THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Sherwood N. Fender,
Heirs at Law
of Roger Smashum, John Smashum and Arthur Smashum, if living or such
heirs of them as may be living, Carolee H. Goodwine, Mae Olive Henderson,
Audrey Polite Sawyer, Diana Cornish, Heirs of John Frasier, if living
or such heirs of them as may be living, Bernadette Anderson, Eloise
Gadson and all other persons unknown, having or claiming any right,
title or estate or interest in or lien upon the real property described
in the complaint herein, being designated collectively as John Doe and
Sarah Roe, including all minors, persons in the armed forces, insane
persons and all other persons under any other disability who might have
or claim to have any right, title or interest in or lien upon the real
property described in the complaint herein,
Of whom Henrietta
Jones, Sarah Shepard and Lucy Smith, as heirs at law of John Smashum,
and Queen Smashum, as grantee of Adam Smashum, heir at law of John
Buckner, Circuit Court Judge
Opinion No. 3639
Heard March 11, 2003 – Filed May 5, 2003
REVERSED and REMANDED
Derek C. Gilbert, of Beaufort, for Appellants.
Alysoun Meree Eversole, of Beaufort, for Respondent.
CURETON, J: Henrietta Jones, Sarah Shepard and Lucy Smith, as heirs
of John Smashum, and Queen Smashum, as grantee of Adam Smashum, heir of John
Smashum (collectively “Heirs”), appeal the circuit court=s grant of summary
judgment to Sherwood N. Fender in this quiet title action. We reverse and
The parties each claim title to a parcel of unimproved land. Each can trace
their titles through a series of intestate and deed conveyances to two “Head
of Family Land Certificates” granted by the United States District Tax Commission
to Roger Smashum around 1867. Roger Smashum’s interest eventually passed
through intestacy to his son John Smashum and eventually to two of his grandsons,
Arthur Smashum and Thomas Smashum.
Fender claims title through a November 1988 deed derived from a succession of
conveyances from Arthur Smashum. In 1966, Arthur Smashum conveyed his interest
in the property to Betty M. Sloan by quit-claim deed. Sloan conveyed the
property back to Arthur in 1969 by quit-claim deed. In 1983, Arthur conveyed
the property to himself and Charlie Mae Brantley as joint tenants with the
right of survivorship. Arthur died in 1984 and in 1988 Charlie Mae conveyed
the property to W. Thomas Parker and Fender by warranty deed.
Henrietta Jones, Sarah Shepard and Lucy Smith, claim a tenancy-in-common with
Fender as heirs of Thomas Smashum. Queen Smashum claims a one-eighth tenancy
in common interest with Fender through a 1999 quit-claim deed from Adam Smashum,
an heir of Thomas Smashum.
In December 1999, Fender initiated the present action seeking to quiet title
to the property. He asserted the absence of estate or administrative proceedings
related to the estates of Roger Smashum, John Smashum, and Arthur Smashum
left a cloud over his title. In his complaint, Fender alleges the interest
of a business associate and his was adverse to all others. His complaint states:
That possession of the property which is the subject
of this cause of action has been in actual, open, notorious and exclusive
possession of [Fender and a business associate] under claim of title and that
there has been such continued occupation and possession of the premises for
over ten (10) years.
Queen Smashum answered on behalf of herself and the
heirs of Thomas Smashum in May 2000, and counterclaimed to quiet title to
the property in the name of the Heirs. The Heirs claimed Queen Smashum, Henrietta
Jones, Sarah Shepard, and Lucy Smith each owned an undivided one-eighth interest
in the property.
In June 2001, Fender made a motion for summary judgment.
The circuit court conducted a hearing on Fender’s motion the following month.
In its order issued in August 2000, the court granted summary judgment to
Fender. This appeal follows.
STANDARD OF REVIEW
Summary judgment is appropriate when there is no genuine
issue as to any material fact and the moving party is entitled to judgment
as a matter of law. Fleming v. Rose, 350 S.C. 488, 493, 567 S.E.2d
857, 860 (2002). When determining whether any triable issue of fact exists,
the evidence and all inferences, which can reasonably be drawn from it, must
be viewed in the light most favorable to the nonmoving party. Faile
v. S.C. Dep’t of Juvenile Justice, 350 S.C. 315, 324, 566 S.E.2d 536,
540 (2002). If triable issues exist, those issues must be submitted
to the jury. Young v. S.C. Dep’t of Corrections, 333 S.C. 714,
718, 511 S.E.2d 413, 415 (Ct. App. 1999). Even where no dispute as to evidentiary
facts exists, but only as to the conclusions or inferences to be drawn from
them, summary judgment should not be granted. Hall v. Fedor,
349 S.C. 169, 173-74, 561 S.E.2d 654, 656 (Ct. App. 2002). Moreover,
summary judgment is a drastic remedy that should be cautiously invoked to
ensure no person is improperly deprived of a trial of disputed factual issues.
Lanham v. Blue Cross & Blue Shield of S.C., 349 S.C. 356, 363,
563 S.E.2d 331, 334 (2002).
The Heirs argue the circuit court erred in finding Fender
acquired title to the subject property through adverse possession. We agree.
As an initial matter, the Heirs assert the circuit court
erred in failing to find that they are co-tenants in the subject property
with Fender. The Heirs cite 86 C.J.S. Tenancy In Common § 8 (1997)
for the proposition that upon the intestate death of John Smashum and his
wife, his two surviving children, Arthur Smashum and Thomas Smashum owned
the property as tenants in common. They further argue that any grantees of
Arthur necessarily owned a proportional interest in the property as tenants
in common with them as heirs of Thomas Smashum. While acknowledging that Arthur
and Thomas were cotenants, Fender asserts the cotenancy came to an end when
Arthur conveyed the property to a stranger, reacquired title to the property,
and thereafter conveyed the property by warranty deed to himself and Charlie
Mae Brantley. 
He further refers to the deposition testimony of Queen Smashum that prior
to the death of Arthur Smashum in 1985, she obtained permission from him for
her and her husband Adam to plant a garden on the property.
As stated in the case of Andrews v. McDade, 201
S.C. 24, 28-29, 21 S.E. 2d 202, 204 (1942):
As to real property, the general rule is that where
the state has passed a perfect legal title, the doctrine of abandonment is
not applicable thereto, and that the title vested in the grantee cannot be
affected or transferred by his act in departing from the land and leaving
it unoccupied, or otherwise ceasing to exercise dominion over it . . . .
At common law, while an incorporeal hereditament may
be lost by abandonment, the principle is firmly established that perfect legal
title to a corporeal hereditament cannot be abandoned, or lost by abandonment,
operating alone, and dissociated from other acts or circumstances; and so
it is frequently said that so far as land is concerned, there can be an abandonment
only in a case where the title is imperfect, or less than absolute. The doctrine
of abandonment has, therefore, no application to a fee simple; but inchoate
rights and equitable rights in land may be abandoned, and so may mere possessory
rights, and rights acquired by user ….
Although technically a fee simple title holder may not
by nonuse abandon his title, his nonuse and failure to assert his title to
the property may constitute an important circumstance in a determination of
whether another has held the property adversely to the title holder. As clarified
at oral argument, Fender does not claim he ousted the Heirs, but rather claims
his predecessors in title ousted the Heirs. Thus, he reasons he is not a cotenant
with the Heirs and thus need only prove adverse possession for ten years prior
to the date of the commencement of this action. We first examine whether Fender=s
predecessors in title ousted the Heirs.
“Ouster” is the actual turning out or keeping excluded
a party entitled to possession of any real property. Grant v. Grant,
288 S.C. 86, 340 S.E.2d 791 (Ct. App. 1986). . . . 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.
Woods v. Bivens, 292 S.C. 76, 354 S.E.2d 909 (1987); Brevard v.
Fortune, 221 S.C. 117, 69 S.E.2d 355 (1952). The acts relied upon to
establish an ouster must be of an unequivocal nature, and so distinctly hostile
to the rights of the other cotenants that the intention to disseize is clear
and unmistakable. Felder, 278 S.C. at 330, 295 S.E.2d at 642. Only
in rare, extreme cases will the ouster by one cotenant of other cotenants
be implied from exclusive possession and dealings with the property, such
as collection of rents and improvement of the property. Id., 278 S.C.
at 331, 295 S.E.2d at 642.
Freeman v. Freeman, 323 S.C. 95, 99-100, 473
S.E.2d 467, 470 (Ct. App. 1996). “Ouster is presumed from possession only
if it is continued for a period of twenty years. Title by ten years’ adverse
possession by a cotenant against another may be acquired only after actual
ouster of which the latter has notice, or should have in the exercise of a
reasonable diligence and vigilance.” Watson v. Little, 224 S.C. 359,
364, 79 S.E.2d 384, 387 (1953).
We conclude the conveyance from Arthur to Betty Sloan
by quit-claim deed in 1966; the reconveyance by Sloan to Arthur in 1969; the
conveyance to himself and Charlie Mae Brantley as joint tenants in 1983, and
the conveyance by Brantley
 to Fender and W. Thomas Parker by a purported warranty deed
in 1988, together with the fact Queen Smashum obtained Arthur’s permission
to plant a garden on the property are insufficient by themselves to establish
that the Heirs were ousted. “In the absence of authorization or ratification,
any attempted conveyance of the common property by one cotenant is not binding
upon his cotenants, and operates to pass title to nothing more than the seller’s
own interest.” 20 Am. Jur. 2d Cotenancy and Joint Ownership § 106
(1995). We recognize that these conveyances are some evidence of ouster and
should not be ignored 
for possession under such deeds and the assertion of exclusive and unequivocal
ownership in time could ripen into title by adverse possession. Nevertheless,
Arthur did not enter into possession under such a deed. Moreover, his transfer
to Betty Sloan in 1966 and her reconveyance to him in 1969 were by quit-claim
deeds which gives rise to the inference Arthur realized he may have had less
than a good legal title.  In addition, we find that Fender
did not present evidence regarding the character of Arthur=s possession or
that Arthur took actions to exclude the Heirs from the property or asserted
exclusive ownership over the land. Likewise, there is no evidence of the
character of Charlie Mae=s possession of the property.
We conclude, therefore, that a question of fact exists
whether Fender established the Heirs were ousted of their interest in the
property by Arthur or Charlie Mae. We further conclude that under the posture
of the record in this case, Fender and the Heirs are co-tenants in the property.
Therefore, Fender must show that his actions toward the property amounted
to an ouster of the Heirs before he can establish title by adverse possession.
There are well-established principles applicable to
cotenancy, which control the controversy . . . . A cotenant has the right,
in common with his cotenants, to the possession of the property owned in common,
so ordinarily the possession by one cotenant is the possession of all. The
latter ceases when the exclusive possession of a cotenant becomes adverse
to the right of possession by the other cotenant or cotenants; but the hostile
character of the possession must be such as to amount to an ouster of the
other cotenant or cotenants and must be clearly and unmistakably established
by the evidence. While the possessor need not give express notice of the
hostility of his possession to the other or others, the nature of it must
be brought home, as it has been said, to the other owner or owners.
Watson, 224 S.C. at 365, 79 S.E.2d at 387. One
claiming title to land by adverse possession has the burden of proving adverse
possession by clear and convincing evidence. Lusk v. Callaham, 287
S.C. 459, 460, 339 S.E.2d 156, 157 (Ct. App. 1986).
The circuit court makes no reference to ouster in its
order, but analyzes Fender’s claim of title based solely on an adverse possession
analysis. In fact, as we understand Fender’s claim, he does not claim title
to the property pursuant to ouster of the heirs, but rather based solely on
adverse possession. Inasmuch as ouster is a prerequisite to a cotenant claiming
title by adverse possession, we will analyze Fender’s evidence to determine
whether a question of fact exists as to whether Fender met this prerequisite.
The circuit court found the ten-year statutory period
began with the November 14, 1988 deed to Fender and Parker, and ended in November
1998. In finding adverse possession, the court relied on: 1) the receipt
by Fender of a warranty deed dated November 14, 1988; 2) the paying of property
taxes for the statutory period of ten years; 3) the assertion of title by
the giving and receiving of fractional interests through successive conveyances
by warranty deeds during the statutory period; and 4) the erection of no trespassing
signs on the property during the statutory period. The trial court also
presumed Adam and Queen Smashum’s previous use of the property was merely
permissive, based on Queen’s statement that Arthur gave her “the privilege”
to plant a garden on the property before his 1984 death. While Fender’s
affidavit states he and his co-owner “exercised ownership rights …by tending
and maintaining the property,” the affidavit does not indicate how, nor does
the circuit court place any significance to this statement.
We find the actions cited by the circuit court do not
as a matter of law establish ouster and consequently do not show Fender obtained
title to the property by adverse possession. Fender=s proof is not clear and
unequivocal that he exercised “hostile, open, actual, notorious and exclusive”
possession of the tract throughout the ten-year period. The fact that Fender
placed “No Trespassing” signs on the property, without more, cannot be shown
to be adverse to the rights of the other co-tenants. Especially in the light
of the deposition testimony of Queen Smashum that she visited the property
in recent years and did not see the “No Trespassing” signs allegedly posted
by Fender. SeeFelder v. Fleming, 278 S.C. 327, 330, 295 S.E.2d
640, 642 (1982) and Horne v. Cox, 237 S.C. 41, 44-45, 115 S.E.2d 513,
515 (1960) (Possession of one tenant in common is the possession of all and,
for one tenant to establish title against a cotenant by adverse possession,
he must overcome the strong presumption that he holds possession in recognition
of the cotenancy.) In addition, the fact that Fender paid the taxes does
not constitute ouster. SeeWatson, 224 S.C. at 368, 79 S.E.2d
at 387 (payment of taxes by a cotenant ordinarily entitles him only to a proportionate
contribution from the other cotenants). The circuit court erred in finding
that Fender established title by adverse possession to the subject property.
For the forgoing reasons, the circuit court=s summary
judgment order is reversed and the case remanded to the circuit court for
proceedings consistent with this decision.
 In February 1990,
Parker and Fender conveyed their interests to Fender, Parker-Matthews Investors,
Inc., and Mary Hudson Feltner. Feltner conveyed her interest to Fender in
 Fender cites 20 Am. Jur. 2d Cotenancy and Joint Ownership,
Section 31 for the proposition that “a tenancy in common will come to an end
upon forfeiture or abandonment of the common property, upon its conveyance,
voluntary or otherwise, to a stranger, or upon the definite ouster by the
cotenant of his fellows.”