                 IN THE COURT OF APPEALS OF TENNESSEE
                                                                FILED
                             AT KNOXVILLE                      July 13, 1999

                                                             Cecil Crowson, Jr.
                                                          Appellate C ourt
ALLEN BULLARD and WANDA BULLARD, )    C/A NO.                 Clerk
                                                03A01-9809-CH-00310
et al.,                          )
                                 )
          Plaintiffs-Appellees, )
                                 )
                                 )
                                 )    APPEAL AS OF RIGHT FROM THE
v.                               )    HAMILTON COUNTY CHANCERY COURT
                                 )
                                 )
                                 )
DEWAYNE SCOTT AND RHONDA SCOTT, )
et al.,                          )
                                 )    HONORABLE R. VANN OWENS,
          Defendants-Appellants. )    CHANCELLOR




For Appellants                        For Appellees

DONALD MART LASLEY                    DAVID W. WALLACE
Chattanooga, Tennessee                Chattanooga, Tennessee




                           O P I N IO N




AFFIRMED AND REMANDED                                          Susano, J.

                                  1
          This controversy focuses on a subdivision lot that is

owned by numerous tenants in common.    The lot in question, Lot

10, with dimensions of 196.14' x 100.4' x 245' x 160.2', is

located in Thatcher Shore Acres Subdivision in Hamilton County.

Significantly, it has water access to Chickamauga Lake.    In 1981,

it was conveyed to the plaintiffs or their predecessors in title,

38 of the 39 property owners of Thatcher Shore Acres Subdivision,

by the subdivision’s developer, James C. Thatcher.    By such

conveyance, each of the grantees received an undivided 1/39th

interest in Lot 10.   Such an interest -- a 1/39th -- was also

conveyed to a predecessor in title of defendants Dewayne and

Rhonda Scott (“the Scotts”).



          The Scotts purchased a lot in a nearby subdivision,

also developed by James Thatcher, which is referred to as

Thatcher Shore Acres Lots 41 through 68, or the second Thatcher

Shore Acres Subdivision.   A third development, known as the

Lasley Subdivision, was also developed on adjacent property

subsequent to the development of the two Thatcher Shore Acres

subdivisions.   The second Thatcher Shore Acres Subdivision and

the Lasley Subdivision also contained community “out lots” with

water access; however, the “out lots” in the latter two

subdivisions were ultimately sold in tax foreclosure sales.

Thus, the property owners in these two developments apparently

were left without any community lake access.



          The Scotts initially purchased Lot 41 in the second

Thatcher Shore Acres Subdivision.    However, they subsequently

purchased Lot 39 in the original subdivision and thereby acquired


                                 2
their grantor’s 1/39th undivided interest in Lot 10 of that

development.    Shortly thereafter, the Scotts conveyed a 1/7800th

interest in their 1/39th interest in Lot 10 to property owners in

the second Thatcher Shore Acres Subdivision and the Lasley

Subdivision.1



            Following the Scotts’ conveyances, the plaintiffs filed

this action against the Scotts and their grantees, seeking to

void the various conveyances by the Scotts, as well as to recover

punitive damages, attorney’s fees and costs.           Following a bench

trial, the trial court found that, although the Scotts’ deed to

Lot 39 did not contain a prohibition against subdividing their

undivided 1/39th interest in the lake-access lot, such action

clearly had the effect of placing an additional burden on the

property, to the detriment of the Scotts’ co-tenants.

Consequently, the court held the conveyances to be void and of no

effect.   It awarded nominal compensatory damages of $10 and

punitive damages of $5,000 to the plaintiffs.           The court

subsequently set aside the award of punitive damages.



            The Scotts appealed, raising the following issue for

our consideration:



            Does Tennessee law allow a fee simple co-
            tenant with an unrestricted fractional
            interest in a common lot to convey fractional
            interests to third parties, and did the
            Chancellor err by voiding such a conveyance?




      1
       The deed representing the subject conveyance indicates that the Scotts
are conveying “a portion of [their] 1/39th...interest.” However, it would
appear that the grantees received an undivided 1/7800th interest in Lot 10
rather than 1/7800th of 1/39th interest in that lot.

                                      3
The plaintiffs urge us to uphold the trial court’s decision

voiding the subject conveyances, but to reinstate the award of

punitive damages and award them their reasonable attorney’s fees.



          The Supreme Court, in describing the rights and duties

of co-tenants, has quoted with approval the following excerpt

from Tennessee Jurisprudence:



          Tenants in common stand in a confidential
          relation to each other as to the joint
          property, and the same duties are imposed on
          them as if a joint trust were created by
          contract between them. In such case, the
          relation of trust and confidence between them
          binds all to put forth their best exertions
          to protect the common interest, and forbids
          the assumption of a hostile attitude by any
          of them towards the rest.

          The possession of one is the possession of
          all unless he claims to hold exclusively for
          himself. Tenants in common are jointly
          seized of the entire estate, each having an
          equal right of entry, and the possession of
          one is regarded as the possession of all
          until a disseisin of the others by actual
          ouster. Each has the same right to the
          possession, and the title of each extends to
          the whole.



Headrick v. Carter, 897 S.W.2d 256, 259-60 (Tenn. 1995)(quoting

8 TENN.JUR. Cotenancy § 6 (1992) (emphasis in Headrick omitted)).



          Generally speaking, the applicable law regarding the

conveyance of a co-tenant’s share is correctly stated in 8

TENN.JUR., Cotenancy § 9:



          A joint tenant may dispose of his share and
          convey it to a stranger, who will hold
          undivided, and in common with the other
          owners.

                                4
The Scotts assert that a lawful conveyance, by definition, can

never be a hostile act.   While this may be generally true, a

lawful conveyance under certain circumstances can have such a

severe adverse impact on the other co-tenants’ known use of the

subject property that it can only be considered a “hostile” act

against the co-tenancy.   Such is the situation in the instant

case.



          Prior to the conveyance at issue, this relatively small

subdivision lot was burdened only by the comings and goings of

people associated with 39 property owners.    However, as a result

of the subject conveyances, the potential use of this lot was

approximately doubled, rendering it subject to use by over 40

additional property owners, the members of their households, and

potentially their invited guests.    In fact, to uphold such a

conveyance would conceivably increase potential use of the lot

exponentially, given that any other co-tenant -- whether a holder

of a 1/39th or 1/7800th interest -- could similarly subdivide his

or her interest.   Calculation of the ultimate number of potential

users of the lot is subject only to the bounds of one’s

imagination.



          It is therefore the opinion of this court that, under

the unique circumstances of this case, the conveyances in

question constitute an “assumption of a hostile attitude” by the

Scotts against their co-tenants, and a violation of the “relation

of trust and confidence” binding each tenant “to put forth [his

or her] best exertions to protect the common interest [of the co-




                                 5
tenancy].”   See Hendrick, 897 S.W.2d at 259-60.   As such, they

cannot be allowed to stand.



          We do not find that the evidence preponderates against

the trial court’s ultimate decision not to award punitive damages

and attorney’s fees.   Rule 13(d), T.R.A.P.




          The judgment of the trial court is affirmed.   Costs on

appeal are assessed against the appellants.   This case is

remanded to the trial court for such further action, if any, as

may be required, consistent with this opinion, and for the

collection of costs assessed below, all pursuant to applicable

law.



                                     __________________________
                                     Charles D. Susano, Jr., J.



CONCUR:



_______________________
Herschel P. Franks, J.



_______________________
William H. Inman, Sr.J.




                                 6
