                  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. . .:



                                                  -2-
                    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?”

                                                            -3-
. . .[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



                                 -4-
                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.




                                                   -5-
                                      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).


                                                  -7-
         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


                                                 -8-
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



                                                 -9-
