Phillips v. Pittsburgh Consol. Coal Co.

• Decision Date: 07 September 1976
• Citation: 541 S.W.2d 411
• Parties: Edwin PHILLIPS et al., Appellants, v. PITTSBURGH CONSOLIDATED COAL COMPANY et al., Appellees. Edwin PHILLIPS et al., Appellants, v. PITTSBURGH CONSOLIDATED COAL COMPANY et al., Appellees. 541 S.W.2d 411
• Court: Tennessee Supreme Court

Page 411

541 S.W.2d 411

Edwin PHILLIPS et al., Appellants, v. PITTSBURGH CONSOLIDATED COAL COMPANY et al., Appellees.

Edwin PHILLIPS et al., Appellants, v. PITTSBURGH CONSOLIDATED COAL COMPANY et al., Appellees.

541 S.W.2d 411

Supreme Court of Tennessee.

Sept. 7, 1976.

J. Michael Lain, Oak Ridge, for appellants.

Sam F. Fowler, Jr., Fowler, Rowntree, Fowler & Robertson, Knoxville, for appellees.

BROCK, Justice.

The two captioned causes were filed, one in Campbell County and the other in adjoining Anderson County, seeking a declaratory judgment and other relief respecting a tract of land which is situated astride the county line. The plaintiffs, appellants in this Court, alleged that they are the grandchildren and great-grandchildren, being the heirs at law, of James and Tilitha Phillips who, it is alleged, owned the land in question as tenants in common with the predecessors in title of the defendants. The defendants filed an answer followed by a motion for judgment on the pleadings which the trial court treated as a motion for summary judgment. This motion for summary judgment was granted by the trial court and the complaint was dismissed. From the order of dismissal, appellants seek review in this Court.

The summary judgment of the trial court was based upon the pleadings, a written stipulation of the parties, through counsel, that 'none of the plaintiffs are under 21 years of age or are of unsound mind'; that 'none of the plaintiffs or their predecessors in title have paid taxes on the parcels described in paragraph 3 above for more than 20 years'; and that the defendants and their predecessors in title have paid the taxes on the property in dispute for more than 20 years.

The only ground stated in the motion for summary judgment and the ground upon which said summary judgment for the defendant was granted is that the plaintiffs and their predecessors in title have not paid state and county taxes upon the land in dispute for a period of more than 20 years and, therefore, cannot maintained this action because barred by T.C.A. § 28--210 which provides:

'Action barred by nonpayment of taxes.--Any person having any claim to real estate or land of any kind, or to any legal or equitable interest therein, the same having been subject to assessment for state and county taxes, who and those through whom he claims have failed to have the same assessed and to pay any state and county taxes thereon for a period of more than twenty (20) years, shall be forever barred from bringing any action in law or in equity to recover the same, or to recover any rents or profits therefrom in any of the courts of this state; provided, that this section shall not apply to persons under twenty-one (21) years of age or to persons of unsound mind if suit shall be brought by them, or any one claiming through them, within three (3) years after the removal of such disability.'

After the summary judgment was granted by the trial court, the plaintiffs filed a petition to rehear in which they sought relief from that part of the stipulation which states that none of the plaintiffs were under 21 years of age or of unsound mind. They alleged, supported by an affidavit, that since the suit was filed two of the original plaintiffs, Jasper Byrge and Ely Byrge, had died leaving children and heirs under the age of 18 years. The failure of the trial court to grant relief from the stipulation for the reason alleged by the plaintiffs constitutes one of the assignments of error in this Court. This assignment is without merit. The above-quoted statute is tolled by the infancy of the landowner only during the 20 year period in which the taxes are not paid; once the statutory period of 20 years has run, the fact that a landowner dies leaving heirs who are disabled by infancy or unsound mind...