Elliott v. Elliott - No. W2010-02085-COA-R3-CV, 2011 Tenn. App. LEXIS 227 (Ct. App. May 4, 2011)

Rule:

Ordinarily, a tenant in common is presumed to hold on behalf of himself and all other co-tenants, and therefore the possession of one tenant in common is not ordinarily held to be hostile to the co-tenants. Tenn. Code Ann. §§ 28-2-109 and 28-2-110(a) do not operate to bar a claim by a tenant in common against another tenant in common in the absence of ouster. An ouster, in the law of tenancy in common, is the wrongful dispossession or exclusion by one tenant in common of his cotenant or cotenants from the common property of which they are entitled to possession. An ouster does not necessarily mean a physical expulsion of one party by another, but it requires the party claiming adversely to perform some act that makes it clear to his cotenant that she is being excluded from ownership.

Facts:

Plaintiff Elmer Elliott, Jr., who claimed an inherited property interest from his father, filed an action to determine the rightful ownership of the property. It was undisputed that plaintiff’s aunt, defendant Pearl Elliott, paid the taxes on the property at issue for a period of more than twenty years and that plaintiff never paid any taxes on the property. However, plaintiff argued that §§ 28-2-109 and 28-2-110(a) were inapplicable because he was a tenant in common with his aunt and cousin. Defendants, Pearl and her son, Robert Elliott, contended that even if the parties were tenants in common, plaintiff had been effectively ousted from the property, and that Tenn. Code Ann. §§ 28-2-109 and 28-2-110(a) were applicable. Plaintiff countered that because the aunt refused to acknowledge the existence of a tenancy in common, ouster could not be shown. The Chancery Court granted summary judgment to defendants, finding that the plaintiff was ousted from the property at issue, the aunt was the presumptive owner of the property, and plaintiff's suit was statutorily barred. Plaintiff appealed.

Issue:

Under the circumstances, was the plaintiff effectively ousted from the property in question, thereby justifying the grant of summary judgment in favor of defendants?

Answer:

Yes.

Conclusion:

On appeal, the court agreed with defendants. The aunt's refusal to acknowledge plaintiff's alleged interest, her claim of sole ownership, and her testimony that she forced plaintiff to move from the property established an ouster of plaintiff. Accordingly, pursuant to §§ 28-2-109 and 28-2-110(a), the aunt's payment of taxes for more than twenty years barred plaintiff's cause of action.