                                                                      Jun 04 2015, 9:12 am




      ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEES
      Travis Bonnell                                            Jim Brugh
      Bonnell Group                                             Logansport, Indiana
      Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Tom Bonnell,                                              June 4, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                66A03-1410-PL-372
              v.                                                Appeal from the Pulaski Circuit
                                                                Court
      Ruby A. Cotner,                                           The Honorable Patrick Blankenship,
      Douglas Wayne Cotner,                                     Special Judge
      Arthur J. Johnson, Jimmy J.
                                                                Cause No. 66C01-1208-PL-11
      Johnson, and Jerry L. Johnson,
      Appellees-Plaintiffs.




      Najam, Judge.


                                        Statement of the Case
[1]   Tom Bonnell appeals the trial court’s entry of judgment, following a bench trial,

      in favor of Ruby A. Cotner, Douglas Wayne Cotner, Arthur J. Johnson, Jimmy

      J. Johnson, and Jerry L. Johnson (collectively, “the Cotners”). Bonnell raises

      one issue on appeal, and the Cotners raise one issue on cross-appeal. The

      Court of Appeals of Indiana | Opinon 66A03-1410-PL-372| June 4, 2015                        Page 1 of 17
      Cotners’ issue on cross-appeal is both dispositive and an issue of first

      impression: whether adverse holders of real property can be divested of their

      title by a subsequent tax sale of the property when the adverse holders’ title is

      premised on a reasonable and good faith—albeit mistaken—belief that they are

      paying the proper taxes on the property. On these facts, we hold that the

      subsequent tax sales did not divest the adverse holders of their title to the real

      property. As such, we reverse the trial court’s judgment for Bonnell and

      remand with instructions for the court to enter judgment for the Cotners.


                                  Facts and Procedural History
[2]   At all times relevant to this appeal, the Cotners or their predecessors-in-interest

      held title to Parcel 8 and Parcel 9 of the Cottingham subdivision in Pulaski

      County. That subdivision consisted of several numbered, rectangular parcels.

      Parcels 3 through 11 shared State Highway 119 as their western border; they

      were equal in their east-west lengths; and they were consecutively platted south

      to north such that the northern border of each numbered parcel was the

      southern border of the next-highest-numbered parcel. About thirty-five feet east

      of each parcel’s eastern border lay an “ancient farm fence” that ran south-north.

      Appellant’s App. at 14. The total area between the parcels’ eastern borders and

      the farm fence was about .75 acres.


[3]   The Cotners and other property owners in the subdivision believed that the

      farm fence marked the eastern boundary of Parcels 3 through 11. Accordingly,

      in 1968 the owners of Parcel 8 built an outbuilding on the eastern end of their

      parcel. The outbuilding lay at least in part in the area between their eastern
      Court of Appeals of Indiana | Opinon 66A03-1410-PL-372| June 4, 2015       Page 2 of 17
      border and the farm fence. In 2010, the Cotners built an extension to the

      eastern side of the outbuilding such that, in total, it extended about twenty-two

      feet past their eastern border.


[4]   In 1993, the Pulaski County Auditor issued a tax sale deed to the .75 acres to a

      third party following a tax sale. On October 4, 2011, the Pulaski County

      Auditor again put the .75 acres up for tax sale; this time the Pulaski County

      Board of Commissioners (“the Board”) obtained the tax sale certificate. The

      Board thereafter petitioned the Pulaski Circuit Court for the issuance of a tax

      sale deed, which the Board received.1 See Pl.’s Ex. G at 6.


[5]   On January 10, 2012, the Board conveyed title to the .75 acres to Bonnell via

      quitclaim deed, which Bonnell recorded. Bonnell believed that he had

      purchased the .75 acres east of the farm fence; however, after his purchase

      Bonnell had the area surveyed, at which time he learned that he had purchased

      the .75 acres between the subdivision parcels and the farm fence. Bonnell

      likewise learned of the encroachments onto the land from that survey.


[6]   Bonnell contacted the owners of Parcels 3 through 11 and offered to divide the

      .75 acres to allow each parcel to extend to the farm fence. All owners except

      the Cotners, who owned Parcel 8 and Parcel 9, agreed. The Cotners instead

      filed suit and claimed that they held title by adverse possession to the land from




      1
         In their brief, the Cotners erroneously assert that the Board—and by extension Bonnell—“never took
      ti[t]le[] but merely held certificates of sale . . . .” Appellees’ Br. at 22.

      Court of Appeals of Indiana | Opinon 66A03-1410-PL-372| June 4, 2015                           Page 3 of 17
      their parcels’ eastern borders to the farm fence (“the disputed area”).2 Bonnell

      counterclaimed for ejectment.


[7]   On November 1, 2013, the trial court held a bench trial on the parties’ claims.

      Almost a year later, on September 26, 2014, the court entered its findings of fact

      and conclusions thereon. In relevant part, the court found:


               9.    That the Cotners and their predecessors in title have used,
               possessed, and controlled their parcels of land as those parcels
               appear in the Sub-Division plat of the recorded Cottingham Sub-
               Division.

               10. That the Cotners, and their predecessors in title[,] have
               also demonstrated actual possession, use, and control of that
               portion of Bonnell’s 35[-]foot strip that lies contiguous and
               adjacent to Cotners’ parcels.

               11. That the Cotner[s’] use of the 35[-]foot strip of Bonnell’s
               property that lies contiguous to their parcels has been open,
               public, and[,] until the acquisition by [Bonnell], exclusive.

               12. That the Cotners and their predecessors in title have
               caused to be placed upon a portion of the 35[-]foot strip owned
               by Bonnell[] fences, outbuildings, and other structures.

               13. That the Cotners and their predecessors in title paid all real
               estate tax[es] and assessments as those same became due and
               owing to the State of Indiana and Pulaski County[] on their
               parcels.




      2
        The parties and the trial court treated the Cotners’ claim to the disputed area as a unitary claim to the entire
      area and did not limit the Cotners’ claim to the area of their actual use or occupancy. We will not disturb
      that treatment on appeal.

      Court of Appeals of Indiana | Opinon 66A03-1410-PL-372| June 4, 2015                                 Page 4 of 17
              14. That the Cotners and their predecessors in title did not pay
              any real estate tax[es] or assessments on any portion of the
              35[-]foot strip parcel owned by Bonnell or his predecessors in
              title.


      Appellant’s App. at 14.


[8]   After entering those findings, the court concluded:

              [Bonnell] acknowledges and even stipulates that the [Cotners
              have] maintained exclusive possession[ and] control[] of the
              subject real estate for the ten[-]year period of time, and that said
              control and possession has been open and notorious. [Bonnell,]
              however, argues that the [Cotners] fail to satisfy Indiana Code
              [Section] 32-21-7-1, which states:

                       In any suit to establish title to land or real estate,
                       possession of the land or real estate is not adverse to
                       the owner in a manner as to establish title or rights
                       in and to the land or real estate unless the adverse
                       possessor or claimant pays and discharges all taxes
                       and special assessments that the adverse possessor
                       or claimant reasonably believes in good faith to be
                       due on the land or real estate during the period the
                       adverse possessor or claimant claims to have
                       possessed the land or real estate adversely.

                                                       ***

              In the present case, the Cotners did in fact pay all real estate taxes
              and special assessments along with their predecessors in title to
              their respective properties. However, the Cotners could not have in
              good faith reasonably believed that they were paying even a portion of the
              real estate taxes or assessments upon the adjoining 35[-]foot strip in light
              of the fact that on two occasions during the time period in which they are
              claiming adverse possession[] the 35[-]foot strip of property now owned by

      Court of Appeals of Indiana | Opinon 66A03-1410-PL-372| June 4, 2015              Page 5 of 17
               [Bonnell] was put up for tax sale by Pulaski County. The fact that the
               [Cotners] never attempted to redeem the subject property from
               the county either prior to or after the tax sale, nor attempted to
               acquire the 35[-]foot strip by way of Commissioner’s Deed,
               would defeat their claim of any good faith reasonable belief.


      Id. at 15-17 (emphasis added). The trial court then concluded that “Pulaski

      County took possession of the subject real estate pursuant to Indiana statute

      when the real estate tax[es] and any assessments were not paid.” Id. at 17.

      Based on that conclusion, the court further declared that the Cotners’ post-tax-

      sale attempt to establish adverse possession were contrary to provisions of the

      Indiana Code that prohibit the taking of title from a political subdivision by

      adverse possession. In short, the court denied the Cotners’ claim to title by

      adverse possession on the ground that their claim “would have been severed

      even if vested[] by the two subsequent tax sale events by Pulaski County.” Id.

      at 19.


[9]   However, after finding against the Cotners and for Bonnell on the only pleaded

      issue before the court, the court then concluded as follows:

               During the time in which the [Cotners] have possessed and used
               the [disputed] property, they have cause[d] to be placed upon
               said property certain structures, specifically a garage/outbuilding.
               The evidence shows that a portion of this outbuilding encroaches
               on [Bonnell’s] parcel. The Court also finds that the garage is of
               substantial size and construction, the nature of which prevents its
               removal without significant cost. [This] cost in the Court’s
               experience would far exceed the value of [Bonnell’s] entire
               parcel, not just the portion upon which the building encroaches.


      Court of Appeals of Indiana | Opinon 66A03-1410-PL-372| June 4, 2015          Page 6 of 17
               Therefore, the Court does find that the [Cotners] should be
               granted a prescriptive easement to that portion of [Bonnell’s]
               35[-]foot strip parcel upon which [the Cotners’]
               garage/outbuilding occupies, as well as a prescriptive easement
               of an additional four (4) feet around the proximity of the garage
               in order to make repairs and maintenance and access to the
               outbuilding.


       Id. at 20. The court then entered judgment accordingly. This appeal ensued.


                                        Discussion and Decision
[10]   Bonnell appeals the trial court’s order establishing a prescriptive easement

       including the area occupied by and immediately adjacent to the Cotners’

       outbuilding, located within the disputed area. The Cotners cross-appeal and

       contend that the trial court erred when it denied their claim of title to the

       disputed area by adverse possession.3 Because the Cotners’ argument on cross-

       appeal is dispositive, we limit our review on appeal to that issue.4




       3
         We note that Bonnell has not filed a Reply Brief, in which he could have “address[ed] the arguments raised
       on cross-appeal.” Ind. Appellate Rule 46(D)(3).
       4
         While we do not reach Bonnell’s issue on appeal, we disapprove of the trial court’s judgment that the
       Cotners should be granted a prescriptive easement when that theory of relief was neither pleaded nor argued
       by the Cotners. As we have explained:
               We have held that fairness requires that the opposing party have “some notice that an
               issue is before the court which has not been pleaded or has not been agreed to in a pre-
               trial order.” Aldon Builders, Inc. v. Kurland, 152 Ind. App. 570, 284 N.E.2d 826, 832
               (1972). This is particularly true when the new issue is not unequivocally clear from the
               evidence presented at trial. Id. Notice must be overt, as where the unpleaded issue is
               expressly raised prior to or sometime during the trial but before the close of the evidence.
               K Mart Corp. v. Brzezinski, 540 N.E.2d 1276, 1281 (Ind. Ct. App. 1989), trans. denied.
               Notice may be implied where the evidence presented at trial is such that a reasonably
               competent attorney would have recognized the unpleaded issue as being litigated. Id.
               Both parties must litigate the new issue, and implied consent to the trial of that issue will

       Court of Appeals of Indiana | Opinon 66A03-1410-PL-372| June 4, 2015                                Page 7 of 17
[11]   Here, the trial court entered findings of fact and conclusions thereon sua sponte

       following a bench trial.

                In the appellate review of claims tried without a jury, the findings
                and judgment are not to be set aside unless clearly erroneous, and
                due regard is to be given to the trial court’s ability to assess the
                credibility of the witnesses. A judgment will be clearly erroneous
                when there is no evidence supporting the findings or the findings
                fail to support the judgment, and when the trial court applies the
                wrong legal standard to properly found facts. While findings of
                fact are reviewed under the clearly erroneous standard, appellate
                courts do not defer to conclusions of law, which are reviewed de
                novo. Where cases present mixed issues of fact and law, we have
                described the review as applying an abuse of discretion standard.
                In the event the trial court mischaracterizes findings as
                conclusions or vice versa, we look past these labels to the
                substance of the judgment. In order to determine that a finding
                or conclusion is clearly erroneous, an appellate court’s review of
                the evidence must leave it with the firm conviction that a mistake
                has been made.




                not be found unless the parties know or should have known that the unpleaded issue was
                being presented. Elkhart County Farm Bureau Co-op. v. Hochstetler, 418 N.E.2d 280, 283
                (Ind. Ct. App. 1981). In addition, implied consent to trial of an unpleaded defense may
                not be deduced merely because evidence relevant to a properly pleaded defense
                inferentially suggests a defense not within the pleadings. Id. at 284. Furthermore, the
                opposing party may not insert a new issue into a trial under the cloak of evidence relevant
                to an already pleaded issue. Hacker v. Review Bd., 149 Ind. App. 223, 271 N.E.2d 191, 195
                (1971).
       Columbia Club, Inc. v. Am. Fletcher Realty Corp., 720 N.E.2d 411, 423 (Ind. Ct. App. 1999); see also Hoose v.
       Doody, 886 N.E.2d 83, 94 (Ind. Ct. App. 2008) (“evidence supporting adverse possession is not necessarily
       the same as that establishing a prescriptive easement.”).

       Court of Appeals of Indiana | Opinon 66A03-1410-PL-372| June 4, 2015                                Page 8 of 17
       Fraley v. Minger, 829 N.E.2d 476, 482 (Ind. 2005) (internal citations and

       quotations omitted).


[12]   The Cotners contend that the trial court erred when it denied their claim of title

       to the disputed area by adverse possession. The doctrine of adverse possession

       “entitles a person without title to obtain ownership to a parcel of land upon

       clear and convincing proof of control, intent, notice, and duration[.]” Fraley,

       829 N.E.2d at 486. In Fraley, our supreme court summarized these four

       required elements as follows:

               (1) Control—The claimant must exercise a degree of use and
               control over the parcel that is normal and customary considering
               the characteristics of the land (reflecting the former elements of
               “actual,” and in some ways “exclusive,” possession);


               (2) Intent—The claimant must demonstrate intent to claim full
               ownership of the tract superior to the rights of all others,
               particularly the legal owner (reflecting the former elements of
               “claim of right,” “exclusive,” “hostile,” and “adverse”);


               (3) Notice—The claimant’s actions with respect to the land must
               be sufficient to give actual or constructive notice to the legal
               owner of the claimant’s intent and exclusive control (reflecting
               the former “visible,” “open,” “notorious,” and in some ways the
               “hostile,” elements); and


               (4) Duration—The claimant must satisfy each of these elements
               continuously for the required period of time (reflecting the former
               “continuous” element).




       Court of Appeals of Indiana | Opinon 66A03-1410-PL-372| June 4, 2015       Page 9 of 17
       Id. These elements must be satisfied for a period of ten years. Ind. Code § 34-

       11-2-11 (2012). And it is well-established that “successive periods of possession

       may be tacked together to attain the required statutory period.” Lake Cnty. Trust

       Co. v. Jones, 821 N.E.2d 1, 4 (Ind. Ct. App. 2004).


[13]   In addition to satisfying the four elements of adverse possession set forth in

       Fraley, an adverse possessor must also comply with Indiana Code Section 32-

       21-7-1 regarding payment of taxes (“the adverse possession tax statute”).

       Wetherald v. Jackson, 855 N.E.2d 624, 641 (Ind. Ct. App. 2006), trans. denied. At

       all times relevant to this appeal, the adverse possession tax statute required an

       adverse possessor or claimant to “pay[] and discharge[] all taxes and special

       assessments that the adverse possessor or claimant reasonably believes in good

       faith to be due on land or real estate during the period the adverse possessor or

       claimant claims to have possessed the land or real estate adversely.” I.C. § 32-

       21-7-1 (2012).5


[14]   Further:


               once a party establishes the elements of adverse possession, “fee
               simple title to the disputed tract of land is conferred upon the
               possessor by operation of law, and title is extinguished in the
               original owner.” Snowball Corp. v. Pope, 580 N.E.2d 733, 734




       5
         In material part, this quoted language has been a statutory requirement since May 17, 1927. See I.C. § 32-
       1-20-1 (2000) (the prior codification of the adverse possession tax statute). We also note that the adverse
       possession tax statute was amended with an effective date of July 1, 2014, but the quoted language was not
       materially altered. See I.C. § 32-21-7-1 (2014).



       Court of Appeals of Indiana | Opinon 66A03-1410-PL-372| June 4, 2015                            Page 10 of 17
        (Ind. Ct. App. 1991). Once a party has acquired title through
        adverse possession, that party does not lose title based on acts
        committed or circumstances existing after title is established. See
        Fraley, 829 N.E.2d at 487; Berrey v. Jean, 401 N.E.2d 102, 106
        (Ind. Ct. App. 1980) (recognizing that acts of title-holder were
        “of no matter, since ownership of the land had passed previously
        to the [adverse holder]”), overruled on other grounds, Fraley, 829
        N.E.2d 476. Our supreme court explained and applied this rule
        in Fraley:

                 Fraley argues that the Mingers’ possession was not
                 hostile because Mrs. Minger “openly acknowledged
                 the superior rights of the record title holder by
                 making an inquiry about buying the parcel.”
                 Between the time of the death of Truman Belew in
                 1994 and the deed conveying the disputed tract to
                 Keith Fraley in 1996, Eva Minger inquired about
                 the possible purchase of about half of the tract from
                 Melvin Belew. Fraley’s contention that this inquiry
                 disproves the Mingers’ adverse possession is
                 erroneous because title by adverse possession passes
                 to the claimant by law at the end of the possessory
                 period. Once title vests in a party at the conclusion of the
                 ten-year possessory period, the title may not be lost,
                 abandoned, or forfeited, even where the party pays rent to
                 the titleholder, agrees to a survey to attempt to find the true
                 boundary line, expresses satisfaction with a survey whose
                 results are inconsistent with the property adversely
                 possessed by him, or states that he does not claim the land
                 and offers to buy it. The ten-year possessory period
                 required for the Mingers’ adverse possession clearly
                 expired long before Mrs. Minger’s purchase inquiry
                 after 1994 (which may have merely been an effort to
                 avoid litigation), and her inquiry would not
                 undermine any ownership by adverse possession
                 that the Mingers had gained years earlier.


Court of Appeals of Indiana | Opinon 66A03-1410-PL-372| June 4, 2015               Page 11 of 17
               829 N.E.2d at 487 (citations omitted).


       Garriott v. Peters, 878 N.E.2d 431, 439 (Ind. Ct. App. 2007) (emphasis added),

       trans. denied.


[15]   There is no dispute here that the Cotners satisfied the four elements of adverse

       possession described in Fraley, or that the Cotners and their predecessors-in-

       interest at all relevant times paid the taxes due on their parcels. Indeed, while

       the trial court’s judgment did not frame its findings or conclusions around the

       restated Fraley elements, it is clear that the parties’ dispute before the court

       centered exclusively on the Cotners’ compliance with the adverse possession

       tax statute with respect to the disputed area, and on appeal Bonnell does not

       suggest otherwise. See Tr. at 70-72. On that question, the trial court concluded

       that the Cotners had not demonstrated that they had paid the appropriate taxes

       they reasonably believed in good faith to have been due on the disputed area

       because that area had twice been subjected to a tax sale by Pulaski County since

       1993.


[16]   The Indiana Supreme Court reviewed the relevant language of the adverse

       possession tax statute in Echterling v. Kalvaitis, 235 Ind. 141, 126 N.E.2d 573

       (1955). In that case, the court noted that “complete legal descriptions of real

       estate are not present on the tax duplicates issued by county or city treasurers”

       and that they were “usually sketchy and inaccurate.” Id. at 575. The court

       observed:




       Court of Appeals of Indiana | Opinon 66A03-1410-PL-372| June 4, 2015       Page 12 of 17
                It would seem to us that, in view of the foregoing, where
                continuous, open, and notorious adverse possession of real estate
                has been established for twenty years[6] to a contiguous and
                adjoining strip of land such as that here in question, and where
                taxes have been paid according to the tax duplicate, although
                said duplicate did not expressly include that strip, adverse
                possession is established to that strip even though the taxes were
                not paid by the adverse claimant. An example might be where
                one has record title to Lot No. 1 and has erected a building on
                that lot, which, twenty years later, is found by some surveyor to
                be one foot over on an adjoining lot, No. 2—the fact that the
                owner of Lot No. 1 was assessed for improvements (the building)
                and real estate (Lot No. 1) would be sufficient to comply with the
                statute as to payment of taxes.


       Id. at 575-76.


[17]   In Fraley, the Indiana Supreme Court reexamined the holding in Echterling and

       explained that


                the [Echterling] Court essentially applied the [adverse possession
                tax] statute to require the adverse claimant to substantially comply
                with the requirement for payment of taxes. Although the opinion
                did not expressly mention that the claimant’s failure to pay taxes
                on the claimed boundary strip was inadvertent and unintentional,
                we believe that this is the clear implication.




       6
         Prior to 1951, the statutory limitation period for adverse possession was twenty years. See Fraley, 829
       N.E.2d at 484. At all times relevant to the instant appeal, the statutory limitation period has been ten years.
       See id.

       Court of Appeals of Indiana | Opinon 66A03-1410-PL-372| June 4, 2015                               Page 13 of 17
       829 N.E.2d at 490 (emphasis in original). The Fraley court then reaffirmed its

       holding in Echterling, stating:


                Echterling permits substantial compliance to satisfy the
                requirement of the adverse possession tax statute in boundary
                disputes where the adverse claimant has a reasonable and good
                faith belief that the claimant is paying the taxes during the period
                of adverse possession.[7]


       Id. at 493.


[18]   The Cotners’ claim to the disputed area parallels, almost exactly, the

       hypothetical scenario discussed in Echterling. Again, in Echterling the court

       stated that an example of a reasonable and good faith belief in the payment of

       taxes would be “where one has record title to Lot No. 1 and has erected a

       building on that lot, which, [the necessary time] later, is found by some

       surveyor to be one foot over on an adjoining lot, No. 2.” 126 N.E.2d at 575-76.

       Here, the undisputed facts before the trial court demonstrate that, in 1968, the

       Cotners’ predecessors-in-interest had record title to Parcel 8 and they erected

       the outbuilding on that parcel, which the Cotners later extended. In 2012, well

       more than ten years later, Bonnell had a survey done, which found that part of

       the original outbuilding, and its entire extension, was in the adjoining, disputed

       area. Pursuant to Echterling, the Cotners’ and their predecessors’ payments of




       7
         The Fraley court added: “we decline to extend Echterling to permit total disregard of the statutory tax
       payment requirement merely on grounds that the legal title holder has other clear notice of adverse
       possession.” 829 N.E.2d at 493. But that limitation is not relevant to the instant appeal.

       Court of Appeals of Indiana | Opinon 66A03-1410-PL-372| June 4, 2015                              Page 14 of 17
       the taxes assessed on Parcel 8 and Parcel 9 demonstrates their reasonable and

       good faith compliance with the adverse possession tax statute since at least

       1968. Id. Accordingly, as a matter of law title to the disputed area vested in the

       Cotners’ predecessors in 1978 and, subsequently, passed to the Cotners. See

       Garriott, 878 N.E.2d at 439.


[19]   We thus turn to the trial court’s rationale for denying the Cotners’ claim to title

       by adverse possession despite the undisputed facts before it. According to the

       trial court, the Cotners’ status as vested adverse holders was “severed . . . by the

       two subsequent tax sale events by Pulaski County.” Appellant’s App. at 19.

       We cannot agree.


[20]   The trial court’s conclusion is error as a matter of law. The whole point of the

       adverse possession tax statute’s reasonable-and-in-good-faith exception is to

       allow for adverse possession to occur in some circumstances where the taxes

       have not in fact been paid. As our supreme court explained in Echterling, the

       exception within the adverse possession tax statute is premised on the “usually

       sketchy and inaccurate” tax duplicates on which tax payments are based. 126

       N.E.2d at 575. These duplicates do not put property holders on clear notice of

       their property’s boundaries. See id. As such, an adverse claimant who

       reasonably and in good faith believes he is paying the proper taxes pursuant to

       his tax duplicate will have no notice to the contrary when a tax sale occurs.


[21]   Further, to allow a tax sale to divest an adverse holder would improperly allow

       the record title holder’s failure to pay real estate taxes to nullify the adverse


       Court of Appeals of Indiana | Opinon 66A03-1410-PL-372| June 4, 2015        Page 15 of 17
       holder’s already established title. See Garriott, 878 N.E.2d at 439 (quoting

       Fraley, 829 N.E.2d at 487). From the county’s perspective, the failure to pay

       taxes and assessments is a failure of the record title holder, and it is the record

       title holder who receives personal notice of the tax sale. See I.C. § 6-1.1-24-4.

       But where there is a vested adverse holder, the actions of the record holder are

       “of no matter, since ownership of the land had passed previously to the [adverse

       holder.]” Berrey, 401 N.E.2d at 106. And, again, here the vested adverse

       holders reasonably and in good faith believed they were paying the taxes due on

       the disputed area, in full compliance with the adverse possession tax statute.

       See Echterling, 126 N.E.2d at 575-76.


[22]   Under the trial court’s interpretation of Indiana law, vested adverse holders

       may become divested of their property for failing to pay taxes despite reasonably

       believing in good faith that they are paying the appropriate taxes due. This

       conclusion is contrary to the adverse possession tax statute’s specific and

       explicit exception that adverse possession may occur in these circumstances.

       Accordingly, the trial court erred as a matter of law when it concluded that the

       Cotners’ vested title was “severed” by the 1993 and 2011 tax sales. See

       Appellant’s App. at 19. As the Cotners’ title, which, again, had vested in 1978,

       was never severed, neither the Board nor Bonnell took title to the disputed area

       from those tax sales. Hence, we reverse the trial court’s judgment and remand

       with instructions for the court to enter judgment for the Cotners on their claim

       for adverse possession over the disputed area.


[23]   Reversed and remanded with instructions.

       Court of Appeals of Indiana | Opinon 66A03-1410-PL-372| June 4, 2015       Page 16 of 17
Baker, J., and Friedlander, J., concur.




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