Daily Development for
Thursday, November 14, 1996

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

ADVERSE POSSESSION; REQUIREMENT OF CONTINUITY; TACKING: Combination of life tenant's possession and remainderman's possession running against interest of third parties can be tacked to allow adverse possession by remainderman, even when life tenant in fact is the record owner of the property.

Robertson v. Dombroski, 678 So.2d 637 (Miss. 1996).

This is one of those unusual cases in which a party's possession is deemed to be adverse to her own estate. The editor concludes that the case is wrong.

A conveyed property to X, reserving a life estate in a portion of the property for herself. X did not record the deed. A continued to live on the property until her death intestate. Thereafter, B was determined to be an heir of A. B made a deed to his wife, C, of the property. After this deed, X recorded his deed. Thereafter, C deeded the property to D.

During A's lifetime, A lived on the property. After that, X occupied it.

It was not clear to the court that B's deed to C was indeed for good consideration. But the deed recited that it was given for "$10 and other valuable consideration, receipt of which is hereby acknowledged," and X produced no evidence contesting the validity of the consideration give by C for the deed. Consequently, the court concluded that C was a bona fide purchaser for value and cut off X's title under the unrecorded deed.

Although X had no title under the deed from A, however, the court held that X had obtained title to the property by adverse possession.

X's possession of the property following A's death had not lasted for the statutory 10 year period. Therefore, X needed to be able to tack its possession to A's possession in order to establish adverse possession. The court permitted tacking here. It noted that A had lived on the property as an acknowledged life tenant, and not as a fee simple owner. A's understanding that she was a life tenant rendered her possession, in the view of the court, adverse to her own estate. Therefore this possession, although rightful as to X, represented an open and notorious claim against the world of the validity of the deed pursuant to which she possessed the land. That same deed created a remainder interest in X, and thus the adverse possession tended to confirm not only the life estate but also the adverse possession.

Comment: This is the most subtle of adverse possession claims. There have been cases in which an owner of property has transferred title to a third party and continued to possess with the permission of that party. In such cases, the owner's continued possession is deemed to be adverse to the owner's estate. But the present case is different from that situation. Here, A was not possessing pursuant to any permission from X, and not as an agent of X. Rather, A was possessing pursuant to her own right as a life tenant. Although it can be said that she was not adversely possessing *against* X, it is another thing to say that she was adversely possessing *for* X.

There are also cases in which a life tenant and remainderperson's successive possession clearly tack. If O, an adverse possessor, gives a deed to A for life, remainder to X, and thereafter A and then X successively possess the property, one would assume that the possessions of all three could be tacked to create an adverse possession claim.

In the hypothetical case stated above, however, the possession of A and X is a continuation of a possession that is adverse to the true owner. In the instant case, A was in fact the true owner. She had not given present ownership to anyone else, but held pursuant to her own life estate. It is difficult to comprehend how her possession could be adverse.

Comment 2: There is also the interesting issue here of adverse possession under an unrecorded deed "trumping" the title of a bona fide purchaser for value under the recording acts. Since adverse possession title is outside the recording acts, and need not be recorded, the principle is a correct one, although its application under these facts is somewhat bizarre.

(The editor acknowledges the assistance of "master puzzler" Dale Whitman, who helped the editor out of a late night quandry in trying to understand what was wrong with this case.)

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last five years, these Reports annually have been collated, updated, indexed and bound into the Annual Survey of Developments in Real Estate Law, volumes 1-5, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Laprica Mims at the ABA. (312) 988 6233 or LaPricaMims@staff.abanet.org

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