Opinion
No. 39858.
January 9, 1956.
1. Appeal — boundaries — decree fixing dividing line affirmed — conflicting evidence.
In suit involving location of dividing line between parties' properties, where evidence was sharply conflicting, and Supreme Court could not say that Chancellor's finding was manifestly wrong or contrary to the great weight of the evidence, his decree would be affirmed.
Headnote as approved by Hall, J.
APPEAL from the Chancery Court of Wayne County; WILLIAM NEVILLE, Chancellor.
Stanford Young, Louie Bishop, Waynesboro, for appellant.
I. The Chancellor erred in permitting the filing of the amended bill of complaint. Bacon v. Parker, 31 Miss. 51; Everett v. Winn, Sm. M. Ch., p. 72; Hanserd v. Gray, 46 Miss. 79; Griffith's Miss. Chancery Practice, p. 385.
II. There is not any evidence of adverse possession in the record, upon which the appellee relies in his amended bill of complaint. McCaughn v. Young, 85 Miss. 277, 37 So. 839; Staton v. Henry, 130 Miss. 312, 94 So. 237; Snowden McSweeny Co. v. Hanley, 195 Miss. 682, 16 So.2d 24; Sec. 711, Code 1942; 1 Am. Jur. pp. 868, 870, 916.
III. There is no evidence of a recognized boundary line between the lands owned by the appellant and appellee where the Court determined it to be, or any other place. Butler v. City of Vicksburg (Miss.), 17 So. 605.
IV. The Court erred in failing to find that there was a legal presumption as to the correctness of the line run by the county surveyor, and there was no evidence of any other competent survey. Pope v. Ivy, 117 Miss. 501, 78 So. 367.
W. Vol Jones, Waynesboro, for appellee.
I. Amendments shall be allowed in the pleadings and proceedings on liberal terms to prevent delay and injustice. Sec. 1302, Code 1942; Griffith's Miss. Chancery Practice (2d ed.), p. 389, et seq.
II. The general demurrer admitted all facts well-pleaded in the amended bill of complaint.
III. The testimony is conflicting, and the rule is well settled that decisions of the Chancellor on conflicting evidence are binding on this Court. Also, where there are two or more reasonable theories to be deduced from testimony, the Chancellor is entitled to draw the conclusion, and his judgment thereon is binding, unless manifestly wrong. Stroud v. Loper, 190 Miss. 168, 198 So. 46.
IV. A parol agreement or acquiescence in a line fixing a boundary, followed by actual possession thereunder, is not within the statute of frauds and will bind the parties.
(Hn 1) This suit involves the location of the dividing line between a forty acre subdivision owned by appellant and a forty acre subdivision owned by appellee. There was a long and tedious hearing before the chancellor and the evidence was sharply in conflict. The chancellor saw and heard the numerous witnesses and accepted the evidence of those for appellee. He was abundantly supported by the evidence and we cannot say that he was manifestly wrong or that his finding is contrary to the great weight of the evidence. Consequently his decree must be and it is hereby affirmed.
Affirmed.
McGehee, C.J., and Kyle, Holmes and Gillespie, JJ., concur.