Estate of Neil, In re

• Decision Date: 16 June 1989
• Docket Number: No. 87-171,87-171
• Citation: 565 A.2d 1309,152 Vt. 124
• Court: Vermont Supreme Court
• Parties: In re ESTATE OF Lucy NEIL.

Page 1309

565 A.2d 1309

152 Vt. 124

In re ESTATE OF Lucy NEIL.

No. 87-171.

Supreme Court of Vermont.

June 16, 1989.

Motion for Reargument Denied

as Untimely Filed July 14, 1989.

Therese M. Corsones of Corsones & Hansen, Rutland, for petitioner-appellee.

Timothy J. Wells, White River Junction, for petitionees-appellants.

Before ALLEN, C.J., PECK, GIBSON and DOOLEY, JJ., and SPRINGER, District Judge (Ret.), Specially Assigned.

PECK, Justice.

Title to real estate near a ski resort in Sherburne, Vermont, was awarded to petitioner, Roger I. Neil, by adverse possession. Three of his sisters: Iris Neil Hickory Evalina A. Martin as administratrix of her father's estate; and Marjorie Neil Wells, deceased, represented by her husband and successor in interest, Edwin Wells, contest the order of the probate court. Five questions are certified for our review under V.R.A.P. 13(c). They may, however, be consolidated into one query: whether the probate court, as a matter of law, properly determined that petitioner acquired ownership of the parcel of land by adverse possession against his fellow co-tenants. In re Fletcher, 144 Vt. 419, 422, 479 A.2d 134, 135 (1984) (certified questions are only guidelines to the Court). We hold that the probate court erred in its conclusion that petitioner acquired sole title to the property by adverse possession.

Petitioner, with his mother, Lucy Neil, acquired the Sherburne property by warranty deed, which was recorded on July 20, 1945. Petitioner alleged that he paid for the land with his own money and that his mother's name was placed on the deed at his request in order to secure his interest in the property while he was in the armed forces. It is unclear from the record, however, whether petitioner paid the entire price or whether his mother contributed toward the purchase.

Lucy Neil died in 1956, survived by her husband (now deceased) and five children. Mrs. Neil's estate was probated, but her interest in the property was not included in the inventory of the estate's assets. As part of the probate process each heir consented to the final accounting filed by the estate's administrator, indicating that the accounting included all known property of the deceased.

In 1981 petitioner sought to sell a portion of the property and discovered that he did not have clear title. Other heirs of his mother claimed partial ownership in the property as successors in interest to their mother's tenancy in common. Consequently, the petitioner brought an action in the probate court pursuant to 14 V.S.A. § 1801 requesting that he be awarded sole ownership of the property through adverse possession. ¹

The probate court found that petitioner has posted the property, cut timber from it for his own use and for sale, ran and parked heavy equipment on it, and maintained a stump dump on the property. He paid all real estate taxes assessed against the property and transferred, with his signature alone, a right-of-way to the Town of Sherburne. The probate court concluded that petitioner had treated the land as his own from the date of acquisition, and had thereby acquired title over the other claimants' interests by adverse possession.

Adverse possession requires fifteen continuous years of open, notorious, and hostile possession of another's property. Moran v. Byrne, 149 Vt. 353, 355, 543 A.2d 262, 263 (1988). A claimant under the doctrine has the burden to prove adverse possession sufficient to supersede the property interests of any titleholders of record. See Higgins v. Ringwig, 128 Vt. 534, 538, 267 A.2d 654, 656 (1970). Here, petitioner's burden of proof is greater than in the usual case because he seeks to prove that his possession has excluded the property interests of family members who are, by operation of law, his fellow tenants in common. See Harlow v. Miller, 147 Vt. 480, 484, 520 A.2d 995, 998 (1986) (proof of adverse possession must be established by stronger evidence where claim is against family members); Scott v. Leonard, 119 Vt. 86, 102-03, 119 A.2d 691, 700 (1956) (presumption against ouster of co-tenant can be overcome only by some overt and notorious act or acts of an unequivocal character, indicating an assertion of ownership of the entire premises to the exclusion of the right of the co-tenant).

By virtue of his deed, petitioner's interest in the land was that of a tenant in common with his mother under 27 V.S.A. § 2, which governs the construction of such deeds. Therefore, upon her death petitioner became a co-tenant with his mother's heirs. See Bemis v. Lamb, 135 Vt. 618, 621, 383 A.2d 614, 617-18 (1978). Petitioner bases his claim on the fact that none of the parties were aware of their status as co-tenants until petitioner's attempted transaction in 1981. He supports his claim with evidence that he paid all real estate taxes and expenses relative to the property. Petitioner also provided numerous examples of his use of the property for his own benefit to show that his possession of it was open, notorious, and hostile. Petitioner contends, in essence, that his possession with claim of right from the inception of the deed has been adverse to the interests of his co-tenants despite their ignorance of their rights to the property. ² We do not agree.

I.

Where a co-tenant would claim sole right to property held in common he must "oust his fellow co-tenants by some overt and notorious act of an unequivocal character, indicating an assertion of ownership of the entire premises to the exclusion of the rights of the others." Id. at 621, 383 A.2d at 617. Where no co-tenancy relationship exists, the requisite "claim of right" arises by presumption if the claimant's use is open and notorious, without evidence of permission by the rightful owner. Russell v. Pare, 132 Vt. 397, 404, 321 A.2d 77, 82 (1974).

However, where the circumstances involve co-tenants, the presumption is that one co-tenant in possession is holding the property for all co-tenants. Leach v. Beattie, 33 Vt. 195, 198 (1860).

If a co-tenant enter upon the whole or part of the common property, as he has a legal right to do, the law presumes that he intends nothing beyond an assertion of his right. In order to sever his relation as co-tenant, and render his possession adverse, it must be affirmatively shown that the other co-tenants had knowledge of his claim of exclusive ownership, accompanied by such acts of possession as were not only inconsistent with, but in exclusion of, the continuing rights of the other co-tenants, and such as would amount to an ouster as between landlord and tenant.

Scott, 119 Vt. at 102, 119 A.2d at 700 (citation omitted).

In Scott the defendants claimed that their improvements and use of the property gave notice of their adverse possession to the plaintiffs, record title holders to an appurtenant easement. The defendants' use and improvements, however, were held to be consistent with the continuing rights of the plaintiffs. Only the placement of a barricade across the roadway which was subject to the easement gave notice to the plaintiffs that the defendants' possession was to the exclusion of rights of the other titleholders. Id. at 103, 119 A.2d at 701.

The evidence produced in Scott was similar in nature to the evidence of sole possession produced here. It is undisputed that petitioner possessed the property and improved it, paid taxes and generally took responsibility for it as the owner. Despite the expense involved, however, such care for the land is not necessarily inconsistent with the interests of his co-tenants. See Waterman v. Moody, 92 Vt. 218, 234, 103 A. 325, 332 (1918) (law presumes that payment of taxes by one co-tenant is on behalf of other, nonpossessory co-tenants).

Here, the probate court also found that the petitioner's father, Irving Neil, had held various public offices before and after his wife's death which would have brought the title of the property to his attention. The court based its conclusion on evidence entered by the petitioner that the senior Mr. Neil had been a town lister, constable and tax collector. The court held that Mr. Neil knew or should have known of the adverse nature of the petitioner's possession through the town tax rolls which showed the property listed in petitioner's name only. However, it is not clear from the transcript whether the senior Mr. Neil can be attributed with actual knowledge of his wife's ownership interest, or the deed and its legal construction. Constructive notice to the nonpossessory co-tenants is not sufficient to constitute an ouster. Scott, 119 Vt. at 102, 119 A.2d at 700; Waterman, 92 Vt. at 234, 103 A. at 332. Accordingly in Waterman, this Court noted that information contained in the tax rolls does not constitute ouster. 92 Vt. at 234, 103 A. at 332. Therefore, the court's conclusion of ouster based on constructive notice is in error.

One finding stands alone to support the holding that petitioner had excluded the rights of his co-tenants in a manner which constituted ouster: the transfer of a right-of-way to the town for the purpose of making a roadway. That right-of-way was conveyed by petitioner as "owner in fee" in May 1958. Such a conveyance, especially given its visibility as part of a town road, could amount to an ouster. Id. at 233, 103 A. at 331-32. In order to determine whether this fact supports the conclusion reached here, however, we must question whether the co-tenants were aware of their rights and could, therefore, have been ousted.

II.

Our opinions contemplating ouster of a co-tenant have, to date, concerned record titleholders whose interests were conveyed by deed or by probate of an estate. In each case, the titleholders had or should have had knowledge of their interest in the subject parcel. See generally Bemis v. Lamb, 135 Vt. 618, 383 A.2d 614 (property included in inventory of estate assets); Scott, 119 Vt. 86, 119 A.2d 691 (co-tenancy by deed); Waterman, 92 Vt. 218, 103 A. 325 ...