Present: All the Justices
SHANNON HARKLEROAD, ET AL.
OPINION BY
v. Record No. 092299 JUSTICE LAWRENCE L. KOONTZ, JR.
January 13, 2011
THEODORE K. LINKOUS, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF BRISTOL
Larry B. Kirksey, Judge
In this appeal, we consider whether the circuit court
correctly determined that a co-tenant with an undivided one-
half interest in an improved parcel of real property had
established the necessary elements to prove adverse possession
as against the other co-tenants and, thus, was entitled to a
judgment granting quiet title to the entire property in fee
simple.
BACKGROUND
The parties do not dispute the relevant facts which
reflect the chain of title to the property involved in this
case. That property, located within the City of Bristol,
consists of three lots with a dwelling now collectively known
as 1101 Vermont Avenue. These facts were set out in cross-
complaints filed by the parties in the Circuit Court of the
City of Bristol.
In 1952, Pauline J. Smith and her husband, David H.
Smith, by deed each acquired an undivided one-half interest in
the property. In 1976, David Smith by his will conveyed his
undivided one-half interest in the property to Louise Hensley,
his daughter, and Kathy Talley Poore, his granddaughter,
subject to a life estate in favor of Pauline Smith. In 1990,
Louise Hensley died leaving her interest in the property to
her children, Shannon Harkleroad and David Rhea. In 2004 upon
the death of David Rhea, his interest in the property passed
to his widow, Connie Rhea. As a result of these conveyances,
Kathy Poore claims a 25% ownership interest in the property,
Shannon Harkleroad claims a 12.5% ownership interest in the
property, and Connie Rhea claims a 12.5% ownership interest in
the property. For clarity, we will hereafter refer to these
parties as the “Appellants” with the understanding that they
collectively claim an undivided one-half interest in the
property.
Pauline Smith occupied the dwelling on the property until
1982, when by deed she conveyed her undivided one-half
interest in the property to D.H. Frackelton. The deed is
silent as to her life estate interest but purports to convey
the property to Frackelton “in fee simple forever.”
Thereafter, apparently Frackelton did not pay certain income
taxes. In 1990 to satisfy its lien for these delinquent
income taxes, the Internal Revenue Service (“IRS”) sold
Frackelton’s interest in the property at a public sale to
Theodore K. Linkous and his wife, Mary H. Linkous. By deed
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dated March 21, 1991, the IRS conveyed “all right, title, and
interest” of Frackelton to David and Mary Linkous (hereafter
collectively “the Linkouses”). The Linkouses then took
possession of the property, made renovations to the dwelling,
and rented the dwelling until sometime in 2007 when their
ownership interest was questioned by prospective purchasers of
the property.
On November 25, 2008, the Linkouses filed an amended
complaint in the circuit court against Appellants to quiet
title to the property, asserting fee simple ownership on the
grounds of adverse possession for the statutory period of 15
years provided for by Code § 8.01-236. Appellants filed a
cross-complaint against the Linkouses in which they asserted
that they were the joint owners of an undivided one-half
interest in the property. They sought an accounting for rents
collected by the Linkouses and a partition of the property by
sale.
Although the two complaints were not formally
consolidated, the circuit court conducted a joint ore tenus
hearing on February 3, 2009, subsequently issuing a single
opinion letter dated June 17, 2009, and entering concurrent
decrees resolving both matters on August 18, 2009. Additional
facts relevant to the issue raised in this appeal were adduced
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at the February 3, 2009 hearing, and are admirably recited in
the circuit court’s opinion letter:
At the time of purchase from the IRS, the subject
property was in [a] severe state of decline and
disrepair. Thereafter, [the] Linkous[es] expended
significant funds to repair, improve and maintain the
property, greatly increasing its value to the present
state. In addition, [the] Linkous[es] leased the
subject property to tenants who occupied the house
continuously. Rents were collected by [the]
Linkous[es], and the property managed by them to the
exclusion of anyone. Real property taxes, delinquent
as of the purchase date from [the] IRS, were paid by
[the] Linkous[es] and kept current in payment
thereafter by them. No assertion of ownership was
made by Hark[le]road, Rhea and [Poore] until being
alerted of [the] Linkous[es]’ action herein which was
necessitated as a result of a proposed sale and
transfer by [the] Linkous[es] to other persons.
The evidence further supported the circuit court’s
finding that “[f]ollowing the sale by [the] IRS, [the]
Linkous[es] awaited for others to claim ownership, and no one
came forward to do so, despite its sale being widely
publicized and the dominion by [the] Linkous[es] being plainly
visible.” However, during cross-examination, Theodore Linkous
conceded that he had not performed a title search at the time
he acquired his interest in the property in 1991.
At the conclusion of the hearing, Appellants contended
that the Linkouses had not established adverse possession for
the statutory period of 15 years because their possession of
the property did not become hostile until they were advised
that the conveyances in their chain of title did not convey a
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fee simple interest in the property and until they became
aware of the Appellants’ claim to an undivided one-half
ownership interest of the property. Appellants maintained
that possession of the property by the Linkouses without
knowledge or notice that Appellants had a joint right to
occupy the property could not be hostile to the ownership
interests of Appellants. Rather, they contended that one co-
tenant may not assert a hostile possession of the property
unless the other co-tenants are ousted from the property,
either in fact or by affirmative notice of the intent to
exclude them.
The circuit court rejected Appellants’ contentions.
Quoting Grappo v. Blanks, 241 Va. 58, 62, 400 S.E.2d 168, 171
(1991), the court noted that “[o]ne is in hostile possession
if his possession is under a claim of right and adverse to the
right of the true owner. One’s possession is exclusive when
it is not in common with others. Possession is visible when
it is so obvious that the true owner may be presumed to know
about it.” (Internal citations omitted.) Applying this
standard, the court concluded that the Linkouses had met their
burden of proof to establish ownership of Appellants’ interest
in the property by adverse possession. Accordingly, the court
granted the Linkouses title to the property in fee simple and
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granted a judgment in their favor on Appellants’ complaint for
an accounting of rents and partition by sale of the property.
Appellants noted appeals in both cases and filed a
consolidated petition for appeal. Rule 5:17(g). We awarded
Appellants this appeal.
DISCUSSION
“‘To establish title to real property by adverse
possession, a claimant must prove actual, hostile, exclusive,
visible, and continuous possession, under a claim of right,
for the statutory period of 15 years. A claimant has the
burden of proving all the elements of adverse possession by
clear and convincing evidence.’” Helms v. Manspile, 277 Va.
1, 7, 671 S.E.2d 127, 130 (2009) (quoting Grappo, 241 Va. at
61, 400 S.E.2d at 170-71). Appellants concede that the
Linkouses were in actual, exclusive, visible, and continuous
possession of the property since 1991. Appellants contend,
however, that the circuit court erred in finding that the
Linkouses’ possession of the property was “hostile” for the
period between 1991 and 2007 because the Linkouses were
unaware that their title gave them only an undivided one-half
interest in the property during that time. Thus, Appellants
contend that the Linkouses’ “claim of right” did not create a
hostile possession as to Appellants’ interest in the property,
because neither the Linkouses nor Appellants were on notice
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that Appellants were being excluded from the property. We
disagree.
Appellants are correct that when two parties acquire
property as co-tenants, one co-tenant may not rely on adverse
possession to obtain exclusive fee simple title to the
property unless notice, actual or constructive, is given to
the other co-tenant of the intent to oust, thus making the
occupying co-tenant’s possession hostile. See Leake v.
Richardson, 199 Va. 967, 979, 103 S.E.2d 227, 236 (1958);
Shenandoah National Bank v. Burner, 166 Va. 590, 593-594, 186
S.E. 92, 93 (1936) Stonestreet v. Doyle, 75 Va. 356, 378-79
(1881). Indeed, there is a presumption against any occupancy
of a co-tenant being hostile possession as to other co-tenants
with whom he is in privity. See Rutledge v. Rutledge, 204 Va.
522, 529, 132 S.E.2d 469, 474 (1963); Sanford v. Sims, 192 Va.
644, 651-52, 66 S.E.2d 495, 499 (1951) Braxton v. Phipps, 183
Va. 771, 774, 33 S.E.2d 650, 651 (1945).
However, this presumption does not apply when, as here, a
stranger to the original co-tenancy takes possession of the
property through a conveyance that on its face purports to
give the new co-tenant the right to possess the whole property
and he claims ownership of the whole. Shenandoah National
Bank, 166 Va. at 593, 186 S.E. at 93. This is so because the
stranger to the original co-tenancy is not in privity with the
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other co-tenants and when he “enters into the exclusive
possession of the land, claiming title to the whole, it is an
ouster of the other co-tenants and the grantee so entering and
claiming title may rely upon his adversary possession if
continued [for] the statutory period.” Id.; see also Preston
v. Virginia Mining Co., 107 Va. 245, 248, 57 S.E. 651, 652
(1907); Johnston v. Virginia Coal & Iron Co., 96 Va. 158, 163,
31 S.E. 85, 86-87 (1898).
Contrary to Appellants’ contention, under the
circumstances of this case it was not necessary for the
Linkouses, as the parties claiming adverse possession, to
discover the fact of Appellants’ co-tenancy and then give
actual notice to Appellants of the Linkouses’ intent to
possess the property exclusively. Rather, the “intention to
claim the land to the exclusion of the co-tenant may be shown
by the acts of the claimant.” Shenandoah National Bank, 166
Va. at 594, 186 S.E. at 94. Here, the acts of the Linkouses
regarding their possession of the property to the exclusion of
all others was so obvious that Appellants may be presumed to
have known about it and, thus, had constructive notice of the
Linkouses’ intent to oust them. Moreover, we are of opinion
that inherent in the doctrine of adverse possession is the
concept that the law will not permit an owner to be so
dilatory as to remain unaware of the exclusive use of his
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property by a stranger claiming title for the statutory period
of time. That ignorance is not a defense to the occupier’s
assertion of adverse possession.
Next, we turn to an issue apparent from the undisputed
facts, but not raised by the parties in the trial court or on
appeal to this Court. We address the issue, however, so that
title to the property will be clear in the land records of the
City of Bristol.
Although Appellants in their complaint state that Pauline
Smith is deceased, the record does not establish when she
died. In Rutledge, 204 Va. at 528, 132 S.E.2d at 473, we held
that “the possession of a life tenant, or one acquiring [her]
interest, is not adverse to the remainderman during the term
of the life estate.” Thus, in the present case it was
necessary initially to resolve the continuing validity of
Pauline Smith’s life estate in Appellants’ undivided one-half
ownership interest in the property after 1982 in order
completely to resolve the Linkouses’ adverse possession claim.
As previously recited, in 1952 Pauline Smith owned an
undivided one-half interest in the property. Her husband,
David Smith also owned an undivided one-half interest. In
1976, under David Smith’s will Pauline Smith acquired a life
estate in David Smith’s interest. In 1982, Pauline Smith
conveyed by deed her undivided one-half interest to
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Frackelton. That deed was silent as to her intent with regard
to a conveyance of her life estate. In 1991, the Linkouses
acquired by deed from the IRS Frackelton’s interest in the
property that he had acquired by the deed from Pauline Smith.
Thus, the question becomes whether Pauline Smith retained her
life estate in 1982 or whether her life estate was conveyed by
these deeds so that in 1991 the Linkouses held an undivided
one-half interest in the property and a life estate in the
Appellants’ interests in the property measured by the lifetime
of Pauline Smith.
In determining the effect of these deeds, we are guided
by familiar principles. “In construing deeds, the intent of
the grantor should be ascertained through the words used in
the conveyance, where possible.” Vicars v. First Virginia
Bank-Mountain Empire, 250 Va. 103, 106, 458 S.E.2d 293, 295
(1995); see also Trailsend Land Co. v. Virginia Holding Corp.,
228 Va. 319, 325-26, 321 S.E.2d 667, 670 (1984). “Where the
terms of a deed are not ambiguous, [the Court] look[s] no
further than the four corners of the instrument under review.”
Vicars, 250 Va. at 106, 458 S.E.2d at 295 (internal
quotation marks omitted).
The 1982 deed from Pauline Smith to Frackelton is not
ambiguous. It purports to convey the entire property in fee
simple. However, it only conveys her undivided one-half
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interest in the property which she had acquired in 1952. It
conveys that interest “in fee simple,” a term which is not
applicable to a life estate because a life estate in property
is not a fee interest in property. Additionally, the deed
does not contain the familiar terms “all right, title, and
interest” which would include a life estate. Accordingly, we
are of opinion that Pauline Smith retained her life estate in
1982 and, thus, neither Frackelton nor the Linkouses obtained
that life estate by their deeds.
Under these circumstances, Frackelton’s possession of the
property from 1982 until 1991 was not adverse to Pauline
Smith’s life estate interest in the property because their
interests were in privity. However, when the Linkouses
acquired Frackelton’s interest in the property by the March
21, 1991 deed from the IRS that privity was severed as to
Pauline Smith’s life estate interest. That severance of
privity permitted the statutory period for adverse possession
to begin to run against Pauline Smith’s life estate interest
in 1991, when the Linkouses’ possession of the property was
hostile to all ownership interests in the property.
Therefore, regardless of the date of Pauline Smith’s death
under these circumstances, the statutory period of 15 years
necessary to establish adverse possession as to her life
estate interest would have run by March 22, 2006.
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At common law applicable in Virginia, an adverse
possessor who occupies property for the statutory period
acquires title against the life tenant but not as against the
remainderman. This is so because during the life tenancy the
remainderman has no right to eject the adverse possessor. See
e.g., Matthews v. W. T. Freeman Co., 191 Va. 385, 398, 60
S.E.2d 909, 915 (1950); Duggins v. Woodson, 117 Va. 299, 303-
04, 84 S.E. 652, 653 (1915); Layne v. Norris, 57 Va. (16
Gratt.) 236, 241 (1861). Thus, in the present case if Pauline
Smith remained alive in 1991, the Linkouses’ adverse
possession of the property at that time was only against her
life estate, and not against the property interests of
Appellants as remaindermen. Moreover, the statutory period
necessary for the Linkouses to obtain title as against the
property interests of Appellants would only have begun to run
upon the date of Pauline Smith’s death if that event occurred
prior to the running of the statutory period otherwise
necessary to extinguish her life estate. Fitzgerald v.
Fitzgerald, 194 Va. 925, 929, 76 S.E.2d 204, 207 (1953);
Matthews, 191 Va. at 398, 60 S.E.2d at 915.
As we already have noted above, the parties did not raise
the issue of Pauline Smith’s life estate in the context of
when the statutory period for adverse possession began to run
as against Appellants’ interests in the property. The
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Linkouses had the burden to prove when their claim of adverse
possession accrued and they asserted that this occurred in
1991. Appellants did not challenge that assertion but,
rather, maintained that the Linkouses’ possession was not
adverse because they were co-tenants. Likewise, in briefing
this appeal Appellants have not raised any issue concerning
the failure of the record to establish the date of Pauline
Smith’s death as relevant to when the statutory period for
adverse possession by the Linkouses commenced as against
Appellants’ interests in the property. Rather, this issue was
first raised by this Court sua sponte during oral argument.
Accordingly, because Appellants did not raise this issue in
the circuit court, Rule 5:25, or in their assignments of
error, Rule 5:17, we are left to assume for purposes of our
resolution of this appeal that the parties have agreed that
the statutory period of 15 years under Code § 8.01-236 began
to run against Appellants’ interests in the property when the
Linkouses took exclusive possession of the property in 1991.
The record in this case amply demonstrates that for more
than fifteen years the Linkouses improved and maintained the
property, paid the property taxes, and leased the property to
tenants who were in open occupation thereon. During this
time, Appellants made no effort to ascertain the condition of
the property, to take responsibility for its upkeep, assume
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their share of the tax burden, or demand a proportionate share
of the rents collected. That they may have been unaware of
their ownership rights is not relevant, since this lack of
knowledge did not arise from any purposeful effort by the
Linkouses to fraudulently keep them in ignorance. Rather,
their rights in the property arose through the normal
operation of the law of real property, wills, and intestate
succession, and could have been ascertained by them at any
time through a minimal act of due diligence.
CONCLUSION
For these reasons, we hold that the circuit court did not
err in ruling that the Linkouses had established by clear and
convincing evidence all the necessary elements to obtain title
to Appellants’ one-half interest in the property by adverse
possession. Accordingly, the decrees granting the Linkouses
title in fee simple to the entire property and denying
Appellants an accounting for rent and partition of the
property by sale will be affirmed.
Affirmed.
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