Catherine Turner & a. v. TD Bank, N.A.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2024-0358, Catherine Turner & a. v. TD Bank, N.A., the court on December 30, 2025, issued the following order:

The court has reviewed the written arguments and the record submitted on appeal, and has determined to resolve the case by way of this order. See Sup. Ct. R. 20(3). The defendant, TD Bank, N.A., appeals an order of the Superior Court (Howard, J.) that: (1) enjoined its foreclosure of a mortgage on property formerly owned by the late Leslie and Nathalie Turner (the Turners); and (2) quieted title to the property in the plaintiff, Catherine Turner, as executor of the estate of Leslie Turner and Trustee of the Leslie Turner Trust - 2019 (the Trust), free and clear of any claim, right, title or interest of the defendant. We vacate and remand.

The following facts were found by the trial court on offers of proof and exhibits submitted at the final hearing, are undisputed by the parties, or relate the contents of documents in the record. The plaintiff is the Turners' daughter. In 1996 and 1997, the Turners took title to two adjoining parcels in New Durham, which were later treated as a single lot on the Town's tax map (Lot 6C) and known by a single street address — first 80 Old Route 11 and later, when Old Route 11 was renamed, 80 Tash Road.

In 2004, the State of New Hampshire quitclaimed to Leslie Turner a .23- acre parcel located on Route 11 and referred to by the trial court and the parties as "the sliver" or "the strip." The sliver is located, according to the plaintiff's representation, "across the river and around the corner from" Lot 6C. The quitclaim deed is recorded at Book 3051, Page 769 in the Strafford County Registry of Deeds.

In 2006, the Turners signed a mortgage in favor of the defendant to secure a home equity line of credit note with a credit limit of $100,000 (the mortgage). The mortgage deed identified the mortgaged property as "THAT

CERTAIN PIECE OR PARCEL OF LAND, AND THE BUILDINGS AND

IMPROVEMENTS THEREON, KNOWN AS 80 Old Route 11, IN THE TOWN OF New Durham . . . AND BEING MORE PARTICULARLY DESCRIBED IN A DEED RECORDED IN BOOK 3051, PAGE 769." Thus, the book and page number referenced the sliver. According to the plaintiff, there were no buildings or improvements on the sliver.

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Sometime around 2010, the Turners filed for bankruptcy. Their bankruptcy petition listed their residence at 80 Tash Road as being encumbered by a mortgage in favor of the defendant. The trial court found that

"the promissory note for the $100,000 line of credit was discharged." The defendant has not appealed this finding.

On February 16, 2017, Leslie Turner brought a petition against the defendant to quiet title to two lots he had subdivided (referred to therein as Lots 7-0 and 7-1 shown on New Durham Tax Map 257) from property that included the sliver. The petition alleged that the two lots should not be encumbered by the mortgage notwithstanding its reference to the book and page number of the quitclaim deed to the sliver. It further alleged that the mortgage was "internally inconsistent as far as the property it is intended to encumber" because it referred to both the book and page number for the sliver and an address — 80 Old Route 11 — that is not the sliver's location. Rather, the petition noted, the sliver is "located on current Route 11." At the hearing on the 2017 quiet title petition, Leslie Turner's counsel represented to the court that Turner "own[ed] property on Tash Road, and it's our belief that [this] is the property that [the mortgage] was intended to encumber."

Though properly served with the quiet title petition, the defendant did not appear, defend, or file any counterclaims. However, on February 27, 2017, the defendant filed with the Strafford County Registry of Deeds a purported

"corrective mortgage" to "correct the legal description" in the original mortgage. (Capitalization omitted.) In that document, the defendant crossed out the original property description and replaced it with the metes and bounds description of Lot 6C. The defendant recorded the corrective mortgage without sending it to the Turners or obtaining their consent and without notifying their counsel in the pending quiet title action. After the hearing on the petition, a default judgment issued in that action, quieting title to Lots 7-0 and 7-1 in Leslie Turner (the 2017 decree).¹

Following the deaths of both Leslie and Nathalie Turner, the plaintiff, as Trustee of the Trust, became the owner of Lot 6C. The plaintiff's counsel represented to the trial court that at the time Leslie Turner's estate was probated, the defendant "hadn't sent a statement in literally a decade." In early 2023, the defendant commenced foreclosure proceedings on Lot 6C. This action to enjoin the foreclosure and to quiet title followed. The trial court determined that the case presented two dispositive questions: "(1) Did the original 2006 mortgage deed adequately describe the residential property (Lot 6C) at 80 [T]ash Road as the encumbered property;

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and (2) if it did not, was the 'corrective deed' recorded by [the defendant] in 2017 valid?" Answering both questions in the negative, the court enjoined foreclosure and quieted title to Lot 6C in favor of the plaintiff. The defendant now appeals.

"We will uphold the trial court's determination [in a quiet title action] unless it is erroneous as a matter of law or unsupported by the evidence."

Brentwood Volunteer Fireman's Assoc. v. Musso, 159 N.H. 461, 463 (2009).

"We will uphold the decision of the trial court with regard to the issuance of an injunction absent an error of law, unsustainable exercise of discretion, or clearly erroneous findings of fact." Pike v. Deutsche Bank Nat'l Trust Co., 168 N.H. 40, 45 (2015) (quotation omitted).

The defendant first argues that "the trial court erred when it failed to find that the Mortgage remained a valid and enforceable lien against the Property following the entry of the [2017] Decree." The defendant contends that the 2017 decree "amended" the mortgage by "strik[ing] off the legal description." It then argues that "what remained following the entry of the [2017 decree] was a mortgage with the correct street address and no legal description, which remained a legally valid encumbrance against [Lot 6C]." The plaintiff counters that the court in 2017 "did not remove, or excise, or strike, any portion of the mortgage deed," but merely determined that the mortgage did not encumber the sliver. She argues that "[t]he mortgage was originally encumbered by [sic] the Sliver. When the Sliver was declared unencumbered, the mortgage was no longer secured."

We agree with the plaintiff only in part. The 2017 decree, by its terms, merely vested title to Lots 7-0 and 7-1 in Leslie Turner "free and clear of any interest of the Defendant." It did not reform or otherwise affect the mortgage. The remainder of the plaintiff's argument, however, is premised upon the proposition that the original mortgage encumbered only the sliver, which is a ruling by the trial court that the defendant challenges on appeal. Accordingly, we now turn to that issue.

The defendant argues that the trial court erred in concluding that the mortgage encumbered the wrong property; namely, the sliver. The trial court ruled:

The original mortgage deed signed in 2006, by its very terms specifically and particularly described the sliver of land reflected in Book 3051, Page 769 as the encumbered property. While the description of the encumbered [property] was further identified as the property at "80 Old Route 11," the provision of the address did nothing to supersede, alter or clarify the description of the intended encumbered property.

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The court concluded that "a street address which conflicts with the actual description of the encumbered property in the mortgage deed does not suffice to override the description and adequately identify the encumbered property."

Although the court acknowledged evidence "that the parties may have intended to encumber" Lot 6C, it concluded that that evidence did "not change the fact [that] the parties expressly encumbered a wholly separate parcel." The trial court cited no authority supporting the rule of construction it applied. The defendant argues that the trial court misapplied the law in concluding that the mortgage's legal description — the book and page number for the sliver — prevailed over the conflicting street address in the mortgage as a matter of law. Specifically, the defendant argues that "[t]here is no law in the State of New Hampshire dictating that legal descriptions control over other extrinsic evidence of intent regarding discrepancies contained in mortgages or other recorded documents. Rather the opposite is true." For her part, the plaintiff argues that "[w]hen there is general language in a deed followed by a 'more particularly [described]' phrase which references another deed, the more particular construction is applied."

We conclude that both parties misframe the issue. The question is not whether legal descriptions control over extrinsic evidence. Nor can it be said that a street address is "general language" that is rendered more specific by more particular language in a property description where the address and the description conflict. Rather, the issue is whether conflicting descriptions of the encumbered property in a mortgage deed create an ambiguity justifying resort to extrinsic evidence. When property is described by a street address and by a book and page description that conflict, an ambiguity exists and a court may look to extrinsic evidence to resolve the conflict. See Cucchi v. Town of Harrisville, 176 N.H. 629, 632 (2024), 2024 N.H. 29, ¶10 (noting that if "the language of the deed is ambiguous, extrinsic evidence of the parties' intentions and the circumstances surrounding the conveyance may be used to clarify its terms").

Here, there is extrinsic evidence supporting the defendant's contention that the mortgage encumbered Lot 6C. For example, the mortgage deed recites that it extends to buildings and improvements on the property, and there are no buildings on the sliver. Mr. Turner, moreover, sought and obtained relief from the superior court in the 2017 quiet title action, in part by representing to the court that the mortgage was intended to encumber the Turners' property on Tash Road.

The plaintiff argues that because the defendant "prepared the mortgage deed, its language should be construed against it." That argument is unavailing. "This court has applied the rule of construction that interprets ambiguous contract language strictly against its writer only in the context of insurance contracts." Centronics Data Computer Corp. v. Salzman, 129 N.H.

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692, 696 (1987). With non-insurance contracts, we apply the general rule that

"no presumptions are to be indulged in either for or against a party who draws an agreement." Id. (quotation omitted). When construing deeds, we have held that "[d]oubts may be resolved against [the drafter] . . . only when all other means of ascertaining the intent of the parties have failed." Id.; see 26A C.J.S. Deeds § 187 (2020). Here, the trial court failed to consider other evidence of the parties' intent.

The plaintiff acknowledges our case law stating that "[a] deed generally will be held sufficiently definite if it is possible by any reasonable rules of construction to ascertain from the description, aided by extrinsic evidence, what property is intended to be conveyed." Smith v. Wedgewood Builders Corp., 134 N.H. 125, 129 (1991) (quotation omitted). She nevertheless argues that the street address here is inadequate because it "can refer to both the Residential Property and the Sliver, and perhaps even [Lots 7-0 and 7-1]." As the defendant points out, however, the plaintiff fails to cite any evidence supporting that claim. Moreover, the trial court made a factual finding, which the plaintiff has not challenged by cross-appeal, that the street address "80 [T]ash Road (formerly Old Route 11)" is the physical address of Lot 6C. Accordingly, we reject this argument.

The plaintiff further contends that the defendant waived its opportunity to assert that the mortgage encumbers Lot 6C by failing to raise that claim in the 2017 quiet title action. She argues that the defendant "could have, but did not, file in 2017 a counterclaim seeking a declaration of what parcel the mortgage did cover" and cites Osman v. Gagnon, 152 N.H. 359 (2005), for the proposition that res judicata prevents a litigant from raising in a new action "a claim . . . that could have been raised as a defense or counterclaim" in the prior action. Osman, 152 N.H. at 362. The defendant explains its decision not to participate in the 2017 lawsuit by noting that in that action Leslie Turner sought only "an order confirming simply that the Mortgage did not encumber the Strip" and did not "ask the Court to instead strike the Mortgage in its entirety."

"The essence of the doctrine of res judicata is that a final judgment by a court of competent jurisdiction is conclusive upon the parties in a subsequent litigation involving the same cause of action." Id. (quotation omitted). Three conditions must be met for res judicata to apply: (1) the parties must be the same or in privity with one another; (2) the same cause of action must be before the court in both instances; and (3) a final judgment on the merits must have been rendered on the first action.

Id.

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We understand the defendant's argument to be that the cause of action in the 2017 lawsuit was not the same as that in the case on appeal. We agree that it was not. The 2017 action sought to quiet title in Lots 7-0 and 7-1 and obtained only that relief. The instant action sought to quiet title in, and enjoin foreclosure on, a wholly separate parcel — Lot 6C.

Generally, a judgment adjudicating rights or title to property only bars claims relating to the particular property in controversy and does not extend to rights, title, or interests in other property. Therefore, quiet title actions for different parcels of property are separate and distinct claims [for purposes of] res judicata . . . . Fettig v. Estate of Fettig, 934 N.W.2d 547, 554 (N.D. 2019) (citations omitted); cf. Sleeper v. Hoban Family P'ship, 157 N.H. 530, 535-36 (2008) (holding that owner of property whose previous owner had unsuccessfully claimed title by adverse possession to a portion of a neighboring property indicated by a

"shaded area" on a map was not barred by res judicata from asserting claims to portions of the property outside the shaded area). Accordingly, the defendant's failure in 2017 to counterclaim for a declaration of its rights in Lot 6C does not preclude it from asserting such rights in this case.

Finally, the plaintiff contends that we should affirm the order on appeal because the defendant's "extended negligence and bad faith do not deserve reward." The defendant argues that the plaintiff waived this argument by failing to raise it before the trial court and further notes that she "provides no authority to support the inference that a party who acts in bad faith — a conclusion which [the defendant] adamantly denies here — constitutes a legal basis for entering an order quieting title." We need not address the first argument because we agree with the second. Because the plaintiff fails to articulate legal grounds for affirmance based upon "negligence and bad faith,"

we are not persuaded by her argument. Cf. French v. Bank of New York Mellon, 729 F.3d 17, 19-20 (1st Cir. 2013) (where plaintiff alleged that after he signed a mortgage identifying the encumbered property by only its street address, the mortgagee added a legal description without his knowledge and recorded the altered mortgage, the court concluded that if the plaintiff's

"allegations are true, [the mortgagee] acted in a sloppy and cavalier manner,"

but that "provides insufficient cause for [plaintiff] to prevail"). For the foregoing reasons, we vacate the judgment and remand for the trial court to determine, in light of the surrounding circumstances, what property the parties intended to encumber at the time of the conveyance by mortgage deed in 2006. See Cucchi, 176 N.H. at 632. The court should use

"extrinsic evidence to determine the intent of the parties and the construction of the property's description." Chao v. The Richey Co., Inc., 122 N.H. 1115, 1118 (1982); see also Smith, 134 N.H. at 129 ("A deed generally will be held sufficiently definite if it is possible by any reasonable rules of construction to

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ascertain from the description, aided by extrinsic evidence, what property is intended to be conveyed." (quotation omitted)). Our decision today addresses only the trial court's error in interpreting the mortgage's ambiguous description of the encumbered property. It does not foreclose the parties from raising on remand any other claims or defenses they may have.

Vacated and remanded.

MACDONALD, C.J., and DONOVAN, COUNTWAY, and GOULD, JJ.,

concurred.

Timothy A. Gudas, Clerk