Josephine Phelps v. Vern Benke, Jr.
M2015-02212-COA-R3-CV
| Tenn. Ct. App. | Jan 11, 2017Background
- Two adjacent parcels (House Property and Barn Property) were once one tract; Benke retained title to the Barn Property after a 1984 sale and later vacated both parcels in 2005.
- Appellants Phelps and Smith purchased the House Property at foreclosure in January 2007; the trustee's deed contained metes-and-bounds describing only the House Property (no conveyance of the Barn Property).
- After moving in, Appellants maintained and used the Barn Property (fencing, horses, mowing, taxes). They filed a petition for adverse possession of the Barn Property on March 5, 2013.
- Benke later answered the amended complaint (filed Jan. 22, 2015) and asserted counterclaims including ejectment; Appellants argued Benke’s ejectment claim was time-barred and asserted laches as a defense (motion to amend to add laches was never granted).
- The Chancery Court found Appellants had open and notorious possession but had possessed the Barn Property only about 6 years and 3 months when they filed suit, so they lacked the seven years required under Tenn. Code Ann. § 28-2-103; the court held Benke’s ejectment claim was not barred and ordered ejectment.
- On appeal, this Court affirmed: (1) Appellants had no color of title (trustee’s deed described only the House Property); (2) Benke’s ejectment counterclaim related back under Tenn. Code Ann. § 28-1-114 and was timely; (3) laches defense was waived because it was never properly pleaded or granted.
Issues
| Issue | Plaintiff's Argument (Phelps/Smith) | Defendant's Argument (Benke) | Held |
|---|---|---|---|
| Whether laches bars Benke’s ejectment | Benke waited unreasonably to assert possession; laches should bar ejectment | Laches was not pleaded as an affirmative defense (motion to amend denied/not granted); defense waived | Held: Laches waived; trial court did not err in not ruling for laches |
| Whether Benke’s ejectment counterclaim was time‑barred under § 28‑2‑103 | Counterclaim filed after seven years from start of adverse possession; should be barred | Counterclaim relates back to Appellants’ March 2013 filing under § 28‑1‑114 and was timely when complaint was interposed | Held: § 28‑1‑114 applies; counterclaim timely and not barred |
| Whether Appellants had color of title (entitling them to relief under §§ 28‑2‑101/102) | Trustee’s deed and possession gave color of title to Barn Property | Deed’s metes‑and‑bounds described only House Property; no color of title to Barn Property | Held: No color of title; §§ 28‑2‑101/102 inapplicable |
| Whether Benke proved right to immediate possession (ejectment merits) | Appellants had sufficient acts of ownership; Benke lacked action or acts of ownership when he sued | Benke had title to Barn Property and right to immediate possession; ejectment proper | Held: Benke established title and right to possession; ejectment available |
Key Cases Cited
- Cumulus Broadcasting, Inc. v. Shim, 226 S.W.3d 366 (Tenn. 2007) (summarizes Tennessee statutory adverse possession schemes and distinction between color-of-title statutes and § 28-2-103)
- Cross v. McCurry, 859 S.W.2d 349 (Tenn. Ct. App. 1993) (holding a counterclaim may relate back under § 28-1-114 to the original complaint and thus escape § 28-2-103’s seven-year bar)
- Wilson v. Price, 195 S.W.3d 661 (Tenn. Ct. App. 2005) (elements required to establish adverse possession)
- Demarcus v. Campbell, 65 S.W.2d 876 (Tenn. Ct. App. 1933) (describing requirements for ejectment: legal interest and right to immediate possession)
- Fed. Deposit Ins. Corp. v. Hooper, 700 F. Supp. 915 (M.D. Tenn. 1988) (interpreting § 28-1-114(a)’s plain language and rejecting a thirty‑day filing‑limit reading)