
USCA1 Opinion

	




          February 22, 1993                             UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1181                             ALBERT J. CADORETTE, ET AL.,                                Plaintiffs, Appellees,                                          v.                              UNITED STATES OF AMERICA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Walter Jay Skinner, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                      ____________________                            and Torruella, Circuit Judge.                                           _____________                                 ____________________            Jacques  B. Gelin,  Attorney,  Department of  Justice,  with  whom            _________________        Barry  M.   Hartman,  Acting  Assistant  Attorney   General,  A.  John        ___________________                                           ________        Pappalardo, United States Attorney, George B. Henderson, II, Assistant        __________                          _______________________        United  States Attorney, and David C. Shilton, Attorney, Department of                                     ________________        Justice, were on brief for United States.            John D. Hallisey for appellee Jean Stevenson Clark.            ________________            Arthur C.  Croce for  appellees Roger Treat Jackson,  Jr., Margery            ________________        Jackson   Chambers,  Barbara  Jackson  Allgeier,  and  Betsey  Jackson        Patterson.                                  ____________________                                 ____________________        [NOTE   FROM  SYSTEMS:  APPENDIX  I  is  not  available  on  the  EDOS        publication of this opinion.]                       BREYER, Chief  Judge.   In 1972 the  United States                               ____________             bought eight acres  of land in Truro, Massachusetts,  to add             to  the  Cape Cod  National  Seashore.   Unfortunately,  the             seller,  Elizabeth Freeman,  owned only  a small  percentage             share  of the  eight  acres that  she  purported to  convey.             Elizabeth's  long-lived  great-grandfather, Edmund  Freeman,             (whom  we shall call "Edmund  the Elder") had  owned 100% of             the  eight acres when he died in 1870, but, after his death,             the  property   descended,  through  inheritance,   to  many             different children,  grandchildren, and great-grandchildren,             each  of whom  obtained  title to  various small  percentage             interests.                       In  1984, plaintiff  Jean Stevenson  Clark brought             this action against the Government  to "quiet title" to what             she said was her percentage share in the property -- a share             she claimed to have  obtained from the grandchild of  one of             Elizabeth's aunts.  28 U.S.C.   2409a(a) ("The United States             may  be named as  a party defendant in  a civil action under             this section to adjudicate a disputed title to real property             in which the United States claims an interest").  Five years             later four  grandchildren of a different  aunt intervened in             the lawsuit in order to assert similar claims of  ownership.             Eventually, the district court entered a judgment that tried             to  sort  out  precisely   who  owned  what,  and   set  the             compensation that  plaintiff  and intervenors  must  receive             should the Government decide to  keep their interests in the             property.  28 U.S.C.   2409a(b) ("if the final determination             [of the  plaintiff's 'quiet title' action]  shall be adverse             to  the United  States, the  United States  nevertheless may             retain such possession or control of the real property or of             any  part thereof  as it  may elect,  upon payment  [of just             compensation] to the person  . . . entitled thereto").   The             Government now appeals this judgment, arguing primarily that             the district court  did not properly interpret or  apply the             Massachusetts law of descent and distribution.                       After the United States took this appeal, it filed             a complaint  in condemnation, pursuant  to 40 U.S.C.    257,             against  the same property.   United States v.  8.0 Acres of                                           _____________     ____________             Land, No. 92-12663S  (D. Mass.  filed Nov. 5,  1992).   When             ____             that  condemnation is  completed, the  Government will  take             whatever interests  in the eight  acres it does  not already             own.  Because the  basic question in a "quiet  title" action             is  "who   owns   the  land,"   and   because   condemnation             definitively  answers this  question  for the  future (i.e.,             "the United  States does"), we have had  to consider whether                                         -3-                                          3             (or  the  extent  to  which)  the  condemnation  action  has             "mooted" this "quiet title" proceeding.                        We   find  that   the  district   court  correctly             allocated  certain  of  the   interests  in  dispute  (those             inherited through  ancestors  named "Charles"  and  "Richard             Sr."), but  that  it improperly  distributed  certain  other             interests (those derived from ancestors named "Betsey I" and             "Edmund II").  We also  decide that the condemnation  action             "moots" any further judicial efforts to allocate the "Betsey             I" and "Edmund II" shares in  this "quiet title" proceeding.             Instead,  the  district court  shall  decide  afresh who  is             entitled to compensation for the  "Betsey I" and "Edmund II"             shares in the context of the condemnation action now pending             before it.                                                        I.                                      Background                                      __________                       With the  help of a  diagram (see Appendix  I) and                                                     ___             the  facts as  revealed by  the record  on appeal,  we shall             retrace  the  parties'  contested  claims  and the  district             court's determination  of them.   We begin  with Elizabeth's             great-grandfather,  Edmund "the Elder" Freeman, who was born             in 1780,  and who  died intestate  in 1870.   At  Edmund the                                         -4-                                          4             Elder's death each of his three  surviving children, and his             grandchildren by  a fourth child, received  an undivided 25%             interest in the eight acres.   We shall refer to these  four             siblings as (1) "Charles," (2)  "Betsey I," (3) "Edmund II,"             and  (4) "Richard  Sr."   The  youngest  of these  siblings,             Richard  Sr. (Elizabeth's  grandfather), died  in 1886.   He             left  his  25%  interest  to his  five  surviving  children,             Richard Jr. (Elizabeth's father) and  her four aunts.   Each             of these five thereby  obtained an undivided 5% interest  in             the property.  When Richard Jr. died in 1940, he left his 5%             interest to  his daughters Elizabeth and  Catherine, 2.5% to             each.    Catherine  (wife  of  the  famous  Admiral  Nimetz)             subsequently conveyed to Elizabeth her vested  2.5% interest             (and,  the court  found,  any inchoate  interests as  well).             Thus, Elizabeth,  at the time  she purported  to convey  the             eight acres to  the United States in 1972, undoubtedly owned             at least a  5% share.  But did she own  any more, and if so,             how much?                       The  "quiet  title" action  sought to  answer this             question.   To  do so,  the court  had to  decide: (1)  What             happened to  the remaining 20%  of Richard Sr.'s  25% share?                              _________             (2) What happened  to the  other  75% interest  in the  land                                         -5-                                          5             originally  inherited  by Richard  Sr.'s  three siblings  --             Charles, Betsey I, and Edmund II -- 25% to each?                                         -6-                                          6                                          A.                               Richard Sr.'s 25% Share                               _______________________                       The district court  had considerable  genealogical             information about the line of Richard Sr.   As we have said,             Richard Sr.  was survived by five  children, namely, Richard             Jr.  (Elizabeth's father), and  Elizabeth's four aunts, whom             we shall call, "Betsey II," "Ellen," "Clara," and "Ada."  As             we  have also said, Elizabeth obtained her father's 5%.  The             district  court found  that  the  remaining  20%  (initially             belonging  to  the  aunts)  descended  and  devised  through             various routes,  some parts eventually coming  to Elizabeth,             other  parts  ending  up  in the  hands  of  plaintiff  Jean             Stevenson   Clark  (who  took   her  interest  from  Clara's             grandchild, Phoebe), and still other  parts ending up in the             hands of the intervenors, who are Ada's grandchildren.                         No one  contests this division (which is reflected             in Appendix II) in  this appeal.  It is therefore final, and             we need not discuss these interests further.                                          B.                                  Charles' 25% Share                                  __________________                       We  turn  next to  the  25%  interest ascribed  to             Charles.  Charles died  in 1868, two years before  the death                                         -7-                                          7             of his father,  Edmund the Elder, in 1870.   Upon Edmund the             Elder's  death,  Charles'  children inherited  the  25% that             would have gone to Charles, had he outlived his father.  See             Mass. Gen. L. ch. 190,   3(1) (When an intestate dies seized             of  land,  such land  descends  "[i]n  equal shares  to  his             children and to the  issue of any deceased child by right of             representation").   Charles'  daughter Nancy  inherited this             entire interest,  as she was Charles'  last surviving child,             and her  siblings apparently died without issue.  Nancy died             in  1931,  without any  surviving  children.   At  that time             Richard Jr.,  who was Nancy's first  cousin (and Elizabeth's             father),  became the  administrator of  Nancy's estate.   He             told the probate court  that Nancy's next of kin  were three             surviving  first  cousins, namely  himself  and  two of  his             sisters, Betsey II and Ada.  He added that Nancy had several             living cousins in the  next generation (i.e., in Elizabeth's                                    ____             generation),  namely, several of  Edmund II's grandchildren.                                                           _____             The  probate court  subsequently distributed  Nancy's estate             (including  the  25% interest  inherited through  her father             Charles)  equally  to  Nancy's  living cousins  in  her  own                                                                 ________             generation, namely Richard Jr., Betsey II, and Ada.  It thus             awarded  each of  them an additional  8.33% interest  in the             property.                                         -8-                                          8                       The district court in  this case accepted the 1931             judgment    of   the   Massachusetts    probate   court   as             determinative, and factored this  information into the chain             of  conveyances and  devolutions.  (See Appendix  II).   The                                                 ___             United  States,  through  Elizabeth,  received  her father's             8.33%  interest plus  some  of both  Betsey  II's and  Ada's             shares.  The  intervenors received the  rest of Ada's  8.33%             interest,  as well  as  some of  Betsey  II's share.    Jean             Stevenson Clark  received the tiny remainder  of Betsey II's             share.   The United States, though not arguing the matter at             any length, seems to contest this division.                                                           C.                The 25% Share of Betsey I and the 25% Share of Edmund II               ________________________________________________________                       The  district court  had  very little  information             about what happened to the lines of Edmund the Elder's other             two children, Betsey I and Edmund II, each of whom inherited             a 25% interest  in the eight acres.  It  knew that Edmund II             was born in 18ll and that he had seven children.   The court             also  knew that  Betsey I  died in  1895, that  she had  ten             children,  and that she was survived  at her death by two of             her children and eleven grandchildren.  Finally, it had  the             1931 probate court record  of Nancy's estate, which suggests                                         -9-                                          9             that some of Edmund II's grandchildren  (who were members of             Elizabeth's generation) were still alive in 1931.                           The upshot is that the district court had evidence             of the existence of twelve or more grandchildren of Betsey I             and  Edmund   II,  as   of  1895   (eleven  of   Betsey  I's             grandchildren)  and 1931 (an  undetermined number  of Edmund             II's  grandchildren).   These  individuals,  like Elizabeth,             were   great-grandchildren  of  Edmund  the  Elder.    Their             descendants (if they exist) might be entitled to a 50% share             of the  property.    But, one  of the  intervenors told  the             court, no one now knows anything about them.                       Knowing  no  more than  this,  the  district court             faced three main possibilities.  First, Betsey I and  Edmund             II  might have descendants still  alive.  If  so, then these             surviving  descendants  would own  (subject  to any  further             transactions)  their ancestors'  50% interest  in  the eight             acres.                       Second,  both lines  may have  died out,  but only             after Elizabeth died in 1977.  In that case, any descendants             _____             of Edmund the  Elder's two other heirs (namely,  Charles and             Richard Sr.)  still alive  as of  1977 might  have inherited             their   interests  (in  the  absence  of  such  complicating             features as, say, wills).  See Mass. Gen. L. ch. 190,   3(6)                                        ___                                         -10-                                          10             (when an intestate dies seized of land and "leaves no issue,             and  no father, mother, brother  or sister, and  no issue of             any deceased  brother or sister, then  [his estate descends]             to his next  of kin  in equal  degree").   According to  the             district court's uncontested findings, the  only descendants             of  Charles or  Richard  Sr. to  survive Elizabeth  were her             sister Catherine  and her aunt  Ada's grandchildren, Richard             Sr.'s great-grandchildren, namely, the intervenors.   (Since             Catherine  had   conveyed  her  inchoate  interests  in  the             property  to Elizabeth back in 1941, she was not eligible to             inherit, even  though she outlived Elizabeth  by two years.)             On this hypothesis, therefore, Betsey  I and Edmund II's 50%             share would have devolved to the intervenors.                        Third,  Betsey I  and Edmund  II's lines  may have             died out before Elizabeth's death in 1977.  In that case, to                      ______             determine who obtained their interests (even if we assume no             wills)  is yet more complex,  for it would  depend upon just             when  they  died  and  which  members  of  their  generation             (descended from Edmund the  Elder) were alive at  that time.             Mass.  Gen. L. ch.  190,   3(6)  ("if there are  two or more             collateral kindred in equal degree claiming [entitlement  to             intestate next of  kin's land] through  different ancestors,             those  claiming   through  the  nearest  ancestor  shall  be                                         -11-                                          11             preferred   to  those  claiming  through  an  ancestor  more             remote").                        The   district   court,   choosing    the   second             possibility,  concluded that  the two  lines died  out after                                                                    _____             Elizabeth's death in 1977.   It then awarded the  entire 50%             to the  intervenors, dividing it  equally among the  four of             them.   The Government's appeal focuses  primarily upon this             determination, which, the  Government contends,  incorrectly             applies Massachusetts' law             of descent and distribution.                                         II.                                   The Legal Merits                                   ________________                       As we  have said,  the United States  contests the             way  in which the district court  allocated ownership of the             "Charles" line's 25% share, the "Betsey I" line's 25% share,             and the "Edmund II"  line's 25% share.  We do not understand             the basis for its claim of  error in respect to the first of             these  matters,  a claim  that  it treats  cursorily  in its             brief.  In  1931 a Massachusetts probate court  decided that             this share  belonged to Richard  Sr.'s then-living children,             namely Richard Jr. (Elizabeth's father), Betsey II, and Ada.             It gave each  of them one-third of the share.   Ordinarily a                                         -12-                                          12             federal court  will (indeed,  must) accept such  final state             court  awards  as legally  binding.   See  28 U.S.C.    1738                                                   ___             ("judicial proceedings . . . of any court of any State . . .             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").  Cf. U.S. Const. art. IV,   1                                             __             ("Full Faith and Credit shall be given in  each State to the             public  Acts,  Records, and  judicial  Proceedings of  every             other State.").  We are aware  of no special reason here for             departing from  this general rule.   Consequently, we affirm             the district court's distribution of this 25% share.                       We  do  not believe,  however,  that  the district             court's awards  of the  other  two 25%  shares were  legally             correct.  To  reach its  conclusions the court  had to  find             (1) that all the descendants  of Betsey I and Edmund  II had             died  out by 1984, but  (2) that some  such descendants were             alive as of Elizabeth's death in 1977.  The court had before             it  a record that reveals no significant effort by anyone to                                       _____________________             search for, or to contact, by  publication or otherwise, any             descendants of the Betsey I or Edmund II lines.  (The court,             in fact, rejected the plaintiff's motion for the appointment             of a  guardian ad litem to  do precisely that.)   Rather the             record contained only:                                         -13-                                          13                       (1) the facts  previously mentioned (namely,  that                       Edmund II had grandchildren alive in 1931 and that                       Betsey I had eleven grandchildren alive in 1895);                       (2)  testimony  by  one  of  the  intervenors,  an                       "amateur  genealogist," that she  had no knowledge                       of any issue of either Betsey I or Edmund II;                        (3) testimony by a genealogist  for the Government                       who  had primarily investigated Richard Sr.'s line                                                       __________________                       that  he  had not  found  evidence  of any  living                       descendants of Betsey I or Edmund II.             The  district  court  reasoned  from this  evidence  to  its             conclusions   in  three   steps,  with   the  help   of  two             Massachusetts cases,  Butrick v.  Tilton, 155 Mass.  461, 29                                   _______     ______             N.E.  1088 (1892),  and  Loring v.  Steineman, 42  Mass. 204                                      ______     _________             (1840).                         First,  Butrick  involved  plaintiffs who  claimed                               _______             that  they, rather than a tenant, had title to real property             that the tenant occupied.  According  to the district court,             Butrick  held  that,  once  the  "demandants"  prove  "their             _______             succession  to the  title," the  burden then  shifts to  the             tenant to prove  the "existence of  other heirs whose  title             would defeat or reduce  the claims of the demandants."   The             district  court   reasoned,  by   analogy,  that  once   the             intervenors proved  "their succession"  to the Betsey  I and             Edmund II interests, the burden  then shifted to the  United             States  to  show  the  "existence of  other  heirs,"  namely             descendants of those two lines.                                         -14-                                          14                       Second, the district court stated that Loring held                                                              ______             (1) that the  presumption of continued life persists  for no             more than seven  years after a person is last heard from, at             which point a  "presumption of death"  arises, and (2)  that             those  claiming  that a  person  presumed  dead left  either             spouse  or  children have  the burden  of  proving it.   The             district  court apparently  reasoned that  since no  one had             heard of any descendant of Betsey I since at least 1895, nor             of any descendant  of Edmund  II since at  least 1931,  that             these descendants (alive in 1895 and 1931) were "presumed to             have died out."  The court also concluded that United States             had not proved the existence of any issue.                        Third, the district court  noted that there "is no             indication  in the file that any attempt to locate the heirs             of Betsey [I] or Edmund [II] was  made until this action was             filed [in 1984]."  For this reason, the court concluded that             the two lines would be  presumed to have died out as  of the             1984  filing date,  seven years  after Elizabeth's  death in                                              _____             1977.                       We  do not  believe that  these cases  warrant the             result  now before  us.   For  one  thing, Butrick  involved                                                        _______             plaintiffs  who established their "succession" to title with             at least a  little more  evidence than was  present in  this                                         -15-                                          15             case.    The  demandants  there obtained  title  from  their             ancestor, who  had allegedly  obtained title from  relatives             (not the children) of a man  named Jacob Ayer, who had  died             in 1789.  Jacob  Ayer, in turn, inherited his  interest from             his  father.   To  establish their  claim  to at  least some             ownership interest  in the  property, the plaintiffs  had to             show  that the relatives of Jacob Ayer had had title, which,             in turn, required them  to show that Jacob Ayer  had left no             issue.   Butrick, 155 Mass. at  465.  To establish  the full                      _______             extent of Jacob Ayer's  interest in the property,  and hence             their own, the  plaintiffs had to show that  Jacob's brother             Joseph had died before  Jacob died, and without issue.   Id.                             ______                                   __             at 466.                        To show the first of these matters, the plaintiffs             provided,  as a  witness,  Mrs. Butrick,  Jacob Ayer's  step             great-granddaughter,   whom  the   court  held   (given  her             relationship  and interests)  competent  to  testify "as  to             general repute . . . as to  matters of pedigree."  Id.  Mrs.                                                                __             Butrick  testified  that  Jacob's  second marriage  (to  her             great-grandmother) produced no issue  and that she had never             heard of any issue from Jacob's first marriage.  Id. at 465-                                                              __             66.  To  show the  second of these  matters, the  plaintiffs             submitted  (1)  the  will  of  Jacob  Ayer's  father,  which                                         -16-                                          16             mentioned six children, including Jacob, but not his brother             Joseph, and (2) "evidence  of the unsuccessful inquiry where             it was  probable that information  could be found  if Joseph             had  been living  up to 1810,"  including an  examination of             headstones and  official records  in the  town where  he was             born.  Id. at 466-67.                       __                       The  evidence as  to  the first  of these  matters             (Jacob's  lack of issue)  seems at  least a  little stronger             than the  comparable evidence here.  One can more reasonably             be expected to  know (as  in Butrick)  whether one's  (step)                                          _______             great-grandfather  had  children  than  to  know  (as  here)             whether one  has third cousins  who are still  living, i.e.,             whether one's great-grandfather had brothers or  sisters who             had children who had  children who had children who  are now             alive.  The evidence  of the second of these  matters (i.e.,             the extinction of a  collateral line with a rival  claim) is             much  stronger  in  Butrick  than here,  for  it  included a                                 _______             serious search,  the failure of which  had obvious probative             value.   The record in  this case, by  contrast, contains no             evidence  of any significant effort to locate, or to provide             notice to,  the descendants of  Betsey I or  Edmund II.   Of             course,  the Massachusetts  courts decided Butrick  nearly a                                                        _______             century ago.  But in light of the technological improvements                                         -17-                                          17             which have made it  easier to track down  other individuals,             we believe Massachusetts courts  would insist, if  anything,             on  greater efforts  to locate  missing owners,  rather than                 _______             needlessly tolerate lesser efforts.                                   ______                       We are also uncertain  about whether, or just how,             Loring applies  here,  say, to  Edmund  II's  grandchildren.             ______             Loring involved a man who departed from where he lived, went             ______             off to sea, and who  was never heard of again by  his family             and those  in his  native town.   Loring,  42 Mass.  at 206.                                               ______             Edmund II's grandchildren do not seem quite like the missing             sailor,  however, for  there is  no  reason to  believe that             those with whom they lived never "heard of" them after 1931.             See Knapp v.  Graham, 320  Mass. 50, 54  (1946) (rival  heir             ___ _____     ______             will not be  presumed dead where no proof of actual death or             unexplained  absence from  domicil or  established residence             for  more than seven  years).  The  only reason we  have not                                                             __             heard  of them again, as far as  the record reveals, is that             no one has attempted to look for them.                          Regardless, we  do not see how  Loring (whether or                                                       ______             not taken together with  Butrick) could justify the district                                      _______             court's conclusion that  the two lines died  out after 1977.                                                              __________             If we accept, for the sake of argument, that Loring's "seven                                                          ______             year"  presumption applies,  then we  would have  to presume                                         -18-                                          18             that Betsey  I's grandchildren  were no longer  living seven             years  after  1895, when,  according  to  the record,  their             existence was last documented.   Similarly, we would have to             presume that Edmund II's  grandchildren were no longer alive             seven  years  after 1931.   Were  that  so (and  assuming no             issue), the  intervenors would  not inherit the  lost heirs'             entire interests, because others (including Richard Jr., the             father of Elizabeth, the Government's grantor) were alive in             1902 and/or 1938, and thus entitled  to a share.  The record             is  totally silent  as to  whether Betsey  I or  Edmund II's             grandchildren  produced issue.   And,  we do  not understand             what rule of law would permit the court to presume both that                                                                ____             these grandchildren  (and  any issue  they  produced)  still             existed in 1977  and that they died  (without issue) shortly                              ___             after 1977.                       For  these reasons, we conclude that Massachusetts             law, as it applies  to the facts before us, does not support             the district court's award  of 50% of the locus  (consisting             of  Betsey I's 25% interest and Edmund II's 25% interest) to             the  intervenors.   We  therefore must  vacate the  judgment             below  insofar as it makes that  award.  We need not further             decide precisely how Massachusetts law ought to apply to the                                         -19-                                          19             existing record because,  for reasons  set out  in Part  III             below, the relevant facts may change.                                          -20-                                          20                                         III.                                 Further Proceedings                                 ___________________                       As noted above, the United States has filed, while             this appeal was  pending before this  court, a complaint  in             condemnation against the  eight acres at issue  here.  After             oral  argument on  appeal,  the United  States  asked us  to             vacate the judgment below so that the district court, in the             condemnation  action,  can  determine compensable  ownership             interests on  a clean slate.   We see no basis  for vacating             the judgment below, however,  insofar as that decision makes             a final award of interests.  The judgment below is obviously               _____             "final"  with respect to Richard Sr.'s 25% share, for no one             has appealed  from that  award. See Restatement  (Second) of                                             ___ ________________________             Judgments,    13 cmt. e ("A  judgment may be final  in a res             _________             judicata  sense  as to  a  part of  an action  [or  a claim]             although the litigation continues  as to the rest").   It is             also  "final"  with  respect  to Charles'  25%  share,  for,             although the  United States has appealed that award, we have             found no legal reason  to disturb it. See id. at   13 cmt. f                                                   ___ __             ("a judgment  otherwise final remains so  despite the taking             of  an appeal . . . .   finality [not being] affected by the             fact  that  the taking  of  the appeal  [may]  prevent[] its             execution  or enforcement").   And,  we do  not believe  the                                         -21-                                          21             United  States  should  be  able automatically  to  avoid  a             district  court's  "quiet  title"  judgment  with  which  it             disagrees simply  by appealing it and  filing a condemnation             petition  in  the interim.   Here,  it  seems both  fair and             potentially  expeditious  for  the  district  court's "quiet             title"   allocation  of  Charles's   share  to   govern  the             condemnation action's compensation  decisions (as they  will             in the  case  of  Richard Sr.'s  share).  See id.  at     27                                                       ___ __             (setting forth the basic principle of collateral estoppel).                       Since we  vacate the judgment below  in respect to             the rest  of the  "quiet title" action,  which concerns  the             distribution  of the Betsey I and Edmund II shares, there is             no  final judgment  in effect regarding  those shares.   And                 ______________             because  we  find  that  condemnation  will  eliminate   the             requisite controversy as to who owns the Betsey I and Edmund             II shares,  we  order  the district  court  to  dismiss  the             complaint in respect to the vacated portions as "moot."  The             district court  should determine  afresh whom  to compensate             for those shares in the context of the separate condemnation             action.   Because  we have  found  authority from  a  sister             circuit  that  casts  doubt  upon  our  finding  of  partial             mootness, and because  the plaintiff and  intervenors oppose             vacatur, we shall explain our reasoning in some detail.                                         -22-                                          22                       At the outset,  one must understand  a few of  the             technical differences  between a "quiet title"  action and a             "condemnation" proceeding.  A condemnation action is brought             by the  Government and proceeds in rem  against the property                                             ______             itself.  See United States v. Carmack, 329 U.S. 230, 235 n.2                      ___ _____________    _______             (1946).   As  an  exercise of  eminent domain,  condemnation             "extinguishes all previous rights,"  Duckett & Co. v. United                                                  _____________    ______             States, 266  U.S.  149, 151  (1924),  and gives  the  United             ______             States title to the  entire condemned property "good against             the  world."  Norman Lumber  Co. v. United  States, 223 F.2d                           __________________    ______________             868,  870 (4th  Cir.), cert.  denied,  350 U.S.  902 (1955).                                    _____________             Condemnation  secures better  title,  in fact,  than may  be             obtained through  voluntary  conveyance.   See Carmack,  329                                                        ___ _______             U.S. at 239.   The title to the property vests in the United             States  when  the  award  of "just  compensation"  has  been             ascertained  and  paid.   See  Albert Hanson  Lumber  Co. v.                                       ___  __________________________             United  States, 261 U.S.  581, 587 (1923);  United States v.             ______________                              _____________             341.45 Acres of Land, 751 F.2d 924, 926  n.2 (8th Cir. 1984)             ____________________             (where Government files  a complaint in condemnation,  title             passes  when compensation award  paid into  district court).             Upon  receipt   of  the  award,  the   district  court  will             distribute it among those who owned the property at the time             of condemnation.  See Fed. R. Civ. P. 71A(j).                               ___                                         -23-                                          23                       In  an  action  under  the  Quiet  Title  Act,  by             contrast,  a private plaintiff names the United States "as a             party defendant . . . to adjudicate a disputed title to real             property in which the United States claims an interest . . .             ."  28 U.S.C.   2409a(a).  If the plaintiff prevails, he can             recover the land  wrongly held  by the United  States.   The             Quiet  Title  Act  also  permits the  Government  to  retain             property it does not own, but only after a court has reached                                                _____             a "final determination" in the title dispute "adverse to the             United States."   Id. at    2409a(b).   At  that point,  the                               __             United States  can elect to keep  the prevailing plaintiff's             interest in the  land by paying him  "just compensation" for             it.    Id.   Yet  even if  the  United  States acquires  the                    __             plaintiff's interest,  it  will nonetheless  be  potentially             liable  to third parties not  joined in the  action, who may             have  better   title  than  either  the   plaintiff  or  the             Government.  See, e.g., Younce v. United States, 661 F. Supp                          ___  ____  ______    _____________             482, 487-88  (W.D.N.C. 1987)  (judgment for Government  in               2409a lawsuit means that  United States holds title superior             to plaintiffs, but not necessarily good title as against the             world), aff'd, 856  F.2d 188 (4th Cir.  1988); Oneida Indian                     _____                                  _____________             Nation  v.  New York,  732 F.2d  261,  265 (2nd.  Cir. 1984)             ______      ________             ("Ordinarily a judgment in a[] . . . quiet title action will                                         -24-                                          24             not affect the interests of others than the parties or those             in  privity with them.").   This is because  a "quiet title"             action is,  generally speaking,  an in  personam proceeding,                                                 __  ________             see Nevada v.  United States, 463  U.S. 110, 143-44  (1983),             ___ ______     _____________             the purpose of which  is to determine which named  party has             superior claim to a certain piece of property. See 74 C.J.S.                                                            ___             Quieting Title   1, at 11 (1951).  But  see id.   7, at 18 &             ______________                     ________ __             Supp.  1992 (scattered authority for proposition that "quiet             title" action can operate in rem or quasi in rem).                                        ______    ____________                       Keeping these  descriptions of the two  actions in             mind,   one  can   understand   our   conclusion  that   the             condemnation  proceeding  has "mooted"  what remains  of the             "quiet title" controversy (i.e.,  that portion of the "quiet             title"  controversy  for  which  no  final  judgment  is  in                                                  _______________             effect).   The Quiet Title Act  authorizes only actions that             require  courts  "to adjudicate  a  disputed  title to  real                                                 ________             property in which the  United States claims an interest  . .             . ."  28 U.S.C.   2409a(a)  (emphasis added).   The words of             the statute, taken literally, permit adjudications only when             the title  or ownership of real  property is in doubt.   Cf.                                                                      __             Ginsberg v. United States,  707 F.2d 91, 93 (4th  Cir. 1983)             ________    _____________             (landlord cannot  maintain     2409a  "quiet  title"  action             against United States in  dispute over Government's  alleged                                         -25-                                          25             breach of  contractual obligations  as  tenant under  lease,             since  dispute does not cast doubt on the title or ownership             of  the property).  The  initial inquiry in  any such action             must therefore be, "Who holds superior title to the property             -- the plaintiff or the United States?"  Only if the  courts             finally resolve  the title dispute  in a manner  "adverse to             the  United  States"  (i.e.,  the  plaintiff  holds superior             title) will they reach a  second question, "Does the  United             States  wish to  keep  the  plaintiff's  property  interest,             regardless,  by paying just compensation for it?"   Once the             property  has been  condemned,  however,  the "quiet  title"             court cannot make  a "final determination" as  to title that             is "adverse  to the United States."   The condemnation gives             the  United States  indefeasible title.   Hence,  the "quiet             title" action's first question  -- "Who has superior title?"             -- is preclusively determined in the United States' favor.                        The upshot is that  the filing of the condemnation             action has  eliminated the prerequisite for  a "quiet title"             action -- a  "disputed title"  -- and  thereby "mooted"  its             threshold inquiry, "Who  owns title?"  For this  reason, the             unresolved  portion  of  this  "quiet  title"  action cannot             continue.                                         -26-                                          26                       Strong   practical   considerations  support   our             technical reading.  A condemnation action seems to provide a             more effective  way than a  "quiet title" action  to deliver             just  compensation  to  those private  persons  entitled  to             receive it.   "Quiet title" procedures  do not automatically             provide for  the notification of  persons not  party to  the             action (e.g., the  "lost" descendants of Betsey I and Edmund             II) who may have  title superior to both plaintiffs  and the             Government.     Thus,  the  true  owners   may  not  receive             compensation, and  a court,  wrongly believing that  they do             not  exist, may order  the Government to  pay the plaintiffs             ___             full compensation, thereby exposing the Government to double             liability should the true owners eventually surface and sue.                       The  procedures  for  condemnation,  by  contrast,             expressly require the Government to take steps to search for             "lost" heirs.  See  Fed. R. Civ. P. 71A(c)(2) ("prior to any                            ___             hearing involving the compensation to be paid for a piece of             [condemned]   property,   the  [condemnor]   shall   add  as             defendants  all  persons having  . .  .  an interest  in the             property  whose names  can  be ascertained  by a  reasonably             diligent search of the records,  . . . and also  those whose             names have  otherwise been learned.").   As a  result, these                                         -27-                                          27             procedures tend to compensate those entitled to compensation             and to protect  the Government from double liability.   They             also make it less  likely that the Government will  obtain a             windfall, for example, by  physically occupying land it does             not  own, and  whose  unknown owners  never  bring a  "quiet             title" action to obtain payment; the Government must pay the             entire value  of the condemned property  into court, whether             or not it has ascertained who owns it.  See United States v.                                                     ___ _____________             3276.21  Acres of  Land, 194  F. Supp.  297, 300  (S.D. Cal.             _______________________             1961) ("Any contest between  persons claiming an interest in             the award  is heard . .  . only after the award  for all the             interests  in  the land  has been  made").   And,  the court             apparently  retains  a  degree  of freedom  to  divide  this             compensation (and to condition its distribution) in a manner             that seems  fair, in light  of the  possibility that  "lost"             heirs  may eventually  appear.  See, e.g., United  States v.                                             ___  ____  ______________             550.6 Acres  of Land,  etc, 68  F. Supp.  151, 154 (D.  Ga.)             __________________________             ("where  neither  claimant  shows  right or  title  to  [the             condemnation award], the money  should remain subject to the             control  of  the  court   for  disbursement  to  the  proper             claimant, when  and if  he should  appear"), aff'd  sub nom.                                                          _______________             Shropshire v Hicks, 157  F.2d 767 (5th Cir. 1946).   Indeed,             __________________             courts have  held that, where  a "true owner"  appears after                                         -28-                                          28             the  condemnation  award has  been  distributed, this  "true             owner"  may obtain  a proper  share  from those  persons who             wrongly received such  award.   See In re  Block bounded  by                                             ___ ________________________             Chauncey St., etc., 209  N.Y. 127, 102 N.E. 638,  640 (1913)             __________________             (uncompensated  true owner  of condemned  land can  bring an             action for  money had and  received against  person to  whom             condemnation award  erroneously paid); Palo  v. Rogers,  116                                                    ____     ______             Conn.  601, 165 A.  803, 805 (1933)  (where city erroneously             paid  landowner  rather  than  mortgagees  for  land  taken,             mortgagees had good cause  of action to recover  such amount             from landowner).                       These  practical considerations  seem particularly             important   in   this   case,   since   the  more   thorough             investigation that  the  condemnation action  promises  will             likely  permit  an  easier   resolution  of  the  issues  of             Massachusetts law.                       We have found, however,  authority from the Fourth             Circuit, Fulcher  v. United States,  632 F.2d 278  (4th Cir.                      _______     _____________             1980)  (en banc),  followed  by the  Eighth Circuit,  United                                                                   ______             States v. Herring, 750  F.2d 669, 672 (8th Cir.  1984), that             ______    _______             casts doubt upon  our "mootness" conclusion.   In Fulcher, a                                                               _______             plaintiff  brought a   2409a action in 1977 to "quiet title"             to  property  which  the Government  had  condemned eighteen                                         -29-                                          29             years earlier, in 1959,  without properly notifying him.   A             majority of the  Fourth Circuit, sitting en banc,  held that             the  1959  condemnation  vested indefeasible  title  in  the             Government.  Fulcher,  632 F.2d at  284 (plurality); id.  at                          _______                                 __             294 (Hall, concurring in part  and dissenting in party); id.                                                                      __             at 295  (Murnaghan, dissenting).   Yet a majority  also held             that  the plaintiff  could  nonetheless maintain  a    2409a             "quiet title"  action in  order to obtain  just compensation             for the  Government's appropriation of his  property. Id. at                                                                   __             285  (plurality); id.  at 286  (Phillips, concurring).   The                               __             Circuit reached this result  even though the plaintiff could             have sought compensation  in the Court of  Claims (now known             as  the United  States Claims Court)  by bringing  a takings             claim  under the Tucker Act.  28 U.S.C.    1491 ("The United             States Claims  Courts  shall  have  jurisdiction  to  render             judgment upon any  claim against the United States founded .             .  . upon the Constitution").  See  Fulcher, 632 F.2d at 295                                            ___  _______             (Murnaghan dissenting) (arguing that Court of Claims was the             appropriate  forum  for   plaintiff's  claim).     Fulcher's                                                                _______             holding,  applied to  the  present case,  suggests that  the             Government's condemnation  of the eight acres  at issue here             does not  "moot" the  intervenors'  remaining "quiet  title"             claims,   or   prevent   the   parties   from   adjudicating                                         -30-                                          30             compensation  in the  context of  the "quiet  title" action.             One might  well ask,  if Fulcher's plaintiff  could bring  a                                      _______             post-condemnation   "quiet   title"   action  seeking   only             ____             compensation, how  can we  say that the  condemnation action             "moots"  further  (compensation-seeking) proceedings  in the             "quiet title" action before us?                       We  could  answer  that  question  by  pointing to             differences  between this  case  and Fulcher.   The  Fulcher                                                  _______         _______             plurality,  for example,  focused  primarily  on  whether  a             plaintiff could sue for compensation in a highly convenient,             local  "quiet title" forum,  or would, instead,  have to sue             for  compensation  (under  the   Tucker  Act)  in  the  less             convenient  Court of Claims.  Fulcher, 632 F.2d at 282, 285-                                           _______             86  (plurality).   Here,  by  contrast,  the plaintiffs  can             obtain compensation in the local district court even without             the  Quiet  Title  Act, and  other  practical considerations             argue strongly in favor of  ending the "quiet title"  action             and proceeding henceforth in condemnation.                       The Fulcher plurality also developed a theory that                           _______             the   plaintiff  (not  properly   notified  in  the  earlier             condemnation  action)   had  a  kind   of  "equitable  lien"             enforceable  in a later "quiet title" action.  Id. at 284-85                                                            __             (plurality).   That theory  is not  applicable here,  as the                                         -31-                                          31             named  plaintiffs   have  all   been   notified  about   the             condemnation complaint.                       Rather  than distinguish  Fulcher on  grounds that                                                 _______             may further complicate this complex area of law, however, we             believe it more straightforward to say that we disagree with             its reasoning.  At bottom, the Fulcher plurality interpreted                                            _______             the "quiet title" statute as allowing the  post-condemnation             suit because  (1) of  policy  grounds favoring  adjudicating             property-related  disputes  in  nearby courts,  and  (2) its             inability   to  find   strong   reasons   against  such   an             interpretation.    Indeed,  it wrote  that  it  "perceive[d]             neither  congressional  intent  nor  principled  reason  for             distinguishing"  between  "takings" effected  without formal                                                           _______             condemnation  proceedings  (which,  if  made  without proper             compensation, can give rise to "quiet title" actions  by the             uncompensated owners  for payment) and "takings" arising out                                                              _______             of formal  condemnation proceedings (which, if  made without             proper  compensation,  can  give  rise to  Court  of  Claims             proceedings for payment).  Id. at 284 (plurality).                                        __                       We do see a crucial distinction,  however, between             bringing  a "quiet  title" action  where title  is still  in             dispute  and  bringing  a  "quiet title"  action  after  the             Government   has   indisputably   obtained   title   through                                         -32-                                          32             condemnation.  This  distinction, as we  have said, lies  in             the  theory  of  the "quiet  title"  suit  as  an action  to             adjudicate  disputed  title,  and  in the  language  of  the             federal  "quiet  title"  statute  itself.      That  statute             provides that  the Government  may retain real  property (by             paying  just compensation) only  "if the final determination                                               __________________________             [of the underlying 'quiet title' action] shall be adverse to                                                               _______             the  United States . .  . ." 28  U.S.C.   2409a(b) (emphasis             added).   Where the United States  has indisputably obtained             title,  it is difficult to  see how this  condition could be             fulfilled.  So even though, as the Fulcher plurality stated,                                                _______             the  legislative   history  of  the  Quiet   Title  Act  "is             inconclusive about  claims of omitted owners  arising out of             formal condemnation  proceedings," Fulcher, 632  F.2d at 284                                                _______             (plurality), the language of the statute, and its underlying             logic, are not.                        A   second   consideration   that  threatens   our             conclusion  of   "mootness"  lies  in  the   fact  that  the             Government has not  yet paid  an amount deemed  to be  "just             compensation"  into court.   As  the  case law  makes clear,             title shifts upon payment  of this amount, not before.   See                                                                      ___             Albert Hanson Lumber Co.,  261 U.S. at 587; 341.45  Acres of             ________________________                    ________________             Land, 751  F.2d at  926 n.2.   The  Government has  told us,             ____                                         -33-                                          33             however, that  it intends  to proceed with  the condemnation             action.    We surmise  that it  has  held up  actual payment             pending our  decision in  this appeal.   We  shall therefore             eliminate this "chicken and egg" problem by conditioning our             judgment, insofar  as it  orders the remanded  "quiet title"             action to be dismissed, upon the Government's payment of the             condemnation award into the district court.                                         IV.                                     The Judgment                                     ____________                       1.  The 25% share of Richard Sr.  As we previously                           ____________________________             pointed  out,  no  one  has appealed  the  district  court's             judgment   allocating  the   25%  undivided   interest  that             originally belonged to Elizabeth's grandfather,  Richard Sr.             We therefore  affirm the judgment  below in respect  to that             share, and direct the district court to order the Government             to  compensate   the  parties  according  to   its  original             determination.                         2. The 25%  Share of Charles.  We also affirm  the                          _________________________             district  court's distribution of  the 25%  share originally             inherited through  Charles.   This distribution, as  we have             said, simply implemented  the Massachusetts probate  court's                                         -34-                                          34             1931  decision  allocating  this  share,  a  decision  whose             validity has not been challenged.                        3.  The 25%  Shares  of Betsey  I  and Edmund  II,                           ______________________________________________             Respectively.   For the reasons stated above,  we vacate the             _____________             district court's distribution of the  50% interest initially             belonging  to Betsey I and Edmund II, and order the district             court to dismiss  what remains of the original "quiet title"             action  as "moot" when  the Government  pays the  award into             court  in the  condemnation  proceeding.   The parties  must             relitigate their  claims to entitlement to  compensation for             these shares in the condemnation proceeding, in light of any             new evidence revealed therein.                        So Ordered.                       __________                                         -35-                                          35                APPENDIX I is not available on the EDOS publication of             opinion 92-1181.                                         -36-                                         36                                     APPENDIX II     The district court awarded the Richard Sr. and Charles shares, comprising one  one-half of the title to the property, as follows:     The United States                27.24%     Jean Stevenson Clark         3.17%     The Intervenors:                       Barbara Jackson                       12.39%                       The three children of                       Roger Jackson                       (Roger Jr., Margery, &                       Betsey III)                            7.23%                                         -37-                                         37
