Opinion
No. 28820.
October 20, 1930.
1. APPEAL AND ERROR.
If agreement found its way into record in other than binding manner, timely action should have been taken, before submission, to purge record of it.
2. APPEAL AND ERROR. Where agreement regarding question involved stood duly certified in record without challenge, supreme court must give it effect.
The agreement was to effect that decree made in another suit and deed made by plaintiff and wife on same day in compromise of cause both properly described land and land line involved in case, and that the only question in the case for decision by the court, after hearing testimony, was whether or not defendants crossed such line and cut timber on land of complainant.
APPEAL from chancery court of Lawrence county. HON. P.Z. JONES, Special Chancellor.
G. Wood Magee, of Monticello, for appellant.
At this time appellees set up in their claims to lands which appellant had owned and claimed and paid taxes on for twenty-nine years; lands on which the appellant and his family had lived and which they had actually occupied for twenty-nine years. It is unreasonable and absurd to construe the expression contained in the deed as conveying to appellees lands which they had never before claimed in severalty or otherwise; on which they had never paid taxes, never used and never had any title to in any shape, form or fashion.
Ford McGehee, of Columbia, for appellees.
The agreement dictated into the record left for the consideration of the court only the question of whether or not any timber had been cut by the appellees on the appellant's side of the line mentioned in the deed. This agreement having been reached after the trial had commenced the same was dictated into the record by the counsel for the appellant, and no request was ever made for permission to withdraw it, and it is now a part of the record in this case. And it is as conclusive of the correctness of the line described in the deed of conveyance in question, as an abundance of undisputed proof would be of such fact.
C.E. Gibson, of Monticello, for appellees.
When this case came on for trial, an agreement was dictated in the record by appellant's attorney setting out that the line as described in the deed, was a true and correct land line and that the only question to be decided by the court was the question as to whether the appellees had crossed the line and cut any timber on the lands of appellant. There was a conflict in the testimony as to whether any timber was cut across this line on appellant's land, and this issue of fact was decided by the court in favor of the appellees.
Argued orally by G. Wood Magee, for appellant, and by C.E. Gibson, for appellee.
About ten years ago there was a suit in chancery involving the title to the north half of northeast quarter, Section 13, Township 5 North, Range 20 West, in the result of which the parties to the present suit were the persons chiefly concerned. After entering upon the trial in that case, there was a compromise settlement by which the parties in actual interest agreed that a deed would be executed by which to work out and transfer title according to the several claims agreed upon in the settlement. When the parties met thereafter and on the same day to consummate their compromise, it was suggested that there were lands lying south of the said eighty acres and between that description and Pearl river which were also in some dispute, and that the deed should be so drawn as to settle all disputes. This was accordingly done, and a deed was executed by which appellant renounced all claim to any lands lying west of a line beginning at a point on the north boundary line of said eighty acres two hundred seventy poles east of the northeast corner of said section, and running thence south twenty-four degrees west to Pearl river; the said line thus described being approximately one-half mile long.
Some time thereafter appellant filed this present suit, in which he alleged, in effect, that the said deed executed by him did not correctly represent the compromise agreement; that the said line south twenty-four degrees west runs too far to the east, and, if allowed to stand, would wrongfully take about thirty acres of his land, to which appellees had otherwise no title and had never claimed title. When this latter suit came on for trial, there was another agreement, which we copy from the record as follows: "It is agreed by the parties in this cause that the decree made by the chancery court of Lawrence county on July 21, 1920, and the deed made by J.W. Fortenberry and wife . . . on the same day in compromise of the cause . . . both properly described the land and the land line involved in this case, and that the only question in this case now for decision by the court, after hearing the testimony, is whether or not the defendants crossed this line and cut timber on the land of J.W. Fortenberry." The court held that no timber was cut east of said line, as described in said deed, and the testimony is sufficient to support that finding.
But the case is presented here by appellant as if no such agreement as that last mentioned were in the record, and no explanation is made of the effort to disregard it, although appellees call repeated attention to it and rely on it. If the said agreement found its way into the record in other than a binding manner, timely action should have been taken, before submission, to purge the record of it. This was not done, and it stands duly certified in the record without challenge, in consequence of which we cannot do otherwise than give it effect, and with the result to affirm the decree.
But, if there were no such trial agreement in the record, and we were to undertake to determine whether the evidence is sufficiently strong in behalf of appellant in respect to the controverted boundary line to overturn the effect of the decree on the issues of fact, we would still be unable to make any definite progress, for the reason that a large part of the evidence, and, so far as we can know, that which was influential on the mind of the chancellor, was taken by the witnesses pointing out on diagrams the various pertinent features of the physical situation, thus leaving us with no means of knowing exactly what the witnesses meant to impart and did impart to the court. Two diagrams were used, as it would appear. The first is in the record, but the second, used by the witness Hathorn and introduced at page 136 of the transcript, is missing. In these regards the case resembles Illinois Cent. R. Co. v. Miller, 68 Miss. 760, 762, 763, 10 So. 61, and Planters' Package Co. v. Parsons, 153 Miss. 9, 12, 120 So. 200, to both of which attention was called in Hume v. Inglis, 154 Miss. 481, 488, 122 So. 535. We can only repeat what was said by the court in those three cases.
Affirmed.