                   IN THE COURT OF APPEALS OF TENNESSEE
                        WESTERN SECTION AT JACKSON
______________________________________________________________________________

RUDY E. ROGERS,                            Henry Chancery No. 15885
                                                 C.A. No. 02A01-9604-CH-00081
       Plaintiff,
                                                  Hon. Walton West, Judge
v.

GERALD L. YOUNG and
wife, TONYA A. YOUNG,
                                                                        FILED
                                                                           July 17, 1997
       Defendants.
                                                                Cecil Crowson, Jr.
RICHARD L. DUNLAP, III, The Dunlap Law Firm, Paris, Attorney for Appellate C ourt Clerk
                                                                 Plaintiff.

WILLIAM T. LOONEY, Paris, Attorney for Defendants.

AFFIRMED

Opinion filed:
______________________________________________________________________________

TOMLIN, Sr. J.

       Rudy E. Rogers (by name or “plaintiff”) filed a suit to quiet title in the Chancery

Court of Henry County against Gerald L. Young and wife, Tonya A. Young (by name

or “defendants”), relative to a tract of land owned by him. Following a bench trial the

chancellor held that plaintiff was barred from bringing an action to quiet title pursuant

to the provisions of T.C.A. § 28-2-110, but nonetheless held that plaintiff was the

rightful owner of the disputed property. The sole issue presented by this appeal is

whether or not the chancellor erred in holding that plaintiff was barred from bringing

his action to quiet title. For the reasons hereinafter stated w e affirm the chancellor.

       Most if not all the facts in this case are not in dispute. For a m ore complete

understanding of the facts pertaining to the size, location and proximity to one another

of the respective tracts, the reader’s attention is directed to Appendix A, attached and

made a part of this opinion. This appendix is a portion of a TVA map utilized

repeatedly by both parties in the trial court for the purpose of depicting an aspect of the

case that directly affected plaintiff or defendants. Its accuracy as far as representing the

location, shapes and approximate sizes of the respective parcels has not been

questioned-- therefore our willingness to use it to present the facts to the reader. The

names appearing on the map and the parcel identification numbers were affixed by
TVA at the time of the creation of the map by the agency.

       As of June 18, 1968 Graceland Estates, Inc. (“Graceland”) owned the fee sim ple

title to parcels numbered 1 and 4. The triangular portion of parcel 1, shaded and

num bered “2", is the parcel in dispute and was and is an integral part of parcel 1.

“Parcel 1" will refer to the entire tract, unless otherwise identified. The TVA plat

identifies “Rachal Conyers” as the owner of Tract GIR-4090F, (parcel 1). Title to this

property was conveyed to Graceland on June 5, 1968. The parcel was described in the

deed as follows:


       A Tract or parcel of land in the 11th Civil District Henry County, State of
       Tennessee, as follows:       Beginning on the east bank of the Creek, the
       northeast corner of this tract; thence west 88 poles to a stake; thence south
       25 poles to a stake; thence east 70 poles to a stake in the Creek; thence
       northeast with the Creek about 28 poles to the beginning, containing 13
       acres, more or less.


       Using the same legal description G raceland conveyed this property to plaintiff

on D ecember 7, 1968. The deed was recorded shortly thereafter.

       Previously, Rachal Conyers had sold Tract GIR-4090F to C.E. Parker, in

Novem ber 1943, utilizing the sam e legal description as used by Graceland in its deed to

plaintiff. This property was conveyed three times prior to its conveyance to Graceland

in June, 1968. Each tim e the sam e legal description was used.

       The tract identified as parcel 4 on Appendix A was conveyed to Graceland by

deed of date June 18, 1968. From an examination of the legal description of that

property the south boundary line of same constitutes the north boundary line of the

disputed parcel in this litigation. A fter Graceland had m ade its conveyance of parcel 1

to plaintiff, Graceland in turn conveyed a parcel of land to Thomas L. Gregory and

wife, (“Gregory”) defendants’ predecessor in title. This conveyance, represented by

parcel 3 on the attached appendix, had as its beginning point the southwest corner of the

tract previously conveyed by Graceland to plaintiff.

       The foundation for this litigation was laid by the subsequent conveyance by

Gregory to the defendants in December, 1988. The legal description in this conveyance

has as its beginning point the same beginning point as in the prior deed from Graceland



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to Gregory, namely, the southwest corner of plaintiff’s property. However, instead of

proceeding to describe the parcel heretofore conveyed to Gregory by Graceland, the

legal description described a parcel of land north and east of this beginning point,

encompassing the disputed triangle of plaintiff’s property and described parcel 4 as

well. The deed from Gregory to defendants sought to convey title to a parcel of land in

which the grantor, Gregory, had no interest in.

       As an additional development to complicate matters, in 1971 the state ordered

that the counties of Tennessee were required to implement a mapping process as part of

their record keeping of real estate in their respective counties. Prior to this time there

were no tax plats or maps in Henry County from which one might ascertain the size and

shapes of the various pieces of property.

       As a result of this mapping process the taxing authorities of Henry County

treated parcel 2, the disputed parcel, as a separate piece of property and assessed it in

the name of defendants or their predecessors in title. This occurred som etim e in 1971.

Plaintiff continued to pay Henry County property taxes yearly, as he was billed on all

properties assessed to him. It was stipulated that because the Henry County tax

assessor had erroneously assessed the disputed parcel as aforesaid from that date until

1992, the taxes were paid on this disputed property by defendants or their predecessors

in title. This situation was not discovered by plaintiff until som etime in 1992 or shortly

thereafter. Finally, the record does not reflect that plaintiff ever declined or failed to

pay any and all real estate taxes charged to him in Henry County during the course of

these events. After plaintiff learned of the mix-up in the tax assessor’s office, he

consulted counsel and this suit ultim ately followed.

       In his complaint plaintiff set forth his chain of title by which he claimed

ownership to the subject property. In addition he contended that defendants’ claim to

the subject property was invalid and of no force in effect because defendants had never

been conveyed any right, title or interest in and to the property, as their grantors had no

title to the property to convey. In addition to asking the court to bar all claims of the

defendants to the subject property plaintiff sought to have the court adjudicate that he

was the law ful owner and vested with the unencumbered fee sim ple title to the property


                                              3
described in contention and entitled to sole possession of it.

       In their answer defendants claimed title by adverse possession, and in addition

alleged that plaintiff’s suit was barred by the statute of limitations set out in T.C.A . §

28-2-110, specifically asserting that plaintiff had failed to pay taxes on the subject

property for a period of twenty years. T.C.A. § 28-2-110

reads in pertinent part as follows:


       Any person having a claim to real estate or land of any kind, or to any
       legal or equitable interest therein, the same having been subject to
       assessment for state and county taxes, who and those through whom he
       claims have failed to have the same assessed and to pay any state and
       county taxes thereon for a period of more than twenty (20) years, shall be
       forever barred from bringing any action in law or in equity to recover the
       same, or to recover any rents or profits therefrom in any of the courts of
       this state.


       In addition to asking the chancellor to dismiss plaintiff’s com plaint defendants

also asked the court to declare them to be the rightful and legal owners of the disputed

property. At the close of all the proof the chancellor found that the record established

that plaintiff had failed to pay county property taxes on the disputed property for a

period of more than twenty years prior to filing this suit. As a result, the court held that

plaintiff was barred from bringing this action to recover land or profits from same by

virtue of this failure to pay taxes.

       However, inasmuch as both plaintiff and defendants in their respective pleadings

called on the court to declare them to be the true and lawful owners in fee simple of the

property in question, the chancellor did so, finding that by virtue of plaintiff’s deed

from Graceland he was vested with fee simple title to the disputed tract and that the

deed to defendants from their predecessor in title seeking to convey fee sim ple title to

them was a nullity, in that plaintiff’s predecessor in title had no interest or right

whatsoever in the property which they sought to convey to defendants. The chancellor

further held that while Section 28-2-110 restricted the rights of a property owner who

fell within its purview to assert a claim, nothing in said statute prevented plaintiff from

defending his title from the claim of another. The chancellor decreed that ownership of

the property in dispute was declared to be with plaintiff.



                                              4
       The only issue presented by this appeal by both plaintiff and defendants is

whether or not the chancellor erred in holding that plaintiff was barred from bringing

his suit by virtue of the provisions of T.C.A. § 28-2-110, plaintiff contending that the

chancellor erred, defendants asserting that the chancellor w as correct. Defendants in

their brief did not raise as an issue the ruling by the chancellor that plaintiff was the

rightful owner of the disputed property.

       Defendants do in their brief in one paragraph state that “defendants in this case

only filed an answ er and never brought any kind of counter action. . . .” To this court,

this is a distinction without a difference. W hile defendants m ay not have labeled their

relief sought as a counter-claim, they specifically asked for affirmative relief directly

contrary to the relief sought by plaintiff by asking the court to declare them to be the

lawful owners of the dispute property. In defending against plaintiff’s suit it would

have been sufficient to have simply raised the special defense of the statute of

limitations as set forth in Section 28-2-110. Defendants did seek affirmative relief,

which is clearly in the nature of a counter-claim .

       So that there shall be no doubt, for the sake of this opinion, the court will treat

the issue as raised. In our opinion the evidence does not preponderate against the

finding of the chancellor in this regard. Under our scope of review, all findings of the

trial court come to this court with a presumption of correctness, and, absent an error of

law, unless we find that the evidence preponderates against such a finding, we must

affirm . T.R.A.P. 13(d).

       The evidence clearly supports the finding of the chancellor in this regard. The

record reflects that Graceland conveyed a parcel of land to Gregory, defendants’

predecessor in title, located in the “South Forty.” Thereafter, Gregory, using the same

startin point, attempted to convey to defendants title to a tract of land located in the

“North Forty” in the opposite direction from the parcel of land heretofore conveyed to

him , and which by chance encom passed part of the property owned by plaintiff.

Gregory had never been conveyed any interest whatsoever in the disputed tract in

litigation by Graceland and thus could convey no interest to the defendants.

       Finally, we are of the opinion that the chancellor did not err in holding that


                                              5
plaintiff’s suit insofar as it sought to affirmatively assert his property rights was barred

by the provisions of T.C.A. § 28-2-110. W hile it reasonably appeared that plaintiff paid

taxes on the disputed property for perhaps two years after acquiring title to it, since the

inception of the utilization of tax maps in Henry County beginning in 1971, the

disputed property had been assessed in the name of defendants, or their predecessor in

title, and that for a period of more than twenty years prior to the filing of this suit,

Henry County property taxes had been paid by the immediate predecessor in title or by

defendants.

       The application of T.C.A. § 28-2-110 is to be determined based upon the intent

or purpose of the legislature as expressed in the statute. The intention is to be gathered

from a reading of the statute, giving the language and words used their natural, ordinary

and com mon accepted meaning. Burress v. Woodward, 665 S.W.2d 707, 708 (Tenn.

1984). The language of this statute, given its usual and ordinary meaning, bars

plaintiff’s suit.

       Accordingly, the decree of the chancellor is affirmed in all respects. As such,

plaintiff is barred from bringing this action pursuant to the provisions of T.C.A. § 28-2-

110. Furthermore, having established ownership of the disputed property by virtue of a

recorded deed from the rightful owner thereof, plaintiff is




declared to be the true and lawful owner of all right, title and interest in and to said

property in dispute. Costs in this cause on appeal are taxed one-half to plaintiff and

one-half to defendants, for which execution may issue if necessary.



                                           ________________________________________
                                           TOMLIN, Sr. J.




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________________________________________
CRAWFORD, P. J., W.S. (CONCURS)



________________________________________
LILLARD, J.             (CONCURS)




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