# FILED
October 14, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

### IN THE COURT OF A PPEALS OF TENN ESSEE

AT NASHVILLE

PHILIP PELTZ, ) ) Plaintiff/Appellant, ) ) Appeal No. ) 01-A-01-9711-CH-00659 VS. ) ) Williamson Chancery ) No. 22868 SARAH V. PELTZ, ) JESSE V. NICHOLS, and ) NANCY S. NICHOLS, ) ) Defendants/Appellees. )
APPEALED FROM THE CHAN CERY COUR T OF WILLIAMSON CO UNTY AT FRANKLIN, TENNESSEE THE HONORABLE HENRY D ENMARK BELL, JUDGE

JEFFREY RAPPUHN A. RUSSELL WILLIS 215 Second Avenue, North Nashville, Tennessee 37201 Attorneys for Plaintiff/Appella nt WILLIAM CARTER CONWAY 236 Court Square, Suite 205 Franklin, Tennessee 37064 Attorney for Defendant/Appellee Sar ah V. Peltz R. E. LEE DAVIES H. MARK HARTZOG 123 Fifth Avenue North Franklin, Tennessee 37064 Attorneys for Defendants/Appellees Jesse V. Nichols and Nancy S. Nichols

REVERSED AND REMAND ED
BEN H. CANTRELL, JUDGE CONCUR: KOCH, J. CAIN, J.- 2 - 

## O P I N I O N

This case involves a question of adverse posses sion between tenants in common of

real es tate. Th e Chance ry Cou rt of Wi lliamson County held that the
seven year statute of limitations in Tenn. Code Ann. §28-2-103 barred the appellant’s remedy against the appellees. Because we find that there had been no ouster of the appellant, we revers

e.

I.

In 1974, Philip and Sarah Pelt z and Mrs. Peltz’s parent s, Jesse and NancyNichols, purchased a forty -eight acre parcel

of property in Williamson County. Mr. Nic hols, a re tired Air Force serv iceman, started almost immediatel y to build a house on the property. He and his wife lived on the property and he w orked on the house for the next fourteen years.

Mr. Peltz was a New

York Lawyer. He visited the proper ty a few times before 1983, but after

that time he did not return to

Tennessee. He subsequently lost his license t o practic e law and m oved to Ca lifornia . In 1985 , Mrs. Pelt z s ign ed a warranty deed conveying the proper ty to her parents. She had h er brother forge Mr. Peltz’s signature on the deed. They had the deed notarized and Mrs. Peltz then delivered the deed to her f at her. Mr. Nichols had the deed recorded. There is no evidence in the record that Mr. N ichols knew or suspected that

Mr. Peltz’s signature on the deed had been forged.

Mr. Peltz did not learn of the forgery until it came out in a Califo rnia divorce filed by Mrs. Peltz i n 1994. He immediately filed this action to cancel the deed- 3 -

and to recover damages from hi s wife, her parents, the no tary, and t he notary’s employer.

The chancellor dismissed Mr. and Mrs. Nichols on the g round that the
ac tion was barred by Tenn. Code Ann. § 28-2-103. The court held that Mrs . Pelt z forged or caused to be forgedMr. Peltz’s sig nature to the deed causing a diminution in their com bine d interests of $7500. Consequent ly Mr. Peltz obta ined a judgment against Mrs. Peltz for $7500 plus prejudg ment interest at eight percent per year

from April 1, 1979. The judgment was, how ever, made subject to a div ision by th e California divorce court. Mr. Peltz voluntarily dismissed the notary and her employer.

II.

Tenn. Code Ann. § 28- 2-103(a) provides that “no person or anyone claiming under him shal l have any action, either at law or in equity, for the recovery of any lands, tenements or here di taments, bu t within seven (7) years after the right of action accrued.” Under this section, a recover y is barred by sev

en years of adverse possession. Teeples v. Key , 500 S.W.2d 452 (Tenn. App. 1973). But possession by
one tenant in common is not adverse to another co-tenant until a dis seisin of the others by actual ouster. Woods v. Richardson , 231 S.W.2d 340 (Tenn. 1950). Silent sole occupation by one co-tenant is not sufficient to establish a dverse possession. Moore v. Cole , 289 S.W.2d 695 (Tenn. 1956). Since there is no evidence of an ous ter in this record, Mr. and M rs. Nichols were not holding the pr operty adversely to Mr. Peltz. Therefore the

statute of limitations in Tenn. Code Ann. § 28-2-103(a) did not begin to run. Mr. andMrs. Nichols cit e Valley v. Lambuth , 1 Tenn. App. 547 (1925) in support o f their st atute of limitati ons def ense, bu t that cas e involve d an actual ouster, as the court held.We are also convinced that Mr. and Mrs. Nichols canno t claim that they
were holding under an assurance of title. See Tenn. Code Ann. § 28-2-101, 102. The chancell o r

found that Mr. Peltz’s signature had been forged on the deed. As to Mr. Peltzthe deed was an absolute nullity. See Boone v. Citiz en Bank & Trust Co. , 290 S. W. 39 (Tenn. 1927); Cowan v. Tho mpson , 152 S.W.2d 1036 (T enn. App. 1941). Although these cases deal with negotiable instruments, we are satisfied that a forg ed signature cannot be used as the basis for any legal claim unless it has been r atified by the person identified by the signature. In addition, a deed is within the stat ute of frauds, and a forged signature does not sati sfy the requir

ement of a

writing sign ed by the party to be charged. Beazley v. Turgeo n , 772 S .W.2d 5 3 (Tenn. App. 1989). Therefore, the deed cannot prejudice Mr. Peltz’s rights.

We reverse the judgment below and remand the cause for a retrial on Mr. Peltz’s prayer for

partition. In that proceedi ng the court may adjust the inter ests of the parties according to their respective contributions.

The judgmentof the court below is rev ersed and the cause is remanded to the Chancery Court of Willia mson Coun ty for further proceedings in accordance with this opinion. Tax the costs on appeal equally to the appellees.

____________________________ BEN H. CANTRELL, JUDGE CONCUR:

_____________________________ WILLIAM C. KOCH, JR., JUDGE

_____________________________ WILLIAM B. CAIN, JUDGE