J-A31022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DANIEL W. THOMPSON AND                       IN THE SUPERIOR COURT OF
DOROTHY J. THOMPSON                                PENNSYLVANIA

                        Appellees

                   v.

GEORGE E. MACNAMARA, MAE B.
MACNAMARA, STEVEN A. MACNAMARA,
LORIE A. MACNAMARA, CHAD E.
MACNAMARA, MACNAMARA LAND
PARTNERSHIP, AND T.S. DUDLEY LAND
COMPANY, INC.

                        Appellants                No. 684 MDA 2015


              Appeal from the Judgment Entered May 15, 2015
               In the Court of Common Pleas of Centre County
                       Civil Division at No(s): 11-3612


                                     *****

DANIEL W. THOMPSON AND                       IN THE SUPERIOR COURT OF
DOROTHY J. THOMPSON                                PENNSYLVANIA

                        Appellants

                   v.

GEORGE E. MACNAMARA, MAE B.
MACNAMARA, STEVEN A. MACNAMARA,
LORIE A. MACNAMARA, CHAD E.
MACNAMARA, MACNAMARA LAND
PARTNERSHIP, AND T.S. DUDLEY LAND
COMPANY, INC.

                        Appellees                 No. 741 MDA 2015


              Appeal from the Judgment Entered May 15, 2015
               In the Court of Common Pleas of Centre County
                       Civil Division at No(s): 11-3612
J-A31022-15




BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                          FILED DECEMBER 11, 2015

        Defendants George E. MacNamara, Mae B. MacNamara, Steven A.

MacNamara, Lorie A. MacNamara, Chad E. MacNamara, MacNamara Land

Partnership    and    T.S.   Dudley     Land   Company,   Inc.,   (collectively,   the

MacNamaras) appeal and Plaintiffs Daniel W. Thompson and Dorothy J.

Thompson (h/w) (the Thompsons) cross-appeal from the judgment entered

on the trial court’s verdict in this quiet title case. Because the Thompsons

established prima facie title to the disputed tract of land, we affirm.

        The underlying case involves 9 acres of vacant, sloped, tree-covered

mountain land (disputed tract/tract) located in Boggs Township, Centre

County.     Both parties claim title to the tract from a common grantor, the

Johnson family.       In August 2011, the Thompsons instituted this action

seeking to quiet title to the tract or, in the alternative, eject 1 the

MacNamaras.       After a one-day non-jury trial, held on July 2, 2014, the

parties submitted briefs to the court, which included proposed findings of

fact and conclusions of law.         Ultimately, on February 10, 2015, the court


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 Ejectment is an action filed by a party who does not possess the land but
who has the legal right to possess it, against another party who has actual
possession. Wells Fargo Bank, N.A. v. Long, 934 A.2d 76 (Pa. Super.
2007).



                                           -2-
J-A31022-15



found in favor of the Thompsons, entering a verdict, opinion and order

concluding that the Thompsons are the lawful owners of the disputed tract

and barring the MacNamaras from asserting any right, title, lien or interest

to interfere with that ownership right. The trial court specifically found that

a 1976 Agreement (Agreement) purporting to transfer the disputed tract to

John Harnish, was “ambiguous as to the land that was to be conveyed” and

that the “parties did not intend to include the Tract in the Agreement.” Trial

Court’s Verdict, Opinion and Order, 2/10/15, at 8-9.

       On February 20, 2015, the MacNamaras filed timely post-trial motions,

which the court granted in part and denied in part. Specifically, the court

granted the motion to the extent that it ordered the Thompsons to

reimburse the MacNamaras for $829.29 in real estate taxes they had paid on

the tract since 2005.2 The remainder of the post-trial motions were denied.

On May 15, 2015, the court entered judgment, in favor of the Thompsons,

on its verdict. This timely appeal and cross-appeal follows.3

       On appeal, the MacNamaras present the following issues for our

consideration:



____________________________________________


2
    The Thompsons acquired title to the disputed tract, by deed, in 2005.
3
  On June 15, 2015, this Court sua sponte consolidated this appeal and
cross-appeal at 684 MDA 2015 and 741 MDA 2015. See Pa.R.A.P. 513
(consolidation of multiple appeals).




                                           -3-
J-A31022-15


       (1)    Whether a Sales Agreement – executed by the sellers and
              clearly     conveying      properly     identified  and
              contemporaneously surveyed land – can be deemed
              ambiguous because the deed recital incorporated therein
              referenced an incorrect chain of title.

       (2)    Whether a conveyance through a Sales Agreement deemed
              to be ambiguous can be nullified by apparent unilateral
              mistake of the sellers concerning their own legal chain of
              title, without evidence of mutual mistake by the buyer.

       (3)    Whether a Sales Agreement executed in the names of four
              grantors doing business as a fictitious name can transfer
              the legal interest held by three of the grantors individually.

       On cross-appeal, the MacNamaras present the following issue4 for our

review:
              Whether the trial court erred in its order disposing of
              MacNamaras motion for post-trial relief when it directed
              Thompsons to reimburse MacNamaras for real estate taxes
              previously paid, a claim not presented by the pleadings or
              addressed at trial.

       “[W]hen reviewing a decision in a quiet title action, we must determine

whether the trial court's findings are supported by competent evidence.”

Herr v. Herr, 957 A.2d 1280, 1285 (Pa. Super. 2008). We will not reverse

the trial court “in the absence of an error of law or a capricious disregard of

evidence.”     Montrenes v. Montrenes, 513 A.2d 983, 984 (Pa. Super.

1986) (citations omitted).



____________________________________________


4
  While the Thompsons list three additional issues in their cross-appeal brief,
those issues are simply counter-statements to the issues raised by the
MacNamaras on appeal. Therefore, we will confine our review to the one,
preserved issue on cross-appeal stated above. See Plaintiff’s Pa.R.A.P.
1925(b) Statement, 5/12/15.



                                           -4-
J-A31022-15



        The burden of proof in a quiet title action is upon the plaintiff. Id. In

such an action, the plaintiff can recover only on the strength of his or her

own title and not upon the weakness of the defendant’s title.          Id. (citing

Albert v. Lehigh Coal & Navigation Co., 246 A.2d 840, 843 (Pa. 1968)).

In a quiet title action, once the plaintiff makes out a prima facie claim of

title, the burden then shifts to the defendant to go forward with evidence to

establish his own title to defeat the plaintiff’s apparent ownership. Golden

v. Ross, 39 A.2d 298, 302 (Pa. Super. 1944).

        In their first two issues, the MacNamaras claim that the trial court

erred in finding, as a matter of law, that the 1976 Agreement was

ambiguous and that the parties did not intend, via the Agreement, to convey

the disputed tract to John Harnish.              Rather, they contend that the

Agreement, which is in their chain of title, is the most senior recorded deed

with regard to the tract and should control in the instant matter. 5
____________________________________________


5
    When construing a deed:

        [A] court's primary object must be to ascertain and effectuate
        what the parties themselves intended. Mackall v. Fleegle, 801
        A.2d 577, 581 (Pa. Super. 2002). The traditional rules of
        construction to determine that intention involve the following
        principles.   First, the nature and quantity of the interest
        conveyed must be ascertained from the deed itself and cannot
        be orally shown in the absence of fraud, accident or mistake. Id.
        We seek to ascertain not what the parties may have intended by
        the language but what is the meaning of the words they used.
        Id. Effect must be given to all the language of the instrument,
        and no part shall be rejected if it can be given a meaning. Id. If
        a doubt arises concerning the interpretation of the instrument, it
(Footnote Continued Next Page)


                                           -5-
J-A31022-15



         On February 24, 1976, James R. Johnson, Clair W. Johnson and Lee

Johnson, Jr., executed the Agreement that sold approximately 700 acres to

John Harnish.      The Agreement, which was recorded, transferred equitable

ownership to Harnish in a private mortgage on the property.        It is at this

point that the MacNamaras claim the disputed tract came into their chain of

title.    Shortly thereafter, in June 1976, a formal survey (Rossi survey)

depicted the disputed 9-acre tract as part of the MacNamara line. The Rossi

survey was incorporated into a 1990 deed that conveyed the property from

the 1976 Agreement to the MacNamaras.

         Instantly, the trial court found that the Agreement incorporated by

reference a 1962 deed which purportedly transferred land (including the

disputed tract) to the Johnson family (James R., Clair and Lee, Jr.). Notably,

that 1962 deed states that the land conveyed was “the same premises which

became vested in Alexander Franco and James R. Johnson, two of the

grantors herein[,[ by deed dated March 7, 1960 from Anna A. McCoy et al.

[the McCoys.]” See Deed of Alexander Franco, et al. to Alexander Franco, et

al. dated 4/27/62, Centre County Deed Book 262, page 247-49. While the

                       _______________________
(Footnote Continued)

         will be resolved against the party who prepared it. Id. . . . To
         ascertain the intention of the parties, the language of a deed
         should be interpreted in the light of the subject matter, the
         apparent object or purpose of the parties and the conditions
         existing when it was executed. Id.

Consolidation Coal Co. v. White, 875 A.2d 318, 326-27 (Pa. Super. 2005)
(citations modified).



                                            -6-
J-A31022-15



McCoys owned surrounding land in 1960, that land did not include the

disputed tract.     See Wyskinski v. Mazzotta, 472 A.2d 680, 683-84 (Pa.

Super. 1984) (using earlier deeds in chain of title to determine exact nature

and quantity of real estate interest conveyed).          Rather, at that point in time

the tract was actually owned by James R. Johnson, Clair W. Johnson, and

Lee Johnson, Jr.       See N.T. Non-Jury Trial, 7/2/14, at 63 (MacNamara’s

expert, Kerry Uhler, testified that prior to 1976 MacNamaras did not have

valid title to disputed tract).

       The record reveals that the disputed tract first came into the

Thompson’s chain of title in a 1916 deed as one of four parcels (purparts) 6

conveyed by Mary Barrett to her four children (the Barrett chain).                 See

Defendant’s Exhibit 1. Once the Thompsons offered evidence of their chain

of title to the tract through the various deeds dating back to Mary Barrett in

1885, the burden then shifted to the MacNamaras to overcome the

Thompson’s      apparent     ownership.        Golden,     supra.     Instantly,   the

MacNamaras did not present evidence of any deed that transferred title in

the disputed tract to the McCoys, who were the first in line of the
____________________________________________


6
  A purpart is defined as “a share; a part in a division; that part of an estate,
formerly held in common, which is by partition allotted to any one of the
parties.”   See http://thelawdictionary.org/purpart.       The trial court also
quieted title to two other “purparts” of land in favor of the Thompsons. The
MacNamaras have not disputed the ownership of those purparts.                 For
purposes of this appeal, the disputed tract is also known as “Purpart No. 4”
in the Thompson’s chain of title.




                                           -7-
J-A31022-15



MacNamara’s chain of title.          See Defendant’s Exhibit 2, Chain of Title,

MacNamara. Accordingly, the trial court concluded that the grantors in the

1976 Agreement were unable to transfer title to the disputed tract because

they, themselves, did not have title to the property.

       The trial court ultimately determined that the disputed tract that

purportedly had been incorporated into the 1976 Agreement, through

reference to the 1960 and 1962 deeds, had actually remained, at all times,

within the Thompson’s chain of title.            We find that the trial court’s

determinations that the Thompsons undisputedly established prima facie title

to the disputed tract and that the MacNamaras could not establish their own

superior title to the tract are supported in the record. Herr, supra. Thus,

we affirm7 the trial court’s judgment.8

       On cross-appeal, the Thompsons claim that the trial court erred in

ordering them to reimburse the MacNamaras for all taxes paid on the tract

from 2005.      Specifically, the Thompsons claim that because the issue was

never raised prior to or at trial, the trial court did not have the authority to

grant such relief.
____________________________________________


7
  Although we do not conclude that the agreement was necessarily
ambiguous, we recognize that we may affirm the trial court on any correct
basis. Rambo v. Greene, 906 A.2d 1232, 1235 n.4 (Pa. Super. 2006).
8
  Having determined that the disputed tract never came into the
MacNamaras’ chain of title via the 1976 Agreement, the final issue they raise
on appeal concerning the ability of a fictitious partnership to transfer title is
moot.



                                           -8-
J-A31022-15



          The MacNamaras first raised the tax issue in their motion for post-trial

relief.     Typically, issues not raised before the trial court, in pre-trial

proceedings or at trial, are not preserved for appeal. Pa.R.C.P. 227.1(b)(1).

However, this issue was not ripe until the court declared that the Thompsons

were the rightful owners of the disputed tract and entered a verdict in their

favor on the quiet title action. Therefore, the first time that the MacNamaras

could timely raise the tax issue was post-verdict.

          In any event, the Thompsons state in their cross-appeal brief that they

“recognize that in the event the trial court’s verdict is not reversed it would

be equitable for them to reimburse the MacNamaras for the real estate taxes

paid on the disputed tract.” Cross-Appellants’ Brief, at 22. Moreover, the

Thompsons acknowledge that under such circumstances “they would

withdraw their cross appeal from this portion of the trial court’s Order.” Id.

Therefore, having affirmed the trial court’s verdict in favor of the Thompsons

in the underlying quiet title action, we consider this claim withdrawn.

          Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/11/2015




                                        -9-
