                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                     April 10, 2003 Session

 ELIZABETH CONWAY SNODGRASS v. ALLEN HOWARD FREEMON

                    Appeal from the Chancery Court for Lawrence County
                        No. 2730     Stella L. Hargrove, Chancellor



                     No. M2002-01247-COA-R3-CV - Filed July 29, 2003


Defendant/Cross-Claimant appeals the action of the trial court in holding that Cross-Claimant had
not carried his burden of proof to establish adverse possession of the property in issue. We affirm
the judgment of the trial court.

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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which PATRICIA J. COTTRELL, J., and
CAROL L. McCOY , SP . J., joined.

Barbara Freemon, Nashville, Tennessee, for the appellant, Allen Howard Freemon.

Andrew Hoover, Pulaski, Tennessee, for the appellee, Elizabeth Conway Snodgrass.

                                             OPINION

        This is a case involving adverse possession and adverse possession alone. Much toil in the
vineyard could have been avoided if the parties would have focused their trial labors, and particularly
their appellate labors, on this cardinal fact.

        “The object and purpose of any pleading is to give notice of the nature of the wrongs and
injuries complained of with reasonable certainty, and notice of the defenses that will be interposed,
and to acquaint the court with the real issues to be tried.” Hammett v. Vogue, Inc., 165 S.W.2d 577,
579 (Tenn. 1942).

        Tennessee has long recognized the common law rule that “the probata must correspond to
the allegata.” Tennessee Enamel Mfg. Co. v. Stoves, Inc., 192 F.2d 863, 867 (6th Cir. 1951), cert.
denied, 342 U.S. 946 (1952); see also American Lead Pencil Co. v. Nashville, C. & St. L. Ry., 134
S.W. 613 (Tenn. 1911); Nichols v. Smith, 111 S.W.2d 911 (Tenn. Ct. App. 1937). While the
common law rule has been relaxed by the provisions of Tennessee Rule of Civil Procedure 15.02
relative to issues tried by express or implied consent of the parties, the common law rule still applies
where there is no express or implied consent of the parties to try issues extraneous to the pleadings.
Hiller v. Hailey, 915 S.W.2d 800 (Tenn. Ct. App. 1995).

       This suit was originally filed by Elizabeth Conway Snodgrass in July of 1985 in the Chancery
Court of Lawrence County, Tennessee, wherein Howard P. Freemon, trustee, and Allen Howard
Freemon, individually, were among the named defendants. Also named as defendants were:

        ALL OTHER PERSONS UNKNOWN Claiming Any Right, Title, Estate, Lien or
        Interest in and to the Real Property Described in Complainant’s Complaint Adverse
        To Complainant’s Ownership, or any Cloud Upon Complainant’s Title Thereto; Such
        Property Being Located in the 13th Civil District of Lawrence County, Tennessee on
        Chief’s Creek Containing 215.4 acres, more or less, and Being Bounded Generally
        North by G.R. Limited Partners; East by Murfreesboro Bank and Trust Company and
        Raymond Dale, Et Ux; South by Wallace Gray, Et Ux, and West by Chief Creek
        Corporation and Natchez Trace Wilderness Preserve.

This was an action to quiet title and to adjudge and determine a boundary line for the Snodgrass’ real
estate. Snodgrass asserted title to a 215.4 acre tract, the principle prayer for relief being:

                That the Defendants be required to set forth the nature of their claims, if any,
        and that any adverse claims of the said defendants, or any of them, be determined by
        a decree of this Court; and that by said decree, it be declared and adjudged that the
        Complainant is the absolute and fee simple owner of said premises, and that none of
        the Defendants in this cause, have any estate or interest whatever in and to said land
        and premises; and that said defendants, and each of them, be forever debarred from
        asserting any claim whatever in or to said land and premises adverse to the
        Complainant.

       On November 12, 1986, Allen Howard Freemon filed an Amended Answer and Counter-
Claim essentially denying the allegations of the Complaint and asserting that a certain portion of the
property claimed by Snodgrass was, in fact, owned by Allen Howard Freemon under a recorded
deed. He then asserted:

                That the Counter-Plaintiff has been in possession of this property for a period
        in excess of twenty (20) years. The Counter-Plaintiff’s possession of the property has
        been open, notorious, adverse to any other party, continuous, and exclusive. That
        said possession has been pursuant to color of title in excess of seven (7) years.

        On November 7, 1989, the original Complaint was dismissed in its entirety because of failure
of Snodgrass to diligently prosecute the action. This dismissal was without prejudice. The case then
was left pending only on the Counter-Complaint of Allen Howard Freemon, asserting title by adverse
possession.


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        Following dismissal of the Complaint for failure to prosecute, there ensued twelve years of
blissful slumber which was interrupted on September 21, 2001 when Snodgrass sought dismissal of
the Freemon Counter-Claim, primarily under the provisions of Tennessee Code Annotated section
28-2-109 and section 28-2-110 because of the non-payment of taxes by Freemon for a period of
twenty years. It appears from the proof that the failure to prosecute the original action was not due
to neglect or inadvertence but was a studied, affirmative, tactical decision. The husband of the
original Plaintiff, John Snodgrass, testified:

                Q.      And when that action was filed - - That is the action that was filed in
       the case that we are hearing today, but was then non-suited?
                A.      That is correct.
                Q.      Why was that?
                A.      It was non-suited - - Why was it non-suited?
                Q.      Yes.
                A       To my knowledge, we were - - Of course, we were, at that time, in the
       upper Rhode Island and in New York State. We were advised that we should non-
       suit and bring suit later, because it would - - our case would be better if we did that.
                Q.      All right. And that was on the advice of counsel?
                A.      That is correct.
                Q.      Did the subject of the payment or non-payment of taxes, was that an
       issue of the - - of the decision to non-suit?
                A.      It was an issue only in that we wanted to be able to perfect our claim -
       - or let’s say Bet - - Betsy’s claim to the property by having an unbroken chain of - -
       of payment of taxes, so that under the statute, we would be - - would be - - or she
       would be the - - the owner of the property by presumptive, anyway, by the fact of the
       payment of twenty (20) years of taxes on the property.
                Q.      And that would have gone back to the time - - She began paying taxes
       in what year?
                A.      She began paying taxes in 1976. And her brother paid the taxes in ‘75
       and ‘74, I understand. And, then, previous to that, the taxes were paid because of the
       probate of her father’s will back to 1967.
                Q.      In non-suiting your primary action, did there come a determination
       that you wanted to defend title to this property rather than prosecute title to this
       property?
                A.      I don’t - - Please restate the question.
                Q.      Let me ask you in the al - - in the alternative. Is that instead of the
       Freemon family defending their title, you wanted them to prosecute their title?
                A.      Well, yes. Because, again, under the statute, they are barred from
       prosecution if they are trying to bring suit to - - to - - for title because of non-payment
       of taxes for twenty (20) years.
                Q.      And after Mr. Fowlkes, Mr. Jack Henry represented you?
                A.      That is correct.
                Q.      And was his advice consistent with what Mr. Fowlkes had told you?


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               A.     Yes, that we should insure that we could show that we had paid the
       taxes for twenty (20) years and have a period of time of twenty (20) years of paid - -
       of non-payment of taxes by Mr. Freemon or Mr. Freemon’s family.
               Q.     And as of 1996, that has occurred. You - - Your wife has now paid
       taxes for twenty (20) years?
               A.     That is correct.

It appears that counsel for Ms. Snodgrass, after filing her Complaint to quiet title, came to grips with
the practical problems facing whichever party had the burden of proof in settling questions of title
and possession of what is, in large part, wilderness land, uninhabited and uncultivated.

        The effort to use Tennessee Code Annotated sections 28-2-109 & 110 relative to the payment
of taxes as a basis for dismissing the Counter-Claim on summary judgment failed when the trial
court, on November 27, 2001, entered an Order holding:

        1.     This case was originally filed by Plaintiff on the 29th day of July, 1985,
               against eight defendants, including Allen Howard Freemon. A Counter-
               Claim was filed on behalf of Allen Howard Freemon. Subsequently,
               Plaintiff’s action was dismissed for lack of prosecution. The Counter-Claim
               survives.
        2.     The date of controversy is July 29, 1985. Plaintiff cannot show that she is
               entitled to prima facie presumption of ownership under Tenn. Code Ann. 28-
               2-109. As of the date of filing her lawsuit, she can prove payment of taxes
               from 1967 to 1975 and from 1977 to 1985. Plaintiff cannot show that she has
               paid taxes on this property to the exclusion of all others during this time.
               There are material questions of fact as to whether the taxes paid by and
               through Defendant, Freemon, since 1958, include the same property as that
               claimed by Plaintiff.
       3.      There are mixed questions of fact and law as to whether Defendant,
               Freemon’s use of that portion of land in dispute, has been in open,
               continuous, notorious and adverse possession, under proper color of title for
               more than seven years.
       4.      The Court assumes that Plaintiff is asking her to question whether Defendant,
               Freemon’s Counter-Claim is brought in bad faith, relative to the prior action
               against Conway and Shaeffer in 1972. Whether Defendant, Freemon, is
               acting in bad faith is a question of fact.
       5.      There are material questions of fact as to whether this action is, indeed,
               simply a boundary line dispute between Plaintiff and Defendant, Freemon.
               The Court is ready to appoint an independent surveyor as Special Master in
               an effort to end a controversy that exceeds sixteen years.

The hopes expressed by the trial court in the last paragraph of this Order were not to be realized.



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         While the tactic of voluntarily dismissing the Complaint and hoping, thereafter, to establish
title based on non-payment of taxes pursuant to sections 28-2-109 & 110 of the Code failed in its
object, the dismissal accomplished its dominant purpose - - to cast the burden of proof on the
Counter-Claimant, Freemon, seeking to establish adverse possession. The burden of proof is
decisive in this case, and the party bearing that burden under the facts of this case faces formidable
and, indeed, near insurmountable obstacles.

COLOR OF TITLE

       Only the deeds, under which Elizabeth Conway Snodgrass claims title, are established by the
pleadings and the proof to be unquestionably muniments of title. The Complaint alleged:

               The said 215.4 acres, more or less, is a portion of the land which was
       conveyed to Lee Conway by deeds appearing of record in Deed Book 131, page 142,
       and Deed Book 134, page 225, Register’s Office, Lawrence County, Tennessee. The
       said Lee Conway died in 1972, and by will appearing of record in Will Book F, page
       364, Office of the County Court Clerk, Lawrence County, Tennessee said property
       was devised to William Carter Conway and Elizabeth Conway Snodgrass as equal
       tenants in common. By partition deed appearing of record in Deed Book 178, page
       59, the one-half (½) undivided interest of William Carter Conway was conveyed to
       the Complainant thus vesting in her the absolute fee simple title to said property.

Freemon admits the color of title in the Counter-Claim wherein it is stated:

               That the Counter-Plaintiff’s real property is bounded on the south boundary
       line by the property alleged to belong to the original Plaintiff in this action. That a
       portion of the properties that Plaintiff alleges to be hers are, in fact, on the tract of
       land owned and possessed by the Counter-Plaintiff.

          The only deed asserted in the Counter-Complaint by Allen Howard Freemon as a muniment
of title is a deed recorded in Deed Book 176, page 470 of the Register’s Office of Lawrence County,
Tennessee, dated October 27, 1976, and describing property to be:

       In the 13th Civil District, on the waters of Chief Creek.

       BEGINNING at a white oak on the west bank of Chief Creek, approximately 900'
       north of the Lawrence-Lewis County corner, and the Southwest corner of the
       Christian Home Property; thence east along said Christian Home Property 1600' to
       a pin oak; thence south 2600' to a pine; thence west 775' to the forks of Chief Creek,
       where Goss Branch enters Chief Creek; thence southwardly along said Goss Branch
       900' to a pine; thence south 900' to a white oak; thence west 1500' to a red oak on the
       north bank of a spring; thence north 1100' to a beech; thence northeast 1500' to a
       hickory near the crest of a ridge to the west bank of Chief Creek; thence northwardly


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        along Chief Creek 2200' to the beginning, containing by estimation 100 acres, more
        or less.

        Being the same property conveyed to Grantor by Clerk and Master deeds and
        thereafter sold to Howard P. Freemon, Trustee for Allen Howard Freemon. This
        deed to replace a deed that was lost, that being the deed where Grantor sold to
        Howard P. Freemon, Trustee for Allen Howard Freemon.

The location of this tract of land is seriously disputed in the proof, and it is by no means certain that
this tract is located within the boundaries of the 214 acre tract claimed by Snodgrass. The question
of fact as to the location of this property was determined adversely to Freemon by the trial court, and
the evidence certainly does not preponderate against such finding of the trial court.

ADVERSE POSSESSION

       Adverse possession in Tennessee can be established either under statute or by the common
law. After an expositive discussion of both statutory adverse possession and common law adverse
possession, this Court, in synopsis, stated:

                Briefly summarized, T.C.A. §28-201 and T.C.A. § 28-205 deal with the right
        and convey title to the adverse holder; and T.C.A. § 28-202 and T.C.A. § 28-203 deal
        with defensive rights and the possessions under these latter two statutes can be used
        by the adverse holder defensively only.

                Under the common law in this state, legal title to land may be acquired by
        prescription; that is twenty years’ actual adverse possession with or without color of
        title. Walsh v. Rose, 29 Tenn.App. 78, 193 S.W.2d 118.

Moore v. Brannan, 304 S.W.2d 660, 670 (Tenn.Ct.App. 1957).

         In statutory adverse possession, since Freemon is seeking to establish adverse possession
offensively rather than defensively, he is limited to Tennessee Code Annotated sections 28-2-101
and 28-2-105. Since both of these statutes require adverse possession for a minimum of seven years
under a muniment of title purporting to convey the fee and Freemon has no such muniment of title,
their claim of adverse possession must stand or fall on the common law doctrine of prescriptive user.

        An adverse possessor can succeed under the common law if the facts presented make out his
case.

                The insistence of the defendant here made seems to be that because no paper
        writings are introduced to show title the complainants are not entitled to succeed.
        This is not necessary where from long possession the presumption of a grant arises.
        Continued uninterrupted possession for a period of 20 years is sufficient in law to


                                                  -6-
       evidence title and seisin in fee. As stated in Cannon v. Phillips, 34 Tenn. (2 Sneed)
       214:

               “Possession of land is prima facie evidence of title; the law supposes that it
       had a legal origin, and when undisturbed for a period of 20 years, it becomes in view
       of the law, an assurance of title of no less force or efficacy than the actual grant,
       whose place it supplies.”

             See, also, Scales v. Cockrill, 40 Tenn. (3 Head.) 433-435; Marr v. Gilliam,
       41 Tenn. (1 Cold.) 489-501.

               Complainants, under the showing made in the proof of continuous, adverse
       possession of the property for a period of more than 20 years, became entitled to
       maintain an action of ejectment therefor just as if a deraignment of title from the state
       had been made, or a continuous, adverse possession under registered color of title for
       the statutory period.

Keel v. Sutton, 219 S.W. 351, 352-53 (Tenn. 1920). It is also long settled that such a claimant must
rely upon the strength of his own title and not on the weakness of his adversary’s title. Atkinson v.
Atkinson, 130 S.W.2d 157 (Tenn.Ct.App. 1939).

       The proof in the case falls far short of establishing the kind of open, continuous, exclusive,
adverse and notorious possession necessary to establish title by prescription. At best, the proof
shows non-exclusive use.

       The trial court, in its final judgment, held:

       1.      The Court has listened to the proof, observed the demeanor and assessed the
               credibility of the witnesses at trial, and reviewed a multitude of exhibits
               introduced by each party.
       2.      The original Complaint filed by Snodgrass in July of 1985, having been
               dismissed, the burden of proof is on the surviving Defendant, Counter-
               Plaintiff, Freemon, to show that his tax sale deed includes property claimed
               by Snodgrass and that the Court should determine a property line between the
               parties’ property.
       3.      The Court finds that Freemon has failed to carry his burden of proof by clear
               and convincing evidence that he has openly, continuously, exclusively,
               adversely and notoriously possessed that portion of the Snodgrass property
               claimed by him for more than twenty years. Adverse possession must be of
               such a character as to leave no doubt of claim of ownership. Freemon has
               failed to sustain the proposition that his possession was, in fact, adverse to the
               true owner.



                                                  -7-
       4.      Freemon has failed to carry his burden of proof that he holds any portion of
               the property under color of title.
       5.      The proof is insufficient to advance any equitable claim of ownership to the
               property, or any portion thereof, by Freemon.

In so holding, the trial court was eminently correct under either the preponderance of the evidence
standard or the clear and convincing evidence standard. Freemon is simply unable to carry his
burden of proof, just as Snodgrass might well have been unable to carry the burden of proof on her
suit to quiet title.

      To the extent that the Counter-Complaint can be construed as an action to establish a
boundary line, it fails at that too due to inadequate proof:

               In a suit, purely a boundary line dispute, where the title on either side of the
       boundary line is questioned, the statute specifically requires the complainant to
       establish his title by a clear preponderance of proof, and while this case comes to this
       Court with the presumption that the decree of the Chancellor is correct unless the
       evidence preponderates against it, we cannot fail to take into consideration the
       implication of the exact provisions of Section 16-607, T.C.A., which is as follows:

                         “In all such cases a complete deraignment of title by the
               complainant from a state grant or common source of title shall not be
               required as in ejectment cases, but it shall be sufficient to establish
               title in complainant, that he prove clearly that he is the true owner of
               the lands described in his bill.” (Emphasis added.)

       This simply means that the complainant must prove that he is the true owner or that
       he had become entitled to the possession of land adjacent to the boundary which he
       undertakes to have established, . . . .

Carr v. Wilbanks, 324 S.W.2d 786, 791-92 (Tenn.Ct.App. 1958).

       Counsel for the Freemon on appeal, apparently recognizing the difficulties presented by the
Snodgrass muniments of title, mounts an attack upon those deeds as being champertous and utterly
void. As such an attack was not made in the trial court, it presents no subject for appellate review.
Sparks v. Metro Gov’t. of Nashville and Davidson County, 771 S.W.2d 430 (Tenn.Ct.App. 1989);
Stuermer v. City of Chattanooga, 914 S.W.2d 917 (Tenn.Ct.App. 1995).

       The judgment of the trial court is in all respects affirmed, and costs of the cause are assessed
to Appellant.

                                                       ___________________________________
                                                       WILLIAM B. CAIN, JUDGE


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