701 Hardaway v. Nixon, No. 04-16-00252-CV, 2017 WL 5615635 (Tex. App.—San Antonio Nov. 22, 2017, pet. filed)

Richard F. Brown

The following is not a legal opinion. You should consult your attorney if the case may be of significance to you.

Hardaway v. Nixon, No. 04-16-00252-CV, 2017 WL 5615635 (Tex. App.—San Antonio Nov. 22, 2017, pet. filed) held that, as between cotenants, long-continued possession and failure of the titleholder to make a claim is insufficient to establish ouster and adverse possession in a motion for summary judgment. Louis and Eliza Eckford owned a 147.5-acre tract in Karnes County, Texas as community property. In 1896, Louis died intestate, and under the laws of intestacy, one-half of the real property passed to Eliza, and the other half passed to the nine surviving children. In 1928, Eliza died, and her court-appointed administrator purported to sell all the property once owned in community by Louis and Eliza Eckford to Fritz Korth. Until 2012, the Korth family continued to occupy and use the property, when a dispute arose as to the ownership of the 1/2 interest that passed from Louis Eckford to his children. The parties aligned as successors to Eckford and Korth. The Korth heirs alleged full ownership of the property based on constructive ouster of the Eckford heirs and subsequent adverse possession.

A cotenant’s possession of property is not adverse until the tenancy has been repudiated and “notice of such repudiation brought home to the titleholder.” The ouster or repudiation may be constructive and presumed when there has been “(1) long-continued possession under a claim of ownership [,] and (2) nonassertion of claim by the titleholder.” However, the ouster presumption case was after a jury trial, and its holding supported a jury verdict on the inference of repudiation based on long-continued possession and nonassertion of claim. “In summary judgment, reasonable inferences may be indulged in favor of the non-movant; the movant is not entitled to inferences, but must prove entitlement to judgment as a matter of law.” The Korth heirs asserted that because they have been in long, continued, exclusive possession of the property for over seventy years, they constructively and conclusively established an ouster and notice of repudiation as a matter of law. However, they failed to establish “that they took ‘unequivocal, unmistakable, and hostile acts’—other than mere possession and lack of a claim—‘to disseize’ the Eckford Heirs, their cotenants.” An inference or presumption of ouster will not support a summary judgment.

The significance of the case is the holding that presumptive or inferred ouster will not support a summary judgment for adverse possession between cotenants. In summary judgment, ouster must be proven as a matter of law.