Envision Properties, LLC v. Paul Richard Johnson

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Submitted on Briefs September 12, 2005

ENVISION PROPERTIES, LLC v. PAUL RICHARD JOHNSON, ET AL.

Appeal from the Chancery Court for Hamilton County

No. 04-0545 W. Frank Brown, III, Chancellor

No. E2005-00634-COA-R3-CV - FILED OCTOBER 31, 2005

This is a suit to quiet title to real property. The issue presented is whether the trial court correctly

decreed that any legal or equitable interest of Paul Richard Johnson in the real property purchased

by Envision Properties, LLC was extinguished by operation of the doctrine of adverse possession.

Based on the stipulated proof, we hold that there was not clear and positive proof of adverse

possession sufficient to constitute an ouster of a co-tenant. Therefore, Paul Richard Johnson has an

undivided one-fifth interest in the property. The judgment of the trial court is reversed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed;

Case Remanded

SHARON G. LEE, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and

CHARLES D. SUSANO , JR., J., joined.

Glenn T. McColpin, Chattanooga, Tennessee, for the Appellant, Paul Richard Johnson.

Lynn Perry, Cleveland, Tennessee, for the Appellee, Envision Properties, LLC.

OPINION

I. Background and Stipulated Facts

Envision Properties, LLC (“Envision”) purchased the property at issue, approximately three

acres located on the west side of Hunter Road in Chattanooga, in 2003 for a price of $21,000.

Following its purchase of the property, Envision requested a change in the property’s zoning

classification. It was during this process, according to the complaint filed in this case, that Paul

Richard Johnson contacted the Regional Planning Agency and claimed that he owned an undivided

interest in Envision’s real property. Envision filed this action against Paul Richard Johnson to quiet

title to the property.

The parties filed a joint exhibit list, consisting of the relevant deeds in the chain of title of

the property, and a stipulation of facts and issues of law. No witnesses were called to testify at the

trial.

The real property at issue was originally a part of a sixteen-acre tract of land conveyed to

Mike D. Johnson and his wife, Amanda Johnson, by a warranty deed recorded in 1935.

The construction of Hunter Road divided this parcel, leaving the larger portion of the

property on the east side of the road. Mike and Amanda Johnson died by 1955 (the exact date is not

in the record), leaving their five children as heirs at law: James T. Johnson, Susie Johnson Perkins,

Elijah Johnson, Carrow Johnson, and Pracey Hilton Johnson.

On January 17, 1955, James T. Johnson, Elijah Johnson, and Carrow Johnson executed a

warranty deed to Susie Johnson Perkins for the stated purpose of dividing their parents’ real property

as fairly and equally as possible. The typewritten portion of the warranty deed includes the name

and signature line of Pracey Johnson as additional grantor, but Pracey Johnson did not sign the deed.

The warranty deed “conveyed a portion of the original 16 acre parcel and conveyed the four (4)

acres, more or less, located on the West side of Hunter Road.”

By warranty deed recorded on September 22, 1958, Susie Johnson Perkins conveyed the

property at issue in this case, an approximately three-acre tract of land on the west side of Hunter

Road, to Cleslie B. Foster and wife, Mary Foster. The Fosters are the predecessors in title to

Envision.

On November 10, 1961, James T. Johnson, Susie Johnson Perkins, and Elijah Johnson

executed a warranty deed to L.O. Rogers and wife Nora Rogers. The warranty deed conveyed a

portion of the original Mike D. Johnson property on the east side of Hunter Road to Mr. and Mrs.

Rogers. The deed, like the 1958 Foster deed, lists Pracey Johnson as an additional grantor, but

Pracey Johnson did not sign this deed either. It appears that by the time of the 1961 Rogers deed,

Carrow Johnson had died.

On August 16, 1968, Pracey Johnson executed a warranty deed to Paul Richard Johnson,

conveying a portion of his interest in the original Mike D. Johnson property. The warranty deed

states as follows in relevant part:

I, PRACEY (PRECY) JOHNSON, covenanting that I own an interest

in the hereinafter described real estate as tenant in common with

others and no division of the same has been made by parol or

otherwise, do hereby sell, release, transfer and convey unto PAUL

RICHARD JOHNSON, all my right, title and interest, being a one

fourth interest to my best knowledge and belief, in and to the

following described real estate. . .:

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Said tract of land contains sixteen (16) acres, more or less. . . .Also

conveyed is the four acres, more or less, located on the west side of

the Hunter Road in the above described sixteen acres, more or less.

EXCEPT interest in part of property conveyed Cleslie B. Foster and

wife by instrument recorded in Book 1320, page 289, in the

Register’s office of Hamilton County, Tennessee, and EXCEPT

interest in part of property conveyed to L.O. Rogers and wife by

instrument recorded in Book 1627, page 452, in said Register’s

office.1

On March 20, 1972, Pracey Johnson executed a quitclaim deed to Paul Richard Johnson,

transferring his interest in the Foster (now Envision) and Rogers tracts. The quitclaim deed was duly

recorded on May 22, 1972.

Shortly after receiving the warranty deed in 1958 from Susie Johnson Perkins, the Fosters

constructed a residence on the three-acre tract at issue. They lived in the residence until Cleslie

Foster died in June of 1963. Mary Foster lived in the residence a short while thereafter, then moved

to Washington, D.C., at which time the Fosters’ daughter, Evelyn Grace Foster Smith, occupied the

residence. Evelyn Smith and her husband Nathaniel Smith lived in the residence until Evelyn’s death

in 1988. Carolyn Smith Thomas, the daughter of Evelyn and Nathaniel Smith, continued to live in

the Foster residence for a time after her father moved out. At some point not precisely revealed in

the record, the Foster residence was abandoned, apparently sometime in the early 1990s.2

At the time of the conveyance to Envision, the Foster residence was in poor shape, and

remained so at the time of the parties’ stipulation of facts. The floors have fallen in, there are holes

in the roof and the house has no windows.

Paul Richard Johnson has lived near the Foster residence for more than 20 years. At the time

of the stipulation, he lived on the east side of Hunter Road, apparently on a portion of the original

Mike D. Johnson tract. Neither Paul Richard Johnson nor Pracey Johnson have paid taxes or

contributed to maintenance of the property at issue for more than 20 years.

The parties stipulated that Paul Richard Johnson’s interest in the property, if any, was an

undivided one-fifth interest. The parties further stipulated to the following facts:

1

The Foster tract excepted in this deed is the parcel of land at issue in this case. The Rogers tract referred to

is part of the original sixteen-acre tract owned by Mike and Amanda Johnson, but it is not in dispute here.

2

Paragraph 20 of the filed “stipulation of fact and issues of law” states: “The Foster residence has remained

vacant for at least_____ years. Note to Glenn- can we stipulate that it was vacant since before the big snow of 1993

that knocked all the trees over?”

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. . .[T]he children of Cleslie and Mary Foster and the Defendant

herein [Paul Richard Johnson] are cousins, although there may be

some discrepancy as to the particular degree of kinship.

. . .[E]ven though Paul Richard Johnson and Theodore and Earl

Foster have known of each other for many years, they have not

socialized and that somewhere between 2 and 3 conversations have

ever taken place between Theodore Foster and Paul Richard Johnson.

. . .[I]f called, Theodore Foster would testify that Paul Richard

Johnson never specifically mentioned any claim in the property at

issue in this cause and on only one occasion asked generally if Mr.

Foster would like to purchase some unidentified property, to which

Mr. Foster replied “No.”

. . .[I]f called, Paul Richard Johnson would testify that he and

Theodore had a specific conversation years ago regarding the Foster

family purchasing his interest in the real estate at issue. . .

. . .[Envision] intends to rely upon the other property received by

Pracey Johnson as his share of the estate of his parents; the inaction

of Pracey (Precy) Johnson and [Paul Richard Johnson], from 1955

through 2003, (i.e.: nonpayment of taxes, no contribution to

maintenance, allowing Fosters to build and live in house, not filing

suit, etc.); and the acknowledgment by Pracey Johnson in [his deeds

to Paul Richard Johnson] that he was aware of the Foster claim to

title, and initial exception of same from his warranted conveyance, as

grounds to quiet title in [Envision].

. . .[Paul RichardJohnson] intends to assert that the claimed inaction

by [him] and his predecessor in title, Pracey Johnson, are ineffective

against a tenant in common, and require the Court to find a 1/5th

undivided interest in the real property in favor of Paul Richard

Johnson. The parties stipulate that [Paul Richard Johnson] also

intends to assert that he had at least one telephone conversation with

Theodore Foster, the oldest son of Cleslie B. and Mary Foster,

wherein Mr. Foster allegedly acknowledged [Paul Richard Johnson’s]

ownership interest, and at least one meeting with a grandchild of

Cleslie and Mary Foster, wherein the grandchild allegedly requested

a deed from Mr. Johnson “to clear this up,” and will generally allege

that the Foster and Johnson families have been knowledgeable co-

tenants for many years with permissive possession to Foster in

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exchange for payment of taxes and upkeep due to the family

relationship.

A hearing was held on January 24, 2005, at which the only proof presented was the filed

stipulation of facts and the joint exhibit list. After hearing arguments of counsel, the trial court made

the following oral statements from the bench:

. . .[T]his case really is one that is governed by the doctrine of adverse

possession. The way I looked at it is that the owner of the property

that we are now looking at, that Suzie Perkins owned a minimum of

four-fifths of the property. She obviously thought she owned it all,

but . . .she transferred this property by warranty deed. The deed was

recorded on September 22nd, 1958, to Mr. and Mrs. Foster, Cleslie B.

Foster and wife, Mary. The Court’s interpretation of that transfer is

that when she did that, it was a constructive eviction of the cotenant,

if any, in the interest of [Pracey] Johnson.

* * *

So it’s the Court’s conclusion that Mr. [Pracey] Johnson either, A,

was ousted of his interest in the property, or that there was a

constructive ouster of him when Susie Perkins sold the property to the

Fosters in 1958, and from the recording of the deed, which was notice

to the world, Mr. [Pracey] Johnson was on notice of the Fosters’

purchase of the property, occupation of the property, improvement of

the property, and the Fosters maintained that possession active and

constructive. They built the house without any contribution from any

of the other alleged cotenants, they paid the taxes, they maintained the

house, again, all without any contribution. And therefore, from 1958

to 2003, when the Foster heirs sold the property to [Envision], it was

far more than 20 years. Therefore, the Court holds that the property

was vested in the Foster family by adverse possession.

The trial court made no findings of fact in its final judgment, stating only that “the Court was

of the opinion that title to the real property in question should be quieted in the Plaintiff [Envision].”

The trial court did not incorporate its oral memorandum opinion into its final judgment. Paul

Richard Johnson appealed the trial court’s decision.

II. Issue Presented

The sole issue in this appeal is whether the trial court erred in ruling that Paul Richard

Johnson’s legal or equitable interest in the property was extinguished by the adverse possession by

the Foster family, pursuant to Tenn. Code Ann. § 28-2-101.

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III. Standard of Review

We review the trial court’s findings of fact de novo upon the record of the proceedings below,

with a presumption of correctness “unless the preponderance of the evidence is otherwise.” Tenn.

R. App. P. 13(d); see also Hass v. Knighton, 676 S.W.2d 554 (Tenn. 1984). Where the trial court

does not make findings of fact, there is no presumption of correctness and we "must conduct our own

independent review of the record to determine where the preponderance of the evidence lies." Brooks

v. Brooks, 992 S.W.2d 403, 405 (Tenn.1999). There is no presumption of correctness with regard

to the trial court’s conclusions of law, and those conclusions are reviewed de novo. Jahn v. Jahn,

932 S.W.2d 939 (Tenn. Ct. App. 1996).

IV. Adverse Possession

We begin our analysis by reviewing these pertinent facts: Pracey Johnson, his sister, Susie

Perkins, and his three brothers each inherited a one-fifth interest in the subject property; in 1955,

Pracey Johnson’s three brothers conveyed their three-fifths interest in the property to Susie Perkins;

in 1958, Susie Perkins conveyed her interest in the property to the Fosters; in 2003, the Foster heirs

conveyed their interest in the property to Envision; Pracey Johnson did not join in any of these

conveyances; and in 1972 Pracey Johnson quitclaimed his interest in the property to Paul Richard

Johnson.

The question presented is whether Paul Richard Johnson has a one-fifth interest in the

property by virtue of the quitclaim deed from Pracey Johnson or whether Pracey Johnson’s one-fifth

interest in the property was extinguished by adverse possession of the property by his co-tenants,

Susie Perkins and the Fosters.

The appellant, Envision, argues that the trial court correctly held that Paul Richard Johnson

was constructively ousted at the time of the 1958 warranty deed from Perkins to the Fosters, and that

the Fosters obtained absolute title to the property by adversely possessing the property for more than

seven years.

The appellee, Paul Richard Johnson, argues that the Fosters’ possession was not adverse to

his interest because it was by his permission and pursuant to agreement between him and the Foster

family. Mr. Johnson argues that there was no clear and positive proof of his actual ouster, and

therefore the trial court erred in holding his one-fifth interest extinguished by adverse possession.

Tenn. Code Ann. §28-2-101 provides the following regarding the seven-year period of

adverse possession under color of title:

(a) Any person having had, either personally or through those whom

that person's claim arises, individually or through whom a person

claims, seven (7) years' adverse possession of any lands, tenements,

or hereditaments, granted by this state or the state of North Carolina,

holding by conveyance, devise, grant, or other assurance of title,

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purporting to convey an estate in fee, without any claim by action at

law or in equity commenced within that time and effectually

prosecuted against such person, is vested with a good and

indefeasible title in fee to the land described in such person's

assurance of title.

(b) No title shall be vested by virtue of such adverse possession,

unless such conveyance, devise, grant, or other assurance of title shall

have been recorded in the register's office for the county or counties

in which the land lies during the full term of such seven (7) years'

adverse possession.

The Supreme Court of Tennessee has long and consistently held that “this doctrine of adverse

possession is to be taken strictly and must be made out by clear and positive proof, and not by

inference, every presumption being in favor of a possession in subordination to the title of the true

owner.” Heirs of Marr v. Gilliam, 1860 WL 3085 (Tenn.) at *4, 41 Tenn. (1 Cold.) 488, 500 (1860);

Drewery v. Nelms, 177 S.W. 946, 947-48 (Tenn. 1915).

In this case it is undisputed that Pracey Johnson, one of the heirs at law with his siblings,

James T. Johnson, Susie Johnson Perkins, Elijah Johnson, and Carrow Johnson, held the property

as a tenant in common with them. The Supreme Court stated as follows regarding the doctrine of

adverse possession as between tenants in common:

Tenants in common are jointly seized of the whole estate, each having

an equal right of entry and possession, and the possession of one is

regarded as the possession of all until a disseizin of the others by

actual ouster.

* * *

'An ouster, in the law of tenancy in common, is the wrongful

dispossession or exclusion by one tenant in common of his cotenant

or cotenants from the common property of which they are entitled to

possession. It differs from the acts constituting an ouster in other

cases only in the evidence by which it may be established.' 86 C.J.S.,

Tenancy in Common, § 27, p. 386. The authorities generally in this

State support this statement. Certainly to constitute an ouster of one

tenant in common the evidence that there has been an ouster must be

much stronger as between these tenants in common than as between

mere strangers. When one attempts to set up an ouster as between

tenants in common the evidence should be viewed by the court most

strongly against that person who attempts to set up an ouster and in

favor of the tenant in common who makes no such attempt.

Moore v. Cole, 289 S.W.2d 695, 697,699 (Tenn. 1956)(emphasis added).

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As this court has recently noted, “[a]n ouster does not necessarily mean a physical expulsion

of one party by another, but it requires the party claiming adversely to perform some act that makes

it clear to his cotenant that she is being excluded from ownership.” Nesmith v. Alsup, No. 01A01-

9809-CH00509, 1999 WL 557620 at *4 (Tenn. Ct. App. M.S., filed Aug. 2, 1999). The Tennessee

Supreme Court has explained the concept of “ouster” as follows:

This ouster by one tenant in common against his cotenant may occur,

but it takes something more than an appropriation of the rents without

an accounting. The mere silent, sole occupation by one of the entire

property, though he be claiming the whole estate, and appropriating

the whole rents, without an accounting to or claim by the others,

without notice to his cotenant that his possession is adverse, and

unaccompanied by some act which can amount to an exclusion and

ouster of the cotenant, cannot be construed into an adverse

possession. This ouster and exclusion may be effected by taking

possession and affording actual notice of a claim of sole ownership

or other positive and unequivocal act that must by its nature put the

other cotenants upon notice that they are excluded from the

possession.

Drewery v. Nelms, 177 S.W. 946, 948 (Tenn. 1915).

Where a party bases his or her title or right to possession of property upon adverse

possession, he or she bears the burden of sustaining that contention by clear and positive proof, and

this rule applies to both the length of time and the character of possession. Whitworth v. Hutchinson,

731 S.W.2d 915, 917 (Tenn. Ct. App. 1986); Tipton v. Smith, 593 S.W.2d 298, 300 (Tenn. Ct. App.

1979); Tidwell v. Van Deventer, 686 S.W.2d 899, 902 (Tenn. Ct. App. 1984).

It has been frequently stated that in order to prevail on an adverse possession claim, “there

must be exclusive, actual, adverse, continuous, open and notorious possession for the entire

prescriptive period, under a claim of right or title to the property.” Tidwell, 686 S.W.2d at 902;

Nesmith, 1999 WL 557620 at *4 (Emphasis added). The Nesmith court further noted that “[t]he

requirements that the possession be both exclusive and adverse are particularly difficult to establish

when a cotenancy is involved.” Id.,1999 WL 557620 at *4. So it is in the present case.

Taking the above standards into consideration, we are of the opinion that Envision failed to

establish that the Fosters held the property at issue exclusively and adversely. It is stipulated that

Paul Richard Johnson would testify that the Fosters built on and occupied the property “with

permissive possession” in exchange for payment of taxes and maintenance. Further supporting this

assertion is the underlying family relationship between Paul Richard Johnson and the Foster family;

he is a cousin to the children of Cleslie and Mary Foster, and his brief asserts that “his mother was

a Foster.” Envision failed to provide any clear and positive proof rebutting the evidence that the

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Fosters’ possession of the property was permissive and based upon an understanding between the

Johnson and Foster families.

Envision has likewise failed to demonstrate by clear and positive proof any openly hostile

act that would tend to notify Paul Richard Johnson that the Fosters intended to claim an interest the

entire property, to the exclusion of his one-fifth interest. The Supreme Court, in Moore v. Cole, set

forth the following pertinent rule:

The taking and recording of a deed by one tenant in common from a

third person will not have any effect towards constituting such an

ouster of his cotenant as would lay the foundation for the

commencement of an adverse possession against him, unless

accompanied and followed by a hostile claim of which the cotenant

had knowledge, and by acts of possession not only inconsistent with,

but in exclusion of, the continuing right of the cotenant in the

premises.

Moore, 289 S.W.2d at 699 (quoting 1 Am.Jur. 826, §55)(emphasis added); accord Denton v. Denton,

627 S.W.2d 124,128 (Tenn. Ct. App. 1981). See also Drewery v. Nelms, 177 S.W. 946, 948 (Tenn.

1915), a factually similar case wherein the Court held “[t]he lapse of time and failure to account for

rents are fully explained by positive testimony [of permissive use], and this overcomes any

presumption of adverse holding.”

Envision also argues that it established absolute title by operation of the doctrine of

prescriptive title, which requires a showing of exclusive and uninterrupted adverse possession for

20 or more years. See, e.g., Drewery, 177 S.W. at 948. In light of our holding that Envision failed

to show by clear and positive proof that the Fosters’ possession was adverse and exclusive, this

argument must also fail.

IV. Conclusion

For the aforementioned reasons, the judgment of the trial court is reversed, and the case

remanded for such further action as may be necessary, consistent with this opinion. Costs on appeal

are assessed to the Appellee, Envision Properties, LLC.

_________________________________________

SHARON G. LEE, JUDGE

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