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Bonnell v. Cotner

Court of Appeals of Indiana

June 4, 2015

Tom Bonnell, Appellant-Defendant,
v.
Ruby A. Cotner, Douglas Wayne Cotner, Arthur J. Johnson, Jimmy J. Johnson, and Jerry L. Johnson, Appellees-Plaintiffs

Appeal from the Pulaski Circuit Court. The Honorable Patrick Blankenship, Special Judge. Cause No. 66C01-1208-PL-11.

ATTORNEY FOR APPELLANT: Travis Bonnell, Bonnell Group, Indianapolis, Indiana.

ATTORNEY FOR APPELLEES: Jim Brugh, Logansport, Indiana.

Najam, Judge. Baker, J., and Friedlander, J., concur.

OPINION

Page 276

Najam, Judge.

Statement of the Case

[¶1] Tom Bonnell appeals the trial court's entry of judgment, following a bench trial, in favor of Ruby A. Cotner, Douglas Wayne Cotner, Arthur J. Johnson, Jimmy J. Johnson, and Jerry L. Johnson (collectively, " the Cotners" ). Bonnell raises one issue on appeal, and the Cotners raise one issue on cross-appeal. The Cotners' issue on cross-appeal is both dispositive and an issue of first impression: whether adverse holders of real property can be divested of their title by a subsequent tax sale of the property when the adverse holders' title is premised on a reasonable and good faith--albeit mistaken--belief that they are paying the proper taxes on the property. On these facts, we hold that the subsequent tax sales did not divest the adverse holders of their title to

Page 277

the real property. As such, we reverse the trial court's judgment for Bonnell and remand with instructions for the court to enter judgment for the Cotners.

Facts and Procedural History

[¶2] At all times relevant to this appeal, the Cotners or their predecessors-in-interest held title to Parcel 8 and Parcel 9 of the Cottingham subdivision in Pulaski County. That subdivision consisted of several numbered, rectangular parcels. Parcels 3 through 11 shared State Highway 119 as their western border; they were equal in their east-west lengths; and they were consecutively platted south to north such that the northern border of each numbered parcel was the southern border of the next-highest-numbered parcel. About thirty-five feet east of each parcel's eastern border lay an " ancient farm fence" that ran south-north. Appellant's App. at 14. The total area between the parcels' eastern borders and the farm fence was about .75 acres.

[¶3] The Cotners and other property owners in the subdivision believed that the farm fence marked the eastern boundary of Parcels 3 through 11. Accordingly, in 1968 the owners of Parcel 8 built an outbuilding on the eastern end of their parcel. The outbuilding lay at least in part in the area between their eastern border and the farm fence. In 2010, the Cotners built an extension to the eastern side of the outbuilding such that, in total, it extended about twenty-two feet past their eastern border.

[¶4] In 1993, the Pulaski County Auditor issued a tax sale deed to the .75 acres to a third party following a tax sale. On October 4, 2011, the Pulaski County Auditor again put the .75 acres up for tax sale; this time the Pulaski County Board of Commissioners (" the Board" ) obtained the tax sale certificate. The Board thereafter petitioned the Pulaski Circuit Court for the issuance of a tax sale deed, which the Board received.[1] See Pl.'s Ex. G at 6.

[¶5] On January 10, 2012, the Board conveyed title to the .75 acres to Bonnell via quitclaim deed, which Bonnell recorded. Bonnell believed that he had purchased the .75 acres east of the farm fence; however, after his purchase Bonnell had the area surveyed, at which time he learned that he had purchased the .75 acres between the subdivision parcels and the farm fence. Bonnell likewise learned of the encroachments onto the land from that survey.

[¶6] Bonnell contacted the owners of Parcels 3 through 11 and offered to divide the .75 acres to allow each parcel to extend to the farm fence. All owners except the Cotners, who owned Parcel 8 and Parcel 9, agreed. The Cotners instead filed suit and claimed that they held title by adverse possession to the land from their parcels' eastern borders to the farm fence (" the disputed area" ).[2] Bonnell counterclaimed for ejectment.

[¶7] On November 1, 2013, the trial court held a bench trial on the parties' claims. Almost a year later, on September 26, 2014, the court entered its findings of fact and conclusions thereon. In relevant part, the court found:

9. That the Cotners and their predecessors in title have used, possessed, and controlled their parcels of land as those

Page 278

parcels appear in the Sub-Division plat of the recorded Cottingham Sub-Division.
10. That the Cotners, and their predecessors in title[,] have also demonstrated actual possession, use, and control of that portion of Bonnell's 35[-]foot strip that lies contiguous and adjacent to Cotners' parcels.
11. That the Cotner[s'] use of the 35[-]foot strip of Bonnell's property that lies contiguous to their parcels has been open, public, and[,] until the acquisition by [Bonnell], exclusive.
12. That the Cotners and their predecessors in title have caused to be placed upon a portion of the 35[-]foot strip owned by Bonnell[] ...

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