Opinion
Civil Action No. 97-10725-PBS
August 28, 2002
MEMORANDUM AND ORDER
I. INTRODUCTION
This case involves a title dispute concerning 8.6 acres of land on Bound Brook Island, located within the Cape Cod National Seashore. The plaintiffs, Edward Lombard and his siblings, cousins, and nieces, bring this action pursuant to the Quiet Title Act, 28 U.S.C. § 2409a, disputing the government's title and claiming that the government and they are tenants in common.
The parties have filed cross-motions for summary judgment. After hearing, defendant's motion for summary judgment is ALLOWED.
II. BACKGROUND
Familiarity with the history of this dispute described in this court's earlier opinion and the appellate decision is assumed. See Lombard v. United States, 28 F. Supp.2d 44 (D. Mass. 1998), rev'd, 194 F.3d 305 (1st Cir. 1999) ("Lombard I").
At the heart of a choice piece of property on Bound Brook Island lies the family cemetery of the Lombards, whose patriarch Thomas Lombard — was the land's original owner. Upon his death in 1873, Lombard was survived by five children — Edward, Richard, Benjamin, David and Mary. He died intestate. In 1924, two of the children, David and Mary, conveyed the real estate (except for the family cemetery and access thereto) to George Higgins. Higgins sought to register and confirm his title to the land in Massachusetts Land Court in 1935. He abandoned this endeavor, however, after Henry Lombard, the son of Benjamin and grandson of Thomas, claimed an interest in the land as his father's heir. The case was marked "inactive" in 1957, dismissed without prejudice in 1958, and — apparently due to a clerical error — languished on the docket until 1976, when it was dismissed for lack of prosecution.
The government arrived on the scene in 1962, purchasing title to the land from Higgins. The following year, Higgins made another attempt to quiet title, this time in Barnstable Superior Court Case Number 27434. The suit named "Thomas Lombard" and "his Heirs and Devisees" as respondents. No personal service was made, and no service was made by mail on the Lombard heirs.
The evidence establishes the following facts regarding the Barnstable Court's service on defendant Thomas Lombard and his heirs in Case Number 27434. First, a copy of the subpoena in small print was published for three successive weeks in the Cape Cod Standard Times in October and November of 1963. Second, copies of the subpoena were posted in the County Registry of Deeds in October 1963. Third, copies of the subpoena were posted on the contested property (the record does not specify the precise location). Fourth, personal service was effected on three individuals whose property abutted the Lombard property. Fifth, Howard Clahoon, Deputy Sheriff, certified that he "made diligent search for . . . Thomas Lombard . . . and for [his]] last and usual place of abode, Agent or Attorney but [was] not been able to find [them] within [his] precinct." Of course, as plaintiffs point out, Thomas Lombard's last abode was subterranean in the very cemetery on the land where the sheriff posted his notice. Sixth, on or about May 2, 1964, after Katherine Higgins became executrix of her now-deceased husband's estate and was substituted as petitioner, the court appointed a guardian ad litem, James H. Quirk, pursuant to Mass. Gen. Laws ch. 240, § 8, to represent those respondents "unascertained, unknown, out of the Commonwealth and/or not in being, or who cannot be served with process or made amenable to the Orders of this Court." Quirk's report, issued in 1964, stated that after having "investigated the matter, examined all of the pleadings and examined the title searcher's report. . . . [and] pursued the record title of the property in the Registry of Deeds and in the Probate Court for the County of Barnstable. . . . the persons to whom notice of said proceedings were given are the only persons entitled to notice that can be discovered." Finally, three signed affidavits of adverse possession, two from Wellfleet residents who knew at least two members of the Lombard family, were appended to Quirk's report.
Mass. Gen. Laws ch. 240, § 8 provides for appointment of a guardian ad litem in a quiet title action if the court finds "that there are or may be defendants not actually served with process within the Commonwealth. . . ." If a guardian ad litem is appointed, "the court may proceed as though all defendants had actually been served with process." See Mass. Gen. Laws ch. 240, § 10.
No date is legible on the copy of the guardian ad litem's report submitted to this Court. However, his research must have been conducted between May 11, 1964 and August 20, 1964 because: a) the report itself notes that the investigation was conducted "pursuant to an Order issued by [a] . . . Justice of the Superior Court dated May 11, 1964" (after George Higgins' death); and b) the Barnstable court's final decree, dated August 20, 1964, noted that the guardian ad litem had "made an investigation and search and reported to the Court."
The government points to several additional facts that bear upon the adequacy of notice. The guardian ad litem's report was apparently correct in stating that plaintiffs have never been owners of record, and their names appear in neither the Registry of Deeds nor in the Barnstable Probate Court records. The disputed locus does not appear in the probate inventories of Benjamin, Richard S., or Edward E. Lombard, the sons of Thomas Lombard through whom Plaintiffs claim title. None of Plaintiffs' names appears in the assessor's records for the Town of Wellfleet. Finally, Plaintiffs never paid property taxes on the land surrounding the family cemetery, maintained or improved it, or contacted the Park Service or Town of Wellfleet about their respective interests in it. Lombard I, 28 F. Supp.2d at 49.
The Barnstable court's final decree, entered on August 20, 1964, confirmed title in Katherine Higgins "free and clear of all liens and encumbrances," except for the Lombard family's rights in the burial plot itself and its access. The report also stated that "notice according to the Order [was] given to all parties interested and . . . James H. Quirk the Guardian ad Litem appointed by the Court . . . made an investigation and search and reported to the Court." Soon after the decree was issued, the government paid Katherine Higgins for her property.
The Lombard family has continued to visit the cemetery since 1964. Several Plaintiffs also remember childhood picnics and blueberry picking taking place on the surrounding land. Sometime prior to September 1977, when the government gated the road the Lombard family used to access the cemetery, the family was provided with a key. Recently, however, the access road was allowed to revegetate and vehicle access was restricted.
III. DISCUSSION
a. Summary Judgment Standard
"Summary judgment is appropriate when 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Barbour v. Dynamics Research Corp., 63 F.3d 32, 36 (1st Cir. 1995) (quoting Fed.R.Civ.P. 56(c)). "To succeed [in a motion for summary judgment], the moving party must show that there is an absence of evidence to support the nonmoving party's position." Rogers v. Fair, 902 F.2d 140, 143 (1st Cir. 1990); see also Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
"Once the moving party has properly supported its motion for summary judgment, the burden shifts to the non-moving party, who 'may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing there is a genuine issue for trial.'" Barbour, 63 F.3d at 37 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)). "There must be 'sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted.'" Rogers, 902 F.2d at 143 (quoting Anderson, 477 U.S. at 249-50) (citations and footnote in Anderson omitted). The Court must "view the facts in the light most favorable to the non-moving party, drawing all reasonable inferences in that party's favor." Barbour, 63 F.3d at 36.
b. Legal Foundations
Describing the Barnstable court's judgment as a prior final decree, the government contends that this Court is obliged to grant it full faith and credit. See 28 U.S.C. § 1738 ("[J]udicial proceedings . . . shall have the same full faith and credit in every court within the United States . . . as they have by law or usage in the courts of such State . . . from which they are taken."). They claim, correctly, that the principle applies to actions regarding land ownership. See Cadorette v. United States, 988 F.2d 215, 219 (1st Cir. 1993) (opining, in a land condemnation case, that "[o]rdinarily a federal court will (indeed, must) accept . . . final state court awards as legally binding."); Underwriters Nat'l Assurance Co. v. No. Carolina Life Accident Health Ins. Guar. Ass'n., 455 U.S. 691, 707 (1982) (noting that "[t]he need for finality within our federal system . . . applies with equal force to questions of jurisdiction.").
This Court allowed the government's motion to amend the answer to assert this defense, as well as the defense of laches. I need not address the defense of laches in light of my determination that the government prevails on the full faith and credit argument.
Plaintiffs stress that the due process clause requires notice and an opportunity to be heard. "A judgment rendered in violation of due process is void in the rendering State and is not entitled to full faith and credit elsewhere. Due process requires that the defendant be given adequate notice of the suit. . . ." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980) (citations omitted). See also 11 Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure § 2862, at 198-200 (1st ed. 1973) ("As is true of an absence of personal and property jurisdiction, a failure to provide the defendant with proper notice of the action and an opportunity to be heard will subject a judgment to collateral attack."). A void judgment is not "final," and therefore not entitled to full faith and credit in a subsequent judicial proceeding. Underwriters Nat'l Assurance Co., 455 U.S. at 704-5.
The Quiet Title Act grants federal district courts exclusive original jurisdiction to hear "civil actions under section 2409a to quiet title to an estate or interest in real property in which an interest is claimed by the United States." 28 U.S.C. § 1346(f). Federal abstention doctrine, which ordinarily precludes a federal court from hearing claims that are "inextricably intertwined" with prior claims adjudicated in state court, does not apply in this context. See Key v. Wise, 629 F.2d 1049, 1059 (5th Cir. 1980) ("When Congress has directed . . . not only that the federal courts may take jurisdiction of a particular class of cases, but also that they have exclusive jurisdiction of those cases, abstention to permit adjudication of the entire case in a state forum defeats the purpose of that legislation.").
The "Rooker-Feldman" doctrine, named after Rooker v. Fidelity Trust Co., 263 U.S. 413, 415 (1923) (barring collateral attack of a state court judgment in lower federal courts), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 485-86 (1983) (dismissing action challenging state court denial of request to waive bar admission requirements), strips lower federal courts of subject matter jurisdiction over claims that are "inextricably intertwined" with claims adjudicated in a state court. See Sheehan v. Marr, 207 F.3d 35, 40 (1st Cir. 2000) (quoting Feldman, 460 U.S. at 483 n. 16).
The question of when claim and/or issue preclusive effect should be accorded prior state court judgments in actions under exclusive federal jurisdiction has engendered scholarly exploration. See generally 18B Charles Alan Wright, Arthur R. Miller, Edward H. Cooper, Federal Practice and Procedure §§ 4470, 4470.1, 4470.2, 4470.3 (2d ed. 2002); Note, The Collateral Estoppel Effect of Prior State Court Findings in Cases Within Exclusive Federal Jurisdiction, 91 Harv. L. Rev. 1281 (1978). Some scholars have framed the analysis by asking whether, in a particular case, the statute that mandates exclusive federal jurisdiction implies a partial repeal of the full faith and credit statute. 18B Fed. Practice at 167-68, 196. Yet "[t]here is no clear guide to support" this inquiry. Id. at 167. In effect, judges are asked to "reconcil[e] state preclusion principles," on a case-by-case basis, "with the purposes of exclusive federal jurisdiction" that may be deduced from the statutory text and history. Id. at 164.
Despite the absence of bright-line rules, a few general principles have emerged. First, "preclusion seems least dangerous as to issues of historic [sic] fact." Id. (collecting cases). Second, "[i]ssue preclusion is most secure, regardless of the basis for exclusive federal jurisdiction, when the federal court itself would apply state law to the issue." Id. at 198.
To navigate through these intricacies, this Court begins with the First Circuit's earlier holding to clarify the appropriate scope of inquiry. See Lombard I, 194 F.3d at 312.
P]laintiffs' full faith and credit argument [that the Massachusetts Land Court's 1976 dismissal entitles them to a 60% ownership share] is without merit and to prevail ultimately, the plaintiffs would have to avoid the 1964 quiet title judgment and defeat a likely claim by the government that Higgins had obtained full title to the Lombard lot by adverse possession.
In other words, unless notice was constitutionally defective in the 1964 Barnstable Court case, the judgment must be deemed "final." Although this Court has exclusive jurisdiction to determine title, see 28 U.S.C. § 1346(f), all preclusive effect should be given to the state court's determination of "historic[al] fact." 18B Fed. Practice at 164. This is especially so in a dispute involving title to land, the quintessential type of case in which "a federal court itself would apply state law to the issue." Id. at 198.
Indeed, deference to state court findings is especially warranted because at this late date many of the people who might have relevant information are no longer available. For example, the parties have been unable to ascertain the whereabouts of Howard Clahoon, the Deputy Sheriff who originally sought to serve process on Thomas Lombard and his heirs and devisees. James H. Quirk, the Guardian ad Litem appointed by the Barnstable court, and Haughton Sanguinetti, the lawyer who represented Higgins in the Barnstable court action and apparently conducted title searches related to that case, are both deceased. Defendant has also produced a signed declaration by William T. Munson, the lawyer for the title insurance company, stating that he has no memory of the relevant transaction and that his records were destroyed in 1978 or 1979. Plaintiffs also offer no evidence to dispute defendant's documented claim that the research records of Gaston Snow, the title insurance company believed to have issued a title policy for the Lombard lot, were destroyed in 1993 or 1994.
First Circuit precedent underscores the considerable deference to which state court judgments are entitled in federal quiet title actions. In Cadorette v. United States, 988 F.2d 215, 220 (1st Cir. 1993), also brought under § 2409a, the First Circuit held that full faith and credit required the federal district court to accept the Massachusetts probate court's prior determination regarding the ownership of a 25% property share. "Ordinarily a federal court will (indeed, must) accept final state court awards as legally binding . . . [unless there is a] special reason . . . for departing from this general rule." Id. at 220. In a similar vein, the Restatement has noted that "[w]here the state tribunal was not utterly lacking in authority to determine the matter, its judgment is entitled to some weight. . . ." Restatement (Second) of Judgments § 86 (1982) at 305. "The values underlying the rule of finality are, generally speaking, no less when the judgment is that of a state court challenged in federal court than in any other context of recognition." Id. at 307.
c. Was Notice Constitutionally Defective?
Under Mullane v. Cent. Hanover Bank Trust Co., 339 U.S. 306, 314-15 (1950), the focus on the due process inquiry is whether notice procedures are "reasonably certain to inform those affected . . . or, where conditions do not reasonably permit such notice, [whether] the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes." Since "publication alone . . . is [not] a reliable means of acquainting interested parties of the fact that their rights are before the courts," this method passes constitutional muster only when those to whom notice is due are missing or unknown. Id. See also Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 801 (1983) ("Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party . . . if its name and address are reasonably ascertainable."); Dusenbery v. United States, 534 U.S. 161, 699 (2002) (holding that Mullane is the appropriate analytical framework for analyzing adequacy of notice in administrative forfeiture proceeding).
Although notice by posting on land is disfavored under Mullane and Mennonite, its use seems more reasonable than usual here, since Plaintiffs claim to have visited the cemetery "continuously, without interruption . . . since before Thomas Lombard's death in 1873."
Under Mullane and its progeny, then, the key issue is whether the name and address of the plaintiffs were "reasonably ascertainable" at the time of the Barnstable court action — if not, then notice by posting and publication was constitutionally adequate. Although notice by publication was the sole method of service used by the defendant-appellee in Mullane, 339 U.S. at 310, the Supreme Court later clarified that notice by posting and publishing is also constitutionally inadequate for individuals whose whereabouts are reasonably ascertainable. See Mennonite, 462 U.S. at 797. Perfunctory efforts to provide notice will not suffice. See United States v. 125.2 Acres, 732 F.2d 239, 242 (1st Cir. 1984) (holding that publishing and posting was inadequate where the government possessed knowledge of the claimant's name and town, the community was small, and the telephone book provided his street address).
Plenty of the facts on record suggest that reasonable (although perhaps not exhaustive) efforts were made to ascertain Plaintiffs' whereabouts. Most significantly, unlike the situation in Cadorette, the court appointed a guardian ad litem. See Cadorette, 988 F.2d at 220 (rejecting district court's allocation of different ownership share where record "reveal[ed] no significant effort by anyone to search for, or to contact, by publication or otherwise" the descendants, and where the district court rejected plaintiff's motion for appointment of a guardian ad litem "to do precisely that."). The guardian ad litem specified that his investigation for the heirs of Lombard included searches of the pleadings, the title searcher's report, record title in the registry of deeds, probate court records, and three affidavits of adverse possession. See Dwight v. Dwight, 371 Mass. 424, 427, 357 N.E.2d 772, 774 (1976) (holding that non-party whose interests were represented by a guardian ad litem who acted as their fiduciary in prior litigation were bound by the prior judgment). The parties' independent investigation has confirmed the validity of the guardian ad litem's assertions. It is also undisputed that the locus does not appear in the probate inventories of Thomas Lombard's children; that none of Plaintiffs' names appeared in the Wellfleet assessor's records; and that Plaintiffs never maintained, improved, or paid property taxes on the land surrounding the family cemetery.
In the context of land foreclosure proceedings, two Massachusetts cases decided since Mullane have held that an owner's name and address were not "reasonably ascertainable" because public records like those mentioned above did not divulge them. In one case, the Supreme Judicial Court held that a town was only required to discover the owner's identity through "resort to the records in the appropriate registry of deeds and registry of probate." Hardy v. Jaeckle, 371 Mass. 573, 580, 358 N.E.2d 769, 774 (1976). The Hardy court held that the board exercised "reasonable diligence" in locating the owners, despite its failure to inquire whether any Nantucket residents whose name was the same as that of the original owners had an interest in the property; to undertake genealogical and historical research; or to research the probate records of distant ancestors. Id. at 582-83. See also Robertson v. Town of Plymouth, 18 Mass. App. Ct. 592, 594, 468 N.E.2d 1090, 1092 (1984) (holding that "reasonable diligence" only required board of assessors to determine owner of disputed parcel by examining contents of registry of deeds and registry of probate).
The Supreme Court has indicated that under Mullane, constructive notice is constitutionally adequate for individuals whose name and address cannot be gleaned from public records:
When the mortgagee is identified in a mortgage that is publicly recorded, constructive notice by publication must be supplemented by notice mailed to the mortgagee's last known available address, or by personal service. But unless the mortgage is not reasonably identifiable, constructive notice alone does not satisfy the mandate of Mullane. . . . We do not suggest, however, that a governmental body is required to undertake extraordinary efforts to discover the identity and whereabouts of a mortgagee whose identity is not in the public record.
Mennonite, 462 U.S. at 798 (emphasis added).
Plaintiffs nevertheless maintain that the Lombards were "easily identifiable" because they resided in Wellfleet, a small community of just 2,000 people, with many summer homes. Yet the facts on record do not establish that Plaintiffs could have been readily located during the pendancy of the Barnstable action. For example, although both sides agree that two of the three affiants regarding Higgins' alleged adverse possession of the property "were known to some of the Lombard family," there is no evidence that Katherine Higgins or the guardian ad litem knew that the affiants had this information.
Second, Plaintiffs reason that they were easily identifiable to the local sheriff because George Higgins on numerous occasions personally contacted the Lombards. While the evidence supports Plaintiffs' contention that Higgins contacted various Lombards to persuade them to sign over their interests in the locus, Higgins died in February, 1964. Again, there is no evidence that Katherine Higgins or the guardian ad litem knew or could reasonably have ascertained this information.
Third, although Plaintiffs stress that various Plaintiffs "maintained homes" in Wellfleet or "lived in Wellfleet all their lives," most — if not all — owned homes elsewhere, visiting Wellfleet only during the summer months. There is no evidence in the record as to whether any of the Lombard progeny lived on the property year-round, or whether Plaintiffs' names and addresses were listed in the Wellfleet phone directory. Cf. 125.2 Acres, 732 F.2d at 242 (noting that service by publishing and posting was inadequate because government not only knew name and town of owner, but also had "access via the telephone book to his street address.")
While a savvy sleuth may have been able to locate the Lombard heirs, scant evidence exists in this Court's record that their whereabouts were "reasonably ascertainable" at the time of the 1964 Barnstable court action. To re-open a judgment in this circumstances would deprive the state court's judgment of the considerable weight to which it is entitled, and do violence to "[t]he values underlying the rule of finality." See Restatement (Second) of Judgments § 86 (1982) at 307.
d. Miscellaneous Issues
Plaintiffs raise three additional arguments under state law. First, they argue that the 1935 land court case, for which an "Order For Dismissal" was issued in 1958 but a "Judgment of Dismissal" did not issue until 1976 due to a record-keeping error, deprived the Barnstable Superior Court of jurisdiction and voided its decree. Higgins' original petition to the Barnstable County Superior Court alerted the court to the dismissal of the earlier action. The concurrent subject matter jurisdiction of Massachusetts Land Courts and Superior Courts over quiet title actions pursuant to Mass. Gen. L. ch. 240, § 6 was by then established. See Cesarone v. Femino, 340 Mass. 638, 639, 165 N.E.2d 751, 752 (1960) (holding that either Land Court or Superior Court could take jurisdiction over action involving ownership of registered land). The fact that a record-keeping delayed the technical closing of the Land Court case by almost twenty years does not alter the fact that the action was dismissed without prejudice prior to the Barnstable Court's assumption of jurisdiction. Granting the Barnstable Court's conclusion that it had concurrent jurisdiction to hear the action preclusive effect seems reasonable in this context, since "the federal court itself would apply state law to the issue." 18B Fed. Practice at 198.
Plaintiffs seek to bolster their claim by pointing to the First Circuit's observation in Lombard I that "[a]t most a dismissal with prejudice might mean that Higgins could not bring the same action again." 194 F.3d at 312. The First Circuit in Lombard I did not decide whether the 1976 cleanup order's failure to expressly say that it was without prejudice could, under Mass. Gen. Laws ch. 185, § 44 (1998), preclude Higgins from bringing the same action again — it merely assumed the point to demonstrate the futility of Plaintiffs' Full Faith and Credit argument. Yet in any case, such preclusive effects (if any) could not possibly have been triggered until 1976, since the original 1958 order "was intended to be without prejudice." Lombard I, 194 F.3d at 312. Finally, the very fact that the First Circuit deemed the applicability of § 44 to the 1976 cleanup order "unclear" counsels further against voiding the Barnstable Court judgment for lack of jurisdiction. See Harris v. Sannella, 400 Mass. 392, 395, 509 N.E.2d 916, 918 (1987) (collecting cases holding that concept of void judgments is narrowly construed, and in particular that an error in interpreting a statutory grant of jurisdiction is insufficient to render a judgment void).
Second, Plaintiffs argue (albeit fleetingly) that because notice of the Barnstable case allegedly was not recorded at the Registry of Deeds as required under Massachusetts law, the resulting judgment is not stare decisis. Yet as the statute itself makes plain, the judgment is binding against "the parties thereto, their heirs and devisees and persons having actual notice thereof. . . ." Mass. Gen. Laws ch. 184, § 17 (emphasis added). "Thomas Lombard" and "his Heirs and Devisees" were named in the Barnstable court action, and Plaintiffs' claim to ownership derives exclusively from their status as alleged heirs of Thomas Lombard. They were represented by the guardian ad litem. Therefore, they are bound by the judgment regardless of whether notice of the Barnstable court judgment was recorded in the Registry of Deeds as long as due process requirements were met.
Finally, Plaintiffs argue that the execution of the deed between the United States and Higgins twenty months before the Barnstable decree renders the government's title invalid, since the doctrine of estoppel by deed does not apply to quitclaim deeds when the grantee is aware of the deficiency in title. The United States, meanwhile, contends that estoppel by deed applies to the transaction. This debate is academic. The doctrine — when applicable — inures to the benefit of the grantee. "[T]he grantor (and anyone claiming under him) is estopped from asserting against the grantee a claim of title to the property conveyed." Zayka v. Giambro, 32 Mass. App. Ct. 748, 751, 594 N.E.2d 894, 896 (1992) (emphasis added). Cf. Baumrin v. Cornoyer, 414 F. Supp. 326, 332 (D.Mass. 1976) ("It is well established . . . that a mere quitclaim deed is ineffectual by force of estoppel to pass to the grantee, or those holding under him, any title or right acquired by the grantor subsequent to the execution of the quitclaim deed." (emphasis added)). Plaintiffs may be correct that the doctrine does not apply to the facts of this case despite the broad language in Zayka v. Giambro: "If estoppel by deed is a sound principle, no compelling logic or binding precedent proscribes its application to a quitclaim deed." 32 Mass. App. Ct. at 753, 594 N.E.2d at 896. The application of the doctrine turns on the "obvious intention of the parties." Id. The United States not only was aware of the potential cloud on the Higginses' title, but also made its payment contingent on their ability to obtain a final decree in their favor. Lombard I, 28 F. Supp.2d at 46. Yet this merely implies that the grantor (Higgins) might be estopped from asserting a claim of title against the grantee (the United States). The doctrine — whether or not it applies — does not afford Plaintiffs independent grounds to invalidate the Barnstable court judgment.
IV. ORDER
Defendants' second motion for summary judgment as to title is ALLOWED. The Plaintiffs' Renewed Motion after Remand for Summary Judgment as to Title is DENIED.