Sarah v. Peltz ( 1998 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
PHILIP PELTZ, )
)
Plaintiff/Appellant, )
) Appeal No.
) 01-A-01-9711-CH-00659
VS. )
) Williamson Chancery
SARAH V. PELTZ,
JESSE V. NICHOLS, and
)
)
)
No. 22868
FILED
NANCY S. NICHOLS, ) October 14, 1998
)
Defendants/Appellees. ) Cecil W. Crowson
Appellate Court Clerk
APPEALED FROM THE CHANCERY COURT OF WILLIAMSON COUNTY
AT FRANKLIN, TENNESSEE
THE HONORABLE HENRY DENMARK BELL, JUDGE
JEFFREY RAPPUHN
A. RUSSELL WILLIS
215 Second Avenue, North
Nashville, Tennessee 37201
Attorneys for Plaintiff/Appellant
WILLIAM CARTER CONWAY
236 Court Square, Suite 205
Franklin, Tennessee 37064
Attorney for Defendant/Appellee Sarah V. Peltz
R. E. LEE DAVIES
H. MARK HARTZOG
123 Fifth Avenue North
Franklin, Tennessee 37064
Attorneys for Defendants/Appellees Jesse V. Nichols and
Nancy S. Nichols
REVERSED AND REMANDED
BEN H. CANTRELL, JUDGE
CONCUR:
KOCH, J.
CAIN, J.
OPINION
This case involves a question of adverse possession between tenants
in common of real estate. The Chancery Court of Williamson County held that the
seven year statute of limitations in Tenn. Code Ann. § 28-2-103 barred the appellant’s
remedy against the appellees. Because we find that there had been no ouster of the
appellant, we reverse.
I.
In 1974, Philip and Sarah Peltz and Mrs. Peltz’s parents, Jesse and
Nancy Nichols, purchased a forty-eight acre parcel of property in Williamson County.
Mr. Nichols, a retired Air Force serviceman, started almost immediately to build a
house on the property. He and his wife lived on the property and he worked on the
house for the next fourteen years.
Mr. Peltz was a New York Lawyer. He visited the property a few times
before 1983, but after that time he did not return to Tennessee. He subsequently lost
his license to practice law and moved to California. In 1985, Mrs. Peltz signed a
warranty deed conveying the property to her parents. She had her brother forge Mr.
Peltz’s signature on the deed. They had the deed notarized and Mrs. Peltz then
delivered the deed to her father. Mr. Nichols had the deed recorded. There is no
evidence in the record that Mr. Nichols knew or suspected that Mr. Peltz’s signature
on the deed had been forged.
Mr. Peltz did not learn of the forgery until it came out in a California
divorce filed by Mrs. Peltz in 1994. He immediately filed this action to cancel the deed
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and to recover damages from his wife, her parents, the notary, and the notary’s
employer.
The chancellor dismissed Mr. and Mrs. Nichols on the ground that the
action was barred by Tenn. Code Ann. § 28-2-103. The court held that Mrs. Peltz
forged or caused to be forged Mr. Peltz’s signature to the deed causing a diminution
in their combined interests of $7500. Consequently Mr. Peltz obtained a judgment
against Mrs. Peltz for $7500 plus prejudgment interest at eight percent per year from
April 1, 1979. The judgment was, however, made subject to a division by the
California divorce court. Mr. Peltz voluntarily dismissed the notary and her employer.
II.
Tenn. Code Ann. § 28-2-103(a) provides that “no person or anyone
claiming under him shall have any action, either at law or in equity, for the recovery
of any lands, tenements or hereditaments, but within seven (7) years after the right
of action accrued.” Under this section, a recovery is barred by seven years of adverse
possession. Teeples v. Key, 500 S.W.2d 452 (Tenn. App. 1973). But possession by
one tenant in common is not adverse to another co-tenant until a disseisin of the
others by actual ouster. Woods v. Richardson, 231 S.W.2d 340 (Tenn. 1950). Silent
sole occupation by one co-tenant is not sufficient to establish adverse possession.
Moore v. Cole, 289 S.W.2d 695 (Tenn. 1956). Since there is no evidence of an ouster
in this record, Mr. and Mrs. Nichols were not holding the property adversely to Mr.
Peltz. Therefore the statute of limitations in Tenn. Code Ann. § 28-2-103(a) did not
begin to run. Mr. and Mrs. Nichols cite Valley v. Lambuth, 1 Tenn. App. 547 (1925)
in support of their statute of limitations defense, but that case involved an actual
ouster, as the court held.
-3-
We are also convinced that Mr. and Mrs. Nichols cannot claim that they
were holding under an assurance of title. See Tenn. Code Ann. § 28-2-101, 102. The
chancellor found that Mr. Peltz’s signature had been forged on the deed. As to Mr.
Peltz the deed was an absolute nullity. See Boone v. Citizen Bank & Trust Co., 290
S.W. 39 (Tenn. 1927); Cowan v. Thompson, 152 S.W.2d 1036 (Tenn. App. 1941).
Although these cases deal with negotiable instruments, we are satisfied that a forged
signature cannot be used as the basis for any legal claim unless it has been ratified
by the person identified by the signature. In addition, a deed is within the statute of
frauds, and a forged signature does not satisfy the requirement of a writing signed by
the party to be charged. Beazley v. Turgeon, 772 S.W.2d 53 (Tenn. App. 1989).
Therefore, the deed cannot prejudice Mr. Peltz’s rights.
We reverse the judgment below and remand the cause for a retrial on
Mr. Peltz’s prayer for partition. In that proceeding the court may adjust the interests
of the parties according to their respective contributions.
The judgment of the court below is reversed and the cause is remanded
to the Chancery Court of Williamson County for further proceedings in accordance
with this opinion. Tax the costs on appeal equally to the appellees.
____________________________
BEN H. CANTRELL, JUDGE
CONCUR:
_____________________________
WILLIAM C. KOCH, JR., JUDGE
_____________________________
WILLIAM B. CAIN, JUDGE