Although a presumption exists that a cotenant in exclusive possession is not holding adversely to his cotenants, but for the common benefit of the others, this presumption may be rebutted where the contrary appears. And while exclusive possession, payment of taxes, and the making of improvements alone do not necessarily establish an ouster, a conclusion of prescriptive title may be drawn where there have been unequivocal acts, such as selling or leasing the premises, or a part of them. In addition, a cotenant in possession may satisfy the "express notice" criterion by showing either: (1) that actual notice of the adverse party was "brought home" to the nonpossessory cotenant; or (2) that there are unequivocal acts, open and public, making the possession so visible, hostile, exclusive, and notorious that notice may fairly be presumed.
The property was conveyed by warranty deed to a father and son. At purchase, the father and son each paid $100 towards the $2,000 purchase price, and the balance was financed with a twenty-year note. Neither the father nor son ever paid any installments on the note or taxes. After the father’s death, the probate court awarded his widow and minor children an interest in the property. They moved onto the land and lived there with the son and the son's family. During her occupancy, the widow did not take any ownership, nor profit from the property. Later, the son conveyed a portion of the land and easements without consulting the widow or his other siblings. After the son’s death, the son's widow requested that the siblings execute quitclaim deeds to convey their interests into the deceased son’s estate on the theory of adverse possession. The trial court held for the son's widow and awarded the deceased son's estate the entire property on the doctrine of adverse possession.
Are the plaintiffs, the son’s estate, entitled to the property via adverse possession?
Yes, the appellate court affirmed the trial court’s judgment.
The court held the plaintiffs adequately met their burden to prove adverse possession evidenced by the plaintiffs’ exclusive, open possession and permanent improvements. Further, there was evidence that the defendants were aware of the plaintiffs’ possession and did not attempt to confront them. Prescriptive title was established when the decedent conveyed some of the land to another. The court found this persuasive and upheld the trial court’s ruling.