IN RE:                          )

ESTATE OF EDWARD P. RUSSELL, )
                                )

                                )
                                                   FILED
Deceased,                       )
                                                      May 14, 1997
                                )
BILL COVINGTON and BRENDA       )
                                                   Cecil W. Crowson
JOHNSON,                        )
                                                  Appellate Court Clerk
                                )
      Plaintiffs/Appellees,     )
                                )      Davidson Probate
VS.                             )      No. 98777
                                )
VELMA RUSSELL,                  )
                                )      Appeal No.
      Defendant/Appellant,      )      01A01-9611-PB-00516
      Counter-Plaintiff,        )
                                )
ERVIN B. and EDWARD P. RUSSELL, )
JR.,                            )
                                )
      Intervenors/Defendants,   )
      Counter-Plaintiffs.       )


               IN THE COURT OF APPEALS OF TENNESSEE
                    MIDDLE SECTION AT NASHVILLE

             APPEAL FROM THE DAVIDSON PROBATE COURT
                     AT NASHVILLE, TENNESSEE

         HONORABLE JOHN A. TURNBULL, JUDGE BY DESIGNATION

Charles C. Cornelius #2761
Nashville City Center,
911 Union Street, Suite 2700
Nashville, Tennessee 38219
ATTORNEY FOR DEFENDANT/APPELLANT


George H. Cate, Jr., #2775
95 White Bridge Road, Suite 503
Cavalier Bldg.
Nashville, Tennessee 37205
ATTORNEY FOR PLAINTIFF/APPELLEE

Greg Galloway, #4931
101 Antioch Pike, Suite 100
Nashville, Tennessee 37211
ATTORNEYS FOR INTERVENORS, DEFENDANTS/COUNTER-PLAINTIFFS

                    REVERSED AND REMANDED.

                                  HENRY F. TODD
                                  PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
BEN H. CANTRELL, JUDGE
WILLIAM C. KOCH, JR., JUDGE
IN RE:                          )
                                )
ESTATE OF EDWARD P. RUSSELL, )
                                )
Deceased,                       )
                                )
BILL COVINGTON and BRENDA       )                     Davidson Probate
JOHNSON,                        )                     No. 98777
                                )
      Plaintiffs/Appellees,     )
                                )
VS.                             )
                                )
VELMA RUSSELL,                  )
                                )
      Defendant/Appellant,      )                     Appeal No.
      Counter-Plaintiff,        )                     01A01-9611-PB-00516
                                )
ERVIN B. and EDWARD P. RUSSELL, )
JR.,                            )
                                )
      Intervenors/Defendants,   )
      Counter-Plaintiffs.       )



                                       OPINION



       The captioned defendant has appealed from an adverse decision of the Trial Court

regarding her interest in real estate. The undisputed chain of events leading to this controversy

is as follows:



       In 1965, Mary L. Covington, a widow, now deceased, purchased in her sole name, the

subject real estate located in Davidson County, Tennessee. Her children were the plaintiffs, Bill

Covington and Brenda Johnson.



       Thereafter, in 1966 or 1967, Mrs. Covington married Edward P. Russell whose children,

by a previous marriage, Ervin B. Russell and Edward P. Russell, Jr., are intervening petitioners

in the present case.




                                              -2-
        On February 21, 1968, Mrs. Covington Russell executed a warranty deed describing the

subject property and providing in pertinent part as follows:

                For and in consideration of the sum of $10.00 DOLLARS cash
                in hand paid, the receipt of which is hereby acknowledged and
                other good and valuable considerations, including the assump-
                tion by the Grantees of the outstanding principal balance of a
                note described in and secured by, that certain Deed of Trust
                from Charles C. Lloyd, Register’s Office for said County Mary
                L. Covington Russell has bargained and sold, and by these
                presents Do transfer and convey unto the said Mary L. and
                Edward P. Russell their heirs and assigns, a certain tract or
                parcel of land in Davidson County, State of Tennessee.



        On the same date, February 21, 1968, E. P. Russell signed and swore to an affidavit of

the value of the property. The deed was recorded in the Register’s Office of Davidson County,

Tennessee.



        On August 11, 1972, Mary Covington Russell filed a suit for divorce. There is no

evidence or insistence that any order or decree was ever entered in that proceeding which would

affect the title to the subject property.



        On January 28, 1980, Mary L. Covington Russell died. Her survivors were her husband,

Edward P. Russell, and her two children, Bill Covington and Brenda Johnson. Edward P.

Russell continued to occupy the subject property and to pay the installments of the mortgage

indebtedness.



        In 1984, Edward P. Russell married the defendant, Velma Russell. Edward Russell and

Velma Russell occupied the subject property until his death on February 16, 1992. His widow,

the defendant Velma Russell, and his two children, the intervenors Ervin Bradford Russell and

Edward P. Russell, Jr., survived him.



        On February 26, 1992, Velma Russell qualified as administratrix of the estate of the

deceased, Edward P. Russell.

                                              -3-
       On September 4, 1992, the plaintiffs, surviving children of Mrs. Mary L. Covington

Russell, filed claims against the estate of Edward P. Russell seeking enforcement of an alleged

antenuptial agreement of Mary L. Covington and Edward P. Russell. Exceptions were filed to

the claims. This record does not reflect what disposition was made of the claims or the

exceptions thereto.



       On March 30, 1993, the surviving children of Edward P. Russell, Ervin B. Russell and

Edward P. Russell, Jr., filed an intervening petition in Probate Court under the caption, “In Re

Estate of Edward P., Russell, Docket No. 98777.” The petition asserted:

                  Comes Ervin Bradford Russell and Edward Phillip Russell,
               Jr. petitioner’s and heirs of the Deceased, and would show
               unto the Court:
                                              I.

                  That they are the only lawful heirs to the property of the
               deceased described and known as 1818 Tammany Dr., Nash-
               ville, Davidson County, Tennessee. That said property was
               held in fee simple in the sole name of Deceased at the time of
               his death.
                                               II.

                 That the Deceased’s widow, Velma Russell, was not listed
               on the deed of said property. That said property at the point
               of death of deceased passed immediately to deceased’s issue,
               Ervin Russell and Edward Russell, Jr.

                                              III

                  That Velma Russell should not be allowed to claim any
               interest in said property, such as Elective Share, Homestead,
               Years Support, or One Third Interest, because there existed
               a pre-nuptial agreement between Deceased and Velma Russell
               which waived any claim that she might have to said property.

                                              IV.

                  That petitioner Ervin Russell has witnessed the pre-nuptial
               document signed by both the Deceased and Velma Russell.
               That petitioners asks the Court to reconstruct this apparently
               lost document. That Velma Russell refuses to admit the
               existence of said pre-nuptial agreement. An unsigned copy of
               said document is attached to this petition as Exhibit A.
               PREMISES CONSIDERED, PETITIONERS PRAY:

                 1. That petitioners be allowed to file this petition and a
               copy of same by served upon the administrator of this estate,
               Velma Russell.

                                              -4-
               2. That the Court reconstruct the lost pre-nuptial docu-
              ment.

                3. That the Court issue an order stating that Velma Russell
              has no interest in the property known as 1818 Tammany Dr.,
              Nashville, Tennessee.

                4. That the costs of this cause along with attorney’s fees
              be assessed against Velma Russell.

                 5. For general relief.



       On December 22, 1994, the captioned plaintiffs filed in Probate Court a complaint under

the caption, Bill Covington and Brenda Johnson, plaintiffs v. Velma Russell, Ervin Bradford

Russell and Edward Phillip Russell, Jr., defendants, Docket No. 98777.” The complaint read

as follows:

                 Comes (sic) the plaintiffs, Bill Covington and Brenda John-
              son, in the above styled matter and for cause of action against
              the Defendants, Velma Russell, Ervin Bradford Russell, and
              Edward Phillip Russell, Jr., would show unto the Court the
              following, to wit:

                 1. That the Plaintiff, Bill Covington, is a resident of Nash-
              ville, Davidson County, Tennessee;

                 2. That the Plaintiff, Brenda Johnson, is a resident of Nash-
              ville, Davidson County, Tennessee;

                 3. That the Defendants, and each of them, all reside in the
              City of Nashville, County of Davidson, State of Tennessee.
              The real property herein referred to, which is the subject of
              this action, is situated in the City of Nashville, County of
              Davidson, State of Tennessee.

                4. That the Plaintiffs as named herein, are the natural
              children of Mary L. Covington Russell, who died on January
              28, 1980;

                 5. That prior to the death of the said Mary L. Covington
              Russell, the said Mary L. Covington Russell executed a War-
              ranty Deed on the property at issue, from her sole name into
              the name of Mary L. And Edward P. Russell, after becoming
              the lawful wife of Edward P. Russell, a copy of which is
              annexed hereto, made a part hereof, and marked as Exhibit A;

                 6. That said Warranty Deed failed to specify the convey-
              ance of the real property at issue as tenants-by-the-entirety in
              accordance with T.C.A. Section 66-1-109, thereby creating
              the presumption that the intent of the said Mary L. Covington
              Russell was to create a tenancy-in-common;

                                             -5-
  7. That the said Mary L. Covington Russell died intestate,
and that after her death the said Edward P. Russell kept
possession of the real property at issue, and subsequently
married said Velma Russell;


   8. That the Plaintiffs as named herein are informed and
believe, and so allege, that the said Edward P. Russell died
intestate as a resident of this state, and Defendant Velma
Russell, his wife, continues to reside at the real property at
issue. Plaintiffs have made a diligent search and inquiry
concerning the heirs or devises of decedent Edward P.
Russell and have been able to determine or ascertain, and
believe that the said heirs or devises are the Defendants as
named herein;

   9. That the Plaintiffs, Bill Covington and Brenda John-
son, are the surviving heirs or devises of decedent Mary L.
Covington Russell, and pursuant to T.C.A. Section 31-2-
104, (laws of descent and distribution) are the owners of
the undivided interest formally (sic)owned and held by dece-
dent Mary L. Covington Russell. Plaintiff, Velma Russell,
is in possession of the real property and the same is, as
Plaintiffs are informed and believe, not capable of partition
and division, but the same can be readily sold for its fair
market value, and the proceeds partitioned.

  Wherefore, premises considered, Plaintiffs pray:

   1. That this petition be filed under the estate of Ed-
ward P. Russell and that the same be served upon the
attorneys of record for the respective defendants, requiring
them to answer this complaint within the time prescribed
by law, but oath to their answer is hereby expressly waived;

   2. That upon partition, the undivided interest of the
known heirs or devises of the decedents, Mary L. Coving-
ton Russell and Edward P. Russell, can be apportioned to
them in their several shares, as their interests are ascertained
and adjudicated;

  3. That upon hearing of this cause, the Plaintiffs each
be adjudged to be entitled of one-sixth (1/6) share of the fair
market value of the property at issue;

   4. That Defendant, Velma Russell, be required to pay
rent in a fair and reasonable amount to the Plaintiffs, for the
time in which she has occupied said real property;

   5. That the costs and expenses of this action and of the
partition hereby sought, including the expenses and
renumeration of such referees or commissions as the Court
may appoint, should be charged equitably against the
interests of Defendants, and each of them heretofore des-
cribed;



                                -6-
                 6. That the property be sold at auction and the proceeds
               of said sale be distributed to the parties and proportioned to
               their respective interests;

                 7. For such other general and further relief as the Court
               deems proper and just.



       On January 13, 1995, the defendant, Velma Russell, filed a motion for summary

judgment reading in pertinent part as follows:

                 Movant would admit the material facts alleged in the com-
               plaint being that Mary L. Covington Russell executed a
               warranty deed on the property at 1818 Tammany Drive,
               Nashville, Tennessee which she solely owned to Mary L. and
               Edward P. Russell, after becoming his wife.

                 Said conveyance created a tenancy by the entirety thus
               passing the fee simple title to Edward P. Russell when Mary
               Covington Russell died January 28, 1980.

                 In support of this motion, defendant, Velma Russell, relies
               upon the pertinent provisions in the deed from Mary L.
               Covington Russell to Mary L. And Edward P. Russell.

                  Estate by entireties created by direct conveyance.
               T.C.A. § 66-1-109 provides that any married person owning
               property in such person’s own name, desiring to convert
               such person’s interest into an estate by the entireties with
               such person’s may do so by direct conveyance to such
               spouse by an instrument of conveyance which shall provide
               that it is the grantor’s intention to create an estate by the
               entireties.
                                               ----
                  A devise or conveyance to a husband and wife creates a
               tenancy by the entirety in the absence of an expression of a
               contrary intention. It is a rule of construction that a convey-
               ance to husband and wife, the language prima facie means
               that they are to hold by the entireties. Bost et al v. Johnson
               et al, 175 Tenn. 232, 133 S.W.2d 491 (1939).



       Since the motion relies upon the allegations of the complaint, it appears to be a motion

to dismiss for failure to state a claim for which relief can be granted. Nevertheless, its

disposition is reviewable in the present appeal.



       On June 8, 1994, the plaintiffs, Covington and Johnson, filed a response to the motion

for summary judgment which relied upon T.C.A. § 66-1-109, which reads as follows:

                                              -7-
               Estate by entireties created by direct conveyance.
               Any married person owning property or any interest therein in
               such person’s own name, desiring to convert such person’s
               interest in such property into an estate by the entireties with such
               person’s spouse, may do so by direct conveyance to such spouse
               by an instrument of conveyance which shall provide that it is the
               grantor’s intention by such instrument to create an estate by the
               entireties in and to the entire interest in the property
               previously held by the grantor. [Acts 1949, ch. 255, § 1; mod. C.
               Supp. 1950, § 84611.1 (Williams, § 7605.1); T.C.A. (orig.
               ed.), § 64-109.] (Emphasis supplied)



       The response states:

                  For our purpose, the important wording of this statute is
               reflected in the last phrase, “conveyance with shall provide that
               it is the grantor’s intention by such an instrument to create an
               estate by entireties.” The real issue here is whether or not it was
               the intention of Mary L. Covington Russell to create an estate by
               entireties when she added her husband’s name to the title of the
               property. We submit that it was not her intention. Mary L.
               Covington Russell told Plaintiffs that she never intended Edward
               R. Russell to own any part of said property, but that she only
               believed it was necessary to put his name on the deed to obtain
               a loan. See, Affidavit of Bill Covington, p.1. Mary L. Covington
               Russell told Affiant on several occasions that she believed her
               children, the Plaintiffs, would inherit said real estate at her death.
               See, Affidavit of Bill Covington, p. 2.


       The defendant, Velma Russell, filed an answer and counter-complaint and the cause was

set for hearing on its merits. After the hearing, the Trial Judge entered judgment as follows:

               2.      The motion of the defendant, Velma Russell, to dismiss
               the Intervening Petition of Ervin Bradford Russell and Edward
               Phillip Russell, Jr., made at the end of plaintiffs’ and intervening
               petitioners’ proof should be granted;

               3.      For the reasons expressed by the Court at the end of the
               trial of this case said warranty deed created in the wife and
               husband, Mary L. and Edward P. Russell, a tenancy-in-common,
               each owning a one-half undivided interest and not a tenancy-by-
               entireties;

               4.     Mary L. Russell died intestate prior to the death of
               Edward P. Russell leaving her two children surviving and that by
               the laws of intestate succession, her husband, Edward P. Russell
               and children, Bill Covington and Brenda C. Johnson, became the
               owners of a one-sixth interest each in the real property.

               5.      At the time of the intestate death of Edward P. Russell
               in 1991, his two-thirds undivided interest in the property des-
               cribed in the deed descended to his spouse, Velma Russell, and

                                               -8-
              two children, Bradford Russell, and Edward Phillip Russell,
              Jr., in equal shares of four-eighteenths each by the law of
              intestate succession; and

              6.      Any and all other claims of the parties were not
              established by the proof.

              It is, therefore, ORDERED, ADJUDGED AND DECREED:
              (1)      That the Intervening Petition of Ervin Bradford
              Russell and Edward Phillip Russell, Jr., be and the same is
              hereby dismissed and the costs of same are assessed against
              the petitioners, for which execution may issue, if necessary;

              (2)    That the Warranty Deed of record in Book 4213,
              Page 546 of the Register’s Office for Davidson County,
              Tennessee, created a tenancy-in-common between the wife
              and husband grantees, Mary L. And Edward P. Russell, in
              the property therein described;

              (3)    That at the time of the death of Mary L. Russell in
              1980, her one-half interest descended in equal shares to her
              only two children, Bill Covington and Brenda C. Johnson,
              and her husband, Edward P. Russell (Sr.), each taking a
              one-sixth undivided interest in said real estate;

              (4)    That at the time of the death of Edward P. Russell
              (Sr.) in 1991, his two-thirds undivided interest in said
              property descended in equal shares to his surviving spouse,
              Velma Russell and the decendent’s only two children, Ervin
              Bradford Russell and Edward P. Russell, Jr., each taking an
              undivided four-eighteenths interest each;

              (5)      That the said property described in the warranty
              deed is not capable of being partitioned and should be sold
              at private sale in accordance with an agreement to be
              reached between the parties or, failing such agreement, by
              order of the Court upon motion by any one or all of the
              parties;

              (6)    That any and all other claims of the parties herein
              should be and are hereby dismissed; and

              (7)    That the costs of the proceedings other than the
              costs of the Intervening Petition are assessed equally be-
              tween the parties, for which execution may issue, if
              necessary.



       From the foregoing judgment, the defendant-counter plaintiff, Velma Russell, has

appealed and presented the following issues:

              I.     Should the Trial Court have granted defendant’s
              motion for summary judgment?



                                               -9-
                II.    Does the admissible evidence in the case prepon-
                derate against the Trial Court’s decision that the
                warranty deed of February 21, 1968 to wife and husband
                created a tenancy in common?

                III.    Is the claim of the plaintiffs to an interest in the
                property described in the warranty deed barred or
                precluded by the defenses of the doctrines and principles
                of estoppel and laches?

                IV.     Is the claim of the plaintiffs to an interest in the
                real estate barred by the provisions of Tenn. Code Ann.
                § 28-2-102,103 and/or 105?


        The intervenors, Ervin B. Russell and Edward P. Russell, Jr., have not appealed or filed

a brief in this Court.


                                                I.

                              The Summary Judgment Motion


        The defendant, Velma Russell, insists that her motion for summary judgment should have

been sustained because, under the admitted fact that Mrs. Covington executed the February 21,

1968, deed to herself and husband, an estate by the entireties was created.



        The plaintiffs, Bill Covington and Brenda Covington insist that no estate by the entireties

was created by the deed because it contained no provision expressing an intention to create an

estate by the entireties as required by T.C.A. § 66-1-109, quoted above.



        Oliphant v. McAmis, 197 Tenn. 367, 273 S.W.2d 151 (1954), involved personalty held

in the name of one spouse, but intended by both spouses to be joint marital property. The

Supreme Court held that the property was held by the entireties with rights of

survivorship. However, the Supreme Court also said:

                   We think Chapter 255 of the Public Acts of 1949 has
                no application to the case at bar. The Act merely provides
                that an estate by the entirety may be created by deed of
                either husband or wife to one another and that the intention
                to create such an estate must appear upon the face of the
                instrument of conveyance. This statute makes it possible
                for either husband or wife to create an estate by the entirety

                                               -10-
               without the necessity of deeding the property to a third
               party and having that party re-convey to the husband and
               wife an estate by the entirety. (Emphasis supplied)



       Although common-law tenancy by the entireties was abolished by the Married Women’s

Emancipation act (Chapter 26, Public Acts of 1913, T.C.A. § 36-3-504, common-law estates by

the entireties were re-established by Chapter 126, Public Acts of 1919 (T.C.A. § 36-3-505), Bost

v. Johnson, 175 Tenn. 232, 133 S.W.2d 491 (1939). The cited authority states:

               “While a conveyance or devise to a husband and wife will
               ordinarily create a tenancy by entireties, the authorities are
               generally to the effect than an intention, clearly expressed in
               the instrument, that they shall take as tenants in common or
               as joint tenants, will be effective, even at common law, if
               persons who have previously acquired joint interests become
               husband and wife, they do not become tenants by the entirety,
               there is evidently nothing in the relation of husband and wife
               to prevent their acquisition of property as joint tenants or
               tenants in common. The result of this view is that the exist-
               ence of a tenancy by entireties is a question purely of
               intention, through an intention on the part of the grantor to
               create such a tenancy is presumed, in the absence of an
               expression of a contrary intention. In other words, there is a
               rule of construction that, in case of a conveyance to husband
               and wife, the language prima facie means that they are to hold
               by the entireties. 175 Tenn. At 235.



       In Hardin v. Chapman, 36 Tenn. App. 343, 255 S.W.2d 707 (1952), property was

conveyed “unto H. H. Brown and his wife, Mary Brown, equally and jointly --- to have and to

hold the same to the said H. H. Brown and Mary Brown, their heirs and assigns forever”. This

Court held that a tenancy by the entireties resulted and said:

               [1] “An estate by entirety which is a form of co-ownership
               held by husband and wife with right of survivorship, is
               defined as an estate held by husband and wife by virtue of
               title acquired by them jointly after marriage.” 41 C. J. S.,
               Husband and Wife Section 34, page 458. And “an estate by
               the entireties involves the unities of time, title, interest, and
               possession, as well as the husband and wife unity of owner-
               ship.” 26 Am. Jr., Sec. 71, p. 698.
                                                ----
               [3] It is generally held that a tenancy by the entirety is created
               when a husband and wife take an estate to themselves jointly,
               and such will be presumed where words do not appear to the
               contrary or, as in the instant case, where the language used is
               ambiguous. Bost v. Johnson, 175 Tenn. 232, 133 S.W. (2d)

                                              -11-
                491.

                   Regarding estates created by the entireties, the Court, in
                Bennett v. Hutchens, 133 Tenn. 65, 179 S. W. 629, 630, said:

                         “By the authorities it is held that a deed to
                        husband and wife, which would at common
                        law have created in them an estate in join
                        tenancy, had they not been married, does,
                        by the fact of the marriage, create in the
                        husband and wife an estate by the entireties.

                   “By the authorities it is held that a deed to husband and wife,
                which would at common law have created in them an estate in
                joint tenancy, had they not been married, does, by the fact of the
                marriage, create in the husband and wife an estate by the entire-
                ties. 36 Tenn. App. 347, 349.



        The deed in the present case does not designate the conveyees as husband and wife.

However, the evidence is uncontradicted that they were, in fact, husband and wife when the deed

was executed.



        At the bar of this Court, it was conceded that, if the deed in the present case had been

executed by a third party, the result would have been a tenancy by the entireties.



        Nevertheless, it is insisted that the fact that the conveyor was not a third party, but one

of the spouses brings the transaction within the scope of T.C.A. § 66-1-109 which states, “may

do so by direct conveyance --- which shall provide that it is the grantor’s intention --- to create

an estate by the entireties.”



        The above cited authorities lead this Court to the conclusion that, in order to create an

estate by the entireties by a deed to two spouses, it is not necessary to state in the deed that the

conveyers are husband and wife if they are such in fact.



        If a conveyor conveys property to two people who are in fact husband and wife, an estate

by the entireties results unless the deed states otherwise. A conveyance to husband and wife by



                                               -12-
a third party creates a presumption of intent to create an estate by the entireties, requiring

contradictory evidence to produce a different result.



        No reason occurs to this Court why the same rules should not apply to a conveyance to

two spouses by one of the spouses as conveyor.



        T.C.A. § 66-1-109 applies only to deeds from one spouse to the other spouse. That is,

if one spouse desires to convey to his or her spouse an interest in property on a “one to one

basis,” the deed must in some manner indicate on its fact an intention to produce an estate by the

entireties.



        If, on the other hand, the property is conveyed by one spouse to both spouses, the result

is the same as if the conveyor were a third person, that is, the fact that the conveyees were

spouses created a presumption of intent to create estates by the entireties. There being no

evidence in this record to contradict the presumption, it is conclusive as a matter of law.



        The result of the foregoing is:

        When Mrs. Covington Russell conveyed her property to herself and husband, she created

estates by the entirety in her husband and herself.



        When Mrs. Covington Russell died, her husband’s estate by the entirety became an estate

in fee, and Mrs. Covington’s heirs have no interest in the property.



        It was error for the Trial Judge to overrule the motion of the defendant, Velma Russell,

for a summary judgment. This Court sustains the motion.




                                              -13-
                                               II.

                                 Preponderance of Evidence



       Since the undisputed evidence requires the summary dismissal of plaintiff’s suit, the issue

of preponderance of evidence is moot. None of the evidence contradicts the common law

presumption which is therefore conclusive.



                                              III.

                                 Bar of Estoppel and Laches



       Since the suit of plaintiffs must be dismissed on other grounds, the issues of estoppel and

laches are moot.



                                              IV.

              The Bar of T.C.A. §§ 28-2-102, 103, 105 (Adverse Possession)



       Since plaintiff’s suit must be dismissed on other grounds it is unnecessary to discuss the

defense of adverse possession.



       Other issues presented to the Trial Court and not restated to this Court need not be

discussed or decided by this Court.




                                              -14-
       The judgment of the Trial Court in respect to the claim of Bill Covington and Brenda

Covington is reversed, and the cause is remanded to the Trial Court for entry of a judgment in

conformity with this opinion and further necessary proceedings. Costs of this appeal are assessed

against Bill Covington and Brenda Covington.



                           REVERSED AND REMANDED



                                              ____________________________________
                                              HENRY F. TODD
                                              PRESIDING JUDGE, MIDDLE SECTION


CONCUR:



_____________________________________
BEN H. CANTRELL, JUDGE



_____________________________________
WILLIAM C. KOCH, JR., JUDGE




                                              -15-
