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 &amp; 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 &amp;                                                           

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, &amp;

          Betsey III)                            7.23%

                            -37-                                         37
