Harley White and William Mack White v. Guy N. Jones and wife, Violet E. Jones

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE FILED February 4, 2000

Cecil Crowson, Jr. Appellate Court Clerk E1999-01605-COA-R3-CV HARLEY WHITE and WILLIAM ) C/A NO. 03A01-9908-CH-00288 MACK WHITE, ) ) COCKE CHANCERY Appellees, ) ) HON . TEL FOR D E. F ORG ETY , JR., vs. ) CHANCELLOR ) GUY N. JONES, and wife, VIOLET ) E. JONES, ) AFFIRMED AND ) REMANDED Appellants.

THOM AS V. TEST ERMA N and ROY T. CAMP BELL, JR., Newpo rt, for Appellees. ROBER T H. BAILEY , Greeneville, for Appellants.

O P I N IO N

Franks, J.

This is a dispute between adjoining property owners over a tract of land which the Chancellor determined was owned by plaintiffs.

Plaintiffs claim that the disputed 14 acre tract was included in deed descriptions in their chain of title as well as the chain of title of defendants, and plaintiffs were unaware until shortly before they brought this action, that anyone else was claiming ownership. The land in question is primarily wooded.

The dee ds show that certain pro perty was ow ned by plaintiff s’ parents *2 since 1947, and was conveyed to plaintiffs by their mother in 1989, but the description of the prop erty is vague an d difficult to f ollow. A t trial, plaintiffs testified their family bought their land (including the tract in question) at auction in 1947, and a fence existed on the property at the time, which plaintiffs believed was the property line with defendants’ land. They testified in detail about always exercising ownership over the land, and that defendant Guy Jones came to see them in 1993 or 1994 and advised them that the property in question w as up for sale, and enq uired if plaintiffs were interested in buying it, whereupon they informed defendant that they already owned the property. Jones, in this case, affirmed that the conversation took place as plaintiffs said.

A witness for plaintiffs testified that he often used the property with the plaintiffs’ pe rmission, an d that on on e occasion he had to p ark on de fendants’ property because plaintiffs’ road had washed out due to heavy rainfall. He recounted that defendant asked the witness what he was doing, and if he knew who owned the property, he replied that the Whites owned it, had given him permission to use it, and defen dant ac know ledged he wa s correc t. Defe ndant d id not re fute this testimo ny.

Defend ant testified tha t in 1993 o r 1994, a M s. Smelcer a pproach ed him about buying the property, which he later purchased. He also offered the testimony of the Cocke County Trustee, who stated that before 1970, plaintiffs only paid taxes on 38.5 acres, but after 1970, they paid taxes on 70 acres. He also testified that he had found some old tax receipts for Ms. Steele on a 25 acre tract, but could not determine if it had a nything to do with the pro perty in qu estion.

Defendants also offered testimony from a timber cutter who testified *3 that he once cut timber fo r Fred Smelcer and had to take it out over ano ther lady’s farm. Another witness testified that he had lived on the Whites’ land and was present at the auction in 1947, but it was his understanding that the Steeles, rather than the White s own ed the d isputed proper ty.

At the conclusion of the trial, the Chancellor determined that the Whites had used the property since 1947 and had been the only ones to pay taxes on it from 1970 to 1985. The Court also found that defendants’ deed was cham pertous because Jones testified that he knew before he took a deed to the property that the Whites claime d own ership o f the trac t.

The Chancellor found the plaintiffs’ evidence credible that they and their family had exercised control over the property from its purchase, and that they made their ownership of the property known, not only by inviting others to use it, but also by asserting that ownership to potential trespassers and potential buyers. The plaintiffs offered evidence that their use of the property was actual, visible, continuous, notorious and exclusive and lasted for well over the required period of time to establish ownership. The evidence does not preponderate against the Trial Judge ’s findin g on thi s issue. See Panter v. Miller, 698 S.W.2d 634 (Tenn. Ct. App. 1985) .

The Trial Court also held that the deed to Jones was a champertous deed. Our statutes dealing with champerty provide:

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.

Tenn . Code Ann. § § 66-4 -201 an d 202.

The case of Davidson v. Foley, 414 S.W.2d 12 3 (Tenn. Ct. Ap p. 1966), is instructive on this issue, because in that case this Court ruled that the defendant had established adverse possession to the property in dispute, and “it necessarily follows” that the deed which the plaintiffs w ere claiming title under w as champ ertous and void as to the parcel a dverse ly held. See Young v. Little’s Unknown Heirs, 232 S.W.2d 614 (Tenn. Ct. App. 1949). The evidence in this case establishes that defendant had notice of the adv erse claim a nd the Tria l Court hav ing foun d that plaintiff s adversely possessed the land, the f inding that d efendan ts’ deed w as champ ertous wo uld necess arily follow .

We affirm the judgment of the Trial Court and remand at appellants’ cost.

__________________________ Herschel P. Franks, J.

CONCUR:

___________________________ Charles D. Susano, Jr., J.

___________________________ D. Michael Swiney, J.