JOHN KINDER ET AL.
WENDELL BRYANT ET AL.
Session March 13, 2018
from the Chancery Court for Bradley County No. 2016-CV-228
Jerri Bryant, Chancellor
plaintiffs commenced this declaratory judgment action to
establish that their claim to a forty-acre tract of real
property is superior to that of the defendants. The
plaintiffs claim to have purchased the disputed property in
1980; however, their deed was not recorded until 1995. The
defendants' predecessors in interest purchased the
property at a tax sale in 1994, and their deed was duly
recorded prior to the plaintiffs' deed. The
plaintiffs' claims are based, inter alia, on
adverse possession and the contention that the 1994 tax deed
is void or voidable due to lack of notice of the sale. After
hearing cross-motions for summary judgment, the trial court
summarily dismissed the complaint finding that the plaintiffs
were not entitled to notice of the tax sale because, at the
time of the sale, the plaintiffs' deed had not been
recorded and the plaintiffs lacked standing to challenge the
lack of notice to their predecessors in title who were the
owners of record at the time of the tax sale. The trial court
further found that the plaintiffs had not paid any taxes on
the property and that the defendants paid the property taxes
for more than twenty years, which raised the rebuttable
presumption of ownership under Tenn. Code. Ann. §
28-2-109. Based on these findings, the trial court held that
Tenn. Code Ann. § 28-2-110 barred any affirmative action
by the plaintiffs to claim an interest in the property and
summarily dismissed the complaint. We affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
N. McCoin, Thomas F. Bloom, and Sheridan C. Randolph,
Cleveland, Tennessee, for the appellants, Mitchell Kinder and
John H. Kinder.
A. Brunetz, Chattanooga, Tennessee, for the appellee, Wendell
P. Bryant, Jr.
G. Clement Jr., P.J., M.S., delivered the opinion of the
Court, in which D. Michael Swiney, C.J. and Thomas R.
Frierson II, J., joined.
G. CLEMENT JR., P.J., M.S.
Kinder ("Plaintiff") purchased a forty-acre tract
of land located in Bradley County ("the Disputed
Property") from E. L. Richmond in December 1980. The
Disputed Property adjoined another tract of land already
owned by Plaintiff where his house was located. Soon after
the purchase, Plaintiff fenced in the Disputed Property. He
restricted access to the property with gates and used the
property for cropland, pasture, grazing of livestock, and
storage of equipment, and at times, rented out the property.
In the mid-1980s, Plaintiff built a barn on the Disputed
reasons unexplained by the record, the 1980 deed from E. L.
Richmond was never recorded and apparently lost. Upon
discovery of this omission, Mr. Richmond signed a Replacement
of Lost Deed in December 1992; however, the replacement deed
was not recorded until three years later, in September 1995.
interim, on April 13, 1994, Doris and Wendell Bryant, Sr.
("the Bryants"), the parents of Wendell Bryant, Jr.
("Defendant"), acquired the Disputed Property by
tax deed, and the 1994 tax deed was promptly and duly
recorded. Twenty-two years later, on February 3, 2006, the
Bryants conveyed the Disputed Property by quitclaim deed to
Defendant as Trustee of the Wendell P. Bryant Sr. Trust. The
quitclaim deed was promptly and duly recorded.
to 2016, neither Defendant nor his father, Wendell Bryant
Sr., made use of the Disputed Property. In March 2016,
however, Defendant demanded that Plaintiff vacate the
property. Since that time, Plaintiff contends that Defendant
has trespassed on the Disputed Property and destroyed locks
and gates, which gave rise to this litigation.
November 3, 2016, Plaintiff and his son Mitchell Kinder
(collectively "Plaintiffs") filed a complaint for
trespass, unlawful entry, declaratory judgment, and
injunctive relief against Defendant, individually, and as
Trustee of the Wendell Bryant Sr. Trust (collectively
"Defendants"). Plaintiffs claimed that Plaintiff
John Kinder purchased the Disputed Property in 1980 and has
had continuous, open, exclusive possession of it since that
time. Plaintiffs sought a declaratory judgment that the 1994
tax deed to the Bryants was void or voidable and that
Plaintiff John Kinder lawfully acquired the land in 1980 or,
alternatively, that Plaintiffs are the rightful owners of the
land through adverse possession. Plaintiffs contend the tax
deed obtained by the Bryants is void or voidable because
neither Plaintiffs nor the previous property owner, Mr.
Richmond, were notified of the delinquent property taxes owed
nor were they informed that the Disputed Property would be
sold at a tax sale.
filed a timely answer in which they contended that
Plaintiffs' claims are statutorily barred by Tenn. Code
Ann. § 28-2-110 based on the undisputed fact that
Defendants paid the property taxes for more than twenty years
and Plaintiffs never paid any property taxes assessed on the
Disputed Property. Defendants also contended ...