No. 31208. | Miss. | Sep 24, 1934
The question involved in this case is the correct location of the north and south line between the lots of appellants and appellees in square sixty-three in the city of McComb. The issue between the parties is purely one of fact; there is no controversy as to the law of the case. Appellants concede that to be true, but contend that the decree against them ought to be reversed because it is against the overwhelming weight of the evidence. In other words, they concede that there was evidence supporting the decree, but contend that in value it was wholly insufficient to sustain the chancellor's finding. It may be true (we do not decide whether or not it is) that at the conclusion of the testimony of the witnesses the overwhelming weight of the evidence was with appellants; still the decree must be affirmed because of what then took place.
Appellants requested the chancellor, before deciding the case, to go view and measure the premises involved. Appellees joined in this request. Whereupon the chancellor went upon the premises, viewed appellants' and appellees' lots, measured them twice, and, after so doing, rendered the decree appealed from, in which it was recited that he found from such view and measurements in connection with the other evidence in the case that the facts were against appellants. What the chancellor saw in connection with his measurements cannot be ignored in deciding this question. It is a part of the evidence in the case, and may have been the turning point in the decision of the issue of fact.
Affirmed. *36