Wednesday, May 27, 2009

Title by prescription and adverse possession require proof of undisputed ownership;Burden on plaintiff if relying on title based on real estate taxes

DALE ANTHONY SCOTT, ET AL. v. MARION YARBRO, ET AL. (Tenn. Ct. App. October 15, 2008).

This is the third appeal of this property case involving the ownership of three parcels of real property held by tenants-in-common. We dismissed the first two appeals for lack of jurisdiction, finding that the trial court's order did not constitute a final judgment. Plaintiffs/Appellants claim ownership of the disputed tract by three modes: (1) title by prescription, (2) title by adverse possession, and (3) title by payment of property taxes pursuant to Tenn. Code Ann. sections 28-2-109 and 29-2-110. Finding that Plaintiffs/Appellants have failed to meet their burden to prove ownership based upon any of the three theories, we affirm.

Opinion may be found at the TBA website:

"The record contains no evidence that Dover Scott made any statements, or took any actions toward the other heirs indicating that he claimed full ownership of the disputed tract.  Although there is no evidence that the Yarbros  ever attempted to use the tract, the children of Dover Scott stipulate that they have no knowledge of the Yarbros ever being barred from going onto or otherwise using the disputed tract.  In fact, in the three deeds of trust that Dover Scott executed, he asserts that he only owns an undivided 5/12ths interest in the farm: “This being the land owned by my father, Will Scott, at the time of his death, and which I inherited a 1/6th undivided interest by my sister...and 

which I was conveyed a 1/12 undivided interest by Paul Scott....”  Furthermore, there is no proof in either the Stipulations of Fact, or in the record, on the issue of any disability of the Defendants. Based upon the evidence in record, we conclude that the children of Dover Scott have not met their burden to prove ownership of the 188-acre tract by prescription.  Specifically, they have failed to show exclusive possession of the land, and have provided no evidence concerning the disability criterion."Id..

"Much of the evidence (or lack thereof) discussed in the prescription section above is equally applicable to Plaintiffs/Appellants’ claim of ownership through adverse possession.  Specifically, there is no proof that the Yarbros were excluded from the farm, or that Dover Scott held this property in contravention of the rights of any other co-tenant.  In fact, Dover Scott purchased the undivided interests of three of the co-tenants.   One claiming title by adverse possession would not purchase the interests of his or her co-tenants; rather, the doctrine dictates that the person claiming adverse possession has exercised his or her claim to the land in a manner that is actually adverse to the rights and interests of the other tenants.  Perhaps more important than Dover Scott’s purchase of the interests of some of his co-tenants is the fact that he never claimed full ownership of the tract.  In three separate deeds of trust executed by Dover Scott and his wife in favor of Decatur County Bank, the Scotts’ interest in the disputed tract is described as an “undivided 5/12th interest.”  From the record, we conclude that the children of Dover Scott have failed to meet their burden to show title by adverse possession." Id..

"Although Tenn. Code Ann. §§ 28-2-109 and 28-2-110 provide the basis for a prima facia case of ownership, the presumption is rebuttable.  In Phillips v. Pittsburgh Consolidated Coal, 541 S.W.2d 411 (Tenn 1976), our Supreme Court made it clear that Tenn. Code Ann. § 28-2-110 “does not bar a suit by one tenant in common against another tenant in common who has paid such taxes unless the plaintiff has been disseised or ousted by the defendant.”  Id. at 413.  In Burress v. Woodward, 665 S.W.2d 707 (Tenn. 1984) (upon which Plaintiffs/Appellants rely), the Court stated that “nothing in § 28-2-110 prevents Defendants from defending their title.  The failure to pay taxes for twenty years does not automatically cause Defendants to be ejected....T.C.A. § 28-2-110 does not affect title or destroy rights....”  Id. at 709.  Although we may concede that Plaintiffs/Appellants have satisfied Tenn. Code Ann. § 28-2-109 by showing the payment of property taxes for the statutory period, this showing creates only a rebuttable presumption of ownership.  Here, the Yarbros have, indeed, rebutted the presumption in defending their alleged ownership interest.  Consequently, the burden shifts back to the Scotts to show that the Yarbros have otherwise been “disseised or ousted” from the property.  Phillips, 541 S.W.2d at 413.  The evidence in the record does not support such a finding in this case.  Consequently, the Scotts  failed to satisfy their burden once the Yarbros rebutted the Scotts’ claimed ownership." Id..