### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE January 7, 2003 Se ssion LEROY McBEE v. DAVID ELLIO TT, ET AL 

### . Appeal from the Chancery Court for Franklin County No. 15,854 Jeffrey F. Stewart, Chancellor

No. M2002-00277-COA-R3-CV - Filed Mar ch 26, 2003

In this case , a brothe

r and siste r dispute who is the a

ctual own er of pr operty formerly owne

d by t heir deceased parents . We are a sked to de cide if the trial court properly

relied upon promissory estoppe l and adverse

possessio n to reco gnize tha t the broth

er had a defense to this cla

im for possession. We affirm t he decis ion of the

trial cou rt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Franklin County Chancery Court Affirmed and Remanded
B EN H. C ANT RELL , P.J., M.S., delivered the opinion of the court, in which W IL LI AM B. C AIN , J. and D ON R. A SH , S P .J. joined.
Jerre M. H ood, Winche ster, Te nnessee , for the

appella nts, David

Elliott and

Sharon N. Elliott. Paul Cross, Monteagle, Tennessee, for the appe llee, Leroy

McBee.
OPINION
I. Harvey and Frankie McBee

owned a large tract of propert y in the Sewa nee are a of Fra

nklin Co un ty. Frankie McBee

gave her son L

eroy McB ee, the appellee, permission to keep his daughter ’s horse on a portion of that landin the mid 1970's. We will refer to this portion of the property as “the Hillside.” He mowed

the land, built a fe

nce and built a barn, and continued to treat the property as his own. His sister, Sharon Elliott, and her husband, the appellants, also lived on the property and helped care for Harvey

and Frankie McBee whe n they beca

me ill.
At a family meeting , shortly before Frankie McBee ’s death

on June 6, 1984, Frankie McBee discussed which of her children would receive what piece of property . Despite expressing an intent for Leroy to have th

e Hillside , Mr. and M

rs. McBee

deeded the house and a por tion of the

propert y-2-

to Sharon and her husband. The d eed inc luded the Hillside in the description. The possession of the property did not cha

nge, however, and L

eroy continued to tre at the Hillside as his own.
In 1993 Leroy

began constructing a house on the pr operty. Mr. and Mr s. Elliott di d not complain. The con struc tion invo lved b uild ing a se ptic t ank an d drai nage syste m, bu ildi ng a driveway within 50-75 feet of the Elliotts’ house, and extending electric and telephone service to the site. Alth ough the house was never completed, the construction faltere d becau se of a la

ck of funds, not because the Elliotts protested that the house was being built on their land.
On March5, 1999, Appellee filed a complaint in the Franklin County Chancery Court. The complaint stated that the convey ance of the property to the Elliotts had been made subject to the condition that the Hillside would be given to Appellee. Appellee reque sted the trial court to decree that he owned the Hillside. The Appellants filed an answer and c ounter-complaint on August 18, 1999 asking that Appellee be required to remove all fencing and improvements on the Hillside. On August 17, 2000, Appellee filed a non-suit for his cause of action. The parties continued on to trial solely on the counter- complaint on September 21, 2000. The trial court held for the Appellee in a judgment filed December 1, 2000.
In the Final Or der the t rial cou rt made th

ese find ings of f act:
1. All parties were aware of the intention of the mother of Leroy

McB ee and Sharon Elliott to dee d the subject prope rty to the Coun

ter-Defendant

. 2. The subject p

roperty had been referred to in the family as “Leroy ’s hillside” according to the testimony of Bill Sells and Bobby Jo McBee. 3. Counter-Plaintiffs agreed that the subject property

was Counter-Defendant’s and never asserted the contrary until shortly before this litigation arose

. 4. The conveying

of the subject

property to Counter-Plaintiffs by the mother of Sharon Elliott and Leroy

McBee was without consideration. 5. Counter-Plaintiffs acknowledged the improvements Counter-Def endant had ma de on th e s ub

je ct pr op er ty. 6. Counter-Plaintiffs had r emarked several times while construction of the hous e on the subject property by Counter-Def

endant was in progress to the effect “If he wants to do it, let him do it”, and that Counte r-Plainti ffs’ position was benefited by suc h construction. 7. Such construction included(but was not limited to) the hauli ng in of e ighty lo ad s o f f ie ld di rt on to th e s ub

je ct pr op er ty. 8. Counter-De fendant ’s daughter had lived on the subject property under the authority of Counter-De

fendant in a camper trailer for a period of time. 9. Counter-Defendant maintained the subject property since some time in the 1970's. 10. Mr. Bill Elliott, not related to any party in this suit, had been directed pr ior to the cutting of trees on the subject property, by

Counter-Plaintiffs, to check withCounter-Defendant; a result which is reache d through a combinationof-3- the testimony

of the sa id Bill Elli ott, which was tha t he had asked either Counter-Plaintiffs or

Bill Sells, togethe

r with the testimony

of Bill Se lls that he was certain that he had not been the on e giving Bill Elliott such a direction. 11. Counter-Defendant relied on the assertion s of the Counter-Plaintiffs, or at least those of Counter-Plaintiff Sharon Elliott together with the silence and non-action of Counter-Plaintiff David Elliott, who must have known of the assertions of Sharon E lliott, that Counter-Defendant’s ownership of the subject property wa s secur e, lacki ng only in the e xecution of a deed which had bee n promise d as fort

h coming , to his det

riment.
II. Appellan ts present two issues on appeal: (1) Whether the trial court err ed i n appl ying promissory

estoppel to convey

title of an unconsummated gi ft to Appe llee of r eal esta te when ti tle to sam e is clearly

vested in the Appellants by de ed; and (2) Whether the trial court err ed i n permitting the Appellee to defend by applying Te

nn. Code Ann. § 28-2-103.
A. A DVERSE P OSSE SSI ON Tennessee Code Annotated § 28-2-103 providesfor a seven year limita tion for su

its aga inst persons who are

holding p roperty by adverse

possession. Merely fa

iling to bring suit for seven ye ars is not enoug

h for a pa rty to lose the

right to reclaim possession of

his property. The holding by the opposite party must be adve

rse; that is exclusive, actual, adverse, continuous, open and notorio us possession for the entire seven y ears. Sequatch ie Valley

Coal &Iron Co. v. Coppinger , 32 S.W. 465, 466 (Ten n. 1895); Kirkman v . Brown , 27 S.W. 709, 710 (Tenn. 1894).
In this case, the Appellee originally gained possession of the propert y by permi ssion from his mother, andshe wished him to have the property after her death. However, she did not deed the propert y to him.
The courts in this state have been faced with the issue of adver se possession stemming from a parol gift on more than one occasion. I n Jordan v. Maney , 78 Tenn. 135 (Tenn. 1882), the creditors of the deceased, Dr. James Maney, filed suit ag ainst the executors of the estate. Dr. Maney had had his property divided into three portions. Each one of these portions had one of his children’s names written on the plat. The children were put in possession of the portions allotted to them. Dr. Maney kept the title to the property a nd never made a formal gift to the childre n. “The possession thus acquired was continued by the sons and son-in-law and their families . . . until the filing of the bill.” Jordan v. Maney78 Tenn. 135 (1882). The supreme court then stated:

A father may , no doubt, make a parol gift of land to a child, and the holding of the child may be adve rse to the father for th

e lengt h of time ne cessar

y to vest him witha possessory

right under the s tatute; Haynes v. Jones , 2 Head, 372. But proof-4-

of the gif t mu st be cl ear, and the holding plainly and unmistakably adver se and continuou s to work su ch a res ult.
Jordan , 78 Tenn. at 135.
Our supreme court again visited the adverse possession of property in light of a parol gift issue in Choate v. Sewell , 221 S.W. 190 (Tenn. 1920). In Choate , our supreme court upheld a trial court’s decision that a daughter and her husband ha d become the owners of certain property by adverse possession. The trial court found that they had been given the land by the father

a nd remained on the land for 17 ye ars. Id . at 191. The trial court then held that the land the couple had enclosedand had been in possession of for more than seven y ears had becom e their prop erty. Id

. Therefore, the court required proof of both a gift and adverse possession. This rule has been applied in subsequent cases dealing with this issue. See e.g ., In re Esta te of Garre tt , No. M1999- 0 1282- COA-R3-CV

(Tenn. Ct . App. Oc t. 12, 2001 ); Walk er v. Moo re , 745 S.W.2d 292 (Tenn. Ct. App. 1987); Mercy v. Miller , 166 S.W.2d 628 (Tenn. Ct. App. 1942).
In this situation there was adequa te evidenc e to suppor

t the tria l court’sconclusi on of both a gift and adverse possession. A gift req uires both donative intent and delivery

. In re Estate of Bligh , 30 S.W. 3d 319, 321 ( Tenn. Ct. A pp. 20 00). D onati ve int ent wa s sho wn at t rial t hrough various witnesse s, includi ng that o f Appella nt Sharon E

lliott. She testified that when Appellee let one of his brothers build a garage on the di spute d property he r mother could not understand why Appellee was letting him

build a garage on what their mother considered Appellee’s land. She also stated that her mother deeded her the disputed property but did not make a deed to the app elle e because he did not

bring the paperwork needed to make the transfer. Everyone in the family refe rred to the Hillside as “Leroy ’s Hillside.” The purpose of the meeting before Mrs. McBee’s death was to divide the real property among the childr en. I

t appear s to the court that th e mother intended to distribute the disputed Hillside to the Appellee, and felt that she had done so, but she did not make a formal transfer by

deed.
As stated above, delivery

is also required

for a complete gift. For

real pr operty , this usua

lly requires the transfer of the deed. Leadford v . Leadford , 3 Tenn. Civ. App. 502 (1912). However, where the question of adverse possession is involved there could not have been a delivery of

a deed. In Choate , the supreme court recognized a complete d gift despite the absence of a deed. We too find the completion of a gift in this particular situation.
We now turn to whether

there was sufficient proof of adverse possession. As stated above, adverse possession requires both a holding of the property f

or seven ye ars as required by statute and the exclusive , actual , adverse, continuous, open and notorious possession for the entire seven y ears as required under caselaw. The Appe llee init ially erected a fence on the land in the fall of 1979. There was abundant evidence to sustain the trial judge’sfinding s. Throug hout the y ears up u ntil this suit was filed in 1999, Appellee kept a horse on the land, bui lt a ba rn , m ow ed th e l an d m on th ly, began buildi ng a hous e on th e land , incl udin g bringi ng in 8 0 load s of di rt and beginn ing a foundation, and allowed his daughter to live on the land in a trailer with phone

and electric service.-5-

All thi s activity occ urred on property next door to Appellants’ house. The foregoing is sufficient proof of open and notorious possession.
We find that there is ample evidence in the record of both a gift and adverse possession to support the trial court’s decision in favor of Appellee.
B. P ROMISS ORY E STOPPEL Appellan ts state in th

eir issue that the trial court

erred b y a pply ing prom issory estoppel in this case. Appellants seem to focus on the fact that the gift was unco mpleted. Whether the gift was completedas to Appellee is not relevant to whether the appellees are estopped to insist that they own the property. Para

graph 11. of

the court’s Final Order refer s to Appellee rely ing upon promises made by the Appellants, not by Appellee’s mother.
In Foster & Creighton Co. v. W ilson Contracting Co., Inc ., 579 S.W.2d 422 (Tenn. Ct. App. 1978), this court set out the definition of promissory estoppel. We stated:
Where one make s a promise which the

promisor s hould rea sonably expect to induce action or forbearance of a de finite an d substa

ntial character on the part of the promisee, and where s uch promi se does in fact ind uce such action or forbea rance, it is binding if injustice canbe avoided only by enforcement

of the pr omise. 17 C. J.S. Contrac ts § 74 p. 764. The same rule has been called the doctrine of pr omissor y estoppel

. Foster & Creighton Co. , 579 S.W.2d at 427. The evidence showed that Appellee was repeatedl y to ld b y Appellant Sharon Elliott that she did not claim any title to the property. He c learly re lied upon her promise and his reliance led him to improve thepropert y a nd to ref rain fro m bringi ng suit to obtain title.
We hold that there is ample evidence in the record to support the trial cou rt ’s decis ion in favor of Appellee. We remand the cause to the Chancery Court for Franklin County for any furthe

r procee dings ne cessar

y. T ax the cost s on appe al to the A ppellant s, David a

nd Sharon

Elliott.

_________________________________________ BEN H. CA

NTREL L, PRESI DIN G JUDGE, M. S.