                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                  July 11, 2012 Session

            MILLARD BURRIS ET AL. v. DEXTER WATSON ET AL.

                 Appeal from the Chancery Court for Monroe County
                     No. 16,036    Jerri S. Bryant, Chancellor


              No. E2012-00120-COA-R3-CV-FILED-AUGUST 28, 2012


This case began when the original plaintiffs filed a complaint to quiet title seeking a
declaration of the boundary line separating their land from the defendants’ neighboring
property. The disputed line is the northern boundary of the plaintiffs and the southern
boundary of the defendants. The defendants asserted in their answer that they had adversely
possessed the disputed property. Shortly after this action was filed, the plaintiffs’ property
was sold to a third party in a court-ordered sale. The purchaser was substituted as the sole
plaintiff in place and instead of the original plaintiffs. The defendants moved that the case
be dismissed on the ground that the sale to the new owner was champertous. The court
denied the motion and conducted a trial on the merits after which it entered judgment in favor
of the remaining plaintiff. The defendants appeal. We affirm.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                            Affirmed; Case Remanded

C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.

J. Lewis Kinnard, Madisonville, Tennessee, for the appellants, Dexter Watson, Dewey
Watson, Jr., Ruth Marie Millsaps and Earl McKinley Watson.

Dwaine B. Thomas, Madisonville, Tennessee, for the appellee, Thomas Pannell.
                                           OPINION

                                                I.

                                               A.

        Rhea Burris and Dewey Watson were neighboring landowners. As each passed away,
the property of the deceased passed to the heirs. A dispute arose as to the correct location
of the common boundary that defines the northern boundary of the Burris property and the
southern boundary of the Watson property. The heirs of Rhea Burris (“the Burris heirs”)
filed this action against the heirs of Dewey Watson (“the Watson heirs”). The Burris heirs
sought a declaration that the correct location of the line is as surveyed by their surveyor, Mr.
Ogle, and not as surveyed for the Watson heirs by Mr. Torbett.

        Shortly after suit was filed, one of the Burris heirs filed a separate partition action in
circuit court. The circuit court ordered that the Burris property be sold and the proceeds
divided among the Burris heirs. Thomas Pannell (“the Buyer”) purchased the Burris property
at an auction conducted pursuant to the circuit court order. It is undisputed that, at the sale,
the Buyer was made aware of the controversy concerning the true boundary line and of the
Watson heirs’ claim that they were in possession of some of the property claimed by the
Burris heirs.

       After the sale, the Buyer was substituted as the sole plaintiff in this action. The
Watson heirs filed a motion to dismiss alleging that the sale to the Buyer is champertous and
therefore barred by Tenn. Code Ann. § 66-4-202 (2004). Sections 201, 202 and 203 provide,
respectively:

               No person shall agree to buy, or to bargain or sell any pretended
               right or title in lands or tenements, or any interest in such
               pretended right or title.

               Any such agreement, bargain, sale, promise, covenant or grant
               shall be utterly void where the seller has not personally, or by
               the seller’s agent or tenant, or the seller’s ancestor, been in
               actual possession of the lands or tenements, or of the reversion
               or remainder, or taken the rents or profits for one (1) whole year
               next before the sale.

               Any suit at law or equity brought for the recovery of the lands
               or tenements bargained or contracted for, whether the

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              agreement, sale, bargain, covenant, grant, or promise be
              executed or executory, shall be forthwith dismissed, with costs,
              by the court in which such suit may be pending, upon the facts
              being disclosed.

After briefing and argument, the court denied the motion to dismiss and the case proceeded
to a bench trial.

        Surveyor Michael Ogle – the surveyor of the Burris heirs – was the first witness to
testify. He stated, on behalf of the Buyer, that the correct boundary line for the Burris
property was a straight line from their northeast corner to their northwest corner. The parties
stipulated that the corners are located correctly. Ogle testified that the straight line
corresponds to the deeds and to an old section line. The Ogle survey shows approximately
6.7 acres in dispute as shown on a plat prepared by the surveyor for the Watson heirs. The
disputed acreage is a triangular shaped area that dips to the south of the straight line surveyed
by Mr. Ogle.

        Dexter Watson and two of his brothers appeared as witnesses. Dexter Watson
testified that his surveyor, Mr. Torbett, originally surveyed the boundary line between the two
properties consistent with the survey later prepared by Ogle. Dexter Watson refused to pay
surveyor Torbett unless and until he prepared a revised survey. The revised Torbett survey
followed a line pointed out by Dexter Watson. At least one of the Watson brothers testified
that the boundary line was a straight line from one corner to the other. None of the Watson
brothers described any sustained activity on the area in dispute.

       The Buyer called one rebuttal witness, Mr. Bivens, who testified that he conferred
with Dewey Watson Senior, the father of the Watson heirs and the owner of the Watson
property at the time of the conversation, about the location of the property line. The line, as
pointed out by Mr. Watson, Sr., was consistent with the line as surveyed by Ogle.

                                               B.

       After trial, the court made

              the following findings:

              1. The law of [c]hamperty does not apply to the case at bar for
              the following reasons:




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       a. The subject sale of property in this case was
       done at the order of the Monroe County Circuit
       Court.

       b. Full public notice was given of the sale by the
       Circuit Court Clerk.

       c. A full and complete description of the disputed
       property line, including the area under dispute,
       was included in the notice circulated previous to
       and on the date of the public auction.

       d. Case law presented by the Plaintiff shows clear
       intent that [c]hamperty does not apply to court-
       ordered sales. Defendants produced no case law
       to the contrary.

       e. The oversight of the Circuit Court in the sale at
       question in this case protects against fraud by the
       participants which the [c]hamperty laws are
       designed to address. The Monroe County Circuit
       Court approved the auction and resulting sale.

2. The proper designation of the property line separating the
two properties in question is the designation made by the
Plaintiff’s surveyor, Michael Ogle, and designated on his plat as
the line nearest the section line. The Court finds that this is the
proper line for the following reasons:

       a. The Plaintiff’s surveyor, by direct testimony
       confirmed that the line most reasonably delineated
       by the deed record of both the Plaintiff’s and
       Defendant’s deeds was the existing section line.

       b. No physical evidence of the line existed, there
       was no fence, no monuments, etc.

       c. Witnesses presented by the Defendants were
       inconsistent. All witnesses presented by the
       Defense agreed with the two corners (designated

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                     by yellow dots on Plaintiff’s Exhibit 1), and all
                     witnesses agreed it should be a straight line.

                     d. The only line that would support the above
                     testimony would be that of the Plaintiff’s
                     surveyor.

                     e. The Defendants’ recorded plat does not
                     reference any geographical data nor monuments.
                     The surveyor hired by the Defendants did not
                     appear nor offer testimony to substantiate his
                     survey nor rebut the Plaintiff’s surveyor.

                     f. Any agreement referenced by the testimony of
                     the Defendants is not binding as it is not in
                     writing and concerns an issue of real property,
                     and is as such void by the Statute of Frauds.

                                             II.

       The issues, restated, are:

              Whether the trial court erred in holding that the champerty
              statutes do not apply to judicial sales.

              Whether the evidence of adverse possession preponderates
              against the court’s finding that the true boundary is as surveyed
              by Ogle.

                                            III.

      A concise statement of the standard of review applicable to the present case, is found
in Moody Realty Co. v. Huestis, 237 S.W.3d 666 (Tenn. Ct. App. 2007).

              In a nonjury trial, our standard of review is de novo on the
              record. Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn.
              1995). We apply a presumption that the trial court’s findings of
              fact are correct and will reverse the court below only if the
              preponderance of the evidence is otherwise. Tenn. R. App. P.
              13(d). We do not apply that presumption, however, to the trial

                                             -5-
              court’s conclusions of law. Bowden v. Ward, 27 S.W.3d 913,
              916 (Tenn. 2000).

Id. at 673. The determination of whether the champerty statutes require dismissal is a
question of law subject to de novo review.

                                             IV.

       In Sims’ Lessee v. Cross, 18 Tenn. 460, 462 (1837) the Court held that the “evils”
addressed by the champerty statutes “only exist in cases of individual sales,” therefore, the
champerty statutes do not vitiate a claim to property acquired through a sale conducted
pursuant to a judgment or decree of a court of competent jurisdiction. The Watson heirs
acknowledge that the holding in Sims is contrary to their argument that champerty forbids
the Buyer from claiming the land he purchased at the partition sale. They refer to Sims as
having “unique facts” but offer no explanation of what is unique about Sims. Our research
indicates that there is nothing “unique” about Sims; it is in complete accord with well-
established law that purchases at judicial sales of property are not champertous, even if the
property is claimed adversely. See Whitaker v. House, 213 Tenn. 61, 68-69, 372 S.W.2d
194, 198 (Tenn. 1963) (“The second ground of the demurrer, based on application of the
champerty law, T.C.A. 64–406 et seq., has no merit because ‘[o]ur champerty laws have no
application to judicial sales of property, or deeds of conveyance, wherein the State is the
vendor.’ Lee v. Harrison, 196 Tenn. 603, 619, 270 S.W.2d 173, 180 (1954).”); Hames v.
Archer Paper Co., 45 Tenn. App. 1, 18-19, 319 S.W.2d 252, 260 (1958) (“The law is settled
in Tennessee that the champerty statutes do not apply to execution sales.”); 71 A.L.R. 592,
593, Champerty rule or statute as applicable to tax sale, execution sale, or judicial sale, or
to conveyances by persons claiming under such sales, (1931) (“It is now well settled as a
general rule that a judicial sale or a conveyance made under order or decree of a court of
competent jurisdiction is not within the application of the champerty doctrine or statute, and
hence is not rendered invalid by the fact that the land is in the adverse possession of a third
person.”). Accordingly, we hold that the trial court did not err in denying the motion to
dismiss on the ground that the Buyer was guilty of champerty.

       The Watson heirs argue, without much elaboration, that the evidence “was not
sufficient to establish the boundary line where the Court found it to be.” Our standard of
review requires us to presume that the trial court’s factual findings are correct unless the
evidence preponderates against those findings. Tenn. R. App. P. 13(d). The court made
several specific findings. We have reviewed the record in its entirety and we cannot say that
the evidence preponderates against those factual findings. Therefore, we find no merit to the
argument that the evidence was insufficient to support the court’s findings.



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      In fact, it was the Watson heirs’ evidence of adverse possession that was lacking. It
was their burden to establish, by clear and convincing evidence, their alleged adverse
possession of the land sold to the Buyer. Gernt v. Floyd, 131 Tenn. 119, 174 S.W. 267, 268
(1915). Any evidence of possession was sporadic at best and not consistent between the
Watson brothers. See id. (evidence of cutting timber on intermittent basis and erection of a
shack were insufficient to show adverse possession ).

                                            V.

       The judgment of the trial court is affirmed. Costs on appeal are taxed to the
appellants, Dexter Watson, Dewey Watson, Jr., Ruth Marie Millsaps and Earl McKinley
Watson. This case is remanded, pursuant to applicable law, for enforcement of the trial
court’s judgment and for collection of costs assessed by that court.




                                                  _______________________________
                                                  CHARLES D. SUSANO, JR., JUDGE




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