Solomon Johnson v. The Heirs or Devisees

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Solomon Johnson, Frank Johnson, Ruth Green, Dorothy
Jones, Theresa Scott, Erma Johnson, Kelly Barbara Jean
Ferguson a/k/a Barbara Jean Albergottie, Alphonzo
Albergottie, David Pringle, Pauline Lesesne, Marion
Pringle, Jr., Frederick Scott, Paul K. Scott, Harold Jones,
Sandra Williamson Powell, Fredericka L. Williamson,
Elvin Bennett, Janie L. Ganues, Bertha Stafford, Patrice
Stafford, Mary Lee Gary, Alnethia Gary, Edward Stanley
Stafford, Luerta Gary, Kenneth Gary, Carlos Gary, Ron
Kenneth Stewart, Mary Frances Duncan, Debra
Williams, Larry Williams, Barbara Williams Smith,
Johnie Williams, Terri Elaine Weaver, Letha G. Rhem,
Patricia Ann White, Sharon White, Nolen White, and
Johnny Washington, Jr., Respondents,

v.

The Heirs or Devisees of Solomon White; Mary Ann
Pinckney White; Edward White, Jacob White, Mary
White; Carrie White; Ellen White Gary; Sam Gary;
Emma Gary Johnson; Miller Johnson, Sr.; Oscar
Johnson; Eloise Johnson; Miller Johnson, Jr.; Leola
Johnson; Richard (Ritchie) Johnson; Sarah H. Johnson;
Mack Coles; Emily Johnson Albergottie; Robert
Albergottie; Louise Johnson Pringle; Marion Pringle;
Mamie Gary; Thomas Brown; Carrie Scott; Clarence
Scott; Jessie Mae Scott Smalls; Williams Smalls, Jr.;
Nathaniel Scott; Camerine Scott; Hermon V. Scott:
Luther Scott; Earnestine Steward; Epstein Steward;
Lonny Brown; Gussy Brown; Charles Brown; Danza
Gary; Victoria Brown; Dorothy Williamson; Joseph
Williamson, Sr.; Elijah Williamson; Joseph Williamson,
Jr.; Helen (Sweetie) Brown Bennett; Ervin Bennett; Janie
Bennett Green; Eloise Bennett Nixs; Benjamin Nixs;
Terry Nixs; Carrie Gary; Harry Julius; Richard Gary;
Fronnie Gary; Ella Gary; Francis Gary; Florence (Nana)
Gary; Aletha (Tiny) Gary Watson; Andrew Gadsden;
Frank Watson; Elizabeth Gary Stafford; Lee Stafford;
John Lee Stafford; Joseph Gary; Nehemiah Gary;
Dorothy Gary; Harold Gary; Cleveland Gary; Henry
Gary; Florrie Gary; Naomi Gary Stafford; James
Stafford, Sr.; Hattie Mae Stafford; Edna Brooker; Henry
Brooker; Inell Jones; Raymond Jones; James Stafford,
Jr., Hazel Gary; Henry Gary, Jr.; Henry Gary, III;
Herman Gary; Mary Ellen Gary Williams; Herbert
Williams, Sr.; Herbert Williams, Jr.; Louise Gary White;
Jimmy White; Lou Ethel Washington; Margaret Gary
Levine; David Levin; Eddie James Gary; Wilhelmina
Gary Murray; Ezekiel Murray, Sr., Josephine Gary
Jenkins; Eddie Jenkins; Joe Louis Gary; Heirs of David
Pringle; Salt Marsh Partners, L.P.; Janice E. Jones and
Ralph E. Johnson; Bobbie J. Collins; Leory Norris and
Odis Ann Norris; M. Lane Morrison; Mills Lane
Morrison and Bank of America, N.A., as Trustees;
Beaufort County Open Land Trust; William McLean
Mixon and Barbara Hill Mixon, as Trustees of the Mixon
Revocable Trust Agreement dated July 24, 2008; Robert
J. Pinckney; Mamie Brown; Susie Cordeaux; Dorothy
Lesesne, Ben Pinckney, Christopher Pinckney, Etta
Pinckney, Henry Pinckney, Herbert Pinckney, Ernestine
P. Rogers, Lillie Shell, and Ruth P. Simmons; Richard
Johnson, Jr.; Helen Coles; Forestine Pringle; Sandra
Smalls; Jackie Smalls; Sharon Smalls; Andrea Smalls;
Brooke Smalls; Allan Scott; Cleon Scott; Nia Malika
Singletary; Loretta L. Steward; Nathan Jones; Eric
Williamson; Dwayne Williamson; Audrey Brown;
Joseph Johnson; Jacqueline Johnson Major; Robert Lee
Green; Kenneth Green; Juanita Green; Keith Green;
Joseph Green; Ellis Green; Carl Green; Brown Bennett;
Dorsey Bennett; William Nixs; Jennifer Nixs; Jason
Nixs; Thaddaus Nixs; Edward Nixs; Charles Nixs; Althea
Nixs; Clara Gary; Francis Gary, Jr.; Adelia Gary; Charles
Gary; Albert Gary; Ulysses Gary; Bernard Gary; David
Gary; Annette Singleton; Lillie Mae Giffford; Shawndea
Stafford; James Stafford; Beaulah Gadsden; Jordan
Harris; Leon Stafford; Alvin Brooker; Michael Stafford;
Shirley Stafford White; Gail Stafford Marquez;
Jacqueline Stafford; Stephanie Jones; Renata Jones;
Ranell Jones; Germanie Jones; Nathaniel Stafford;
Angela Stafford; Sonya Green; James Stafford III;
Rasheen James; Jusean James; Kierra Stafford; Lena
(Evelyn) Gary; Brenda Patterson; Jeanette Rutledge;
Issac Williams; Carolyn Achampony; Antoinette Lewis;
Geraldine Brown; Johnny Washington; Kurt Washington;
Diane Gary; Tracy Washington; Carren Washington;
Lunetha Gary; James Stanley Gary; Gerald R. Gary; if
living, and if not living, then the heirs or devisees of all
such persons named above; and all persons unknown
having or claiming to have any right, title, estate, interest
in or lien upon the real property described in the
Complaint herein, being designated collectively as John
Doe and Mary Doe, including all persons who may be
deceased, minors, in the Armed Forces of the United
States, Non Compos Mentis, and under any other
disability, Defendants,

Of whom Clara Gary, Adelia Gary, David Gary, Annette
Singleton, Albert Gary, Ulysses Gary, Bernard Gary,
Francis Gary, Jr., and Charles Gary are the Appellants.

Appellate Case No. 2014-002220

Appeal From Beaufort County
Marvin H. Dukes, III, Master-in-Equity

Opinion No. 2017-UP-135
Submitted March 3, 2017 – Filed March 29, 2017
AFFIRMED

George E. Counts, and Kelvin M. Huger, both of Counts
& Huger, LLC, of Charleston, for Appellants.

J. Thomas Mikell and Harold A. Boney, Jr., both of
Beaufort, for Respondents.

PER CURIAM: In this heirs' property dispute, Appellants appeal the master-in-
equity's order, arguing the master erred in finding they did not acquire title to two
parcels of land through ouster of their cotenants, Respondents. We affirm.

"'Ouster' is the actual turning out or keeping excluded a party entitled to possession
of any real property." Freeman v. Freeman, 323 S.C. 95, 99, 473 S.E.2d 467, 470
(Ct. App. 1996). In a tenancy in common, the possession of one cotenant is the
possession of all. Id. Therefore, to establish title against a cotenant by adverse
possession, a tenant "must overcome the strong presumption that he holds
possession in recognition of the cotenancy." Id.

"Actual ouster of a tenant in common by a cotenant in possession occurs when the
possession is attended with such circumstances as to evince a claim of exclusive
right and title and a denial of the right of the other tenants to participate in the
profits." Id. To establish ouster, a cotenant's actions must be unequivocally hostile
to the rights of the other cotenants while the intention to disseize is clear and
unmistakable. Felder v. Fleming, 278 S.C. 327, 330, 295 S.E.2d 640, 642 (1982).
"Only in rare, extreme cases will the ouster by one cotenant of the other cotenants
be implied from exclusive possession and dealings with the property, such as
collection of rents and improvement of the property." Freeman, 323 S.C. at 99,
473 S.E.2d at 470.

Appellants present several pieces of evidence to support their argument that they
ousted Respondents. First, Appellants state they produced tax receipts for the
properties dating back to 1967. Second, Appellants claim they posted "No
Trespassing" signs around the ten-acre parcel, which was used primarily for
hunting and cutting timber. Third, Appellants presented testimony that they
farmed the thirty-acre parcel and were the only cotenants who contributed to the
upkeep of the property. Last, Appellants testified they did not know most of the
members of the family tree submitted by Respondents, showing their belief that
they alone owned the properties.

Upon our review of the record, evidence supports the master's finding that
Appellants did not oust Respondents from the land. See Jones v. Leagan, 384 S.C.
1, 10, 681 S.E.2d 6, 11 (Ct. App. 2009) (per curiam) (stating the appellate court's
standard of review for adverse possession claims is limited to determining
"whether any evidence reasonably tends to support the trier of fact's findings").
With respect to the tax receipts, Respondents testified it was family tradition for
the eldest heir to annually divide the tax bill by the number of heirs living on the
property, collect each heir's share, and pay the county tax assessor. Appellants'
possession of the tax receipts, which were addressed to the "Heirs of Solomon
White" and the "Heirs of Mary Ann Pinckney White," does not prove their
ownership of the parcels by ouster. See Watson v. Little, 224 S.C. 359, 368, 79
S.E.2d 384, 388 (1953) (stating the payment of taxes by a cotenant ordinarily
entitles him to only a proportionate contribution from the other cotenants).

Moreover, Appellants admitted on cross-examination that their "No Trespassing"
signs around the ten-acre lot did not prove a hostile intent specifically towards
Respondents. Without more, the signs were a general warning to the public at
large to refrain from entering the land and protected all of the heirs. See Fender v.
Heirs at Law of Smashum, 354 S.C. 504, 513, 581 S.E.2d 853, 858 (Ct. App. 2003)
("The fact that [a cotenant] placed 'No Trespassing' signs on the property, without
more, cannot be shown to be adverse to the rights of the other [cotenants].").

Although Appellants claim they did not know any of Respondents, other than
Solomon Johnson, and used the thirty-acre parcel for farming and raising livestock,
we find evidence supports the master's finding that various heirs of other branches
have come and gone over the years and have lived in homes and mobile homes on
the property. Indeed, a non-relative confirmed Solomon Johnson's testimony that
Johnson, an eighty-six-year-old man, has lived on the thirty-acre parcel for his
entire life. Most importantly, Appellants could not name a single heir that they
denied access to or ejected from the property. See Felder, 278 S.C. at 330, 295
S.E.2d at 642 (stating a cotenant's actions must be unequivocally hostile to the
rights of the other cotenants while the intention to disseize is clear and
unmistakable). Therefore, we hold evidence in the record supports the master's
conclusion that Appellants failed to carry their burden in proving ouster.
AFFIRMED.1

WILLIAMS and KONDUROS, JJ., and LEE, A.J., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.