Adverse Possession Against Cotenant; Action to Recover Possession

Checkout our iOS App for a better way to browser and research.

There may be no adverse possession against a cotenant until the adverse possessor effects an actual ouster, retains exclusive possession after demand, or gives his cotenant express notice of adverse possession. In such event, the cotenant may bring an action to recover possession.

(Orig. Code 1863, § 2284; Code 1868, § 2277; Code 1873, § 2303; Code 1882, § 2303; Civil Code 1895, § 3145; Civil Code 1910, § 3725; Code 1933, § 85-1005.)

Cross references.

- Adverse possession generally, § 44-5-160 et seq.

JUDICIAL DECISIONS

ANALYSIS

  • General Consideration
  • What Constitutes Ouster

General Consideration

Possession of land as notice of right and title.

- Former Code 1933, § 85-1005 (see O.C.G.A. § 44-6-123) must be construed in connection with former Code 1933, § 85-408 (see O.C.G.A. § 44-5-169), relating to possession of land as notice of right and title. Wren v. Wren, 199 Ga. 851, 36 S.E.2d 77 (1945).

Adverse possession found.

- Trial court properly granted summary judgment to the grantor's grandchildren as the grandchildren held the disputed parcel of property under color of title, via a deed to the grantor's child, albeit the fact that it was not effective as a deed conveying a present interest, for the prescription period of seven years, and the grantor's heirs at law did not contest it until suit was filed. Matthews v. Crowder, 281 Ga. 842, 642 S.E.2d 852 (2007).

Applicability when alleged cotenant claims as sole grantee.

- Section inapplicable when alleged cotenant in possession never expressly or impliedly recognized such a relation, but claimed title and held possession under a deed made to that cotenant as the sole grantee. Stephens v. Walker, 193 Ga. 330, 18 S.E.2d 537 (1942); Stallings v. Britt, 204 Ga. 250, 49 S.E.2d 517 (1948) (see O.C.G.A. § 44-6-123).

When a person claiming prescriptive title does not enter possession as a cotenant but as owner of the entire estate under color of title, such possession is adverse to those who might be otherwise treated as cotenants, and the party in possession is not subject to the conditions of O.C.G.A. § 44-6-123. Mattison v. Barbano, 249 Ga. 271, 290 S.E.2d 41 (1982).

When the copossessors were never cotenants, O.C.G.A. § 44-6-123 has no application. Carter v. Becton, 250 Ga. 617, 300 S.E.2d 152 (1983).

Mineral owner and landowners are not tenants in common in the usual sense since the landowners own the fee subject to the rights of the mineral owner in one-half of the mineral interests. Hayes v. Howell, 251 Ga. 580, 308 S.E.2d 170 (1983).

Tenants in common occupy a fiduciary relationship to each other, with respect to their interest in the common property and the common title under which the tenants hold, that it would be inequitable to permit one of the tenants, without the consent of the others, to buy an outstanding adversary's claim to the common estate and assert it for one's exclusive benefit, to the injury or prejudice of one's cotenants; and if one cotenant does actually acquire such a claim, the cotenant is, unless the contrary appears, to be regarded as holding it in trust for the benefit of the cotenants in proportion to their respective interests. Hardin v. Council, 200 Ga. 822, 38 S.E.2d 549 (1946); Fuller v. McBurrows, 229 Ga. 422, 192 S.E.2d 144 (1972).

Elements of adverse possession against cotenant.

- In order for one cotenant to prescribe against another, O.C.G.A. § 44-6-123 requires actual ouster, exclusive possession after demand, or express notice of adverse possession, in addition to the usual elements of adverse possession. Carter v. Becton, 250 Ga. 617, 300 S.E.2d 152 (1983).

Party who asserts a claim of title by adverse possession against a cotenant has the burden of proving not only the usual elements of prescription, but also at least one of the elements of O.C.G.A. § 44-6-123. Wright v. Wright, 270 Ga. 530, 512 S.E.2d 618 (1999).

Seven years possession required to get title.

- Purchaser must maintain actual adverse possession for seven years under color of title to get title. Doe v. Roe, 46 Ga. 9 (1872); Morgan v. Mitchell, 104 Ga. 596, 30 S.E. 792 (1898).

Exclusive possession by a cotenant alone will be presumed not an adverse holding, but simply one in support of the common title. Hardin v. Council, 200 Ga. 822, 38 S.E.2d 549 (1946); Erwin v. Miller, 203 Ga. 58, 45 S.E.2d 192 (1947); Lankford v. Dockery, 85 Ga. App. 86, 67 S.E.2d 800 (1951).

Silent and peaceable possession of one tenant, with no act which can amount to an ouster of one's cotenants, is not adverse. Hardin v. Council, 200 Ga. 822, 38 S.E.2d 549 (1946); Erwin v. Miller, 203 Ga. 58, 45 S.E.2d 192 (1947); Fuller v. McBurrows, 229 Ga. 422, 192 S.E.2d 144 (1972).

Demand required.

- Plaintiffs could not contend that the defendant was "in exclusive possession after demand," because the evidence showed no demand by the plaintiff upon the defendant for the possession of their interest in the land. Bowman v. Owens, 133 Ga. 49, 65 S.E. 156 (1909).

Exclusive possession after demand required.

- Correct statement of the law is that the cotenant must show exclusive possession after demand, and not that the cotenant demanded such exclusive right. Tietjen v. Meldrim, 169 Ga. 678, 151 S.E. 349 (1930).

Notice of ouster held insufficient.

- Sale of one tenant's interest at judicial sale, without actual possession being taken, is insufficient notice of ouster to the cotenant as to start statute to running. Harriss v. Howard, 126 Ga. 325, 55 S.E. 59 (1906).

Party who alleges title by prescription has burden of proving title, and when it is contended that a former tenant in common acquired prescriptive title as against one's former cotenants, the party asserting such contention has the burden of proving not only the usual elements of prescription but also at least one of the conditions stated in this statute as to cotenants. Harris v. Mandeville, 195 Ga. 251, 24 S.E.2d 23 (1943); Hardin v. Council, 200 Ga. 822, 38 S.E.2d 549 (1946); Erwin v. Miller, 203 Ga. 58, 45 S.E.2d 192 (1947); Fuller v. McBurrows, 229 Ga. 422, 192 S.E.2d 144 (1972); Jordan v. Robinson, 229 Ga. 761, 194 S.E.2d 452 (1972); Barfield v. Hilton, 235 Ga. 407, 219 S.E.2d 719 (1975) (see O.C.G.A. § 44-6-123).

Person claiming prescriptive title against cotenant has burden of showing not only the usual elements of prescription under O.C.G.A. § 44-5-161 but in addition thereto at least one of the conditions stated in O.C.G.A. § 44-6-123. Lindsey v. Lindsey, 249 Ga. 832, 294 S.E.2d 512 (1982).

Knowledge of adverse claim is question for jury. Gann v. Runyan, 134 Ga. 49, 67 S.E. 435 (1910).

Substitution of "actual notice" for "express notice" in jury charge is not error. David v. Tucker, 140 Ga. 240, 78 S.E. 909 (1913).

Exception to statute inapplicable.

- When the mother and children obtained possession of the decedent's property by falsely informing the probate court that they were the only heirs at law when the son was also an heir at law, the trial court improperly applied the exception to O.C.G.A. § 44-6-123, as questions of fact remained as to whether the wife and children took possession of the subject property with implied knowledge that there was a tenancy in common with the son as a joint heir. Ponder v. Ponder, 275 Ga. 616, 571 S.E.2d 343 (2002).

Cited in Coppedge v. Coppedge, 144 Ga. 466, 87 S.E. 392 (1915); Cowart v. Strickland, 170 Ga. 530, 153 S.E. 415 (1930); Pullen v. Johnson, 173 Ga. 581, 160 S.E. 785 (1931); Bagley v. Forrester, 53 F.2d 831 (5th Cir. 1931); McIntosh v. Williams, 45 Ga. App. 801, 165 S.E. 854 (1932); Veal v. Veal, 192 Ga. 503, 15 S.E.2d 725 (1941); Nixon v. Nixon, 192 Ga. 629, 15 S.E.2d 883 (1941); Yeager v. Weeks, 74 Ga. App. 84, 39 S.E.2d 84 (1946); King v. King, 203 Ga. 811, 48 S.E.2d 465 (1948); Ballenger v. Houston, 207 Ga. 438, 62 S.E.2d 189 (1950); Andrews v. Walden, 208 Ga. 340, 66 S.E.2d 801 (1951); Lankford v. Dockery, 85 Ga. App. 86, 67 S.E.2d 800 (1951); Brown v. Brown, 209 Ga. 620, 75 S.E.2d 13 (1953); Lankford v. Dockery, 87 Ga. App. 813, 75 S.E.2d 340 (1953); Varellas v. Varellas, 218 Ga. 125, 126 S.E.2d 680 (1962); Crosby v. Crosby, 224 Ga. 109, 160 S.E.2d 362 (1968); United States v. Williams, 441 F.2d 637 (5th Cir. 1971); Thomas v. Hooks, 231 Ga. 409, 202 S.E.2d 92 (1973); Lovin v. Poss, 240 Ga. 848, 242 S.E.2d 609 (1978); Bailey v. Johnson, 245 Ga. 823, 268 S.E.2d 147 (1980); Love v. Love, 259 Ga. 423, 383 S.E.2d 329 (1989).

What Constitutes Ouster

To constitute disseizin of a tenant in common by one's cotenants, there must be outward acts of exclusive ownership of an unequivocal character, overt and notorious, and of such a nature as by their own import to impart information and give notice to the cotenants that an adverse possession and an actual disseizin are intended to be asserted against them. Nor will the making of ordinary improvements by a tenant in possession constitute an ouster of other cotenants. Hardin v. Council, 200 Ga. 822, 38 S.E.2d 549 (1946).

Void deed will operate as color of title. Davis v. Harnesberger, 211 Ga. 625, 87 S.E.2d 841 (1955).

Identification of premises necessary for color of title.

- Color of title cannot arise or serve to give right of possession when it is not possible to identify the premises. Newsome v. Moore, 166 Ga. 301, 143 S.E. 400 (1928).

Deed pursuant to court order.

- When a deed specifically stated that the property was "conveyed pursuant to the order" granting the year's support, grantee was only conveyed such interest as was set aside to the widow under the year's support order, which was an undivided interest equal to that of each of the widow's minor children; therefore, grantee could prescribe against the grantee's cotenants (the children) only by showing ouster, exclusive possession after demand, or express notice of adverse possession. Mattison v. Barbano, 249 Ga. 271, 290 S.E.2d 41 (1982).

Possession of more than proportionate share.

- That one cotenant may occupy more than one's proportionate share of the property, or even that one may be in possession of all of the property, does not necessarily imply an ouster, the presumption being that one's possession is not adverse, but is in common with the others, or for the common benefit, unless and until the contrary appears. Chambers v. Schall, 209 Ga. 18, 70 S.E.2d 463 (1952).

Party who asserts a claim of title by adverse possession against a cotenant has the burden of proving not only the usual elements of prescription, O.C.G.A. § 44-5-161, but also at least one of the elements of O.C.G.A. § 44-6-123. But, when a person claiming prescriptive title does not enter possession as a cotenant but as the owner of the entire estate under color of title, such possession is adverse to those who might be otherwise treated as cotenants, and the party in possession is not subject to the conditions of O.C.G.A. § 44-6-123. Gigger v. White, 277 Ga. 68, 586 S.E.2d 242 (2003).

Conveyance to third party is ouster.

- Statute means that when two persons hold as cotenants, one cannot prescribe against the other, except under those circumstances. But if one cotenant makes a deed to the whole property and the grantee takes possession and holds adversely, not as a cotenant, but as sole owner, this is such an ouster as that prescription will run. See Doe v. Roe, 46 Ga. 9 (1872); Doe v. Roe, 46 Ga. 593 (1872); Cain v. Furlow, 47 Ga. 674 (1873); Norris v. Dunn, 70 Ga. 796 (1883); McDowell v. Sutlive, 78 Ga. 142, 2 S.E. 937 (1886); Street v. Collier, 118 Ga. 470, 45 S.E. 294 (1903) (see O.C.G.A. § 44-6-123).

If the administrator of a deceased cotenant sells and makes to the purchaser a deed to the entire property, and one claiming under such purchaser holds possession thereof under a duly recorded deed conveying the entire property, not as a cotenant but as sole owner of the entire property, there is an actual ouster of the other cotenants, and the latter have the right to sue for the possession of their interest. Bowman v. Owens, 133 Ga. 49, 65 S.E. 156 (1909).

When a tenant in common conveys the whole lot to a third person, and the grantee takes possession, claiming the entire lot as the grantee's own, this action constitutes a disseizin and ouster of the other tenants in common, and they are barred from asserting their right to such property after the expiration of seven years. Broadwater v. Parker, 209 Ga. 801, 76 S.E.2d 402 (1953); Davis v. Harnesberger, 211 Ga. 625, 87 S.E.2d 841 (1955).

When the evidence shows that there was an actual ouster or express knowledge of adverse possession, a deed executed by a cotenant to the whole of the property is good as color of title as against the other cotenants. Jordan v. Robinson, 229 Ga. 761, 194 S.E.2d 452 (1972).

Because the parties were cotenants under O.C.G.A. § 44-6-120, and one of the cotenants was on notice as to the other cotenant's heirs' adverse possession under O.C.G.A. § 44-6-123, which included conveying the timber on the land to a company, but failed to assert rights to the property in the prescribed time, the heirs established prescriptive title in the land. Williams v. Screven Wood Co., 279 Ga. 609, 619 S.E.2d 641 (2005).

Erecting fence to divide common property.

- Entering into possession of a portion of a cemetery lot, which is enclosed by a fence, by one claiming to be the owner of such portion, and erecting a substantial iron fence so as to divide the part so claimed from the remaining part of the lot, is, as to that peculiar character of property, an act showing adverse possession of a public nature, totally irreconcilable with cotenancy, and amounts to an actual ouster of others claiming to be tenants in common with the possessor. Roumillot v. Gardner, 113 Ga. 60, 38 S.E. 362, 53 L.R.A. 729 (1901).

Possession under order of year's support for widow.

- When a landowner's estate was set apart as a year's support for his widow and three children by her, without mentioning two children of the decedent by a former marriage, and the persons to whom the year's support was so set apart took exclusive possession of the property under claim of title, this constituted a severance from the other children, and a prescriptive title began to run. Norris v. Dunn, 70 Ga. 796 (1883).

Merely recording deed from one tenant in common to a third person does not constitute actual ouster of other cotenants. Lindsey v. Lindsey, 249 Ga. 832, 294 S.E.2d 512 (1982).

Possession of property by party who stands in position of tenant of cotenant does not constitute actual ouster of other tenants in common. Lindsey v. Lindsey, 249 Ga. 832, 294 S.E.2d 512 (1982).

Possession under conveyance from third person.

- There is a material difference between the effect of a deed or transfer by a tenant or tenants in common purporting to convey the whole estate to a stranger, and a transaction in which such a deed or transfer is made by an outsider to a tenant in common. In the former case, possession by the grantee may amount to an ouster or disseizin, while in the latter case a different rule applies. Hardin v. Council, 200 Ga. 822, 38 S.E.2d 549 (1946).

Requirement of ouster.

- Trial court properly granted summary judgment to defendant pursuant to O.C.G.A. § 9-11-56 on plaintiff's claim for adverse possession of land; O.C.G.A. § 44-6-123 required an adverse-possessor cotenant to effect an actual ouster against the other cotenant, and in this case, it was undisputed that plaintiff took no action to effect an actual ouster of defendant. Vaughn v. Stoenner, 276 Ga. 660, 581 S.E.2d 543 (2003).

Evidence insufficient to support ouster.

- Only evidence of an adverse holding is the bare fact that the vendors of the defendant were in the exclusive possession by their tenants or agents, and that what rents were collected from the land were paid to them, their agent testifying that he knew of no other owner or claimant of the premises. This is not sufficient to make out a case of adverse holding by one cotenant against another. Morgan v. Mitchell, 104 Ga. 596, 30 S.E. 792 (1898).

When land was owned by two persons as tenants in common, and one of them took a deed from a third person purporting to convey to himself the whole of the common property, and had such deed recorded, and when the conveyance amounted to nothing more as between the cotenants than the removal of an encumbrance for which they were both liable, possession of the land by the grantee, under such deed, would not (assuming good faith) constitute such an ouster of the other cotenant as would lay a foundation for the commencement of adverse possession against him, unless it was accompanied by a hostile claim of which he had actual notice. Hardin v. Council, 200 Ga. 822, 38 S.E.2d 549 (1946).

Possession of heir of deceased grantee in certain deeds was that of the other heirs standing in the same relationship as cotenants, and in the absence of actual ouster, exclusive possession after demand or express notice of the adverse possession, the devisee did not acquire prescriptive title as against cotenants by such possession. Erwin v. Miller, 203 Ga. 58, 45 S.E.2d 192 (1947).

By affidavit, heirs showed that a cotenant did not meet the requirements of O.C.G.A. § 44-6-123 by averring that the cotenant took no action to oust the heirs from the property in question, to demand and retain exclusive possession, or to give actual notice of adverse possession; the burden shifted to the cotenant to point to a conflict on this issue, but in an affidavit, the cotenant only showed that the cotenant paid the property taxes and that the heirs did not use the property or question the cotenant's right to be on the property, which did not establish an ouster or to satisfy an "express notice" or a "hostile claim" criterion, and summary judgment in favor of the heirs was proper. Ward v. Morgan, 280 Ga. 569, 629 S.E.2d 230 (2006).

Evidence sufficient to support ouster.

- Evidence was sufficient to enable the jury to conclude that a property owner met the burden of showing ouster because the owner and an uncle did more than simply make improvements and pay property taxes; the owner and uncle took unequivocal steps, including renting a part of the premises to different people and cutting and selling timber, which were inconsistent with, and exclusive of, the rights of the cotenants not in possession, and those acts were open and public. DeFoor v. DeFoor, 290 Ga. 540, 722 S.E.2d 697 (2012).


Download our app to see the most-to-date content.