# FILED

February

7, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT NASHVILLE

_______________________________________________ RAYMOND GREGORY, Pl ain tiff-Appe ll ant, Lincoln Chancery No. 9645 Vs. C.A. No. 01A0 19508CH00357 LAURA SUE GREGORY, Defendant-Appellee.

_________________________________________________________________________

FROM THE LINCOLN COUNT Y CHANC ERY COURT THE HONO RABLE TY RUS H. C OBB, C HANCELLO R

Jack B. Henry of Pulaski For Appellant Ja mes S. Kidd a nd J ame s B. C ox of Fa ye tt ev ille For Appellee

AFFIRMED IN PART AS MODIFIED, REVERSED

IN PART AND REMANDED Opinion filed:

W. FRANK CRAWFORD,

PRESIDING JUDGE, W.S.

CONCUR: DAVID R. FARMER, JUDGEWILLIAM H. WILLIAMS, SENIOR JUDGE This appeal involves a suit to det ermine o wne rship of

an 18. 5 acre t

ract of land locat

ed in Linco ln Count

y, Ten nessee. The fac ts ar e as follows. The original tract

of land consisted of 15.5 a cres which was owned by Samuel and Jane Gregory, t he grandparents of p laintiff , who acq uired the prop ertyby deed dated July 30, 1889. Following the dea ths o f Jane and Samuel Gregory in 1902 and 1906, respectively, the land was inherited by their children, Samuel Jr., George, E.T., Henry (t he father of plaintiff), Mary Ellen, and MaryLizzie. The children inherited the land as te na nt s inco mmon , e achchi ld possessin g a one-

sixthundivided in teres t in t he land. At some point aft

er they inherit

ed the land, the children of S amu el and Jane or al ly agreed t

hat t hey would t

reat the land a s six indiv idual trac ts. Some ti me there after

eac h ch il d bu il t a house, maintained a garden, and raised livestoc k

on his or her ind ividual tract. Some of the children fenced off their individual tracts. In 1928, the children had the land surveyed and drawn into six individual tracts o n the surveyor's map, but no boundary lines were established nor were any d eeds draw n as a resul t of this survey. On May 20, 1929, Mary Lizzie Gregory sold her one-sixth interest to her brother Henry, thereb y giving Henry a t wo-sixths interest

in the lan d. In 1943, t he plaintiff, Raymond Gregory, t he son of Henry

Gregory and grandson of Samuel and Jane Gregory, mov ed off the parcel of his father, to Chic ago where he

cur ren tly resides. In 1952 Samuel Gregory, Jr., died leaving issue. In 1953 Mary Lizzie (t hen Smit

h) died leavi ng issue. In 1954 Mary Ellen died leaving issu e. I n 195 5 Ge org e Gr

ego ry d ied wit

hou t issue , a nd a t s

ome point

prior to his deat

h, George had purchased an additional 3 acres of land adjacent t o the original 15.5 acres. In 1959 E.T. Gregory died leaving a surviving spouse, Estell a Gregory. The wil l of

E. T. Gregory, which was admitted to proba te on February 18, 1965, devised his

inter est in th e "tra ct

of land of abou t two and one-hal f acres . . . received . . . in t

he division of the lands of . . . [his] father, Sam Gregor y ," to his wife Estella. In August of 196 1, Henr y Grego ry di ed i ntes ta te leaving twelve1 Neither the b riefs no r the reco rd disc lose whether Henry Gregory did in fact adversely possess George Gregory's tra cts, but since neithe r party has raised this as an issue, we wil l assu me that Henry hel d lega l title to George's tract

s at Henry's deat

h. 3 childr e n, Sam Gregory, Od ell Gregory, Will iam S.T. Gregory, Otho L. Greg ory, LethelS. Greg ory, Raymond Gr egory (plaint

iff-ap pellant), Ernest

Gregory, Mary G. Fearn, Joe G. C ampbell , Sern etta G. Lane, Corine G. March, and Terea Gregory. On August 19, 1961, el even of the children of Henry Gregory execut ed

a deed to the t

welfth, Terea Gregory, which grant ed Terea "5.5 acres, mor e or less,"such parcel of land "being the same real estate conveyed unt o George Gregoryby various deeds and owned by him at the t ime of his death, Oct

ober 30, 1955, and t

hereafter his brot

her, Henr

y Gregor

y, held possession of said prop ertyadv ersel y u nder fence paying all real estate taxes, unt il his death, August 15, 1961, and upon his dea th his

righ ts in s

aid real estate des

cen ded to

us the un dersi gned as his children and only heirs at law and our sister, the grantee herein nam ed." 1 The warranty deed from t he children of HenryGregory to Terea Gregory

was recorded in the Lincoln Cou nty Regist er's Office on Aug ust 22, 1961. Sometime in 1961, Odel l Gregory took poss ession of the entire 18.5

acre tract and began to fa rm and graze the land. Odell did not share the prof its he received from these activ ities with any of the heirs of Samuel and Jane Gregory. On March 9, 1965, ap proximately six years af

ter the death of E.T. Gregory, E.T.'s wife, E stell a (then Buchanan), sol d to Odell Gregory, " th e sa me realestate that was

devised unto the undersigned as Est ella Gregory bythe last willand testament

of the said E. T. Gr

eg or y . . . ." Th e wa rr

an ty dee d fr om Est ella Buchanan to Ode ll Grego ry was reco rded in t he Lincoln Co unty

Regist er's Office on March 22, 1965. On September 10, 1965, Terea G regory (t hen McNeil) exe cuted a

warrantydeed to her brother Od ell Gregory and de fendant Laura Su e Gregory, whereb ysh e sold Odell and defendant "appro ximately 5

acres, mo re or less,2The com pl ain t d oes not specifically state t hat t he plaintiff seeks relief based upon an 18.5 acre t ract, however, bo th sides introduced pr

oof at tr ial by which they each sought rel ief based up on an 18.5 acre tract of land. Accordingly, under Tenn.R.Civ.P. 15.02 , the complaint will be considered to be implicitly amended to seek relief b ased upon an 18.5 acre tract. 4 and bei ng t

he s ame real est

at e co nve yed unt

o t he u nder

sig ned as T

ere a M. Gregoryby deed of Sam Gregory, et al, dated August 19, 1961, and recorded in the Register's Offic e of Lincol n County, Tennessee . . . ." The deed from Terea GregoryMc Nei l to Odell Gregory was recorded in the Lincoln Cou nty Regist er's Office on Sep tember 20, 1965. In 19 86 Ode ll Gregory died leaving a surviving spouse, defendant Laura Sue Gregory, and issue. The will of Odell Gregory left his ent ire int erest in all of his property, whether real or personal, to his wife, defendant Laura Sue Gregory. Following the dea th of her husband Odel l, defe ndant continued to rent and/or farm the 18.5 a cre tract. She did not share the p rofit s she received from t hese activities with any of the heirs of Samuel and Jane Gregor y. On Sep te mbe r 1 1, 19 92, p la i ntiff Raymond Gregory filed this suit in the ChanceryCo urt

fo r Linc oln Co unt

y s eeking to qu iet

title to the 18.5 acre tract of land. 2 Raymond Gregory filed the suit individu all y and as a mem ber of a class consisting of t

he kn own and unknown heirs of Samuel and Jane Gregory. The pl aintiff sought certificat

ion of the su it as

a class act

ion, bu t t

he tr ial co ur t refused to ent

ertain t he suit as a class action. T he complaint al leges that the pl aintiff and the ot

her heirs of Samuel and Jane Gregory, hold title t o the 18. 5

acres as ten ants

in common. The complaint also asserts that the deed from the children of

Henry Gregory t

o Terea Gregory was fraudulent, a nd that t herefore, th e deed from Terea Gregory t o Odell Gregory was invalid, because it was based upon the fraudulent deed. The compl aint also ass erts that the deed from Est ella Buchanan to Odell Gregory is invalid, because Estella Buchanan never had title to the property. On December 2, 1992, t he answer of defendant Laura Sue Grego ry, the3The chancellor onl y ruled on 15.5 (rat her than 18. 5) acres of t he property. This was error si nce the parties seek r elief b ased upon an 18.5 acre tract. 5 wife of Odell Gregory and sister-in-law of plaintiff Raymond Gr

egory, was filed. The answer

denied the m aterial al legations of th e co mpla int

, a nd a ddi tion ally

as serted th e defense of laches to the a llegations of the complaint. The defenda nt

also asserted a counterclaim to t he 18.5 acres based on adver s e possession under T.C.A § 28-2 -101 (19 80), and t

he common l aw d octrine of prescription. The answer and counterclaim aver that th e defendant is the

owner of the ent

ire 18.5 acre trac t

based upon the defendant 's continuous and exclusive possession of the p roperty under fence, and the fact that defendant and her husband have paid all taxes on the 18. 5 acre tract since 1961. On January 12, 19

93, the t

rial court entered an order appoint ing a guardian ad litem to represent the unknown heirs of Samuel and Jane Gregory. On November 29, 1994, t he case was tried before t he chancellor sitting witho ut a jury. On Marc h 13, 1995, the chancel lor filed an order

and a memora ndum opinion fi ndi ng fo r t

he def end an t. Th e ch an cello r fo und that t he defendant took title to 7.5 acres of t

he land byvirtue of adverse pos session un der col or of title. The c han cel lo r al so fo und that the d efen dan t took titl e to the remaining 8 acres

3 by vi rtue of pr

esc rip tion, bec aus

e th e de fendant openl y, notoriously, adversel y, an d ex

clus iv ely possessed the land for a period of more t han twen ty y ears. Th e co urt

fu rt her fo und th at

th e do ct

rin e o f la che s b ar

red th e p la intif

f f rom asse rting his claims of fraud in the underlying deeds. In addition, the chancel lor

assessed the costs of t he action, including a $1000 guardian ad litem fee, agai nst the def

end ant. On April 10, 1995, t

he plaintiff filed his Notice of Appeal. The plai nti ff presents six issues for our review. As st ated in his brief, t

hose issues are: 1. Did the Chancellor err in holding th at t here was a parol pa rt

it io n o f t

he lan d o f S

amu el an d Jane Gregory. 2. Did the Court

err in holding that a p arol partition is6 binding in this case. 3. Did the Court

err in finding that

the Plaintiffs were guilty of laches 4. Did the Court

err in finding that

the t itle was vested in the Defendant

s by reason of having had open, noto rious, adverse, and exclusive po ssession i n excess for ( sic) (20) t

wenty years. 5. Did t

he Co urt

er r i n h old ing tha t each of t he children of

Samuel Greg ory, d ivid ed th e pro per ty into 2.5 acre tracts a nd took possession into control (sic) of their own ind ivid ual tract. 6. Did t he co urt er r i n h oldi ng th at

th e le tt er fr om O dell Gregoryto Terra (

sic) Vines was not an admission that the deeds were frauden t (sic). In addition to the above issues, t he defendant-ap pe lle e presents one additio nal issue for our

review. As s

tated in her brief, that issue is: Whether

the trial court erred in assessi ng the costs of the actio n below against the defendant ? I. Parol Partition of the Land We will first

address appellant's first, second, and fift h issues regarding the parol partition of

the land. The plaintiff argues t hat t he evidence preponderates against the t rial court's finding that following the death of Samuel and Jane Gregory, their

children orally par

tit ioned t he land which the children held as tenants in common. We disagree. Under Te nne sse e la w, parol partition fol lowed by possession is binding and enforceable. Martin v. Taylor , 521 S.W.2d 581 (Tenn. 1975). A parol par tition of land is not

a sale of land, and t herefore, does

not contravene the Statute of Frauds. Meacham v. Meacham , 91 Ten n. 5 32, 19 S .W. 757 (1892). In determining whether a parol pa rti tion ve st s ea ch i ndividua l pa rt it io ner wit h f ee sim ple abs ol ute tit le in the p artition er's

in div idu al t

ra ct fo llowi ng pa rt

it io n, a c ou rt

sho uld consider

whether each individual takes possession of t he tract a nd p erf

orms acts evidencing absolute ownership over that part allotted to him or her. See Martin v. Taylor

, 521 S.W.2d 581 (Tenn. 1975). At tri al , plaintiff Raym ond Gregory testified that foll owing the deaths of7

Samuel and Jane Gregory, their chil dren, E.T., Samuel Jr., Marry Lizzie, Mary Ellen, George, and Henry orally divided the 15.5 acre t ract of land which they inherited from thei r parents as t enants in common. The plaintiff t estified that "they would say by word of mout h, '[t ]his is my are a right

here.'" The plaintiff test ified that

"e ach one had his . . . [t ract], and they

fenced off some areas there, in a co uple of plac es." Mr. Gregory furt her testif

ied that ea ch of the children bui lt a h ous

e, gr ew c rops, and mai ntain ed l ives tock o n the p rope rty within their individ ual tracts. During Raymond Gregory's direct examinat ion, the tr ial c our t s pec ifically ask

ed h im: Q. As I understand it, j ust among them each one picked out roughly what t hey thought

would be their two an d a half acres and took t hat over and t

reated it as their s. WITNESS: Yes, sir. On cross-examination, Mr. Gregory was asked how the l and was "divided up" when he moved to Chicago in 1 943. He responded, t hat the land was divided according to "the a mount o f land the se brot hers and sisters lived on . . . ." The trial court found t hat t he children of Samuel an d Ja ne Gr eg or y o ra lly partit ioned the 15.5

acres which they held as tenants in common foll owing the deaths of Samuel and Jane Gregor y. The trial court furt

her found that

once the children partit

ioned the land, each child performed acts of absolute o wnership

over his or her individual tract. T he court noted t hat t he derivation clause in the willof E.T. Grego ry supported t he court's finding t

hat t here had been a parol partition of the land. I n the will , E.T. Gregor y devis ed u nt o h is wif

e, Est ella Gregory, "the house and tract of l and of about t wo and one-half acres, where

we now reside, which tr act of land is on the Providence Road in the 7t h Civil District of

Lincoln Cou nty, Tennesse e, and was received b y me about sixty-five year s ago in the division of the lands of my fat her, Sam Gregory, deceas ed. " Based upon the will and the t estimony at trial, the t rial court found that

each of the six children of Samuel and Jane Gregory owned approximately a 2.5 acre4 Each of t he children act

ually owned 2.5

83 acres of land.

5George purchased the three a cres sometime a ft er he and his siblings partitioned the original 15.5 acres. 8 tract of land in fee simple absolu te. 4 The evid ence doe s not p rep ond erate against t

his finding.II. Fraud in the Underlying Deeds We next consider appellant's issue number six, "Did the Court err in holding that the letter

from Odell Gregor

y to Terra (

sic) Vines was not an a dmission that the deeds were fraudulent." The plaintiff argues that the trial court erred in holding that

defendant owns 7.5 acres of the lan d by vir

tue o f advers

e possession, because the deeds which conveyed this 7.5 acres t o the defendant (and under which the defendant claims color of tit le) wer e either inval id or frau dul ent, and the defendant a nd/or her husband, O dell Gregory, were aware of thi s in val idi tyand fraud. In forwarding this argument the plaintif f complains of t hree deeds. A. The Deed from the Children of Henr y Gregory to Their Sister, Terea Gregory

. The plaintiff firs

t complai ns of

the deed from the child ren of Henry Gregory to Terea Gregory, arguing that the deed was either proc ured by fraud and/or surrounded by fr

aud in its

execution. As stated above, Henry Gregory d ied on August 15, 1961. On August

19, 1961, the children of Henry Gregory co nveyed bydeed "5.5

acres, mo re or less" o f the land in disp ute t o Terea Gregory. The land conveyed was apparently t he same land which was originally owned by Henry's br ot her , G eo rg e, an d ap pa ren tly consisted of

George's individual 2.583

acre tract, and 3 acres of land which was adjace nt t o the origina l 15.5 acr es. 5 The deed which conveyed the 5.583 a cre s rec ites that He nry a cqu ire d titl e to George's

land by adverse possession. The deed also states t hat Henry's children acquired tit

le to t he land by vi rtue o f being Henry's heirs at law

. The text of the dee d re ads

in pe rtine nt par

t:6 Mr. Gregory stat ed, "It was just giving her permission t o stay on the aln

d

. It [the lan d] wasn't ours to give. "

7The deed in the rec ord whic h is apparentl y the one whic h appears on the books in the regist er's office is typed on white legal size paper.

9 FORAND IN CONSIDERATI ON of the love and af fection which we the undersigned have and en terta in for

our s ist er, T erea M. Gr

egor y, we th e undersigned Sam Gregory, Odel l Gregory, Wil liam S.T. Gregory, Otho L. Gregory, Let hel S. Gregory, Raymond Gregor y, Ernest Gregory, Mary G. Fearn, Joe G. Ca mpb ell, Sernetta G . Lan e, and C orine G. March have bargained and sold and do hereby transfer and conveyunto the said Terea M. Gregory t he following described lot or parcel of land lying and being in the 7th Civil Dist

r ict of Lincoln County, Tennessee, bounded an d described a s follows: Bounded on the nort

h by Providence Road; bounded on the e ast b y Grego ry Heir s; boun ded on the sou th by Sarah D. Posey; containing 5.5 a cres, more or less, and bounded on the west by Sam Bagley, /and being the same real estate conveyed unt o George Gregory byvariou s deeds

and owned by him at the time of his death, Octo ber 30, 1955,and t herea fter his brot

her, HenryGr

ego ry, h el d pos

ses sio n of s

aid prop erty a dve rse lyunder fen ce payin g all real estat e tax es, untilhis death, August 15, 1961, and upon his death his righ ts in said real estate descended to us t he undersigned as

his children and only heirs at law and our sister, the grantee herei n named

. The deed was filed in th e Lincoln County Register's Off ice on August 22, 1961. All of the signatures of the named granto rs appear in the signat ure block, and the deed contains the ce rtification of a notary public

. The p la intif f adm its that he and the ot

her children signed a deed to Terea which cont ained the

same language as the deed dated August 19, 1961, but he assert s that the deed he signed only granted Terea three acres o f land and did not contain t he certification of

a not ary pub lic. Mr. Greg ory also testif ied that neit

her he nor his siblings ever inten ded the "g rant"of the land to T erea to vest

her with ownership of the lan d. 6

He mai ntains that the deed which he signed was on a yell ow piece of paper, and was not

signed in the p resence o f a not ary pub lic. 7 I n support of t

his argument the plaintif f introduced a letter

which he all eges was written byOdell Gr

egory to T

erea Gre gory. The lett er cont ains t he busines

s8Tenn.R. Evid. 80 4(b) (3)provide s: Rule 804(b) . Hearsay except ions. The following are n ot excluded by the hearsay rule if the declar ant i s unavailable as a witne ss: * * * (b)(3). Statement Against Interes t. A statement

which 10 letterhead of Odel l and hi s partner in t he funeral home business, George Howard. The plaintiff argues t hat t he letter is evidence tha t the deed from him and his siblings to Terea which appe ars "on t he book s"is a fraud, because the letter states that the p la intif

f's broth er Sam n ever sig ned th e d eed or acknowledged his signature in t he pre sence o f a notary public. The plaintiff argues that the letter

is strong evidence o f fraud, especially in light of t he fact that the notary who ackno wledged the signatures was Georg e Howard, Odell's partner in the funeral home busi ness. The letter is dat ed September 7, 1961, and read s in perti nen t part:

Dear Sister Terea; * * * Sam says he didnt Sign t he Deed transfer, and this is wh ere I ha d to work fast to Save Put

t [George Howard] because he s ta mped his Seal on this doc um ent. If he were to push t

his case and pro ve tha t h e d id'nt Sig n, Put

t H owa rd co uld ge t s ome t ime i n con fine me nt. I got Sam to Agree that it was Alwright with him for you to have the little tra ct of land. And thats that . Tere a you se e each of us were suppose to sign o ur nam es in t

he presen ce of t

he Not ary, But being a partner of his

he stuck his neck out trusting the hone styof us. Do nt yo u write Sam A nything concerning this just leave it to me, an d I' ll settle all of it. * * * Your Bro, Odell Gregory At tri al t he defendant object ed to t he letter on t

he basis that

it was hearsaynot falling within a nyexception. T he trial court admitt

ed the letter under Tenn.R.Evid. 804(b)(3) 8 finding that

the sta tement was against the inter

estwa s at t he time of its making so far contrar y to th e declarant

's pecuniaryor proprieta ry interest , or so far tended to subject

the declar

ant to civil or criminal li abil ityor to render inva lid a claim by the dec lara nt against a nother, t

hat a reasonable person in t he declarant

's posi ti on would not have made the statement unles

s beli eving it to be true.

11 of Odell Gregory, beca us e the sta tement, if made public, could result in George Howard being subjec ted to criminal penalties. The court found t hat b ecause George Howard was a bu siness par tner of Odel l Gregory, an y crimina l action against Howard could affect Odell's business interests. Therefore, t he statement was agains

t the pecuniary interest of Odel l Gregory. Defendant

stat es in her

brief that

the chancellor erred in admitting the letter into evidence, but mak es no arg ument as

required b y T.R. A.P. 27(a)(7). Accordin gly, we consider this issue waived. See Wilhite v. Brownsville Concrete Co., Inc., 798 S.W.2d 772, 775 (Tenn.App. 1990). Terea Gregory, t

he grantee of t

he 5.583 acre s in the deed from her siblings, also testified at trial regarding the circumstances surrounding t he execution of the deed from her siblings. Terea t estified that

at her fat

her Henry's funeral, Odell approached her with a d oc ume nt

on leg al s

ize p ap er an d t

old her th at he an d t

he ot her sib ling s we re go ing to pla ce "Un cle George's prope rty" i n he r name, because she had given her father Henry "support. " Ms. Gregory testified that

the deed which appears in the Lincoln County Register's Office was not the document which her brot hers and sisters

signed. Ms. Grego ry also testified that

the deed which her brothers and sist ers signe d was "on a legal pad" and had no notary

certificat

ion. Ms. Gregory furt

her stat ed th at at th e t ime she saw the deed, three o f her brothers and sist

ers had not signed t

he deed, but she also admitted that it was possib le that

her bro ther Odell had obta ined th ese signatures

bet weenth e t

ime she last s

aw the deed and t

he filing of

the de ed. In her testimony at t

rial, Ms. Gregorynever specifically stated whether the deed she or ig ina llysa w gr

an te d he r 3

or ap pr oxima te ly5.5 acres. She simply stat ed12

that the deed granted her "Unc le Georg e's property." B. The Deed from Terea Gregory to her Brother Ode ll G regory and Defendant Laura Sue Gregory The second deed wh ich the plaintiff assert s is fraudulent is the deed from Terea Gregory to Odell and his wife, defendant Laura S ue Gregory. In this

warrantydee d, d ated Sep temb er 10, 1965 , Ter ea s ol d th e lan d that was conveyed to her by

the August 1 9, 1961 , dee d fr om h er br

other s an d si ster

s, to her brother Odel l and the d efendant for the sum of $300.000 T

he deed states in pe rtine nt par

t:

FORAND IN CONSIDERATI ON of the sum of T H REE HUNDRED ($300. 00) DO LLAR S th is da y cash in hand paid, receipt of

which is hereby acknowledged, I, the undersigned Terea Gregory McNeil, have bargained and sold and do he re by tra nsf er an d co nvey unto Ode ll Gregory an d wif e, Laura Sue Gregory, the following described real estate lying and being in the 7th Civil Dis

trict of Lincoln Cou nty, T ennessee, bounded an d described a s follows: Bounded on t

he Nort h by Pro vidence Road; on the South by

Mrs. Sara Douglas Posey; on the West by Sam S. Bagley; and on the East by Odel l Gregor y , containin g approximately 5 acres, more or less, and being the same real estate co nveyed unto t he undersigne d as Te rea M. Gregory by deed of Sam Gregory, et al, da ted August 19, 19 61, and recorded in the Register's Offic e of Lincoln County, Tennessee, in Deed Book "E-7", p age 289 , to which deed ref

erence is here ha d for pa rticulars

. The deed is sign ed by Ter ea and contains t

he acknowledgement of a notary public. This deed was filed in the Lincoln County Register's Off ice on September 20, 1965. At

trial Terea Gregory t estif ied that s

he so ld t

his pr op ert y t o O dell because she wa s get tin g marr

ied an d movi ng awa y. She s tated t hat t he signature on the deed was in fac t hers, b ut Odell failed to ever pay her the $300.00. C. The Deed from Estella Buchanan to Odell Gregory. Th e last deed which the pl aintiff compl ains of is a wa rranty deed from Est ella Buchanan, the wife of E.T. Gregory, to Odell Greg or y i n wh ichEst

ella13

Buchanan sold her

husband E.T.'s 2.583 a cre trac t of land to O dell for the s um of $410.00. The deed is dated March 9, 1965, and describes the land as "being the same real estate that wa s de vis ed u nto the undersigned as Estella Gregory bythe last wil l and testame nt of the said E.T. Gregory, deceased, which is to be found of record in the Off ice of the Count

y Court Clerk of Lin coln C ounty, Tennessee, in W ill Book 10 [penciled in], page 33 4 [penciled in ], to which referenc e is here had for part iculars." The deed is dated Marc h 9, 1965, and contains

the signat

ure of Estella Buchanan a nd the acknowledgement of a notary public

. The plaintiff asserts t

hat the d eed from Este ll a Buc han an to Odell Gregory is invalid, be cause Est

ella Buchanan never owned the propert y, and therefo re,

co uld not deed the propert y to Odell. The plaintiff argues th at E. T. Gr eg or y' s wi ll

never ves

ted Estell a Buchanan w ith title to the property, because E.T. did not

own the 2.583 acres. Pl aintiff contends that the 2.583 acres was simpl y part of the original 15.5 acres which was held by all the heirs of S amue l and Jane Gregory as t

enants in common. The trial cou rt ma de n o fin din g as to whether the August 19, 1961, deed from the children of Henry Gregory to Terea G regory was fraudulent, the court sim ply ruled that the plaintiff was barred from asserting fraud by v irtue of laches and did not elaborate furt her. Because we find that the plaintiff fa iled to prove fraud in the August 19, 1961 deed (or any ot her deed), we do not reach t he laches issues. It is well settled t

hat t o set aside a dee d, the proo f mu st be c le ar, c ogen t, and convincing

. Myers v. Myers, 891 S.W.2d 216, 219 (Tenn.App. 1994); Pugh v. Burton , 25 Tenn.App. 614, 166 S. W.2d 624, 627(19 42 ). In this c ase t

he plaint

iff's proof simply fails to clearl y, cogently, and convincingly prove fraud in the deed from him and his siblings to Terea Gregory. The o nly evi dence that t he deed contained in the Lincoln County land records was not the o riginaldeed signed bythe children of Henry Gregory, was the test imony of the plaintiff and the14

plaintif f's witness, Terea Gr

egory. In many instances Tere a's testim ony f

ail ed to corrob orate the plaintiff's test imony. The plaintiff t estified that

the deed he signed on lycontained a grant of 3 acres to Terea. However, Terea's t estimony and her deed to Odell in which she sol d hi m "a ppro xim atel y 5 ac res ," in dic ate that the deed to her from her siblings did in fact conve y "5.5 acres, mor e or les s." In addition, whil e Terea testified that not all of her brothers

and sisters signed the deed, the p laintiff

seemed to believe t hat a ll of them had signed the deed , although not in t

he presence of a notary. Finally, even if we assume that the letter which plaintiff

in tr odu ced was

in fa ct wri tt en by Ode ll Gregory, t

he letter

es t ablishes at most, that Odell simpl y had heard that Sam Gr egory had not signed the deed; it does no t estab lish that the deed was in fact not signed by Sam Gregor

y. With respect to the deed from Terea Gregor y t o Odell and Laura Sue Gre gory, which is dated September 10, 19 65, the t rial court also did not make anyfinding as to whet her the deed was procured by fraud or whether t he deed sho uld be set aside due to any other f raud surrounding the deed. Not only has the pl ain tiff f

ail ed to p rod uce cl ear, coge nt, and convinc ing evidenc e of fraud surrounding this de ed, the plaintif f has fa iled to pr

oduce any

evidence o f fraud wha tsoev er. This

argu me nt is w ithou t merit. In s ummary, the deeds from the children of Henry Gregory to Ter e a Gregory, and from Tere a Gregory to Odel l and d efendant Laura Su e Gregory, vested Ode ll an d de fe nda nt wit h wh at ev er title that

Henry Gregory had t o the 5.583 acres that was origina ll y owned by Georg e Gregory. Upon Ode ll 's d eath his will vested defendant with title to all o f h is p ro pe rt y, bo thre al a nd p ers

on al, thus, by virtue of

Odell 's will , defendant holds tit le to this 5.583 a cres. The trial court ruled that

the de eds

in conjunction w ith the defendant's poss ession of the land, conveyed tit

le to 5 acres

of the land by virtue of adverse possession. This ruling is modified to vest defendant with tit le to 5.583 acres

of t he land by vi rtue of the deeds and the will of Odel l Gregory.15 Fi na llythe pl ain tiff' s arg um ent tha t th e deed from Este ll a Buc han an to Ode ll Gregory is invalid because Estella Buchanan never owned the property, is without merit

. The argument is without merit based upon our holding that the children of Samuel and Jane Gregor y orall y partitioned and took possession of the land in dispute, thereby vesting t

he children with a fe e si mple ab so lut e t it le in th eir in div idu al 2.583

ac re tr act s. Si nce E. T. Gr

eg or y h eld t it le i n f ee sim ple abs ol ute to his t

ract he w

as f ree to devise t

he tract to his wife Estella at his death. Myers v. Myers, 891 S.W.2d 216, 22 0 (T enn.App. 1994)("[T]he pow er of alien ation is necess

arily in cident to every estate in fee.) Likewise, Estella was free to sellthis tract to Odell Gr egory. Since Odell Gregory's will devised al l his real and pers

onal prop ertyto h is wife, de fendant Laura Su e Gregory, the effect of Odell's wil l was to v est titl e to this 2.583 acre tract

of land in the defendant. The trialcourt ruled that

defendant to ok tit

le to this t

ract by adverse po ssession. This ruling is modifi ed to ves t th e defendant with t itle to t his tract b y virtue of the deed from Estell a Buchanan to Odel l Gregory an d the wil l of Ode ll Gregory. III. Defendant's Adverse Possession and Prescription Claims Since we have determined that the defendant ho lds title to 8.166 acres of the land in dispute, we next address the issue of whet her the t rial court

erred in ruling that t

he defendant holds title to the remainder of t he 18.5 acres

by virtue of prescrip tion. At trial, Raymond Gre gory t estified that

following the death of Henry Gregoryin 19

61 , O dell G reg or

y e xclu sively

possessed the en tire 18.5 a cre tr act of land until Odel l died in 1986. Raymond also testified t hat aft er 1986 defendant

cont inued t o exclusively po ssess t he land. Raymond tes ti fied that Ode ll informed him sometime in 1966 that he (Od el l) w as go ing to use th e land, and th at

Ode ll used the propert y "as he pleased." Raymond further testif ied that Ode ll paid all the t

axes on t

he land, farmed the land, raised cattle on t he land, and rented the land , and that he never asked O dell for (or received)any of t

he prof its produced f

rom Odell's activit

ie s on the land. The record indicates t hat16

defendant

continued to rent

and farm the lan d after Odel l's d eath in 1986. The plaintiff also testif

ied that p rior to 19

66, he att

empted to pay t

he taxes

on the land o n two separat e occasions since he was uncertain whether t he land taxes were being paid, and t hat bot h times his tax p aym e nts were retur ned, be cau se t

he ta xes

ha d alr ea dy be en pa id b y O dell . Mr. G regory testified that

h e became aware that t he land "was not our land any more" about six or seven yea rs prior to fili ng suit in 1992. Th e trial court ruled that the defendant

should be award ed t itle to 8 acres of

the land by virtue o f the

comm on law doctrin e of pre script ion, be cause t

he defenda nt and her husband, Odell Gregory, had cont inuously, exclusivel y, noto riously, and adversel y possessed these 8 acres for m ore than 20 years. Ti tle under the common law doctrine of prescription does not require

even color of title. Hallmark v. Tidwell , 849 S.W .2d 787, 793 ( Tenn. App. 1992

) (citing Freeman v. Martin Robowask, Inc ., 61 T enn.App. 677, 4

57 S.W. 2d 606 (1970)). To receive tit le under the comm on law doctrine of prescription, the prescriptive holder must have been in exclusive, uninterrupted, notorious, and adverse possession of the land in questio n for a perio d of more than 20 years. Hallmark , 849 S.W. 2d at 793. Where from long pos session the presumption of a gr ant to complainants arises, it is not necessary t

hat t hey show tit

le by paper writing s, uninterrupted po ssession for 20 years be ing suf

ficie nt to ev ide nce title and seizin in fee

. Id. at 792-9 3 (Cit ing Keel v. Sutton , 142 Tenn. 3 41, 219 S.W. 351 (1920)). The p res

um ption that a pr

esc rip tive holde r has tit le to land may be rebutted by showing th at th e p res

cri pt iv e h olde r wa s me rely usi ng the la nd w ith the permission of the actual owne r. Drewery v. Nelms, 13 2 Te nn. 254 , 17 7 S. W. 946 (1915). The testimony o f the p laintiff, Raymond Gregory, indicates that the defendant

has had exclusive, uninterrupted, and not orious possession of t he

en tire 18.5 acres sinc e Henry Gregory di ed in 1961. The onl y elem ent of presc riptio n which t he def end an t d isp ut

es is t ha t o f a dve rse or

ho st ile17

possession. Raymond Gregor y te stified tha t alt

hough Ode ll made whatever use of the pro per

ty he ( Odell)desi red fro m 19 61 u nt il his dea thin 1 986

, Ra ymo n d

never thought that Odell was doing anything ot her than "just

renting or

using the property"based upon an "under stand ing" which he and Odell had regarding the payment of taxes on the land. Raymond argues that not withstanding t

he control which Odell and the defendant L aura Sue exercised over the property, Ode ll and Laura Sue's possession should not be considered adverse (at leas t untilnot Odell 's death in 1986), becau se he unde rstood that Odell could graze the land and rent the land in exchange for Odell's payment of the t axes on the land. Pla int

if f a rg ues th at unt il sh or tly after Odell's death, plaintiff assumed that Ode ll and defenda nt were simply using t he land withthe p laintiff 's and the other siblings'perm ission. In sup port of this a rgu me nt, pla intif f intr odu ced into evidence a letter dat ed February 13, 196

2, writt en to pl ain ti ff from his brother Odell in which Odell stat es: Dear Br o Raymond; * * * Th e La nd t

axes w ere $8 .32 wh ichis a li tt

le cheape r

than they were l ast year. Terea's taxes on Uncle George's track was $2.77 I pd. the taxes on bot

h tracks just

to be Sure they were pd. Of Course Terea wil l r eemburse onher's. Now On this 8.32 I am not

Asking A nybody

to help me payth em, bec aus

e I am g oing to try to grow enough out there t o get my money back, a nd its left up to you as to whether you pay any of this tax. Give My Love to all t he fa mily , A nd W

e A re All do ing Ve ry

Well. Your Bro, Odel l Gregory The plaintiff

argues that

the above lett

er establishes that

the plaintiff and Ode ll Gregor

y had an agreement in which Od el l woul d pay the t axes on the la nd in excha nge for farming the land, and t herefore, Odell's use of the land

was not adverse t

o the int erests of plaintiff and the ot her children of Samuel and Jane Gregory and t

heir respective heirs. W e agree. We think t

he ab ove q uoted le tter was s uffi cie nt to l ead the pl ain tiff to18

believe that

Odell's p ossession of the land was not adverse to the interests of plainti ff and the ot

her children of Samuel and Jane Gregory and t heir respective heirs. The d efen dan t asse rts that her and her husban d's posse ssion of the land

was adverse, and this

fact was estab lished by plaint iff's owntest

imony in which he stat ed tha t Odell "excluded" him from the property. The defendant also relies

on a portion o f the plaintif f' s t est imo ny in which h e st

at ed t ha t h e a nd O dell never had an ag reement regar ding the paymen t of the land taxes. We find the defendant's reliance on t hese portions of the test imonyto be unpersu asive. Al thoug h the p la intif f testi fied that he was "excl ude d" f

rom th e land, it is uncl ear from the testimony when t he plaintiff was excluded as wel l as what form this "exclusio n" took. With respect t o the plaintiff's t

estimony stat

ing that he and Ode ll n ever had an agreement regarding t he taxes, t

he plaintiff

was indicating tha t Odell unil aterally informed the plaintiff t hat he (Odell) was going to use t

he land for farming and in exchan ge pay the t axes on t

he land. When the plaintiff t

estified that

he and Odell never had an agreement, he was ind ica ti ng that h e never s pecifica lly assented t o Odell's use of t

he land. However, this

testimony does no t estab lish that Odell was using the land witho ut Raymond's

permission, nor does it change t he chara c ter of

Ode ll 's l etter to Raymond i n which Odell stated t hat he would not ask anyo ne to share in t he burden of t

he ta xes, beca use he woul d re cou p his tax pa yme nts

from farming. Reg ar dle ss ofwhether Raymond spe cif ica lly ass ente d to Odell's farming/grazing of the lan d (and there fore , did or di d no t spec ific al lygive Ode ll perm ission to

use the land), we think Raymond could reasonably cons true Odel l' s l etter to mean that Odel l's pos session of the l and was not adve rse. In summary, the defendant has fa iled in her burden of proving that her possession of the land was adverse to the int erests of t

he plaintiff and the ot her chil dren of Sam uel an d Jane Gregory an d their respec tive heirs. IV. Costs of the Action Fi na llywe reach the defendant's issue regar din g th e trial court's19

assessment

of the costs

o f t he act io n a ga ins

t h er. Th e co urt

ap pa ren tly reasoned that

the defendant

should pay the costs of the act ion, because the out come of the litigat

ion was to her b ene fit. The defendant argues t hat t he

cos ts of th e action were un fairly as sessed ag ainst her, becaus e she did not ini tiate the act

ion. She ar

gues that in both civil and chancery suits, the successfulpartyis entitled to the costs of t he action unless otherwise directed by law or a co urt o f record. She further argue s that no compel ling re ason exists for diverging from t

he longst

anding ru le that

the co sts o f an act

ion are assesse d against the losin g party. It is well settled t

hat a ssessment

of t he cost s of an action are wit hin the discretion of the trial court. In Re Webb , 675 S.W.2d 176 (T enn.App . 1984). However, in view of our decision, the costs should be asse ssed equally aga inst all parties. Acc or din gly the j udg me nt of the t rial court awarding 7.5 acres t o the defendant

by virtue of

adverse possession is modified to award the defendant 8.166 acres by virtue o f the wil l of Ode ll Gr

eg or y a nd t he dee ds f

ro m Es te lla Buchanan and Terea Gregory. The ju dgment of the t rial court awarding the remaining property t

o the defendant

is reversed, and the ca se i s re man ded to the trial court for a determination of the respective interests in t he propert

y . Costs in the trial court and cost s on appeal are assessed equally against the part ies.

____________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR:

________________________________ DAVID R. FARMER, JUDGE

__________________________________ WILLIAM H. WILLIAMS, SENIOR JUDGE20