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.
"The record contains no evidence that Dover Scott made any statements, or took any actionstoward the other heirs indicating that he claimed full ownership of the disputed tract. Although thereis no evidence that the Yarbros ever attempted to use the tract, the children of Dover Scott stipulatethat they have no knowledge of the Yarbros ever being barred from going onto or otherwise usingthe disputed tract. In fact, in the three deeds of trust that Dover Scott executed, he asserts that heonly owns an undivided 5/12ths interest in the farm: “This being the land owned by my father, WillScott, 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 ineither 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 theirburden to prove ownership of the 188-acre tract by prescription. Specifically, they have failed toshow 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 equallyapplicable 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 propertyin contravention of the rights of any other co-tenant. In fact, Dover Scott purchased the undividedinterests of three of the co-tenants. One claiming title by adverse possession would not purchase theinterests of his or her co-tenants; rather, the doctrine dictates that the person claiming adversepossession has exercised his or her claim to the land in a manner that is actually adverse to the rightsand interests of the other tenants. Perhaps more important than Dover Scott’s purchase of theinterests of some of his co-tenants is the fact that he never claimed full ownership of the tract. Inthree 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 therecord, 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 caseof ownership, the presumption is rebuttable. In Phillips v. Pittsburgh Consolidated Coal, 541S.W.2d 411 (Tenn 1976), our Supreme Court made it clear that Tenn. Code Ann. § 28-2-110 “doesnot bar a suit by one tenant in common against another tenant in common who has paid such taxesunless 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 statedthat “nothing in § 28-2-110 prevents Defendants from defending their title. The failure to pay taxesfor twenty years does not automatically cause Defendants to be ejected....T.C.A. § 28-2-110 does notaffect title or destroy rights....” Id. at 709. Although we may concede that Plaintiffs/Appellants havesatisfied Tenn. Code Ann. § 28-2-109 by showing the payment of property taxes for the statutoryperiod, this showing creates only a rebuttable presumption of ownership. Here, the Yarbros have,indeed, rebutted the presumption in defending their alleged ownership interest. Consequently, theburden 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 sucha finding in this case. Consequently, the Scotts failed to satisfy their burden once the Yarbros rebutted the Scotts’ claimed ownership." Id..