a preliminary injunction barring Leonel from

removing sand and gravel from the Berry Road property. His request was granted on

January 13, 2005. On January 11, 2005, Larry filed a Motion for Summary Judgment on

his Counts I and II. On February 4, 2005, Leonel filed a Motion to Dismiss Larry’s

Counts I and II, which this Court treats as a Motion for Summary Judgment in Leonel’s

favor, pursuant to M.R. Civ. P. 12(b).

DISCUSSION

A summary judgment is warranted when “the statement of material facts and the

pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if

any, cited in the statement of material facts establish that there is no genuine issue of

material fact and that party is entitled to a judgment as a matter of law.” Darling's v.

Ford Motor Co., 2003 ME 21, { 4, 817 A.2d 877 (citing M.R. Civ. P. 56(c}, (h). In a motion

to dismiss, when the parties present and the court considers matters outside the

pleadings, “the motion shall be treated as one for summary judgment and disposed of

as provided in rule 56.” M.R. Civ. P. 12(b). Here, the record before the Court includes

opposing statements of material fact, affidavits, documents, and deeds from both sides.

I. Deed interpretation. (Count I)

Larry argues that the granting clause of the 1945 deed should prevail under a

traditional rule of deed construction that holds language in the granting clause takes

precedence over any contradictory language in the habendum clause. Larry also relies

on Maine case law holding that a grantor cannot destroy a grant made in a deed by

other language within the same deed. Larry argues Alice’s will conveying all her

property interests to him, shows that a life estate was not intended by the parties to the

1945 deed.

Leonel argues that the express language in the habendum clause of the 1945 deed

should prevail because it reflects the intent of the Grantor to convey a life estate to Alice

and Albert, with a remainder to Leonel. That understanding, Leonel argues, is reflected

in a reference to a life estate in the easement portion of Alice’s 1965 deed, conveying a

portion of the Berry Road estate to Leonel.

When interpreting a deed, the Court first looks for “the controlling intent of the

parties on the face of the deed.” Snyder v. Haagen, 679 A.2d 510, 513 (Me. 1996). The

scope of property interest conveyed by deed “is determined solely from the language of

the deed if that language is unambiguous.” Thompson v. Pendleton, 1997 ME 127, { 12,

697 A.2d 56, 59 (citation omitted). “The classic definition of an ambiguity is language

that is ‘reasonably susceptible of different interpretations.’” Thompson v. Rothman, 2002

ME 39, 7 9, 791 A.2d 921; 924 (citation omitted). If the language of the deed is

ambiguous and the intent of the parties is in doubt the court may examine the deed in

light of extrinsic circumstances surrounding its execution. Holden v. Morgan, 516 A.2d

955, 956 (Me. 1986).

However, the Law Court has held that the general rule favoring the intent of the

parties “is not of universal application... [Documents] of title especially are guarded by

rules of law to secure their certainty, precision and permanency. If, in the effort to

ascertain the real intent of the parties, one of these rules is encountered, it must control

a” Page v. Nissen, 254 A.2d 592, 595 (Me. 1969). One such common law rule of deed

construction requires “that a grantor cannot destroy his own grant, however much he

may modify it or load it with conditions ... having once granted an estate in his deed,

no subsequent clause, even in the same deed can operate to nullify it” Whitney v.

Woodville, 575 A.2d 313, 315 (Me. 1990). (citation omitted). See also Wentworth v. Sebra,

2003 ME 97, § 21, 829 A.2d 520, 526 (“the habendum cannot defeat or destroy an estate

granted in the premises; so far as the former is repugnant to the latter, it is inoperative

and void”). The Law Court noted “that this rule has [n]ever been disregarded or even

seriously questioned by courts.” Page v. Nissen, 254 A.2d 592, 595 (Me. 1969). While

some jurisdictions have renounced this rule in favor of examining the deed as a whole

for the intent of the grantor, others reserve the rule for application to deeds with

inconsistencies that cannot be harmonized. 14 POWELL ON PROPERTY §

81A.07(1)(A)(2000).

Here, the 1945 deed contains inconsistencies that cannot be harmonized. The

granting clause of the Berry Road deed conveys one type of estate, a fee simple estate, to

Alice, Albert and Leonel. With this estate, Alice, Albert and Leonel share a

simultaneous, concurrent ownership of the property as tenants in common. 33 M.R.S.A.

§ 159 (2004). Each can dispose of their interest as they please, and pass on their interest

at death. Id. The habendum clause of the same deed creates a different type of estate,

namely a life estate in Alice and Albert, with a vested future interest (an indefeasibly

vested remainder) in Leonel, in fee simple. Webber v. Jones, 94 Me. 429, 47 A. 903 (1900).

This clause creates ownership interests in Alice and Albert that are divided in time from

Leonel’s interest, which vests only upon both their deaths. 33 M.R.S.A. § 158 (2004).

Neither the granting clause nor the habendum clause is ambiguous. Thus, the two

clauses are expressly inconsistent, and both cannot be reconciled.

If Larry is correct that a Grantor cannot be allowed to destroy the fee simple

estate of the granting clause in the habendum clause, the 1945 deed created a fee simple

estate in Albert, Alice and Leonel. Such conveyances of land “to 2 or more persons

create estates in common, unless otherwise expressed.” 33 M.R.S.A.§ 159. Albert, Alice

and Leonel are each entitled to possession of the whole property subject to the rights of

other tenants, and each has the right to make a testamentary transfer of his or her

interest. When Albert or Alice, as tenants in common, died intestate, his or her interest

passed under the applicable statutes of descent. As their son, Larry is now entitled to

some of Alice and Albert’s interest in the Berry Road property under the laws of

intestate succession. The law of adverse possession would be inapplicable to Leonel’s

use and possession of the property under this scenario, because Leonel was until 1996 a

tenant in common with his mother and his possession of the property could not be

hostile to Larry’s interests until her death in 1996. See 16-91 POWELL ON PROPERTY § 91.05

(possession by one tenant in common is presumed to be possession by all unless there is

an ouster); Musson v. Godley, 1999 ME 193, { 4, 742 A.2d 479, 480 (co-tenant who had

sole possession of property for decades does not acquire title by adverse possession

without ouster); Emerson v. Maine Rural Missions Ass‘n, 560 A.2d 1, 3 (Me. 1989)(“{I|n

order to be adverse, the nature of the overt act must leave no question as to the

intention to oust the owner from possession and ownership”). Id. The extent of Larry’s

interest in the Berry Road property under the laws of intestate succession would be

determined in a partition action. 14 M.R.S.A. § 6501 et seq.

If Leonel is correct that the habendum clause prevails because it reflects the

intent of the parties, he is sole owner of the Berry Road property in fee simple. Under

this scenario, Leonel received a life estate from Alice for about half the property by deed

in 1965. (Alice could not convey an estate greater than the life estate she held. See, e.g.,

Hooper v. Leavitt, 109 Me. 70, 82 A. 547 (1912)}. Leonel’s interest in that parcel then

vested in 1996, when Alice, the “measuring life” of his life estate, died. His interest in

the remaining half of the property also vested in 1996 when Alice died, terminating the

life estates of the parents. No interest in the Berry Road property was ever available to

pass from either parent’s life estate to Larry by intestate succession.

Contrary to Leonel’s arguments, the “intent of the parties” to create a life estate

in Albert and Alice is not easily determined, even when extrinsic evidence is admitted.

All the original adult grantor and grantees are deceased. (Leonel was an infant in 1945).

Language in the easement portion of the 1965 deed from Alice to Leonel, suggests that

Alice understood herself to have a life tenancy. Alice’s payment of property taxes up

until her death, if true, further supports that understanding. However, the granting

clause of that same 1965 deed “unto said Lionel (sic) Belanger his heirs and assigns

forever” contradicts the easement language and indicates Alice intended to convey a fee

simple, an estate she would not have to convey as a life tenant.

The language of the 1945 habendum clause may be viewed in light of the

purpose of such clauses before passage of Maine’s Short Form Deeds Act’ as “a

convenient place in which to insert words of inheritance, as well as words of limitation

which would describe the estate conveyed.” 14 POWELL ON PROPERTY § 81A.04(c)(iti)(d).

However, under common law rules of 1945, any habendum clause that cut back or

contradicted the estate in the granting clause was “repugnant and of no effect.” Id.

The Court concludes that the clauses in the deed cannot be harmonized, nor the

intent of the parties clearly determined; therefore, resort to more formal rules of deed

interpretation is appropriate under Maine law. Likewise, the Court finds that the

inconclusive “intent of the parties” must give way to this controlling rule in documents

of title. Page v. Nissen, 254 A.2d at 595.

The Law Court noted in 1990, “that a grantor cannot destroy his own grant,

however much he may modify it or load it with conditions ... having once granted an

; 33 M.RS.A. § 772 (1999).

estate in his deed, no subsequent clause, even in the same deed can operate to nullify

it.” Whitney v. Woodville, 575 A.2d 313, 315 (Me. 1990). This rule of deed construction

was, according to the Law Court, “as ancient, general, and rigorous as any other.” Id. In

2003, the Law Court stated that “the habendum cannot defeat or destroy an estate

granted in the premises; so far as the former is repugnant to the latter, it is inoperative

and void.” Wentworth v. Sebra, 2003 ME 97, J 14, 829 A.2d 520, 524.

Under this rule, the 1945 deed conveyed a fee simple estate to Albert, Alice and

Leonel Belanger as tenants in common that cannot be destroyed by the contradictory

language in the deed’s habendum clause. This means that Albert’s one-third undivided

interest passed to Alice, Leonel and Larry in 1952, under the 1952 rules of intestate

succession, Alice conveyed about 25 acres in fee simple to Leonel in 1965, with an

easement granted for Alice’s lifetime. Alice’s one-third undivided interest passed to

Leonel and Larry in 1996, under the 1996 rules of intestate succession.

II. Specific performance (Count ID.

Larry argues there is no disputed issue of fact concerning a 2002 settlement

agreement between Larry and Leonel, in which Leonel promised to convey six acres of

land to Larry in exchange for the dismissal of a suit, RE-00-096 commenced by Larry in

this Court. Larry argues Leonel breached that agreement by failing to convey land

suitable for building purposes. Larry now seeks specific performance of what he says

are the terms of the parties’ settlement agreement.

Parties may enter into a binding settlement agreement that includes, in its terms,

the dismissal of pending litigation. Comm'r of Human Servs. v. Waldoboro Water Co., 1999

ME 36, { 3, 724 A.2d 622, 623. Settlement agreements may be found to be enforceable

contracts subject to a judgment for specific performance. A.L. Brown Constr. Co. v..

McGuire, 495 A.2d 794, 798 (Me. 1985). The parties’ mutual promises to release each

other and relinquish claims provide the consideration for such contracts. Id. at 797.

Here, the undisputed record provides evidence, in a letter signed by both parties’

attorneys, of an agreement between the brothers in 2002 to convey a parcel of the Berry

Road property to Larry and to drop pending litigation. However, factual disputes

remain concerning what portion of the property was to be conveyed and which party

breached the agreement.

Because there is a factual dispute concerning the terms and breach of the 2002

settlement agreement that is material to any claim for specific performance, summary

judgment cannot be granted for either side on Count II.

Thig Court Grants summary judgment for Larry Belanger on Count I, finding that

the habendum clause of the 1945 deed is invalid as repugnant to the granting clause,

and finding Larry Belanger has a cognizable interest in the property at Berry Road

under the laws of intestate succession.

The Court Denies summary judgment for either party on Count IL, for specific

performance.

The clerk may incorporate this order in the docket by reference.

Dated: Mayas; 2005 Yd ee

o> tt

G. Arthur Brennan

Justice, Superior Court

Stephen D. Bither, Esq. — Larry Belanger [

James L. Audiffred, Esq. — Leonel Belanger