OK, I lied. This will be the last one for a
while. But I found this case interesting and wanted to see it
discussed. The doctrine of title by prescription is rarely seen. I
am interested in knowing whether it is more common in Tennessee. Any
Tennessee practitioners want to report?
Daily Development for Monday, September 22, 2008
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Husch Blackwell Sanders
Kansas City, Missouri
ADVERSE POSSESSION; TITLE BY PRESCRIPTION; DISABILITY FOR MINORITY: A party seeking to claim title to property on the basis of title by prescription must show that all co-tenants of the property had reached the age of majority during the period in which the claimant exercised dominion over the property.
Amos v. Taylor, ___ S.W.3d ___ , 2008 Westlaw 1891443 (4/28/08).
When Mary Lou Locklayer died in 1958 without issue, several nieces and nephews acquired an undivided interest in the subject property as tenants in common. One of those nephews, Pete Amos, was the father of the plaintiffs in this case. Upon Locklayer's death, the property contained a modest residence without heat, electricity or indoor plumbing, situated in a rural farming community. Pete chose to move onto the property with his wife (Alberta Amos) and four children, where he grew tobacco and raised livestock between 1958 and 1979, collecting all of the income from those operations. In addition to the farming activities, Pete made numerous improvements to the residence, including the installation of indoor plumbing, made repairs and paid taxes. At no time did the family ask for or receive financial assistance from any other co-tenant.
In 1979, Pete died intestate and was survived by his wife and four children, who received his interest in the property and are the plaintiffs in the case. After Pete's death, his wife and some of the children continued residing in the house, but did not actively farm the property after Alberta's death in 1987. Jan Hammer, the daughter of one of the plaintiffs, resided in the residence until 1993. After that time, the plaintiffs have rented out the property for farming operations, but no one has lived in the residence.
In January 2000, the plaintiffs filed an action against the numerous co-tenants, claiming title to the property by prescription during the time Pete worked the property. The defendants in the case consisted of 21 known co-tenants and other unknown co-tenants, whom the plaintiffs solicited by publication. The plaintiffs argued that Pete exercised "uninterrupted possession, dominion, and control over the real property from December 1958 until his death in August 1979." One of the defendants filed an amended response to plaintiff's statement of facts asserting that two of the co-tenants were minors during the time Pete exercised dominion and control over property, and thus were under the disability of minority at the time. The trial chancellor granted summary judgment to the plaintiffs on their claim of title by prescription, and the defendants appealed.
The Tennessee Court of Appeals first set forth the well-settled elements of title by prescription: "First, the prescriptive holder must show exclusive and uninterrupted possession of the land in question for more than twenty years, during which time he must claim the same as his own without any accounting to his co-tenants or claim on their part." . . . "Second, the party asserting title must also show that none of the co-tenants were under a disability to assert their rights to the property." In this case, the evidence was clear that several of the original co-tenants were under the disability of being minors during the prescriptive period.
The plaintiffs argued that based on a state statute, the fact that some defendants were under a disability during the time in question was not fatal to the claim; it merely extended the time to contest the prescriptive period by three years. However, the court distinguished this statute because it applied to adverse possession rather than title by prescription, and held that because some of Pete's co-tenants were under a disability during the period he exercised dominion, the second element could not be established.
Comment 1: Title by prescription is an obscure and rarely invoked alternative to adverse possession available in some, but not all, jurisdictions. It is more commonly seen in claims for easements by prescription. As to the claim of title by prescription, sometimes there is a distinct statute setting forth a specific time period possession in order to establish such a claim. But in many cases the concept is based upon judicial doctrine and there is no distinct time period, although sometimes courts will “borrow” the statute of limitations available for adverse possession. Tennessee courts apparently have recognized the doctrine and have a judicially announced twenty year period that must run. This, the editor believes, is longer than the statutory adverse possession period in Tennessee.
The courts in Tennessee have accepted that in a claim by a possessing cotenant against other nonpossessing cotenants, a claim of title by prescription need not involve a clear and unequivocal “ouster” of the nonpossessing cotenant, such as might be required for adverse possession to begin to run. Instead, evidence of a long continued possession will suffice. This is probably why the claimants in this case relied upon prescription rather than adverse possession.
The notion of title by prescription is that, at some earlier time, there was an actual grant of the disputed interest from the true owner to the prescriptive claimant, but that the granting document has been lost. But the behavior of the prescriptive claimant during the intervening years is deemed to be substantive evidence of the original grant. Thus, although payment of taxes may not be relevant for an adverse possession claim in a given jurisdiction, it might well be relevant for a claim of prescriptive title.
Similarly, as the Tennessee court here concludes, it would run counter to the notion of a lost grant to conclude that the prescriptive period could commence at a time when one of the putative “grantors” was a minor, since such grant would be invalid.
Comment 2: For a related concept, but perhaps even more arcane, see Salter v. Hamiter, 887 So. 2d 230 (Ala. 2004) (The DIRT DD for 3/4/05) (Where grantor remains in possession of land transferred to another for a period exceeding twenty years, never acknowledging anyone's ownership but his own, the normal presumption that the grantor is holding subservient to grantee's title goes away, and grantor will regain title under the statute of repose. But grantor's actions acknowledging grantee's ownership will bar the statute from running.)
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