87 So. 2d 874 | Miss. | 1956
The appellees, R. S. Jarratt and J. B. Phillips, Jr., and others, doing business as Phillips Lumber Company, complainants in the court below, filed separate suits in the Chancery Court of DeSoto County against the appellant, Guy I. Brown, defendant, seeldng the cancellation of the defendant’s claims to certain lands in DeSoto County as clouds on their titles, and also asking for injunctive relief and damages against the defendant on account of alleged trespasses committed by the defendant on said lands. After the filing of the defendant’s answers, the two cases were consolidated by agreement of the parties for hearing before the chancellor, but separate decrees were entered at the conclusion of the hearing. The cases have been consolidated for hearing on this appeal.
The complainant, R. S. Jarratt, in his bill alleged that he was the owner in fee simple of the land lying
The above described lands are situated in the Cow Island area in the northwest corner of DeSoto County. The Phillips lands in Sections 16 and 17 are .bounded on the north by the Mississippi-Tennessee State Line, and on the west by the Mississippi River. The Jarratt land in Section 20 lies immediately south of the Phillips land in Section 17, and is bounded on the west by the Mississippi River, and on the east by Rocky Chute.
The complaint Jarratt alleged in his bill, and the record shows, that, when the original government survey was made in 1834 and 1835, fractional Section 20, Township 1, Range 10 West, contained only 68 acres of land; but since that time the Mississippi River has gradually changed its course and has moved westward about 1% miles leaving deposits of soil along the east bank of the river, so that at the present time said fractional Section 20 and its accretions contain 1000 acres of land, more or less. And similar accretions have been added to fractional Section 17 which contained originally only 267 acres. The changes in the course of the river have been non-avulsive gradual changes which have taken place over a period of more than 100 years.
The complainant Jarratt deraigned title to the land in fractional Section 20 from K. R. Armistead, who had ac
The complainants, J. B. Phillips, Jr., and others, in their bill deraigned title to the fractional parts of Sections 16 and 17, in DeSoto County, from one P. B. Marshall, who had acquired title to the fractional Section 16 by a forfeited tax land patent from the State of Mississippi, dated July 21, 1926, and who had acquired title to the fractional part of Section 17 by a tax collector’s deed from J. S. Campbell, Tax Collector of DeSoto County, dated June 2, 1930. The complainants’ deraignment of title showed that P. B. Marshall died intestate in 1934, leaving as his only heirs at law his widow, Mrs. Bebie Marshall, and his daughter, Miss Hazel Marshall, who thereafter conveyed said lands to Dr. H. G-. Budner by deed dated Novembér 27, 1937; and that the complainants had acquired title to the lands by a deed of conveyance from Dr. Budner dated November 10, 1950. The complainants alleged in their bill that they and their predecessors in title had been in actual adverse possession of the lands described as fractional Sections 16 and 17 and the accretions thereto, as successive owners thereof, under color of title, from 1932, until the time of the filing of their bill of complaint. The complainants then alleged in much the same manner as Jarratt had alleged, that on May 9, 1953, the defendant had filed for record in DeSoto County a deed signed by Mrs. Eva A. Marley and others, which purported to convey to the defendant the above mentioned lands in Sections 16 and 17, and that since that time the defendant had grazed cattle on the lands without the complainants ’ permission, and had committed numerous trespasses on the lands; and the complainants asked that they be adjudged to be the true
The defendant, Guy I. Brown, in his answer to the bill of complaint filed by the complainant Jarratt, denied that the complainant was the owner of all of fractional Section 20, including the accretions. He denied that Roan and Maggie Perkins, through whom the complainant claimed title, had extended their occupancy or claim of title to the accretions formed by the gradual changes in the Mississippi River, or that they had acquired title to the accretions by adverse possession. The defendant denied that the complainant had acquired title to any part of the land in Section 20 other than 140 acres mentioned in the deed from K. R. Armistead to Roan and Maggie Perkins; and the defendant-averred in his answer that he was the owner of that part of the land in Section 20 which was embraced within the calls of his deed from Mrs. Eva A. Marley and others dated November 22, 1949. The defendant also averred in his answer, that if the complainant was claiming land “beyond the recognized and agreed boundary line described in the deed from K. R. Armistead to Roan and Maggie Perkins,” he was barred from maintaining his suit by the ten year statute of limitations, Section 709, Code of 1942. The defendant averred that it might be that the complainant was claiming title to some of the lands owned by thb defendant in Shelby County, Tennessee, and if that were true the complainant could not maintain his suit for the reason that his bill showed that he only claimed lands in DeSoto County, Mississippi.
The causes were heard by the chancellor upon the pleadings and oral testimony, depositions and exhibits. The hearing was extended over a period of several weeks, because of the intervention of regular terms of the chancery court in other counties of the chancery district. The question as to the location of the Mississippi-Tennessee State line was raised at the outset, and the testimony and the exhibits offered on behalf of the respective parties make a record of approximately 1000 pages. As we have already stated, the bills alleged that the lands described therein were situated in DeSoto County, Mississippi, and the complainants’ contention throughout the trial was, that the state line was located 17% chains north of the south boundary line of Sections 16 and 17, in Township 1, Range 10 West. The defendant contended, however, that the state line was located south of the above mentioned section line and that all of Sections 16 and 17, except approximately one acre, and a fractional part of Section 20 were in the State of Tennessee.
At the conclusion of the hearing the chancellor found that the state line between Mississippi and Tennessee, was located 1155 feet (17% chains) north of the south boundary line of the tier of sections 13 to 18, in Township 1, Range 10 West, and that all of the lands involved in the two suits that were being tried were situated in DeSoto County. The chancellor found that the com
The chancellor found that the complaints, J. R. Phillips, Jr., and others, were the owners of. the fractional parts of Sections 16 and 17 lying south of the state line as located above, being the south 140 acres of Section 16 and the south fractional part of Section 17 lying south of the state line extending westwardly to the Mississippi River, and the accretions thereto lying south of the state line. The chancellor found that the complainants and their predecessors in title had been in adverse possession of and had exercised acts of ownership over the above mentioned fractional parts of Section 16 and 17 and accretions thereto in Mississippi for more than ten years, under perfect legal title, and that the defendant and his predecessors in title had had no legal possession of said land; and the chancellor entered a decree in the Phillips case similar to the decree entered in the Jarratt case, except that no damages were awarded to Phillips for the alleged trespasses already committed. Prom the decree thus entered the defendant Brown has prosecuted this appeal.
The first point argued by the appellant’s attorneys as ground for reversal on this appeal is that the chancellor erred in holding that the state boundary line between the States of Tennessee and Mississippi (See Article 2, Section 3, Mississippi Constitution of 1890), in the area in
We think there was no error in the chancellor’s finding that the state line, in the area in which the above mentioned lands were situated, was 1155 feet north of the south boundary line of Sections 13 to 18, inclusive, and that all of the lands described in the bills of complainant in these causes were situated in DeSoto County.
It is clear from the testimony of the complainants’ witnesses and the testimony of the defendant’s witnesses that the line located 1155 feet north of the south boundary line of the tier of Sections 13 to 18, in the Cow Island area, has been recognized for many years by the State and county officers and the people residing in the area . as the boundary line between the two states. James P. Tipton, Chancery Clerk of DeSoto County, testified that he had served as tax assessor of the county for a period of eight years and as chancery clerk for a period of eleven years, and that the south 140 acres of the tier of Sections 13 to 18, in Township 1, all across DeSoto County, had always been considered as being in Mississippi and had been assessed for taxes in DeSoto County, and that conveyances of lands in the south part of those sections were recorded in DeSoto County. The witness testified that the assessment rolls of the county for the years prior to 1923 had been destroyed by fire when the courthouse burned in 1922 or 1923, but the assessment roll for the years 1923 and 1924 showed the land described as the east part of Section 20, Township 1, Range 10, 140 acres, assessed to Roan Perldns. The witness testified that the land described as Section 16, Township 1, Range 10 had
H. P. Sullivan, who owned land in Section 18, Township 1, Range 9 West, and adjoining sections, testified that he had owned the land in Section 18 adjoining the Mississippi-Tennessee state line for a period of 20 or 25 years; that the distance from the state line to the south boundary line of the section was between 1100 and 1200 feet; that he had paid taxes on the land in Section 18 to the tax collector in DeSoto County, and had never paid taxes on the land in Tennessee. T. P. Howard, who lived about five miles west of Walls, testified that he owned 1400 acres of land, including a strip of land in Section 14, lying immediately south of the Mississippi-Tennessee state line, and that the total acreage in that strip was 140 acres, but the levee board had taken off two small pieces leaving him about 125 acres, which was assessed to him in DeSoto County and upon which he paid taxes in DeSoto County. He stated that the distance from the south line of section 14 to the state line was about 1150 feet.
Jessie Harris, a civil engineer of Memphis, Tennessee, who had had 18 years of experience with the government as an engineer, testified that he was familiar with the Cow Island area, and that he was familiar with the maps used by the U. S. Engineers in the Memphis district. Harris identified a G-eneral Hydrographic Survey Map
Noel T. Clarkson, field supervisor of game wardens for the Mississippi Game and Fish Commission, testified that he was present when the state line in the Cow Island area was run by R. L. Cooper, a civil engineer of Memphis, during the latter part of February 1952; that Cooper had a small map of the line that he had made when he surveyed the line in 1926; and that the surveying party which ran the line in 1952 found the old trees and hack marks which Cooper identified as the state line that he had run in 1926, and that the line was located 1155 feet north of a tree that Cooper had marked in 1926. Clarkson stated that the surveying party ran the state line westwardly to the river bank, and they found old hack marks in the big timber along the line.
Ernest Nelson, who testified as a witness for the defendant, stated that he helped carry the chain for the surveying party when the state line was run by Mr. Cooper for the Game and Fish Commission; that he showed Mr. Cooper the starting point and when they reached the state line they found the old blaze marks, which were about 1100 or 1200 feet north of the Roan Perkins’ line. Nelson stated that the line running west to the river was “pretty plain.”
R. L. Cooper, a civil engineer and surveyor of long experience, who testified as a witness for the defendant, stated that until the last year he had always considered the state line as being located 1155 feet north of the
The court also admitted in evidence, over the defendant’s objection, a map of the K. R. Armistead lands, consisting of 1643.3 acres in Sections 8, 9, 10, 16 and 17, in Township 1, Range 10 West, in Shelby County, Tennessee, prepared by St. George Richardson, Civil Engineer, in February 1942, which showed the state line located 17% chains (1155 feet) north of the south boundary line of Sections 16 and 17.
The only testimony of a substantial nature offered on behalf of the defendant to sustain his contention that the state line was located south of the southern boundary line of Sections 16 and 17 was the testimony of R. L. Cooper, the civil engineer mentioned above, who testified that he had made a study during the last year, at the request of the defendant’s'attorneys, of the field notes and the plat of the survey made by the commissioners who ran the state line for the states of Tennessee and Mississippi in 1837, and from the information gained from that study he had been able to reconstruct the line run by the commissioners, and had found that the commissioners’ line was not located 1155 feet north of the southern boundary line of. Sections 13 to 18, as he had been taught to believe, but that the commissioners’ line ran much closer
On cross-examination Cooper was asked whether he had ever examined the physical objects or monuments referred to in the commissioners’ field notes and plat, and the lakes, ponds and streams shown on the township maps of the Chickasaw Survey. He said that he had not. He admitted that the commissioners’ plat showed the location of the various roads, streams and lakes that they crossed, and that it would he possible for an engineer to take the plat and the township maps and locate the commissioners’ line with some degree of accuracy; hut he had not undertaken to do that. He did not know of course at what point the commissioners reached Rocky Chute in 1837. Cooper admitted that he had found no reference in the field notes of the commissioners ’ survey that indicated that the commissioners crossed the south line of Section 16. He stated that he had based his previous surveys of the state line on the northeast corner of Section 20, which he had had some
Neither the Chancery Court of DeSoto County nor this Court has jurisdiction or power to establish a line between the States of Mississippi and Tennessee. Such a line must be established either by compact of the sovereign states themselves, or by judicial proceedings, and, if by judicial proceedings, then by a decree of the United States Supreme Court. That court by Article 3, Section 2, of the United States Constitution has original and exclusive jurisdiction over such an issue. Virginia v. Tenn., 148 U. S. 503, 37 L. Ed. 537, 13 S. Ct. 728. But the Chancery Court of DeSoto County, in suits between private parties, such as we have here, had a right to adjudge the actual location of lines affecting the boundaries of their lands. McCarty v. Carolina Lumber Company, 134 Tenn. 35, 182 S.W. 909. The question which the chancellor had to decide upon the original hearing, however, and the question that we have to decide on this appeal, so far as the state line is involved, is the question as to where the state line is, not where it ought to be.
It is well settled that a boundary line between states which has been run out, located, and marked, and which thereafter has been recognized and acquiesced in by the states in question for a long course of years, is conclusive, even though it is later ascertained that the line thus located and marked varies somewhat from the
In the case of Oklahoma v. Texas, 272 U.S. 21, 71 L. Ed. 145, 47 S. Ct. 9, the Court said:
“It is well settled that governments as well as private persons, are bound by the practical line that has been recognized and adopted as their boundary. (Missouri v. Iowa, 7 How. 660, 670, 12 L. Ed. 861, 865; New Mexico v. Colorado, 267 U.S. 30, 40, 69 L. Ed. 499, 502, 45 S. Ct. Rep. 202); and that a boundary line between two governments which has been run out, located and marked upon the earth, and afterwards recognized and acquiesced in by them for a long course of years, is conclusive, even if it be ascertained that it varies somewhat from the correct course; the line so established, taking effect in such case, as a definition of the true and ancient- boundary. (Virginia v. Tennessee, 148 U.S. 503, 522, 37 L. Ed. 537, 544, 13 Sup. Ct. Rep. 728; Maryland v. West Virginia, 217 U.S. 1, 42, 54 L. Ed. 645, 658, 30 Sup. Ct. Rep. 268 New Mexico v. Colorado, supra, 40).”
The boundary line involved in these cases was run out in 1837 by the commissioners appointed by the states of Mississippi and Tennessee for the purpose of settling a border controversy that had existed among the settlers, and later between the two states, for a period of several years, concerning the true location of the 35th degree of north latitude, which had been fixed by an act of Congress as the southern boundary of the State of Tennessee. The Governor.of the State of Tennessee had appointed John Thomson in 1831 to ascertain the true location of the line, and Thomson had made a survey and run a line during the months of July and August 1833. But Thomson’s line was never recognized by the State of Mississippi, for the reason that Mississippi had not
The commissioners’ field notes show that the line run out by them was marked by reference trees, the reference trees on the north side of the line being marked with a “T” for Tennessee and those on the south side with an “M” for Mississippi. No permanent markers of stone or metal appear to have been set up. The reference trees have probably long since disappeared. But the line thus run out and marked settled the boundary line controversy; and that line has been recognized and accepted by the two states for a period of 118 years and must be accepted by us as conclusive, even if it varies somewhat from the courses defined in the field notes of the commissioners’ survey.
We have made a careful study of the testimony of the witnesses and the points argued in the briefs, and we are convinced that the chancellor was correct in his finding that the state line in the area involved in these cases was located 1155 feet north of the south boundary line of Sections 13 to 18. We are fortified in this conclusion by the testimony of the appellant’s own witness, R. L. Cooper, who frankly stated that the line thus located had been recognized as the boundary line between the two states by every surveyor who had done work in the Cow Island area during the last forty years, so far as he knew. It should also be noted that the appellant produced no evi
It is next argued on behalf of the appellant that the court erred in refusing to admit in evidence copies of the tax assessor’s records of Shelby County, Tennessee, for the years 1906 to 1948, which were offered in evidence as a part of the appellant’s proof that the line located 1155 feet north of the southern boundary of those sections had never been recognized, by the State of Tennessee as the southern boundary of that state. But we have examined the tax assessor’s records referred to, and we find no assessments of lands that can be identified as lands owned by K. R. Armistead lying along the south side of Sections 16 and 17, or along the north side of Section 20, in Township 1, Range 10 West. Neither does it appear that K. R. Armistead was assessed with any land in the 13th Civil District of Shelby County that was bounded on the south or on the east by lands owned by Roan Perkins and Maggie Perkins, or their heirs, or any land that was bounded on the south by the Crump lands, which included Section 21, lying immediately south of Section 16. For that reason the copies of the assessments would have been of no value as evidence in these cases, if the copies had been admitted.
The appellant also argues that the court erred in refusing to admit in evidence copies of the records of certain land deeds and other instruments affecting the title to lands in Sections 16,17 and 20, recorded in Shelby
It is next argued that the court erred in refusing to admit in evidence copies of the records of the proceedings of the Chancery Court, of Shelby County, Tennessee, in the cases of J. A. Anderson, Administrator of W. A. Dooley, deceased, v. Mrs. Mary Dooley et al. (1880), Cause No. 3197; W. H. Grimes v. H. W. Mosby and A. L. Perryman (1898), No. 11,008; and James Henderson and Julia Rainey Henderson v. K. R. Armistead and Colonial & United States Mortgage Company, Ltd. (1916), No. 21,222. The appellant argues that the records of the proceedings of the chancery court in those cases would have shown that the Tennessee courts in at least two of the cases had reached conclusions concerning the true location of the boundary line between the two states which differed from the conclusion arrived at by the chancellor in these cases; and that the record
This assignment of error requires a more detailed discussion by us in this opinion.
The case of J. A. Anderson, Administrator, v. Mrs. Mary Dooley et al. (1880), was a proceeding by the administrator for a sale of the lands owned by the decedent for the payment of debts. The administrator’s petition alleged, and the court found, that the debts owed by the decedent and still unpaid amounted to $7,627.62, and that it was necessary that the lands be sold for the payment of the debts. The land owned by the decedent at the time of his death consisted of a tract containing 42%-acres in Shelby County, described as a fractional part of the E% of Section 16, Township 1, Range 8 West, and 1315 % acres of land described as fractional Section 16, containing 377 acres, fractional Section 17, containing 471 acres, and fractional Section 18, containing 467% acres, in Township 1,' Range 9 West, on what is known as the “Horn Lake Island”, in Shelby County. The court ordered that all of the lands be sold to satisfy the outstanding debts and charges against the estate. The lands were duly’ advertised and bids were received therefor, as provided in the decree, but before a final decree was entered, a question arose as to whether some parts of the lands were situated in the State of Mississippi, and the court ordered that the lands be surveyed for the purpose of determining whether any portion of the fractional Sections 16, 17 and 18, in Township. 1, Range 9 West, was in the State of Mississippi. The survey was made during the month of October 1882, and the surveyors reported to the clerk and master that they had found that no parts of the lands were in Mississippi, but all of the lands were in Tennessee. The surveyors at
The case of Grimes v. Mosby et al. was a suit by Grimes against Mosby and Perryman for injunctive relief and for the recovery of damages for the wrongful cutting of timber on lands situated in the 13th Civil District of Shelby County, Tennessee, in Township 1, Range 10 West, which were described in the bill of complaint by metes and bounds, and as “being all of Section 16 and fraction of Sections 20, 21, 22, 23 and 24,” all lying in Shelby County, and containing 1265 acres. After the filing of the defendants’ answer the case was referred to a master to hear proof and report back to the court his findings as to “ the location of the true state line between the States of Mississippi and Tennessee through the lands in controversy, and the amount and value of timber cut by the defendants on the lands in controversy north of said true state line.” We do not have before us the entire record. But we do have before us the depositions of the complainant Grimes and the defendant Perryman and the deposition of several other witnesses who testified during the hearing, including the deposition of H. N. Allen, a civil engineer and surveyor, who made a survey of the strip of land in Section 21 which was claimed by the complainant Grimes as a part of the land in Shelby County on which the trespasses had been committed.
The complainant Grimes testified that he based his claim to the lands involved in the controversy upon a
H. N. Allen testified that his work as a surveyor had been done mainly in the State of Arkansas, and that he had done very little surveying in the State of Tennessee; but he had made a survey of a strip of land lying between Cow Chute and Horn Lake Pass just south of Section 16 at the request of Henry Reichman, and in making that survey it had been necessary for him to locate the state line. Allen stated that he ran the line according to the plat furnished by Mr. Reichman showing the government survey made in 1833. Allen admitted on cross-examination that he knew nothing of the line run by the commissioners in 1837, and if the commissioners’ line was 16 chains north of the “Thompson Line,” the strip of land that he had surveyed in Section 21 “would mostly be in the State of Mississippi.”
It appears from the record in the case that Major T. G. Dabney testified at some stage of the hearing concern
In the case of James Henderson and Julia Rainey Henderson v. K. R. Armistead and Colonial & United States Mortgage Company, Ltd., the complainants sought .injunctive relief against an unlawful detainer action brought by the defendant Armistead “to obtain possession of the land described as the SE% of Section 16, Township 1, Range 10 West, East of Cow Slough, containing 153 acres.” The complainants alleged in their bill that they were in possession of the land under a rent contract with an option to purchase, which had been entered into by Julia Rainey and Sim Rainey with the Colonial & United States Mortgage Company, Ltd., on February 11, 1910. The defendant Armistead in his answer and cross bill alleged that he had purchased the land from the mortgage company in February 1911 subject to the complainants’ lease, and that the notes and rent contract had been assigned to him; that the complainants had failed to make the payments provided for in the rent contract; and that he, as owner of the land, was entitled to have the rent contract cancelled. After a hearing upon the merits of the case, the court entered a decree dismissing the complainants’ bill and adjudging that the defendant was entitled to the land, and the court directed that a writ of possession be issued.
In the Grimes case there was a definitely controverted issue as to the true location of the state line, and the court apparently accepted a line run out by Major Dabney about the year 1900 as the' true line for the purpose of computing the amount of damages that Grimes was entitled to recover for the timber which the defendants had cut. But the record in the case that we have here shows that the line run by Major Dabney found little or ho support among the surveyors who surveyed lands in the Cow Island area after the Grimes case was decided.
There may have been uncertainty as to the true location of the state line among the widely scattered inhabitants and nonresident landowners of the Horn Lake Island area seventy-five years ago, when Dooley’s administrator applied to the court for an order to sell Dooley’s lands for the payment of debts, and in the Cow Island area twenty years later, when Grimes sued Mosby and Perryman for the wrongful cutting of timber; but according to the testimony in the record that we have here, there is no room for doubt as to the location of the line that has been recognized and acquiesced in by the people residing in and owning lands in those areas during the last forty years and by the political authorities who levy and collect taxes. The Phillips land lying along the south side of Sections 16 and 17, and the Jarratt land in Section 20, are only a few miles south of the City of Memphis. A U. S. marked highway now passes along the east edge of Horn Lake. Much of the land in the area between the highway and the river is in a high state of cultivation. Time and the timber cutters’ axes have destroyed the reference trees which marked the line run out by the commissioners in 1837. But it is not unreasonable to assume that the line which has been recognized by the surveyors who have done work on both sides of the line during the last forty years, and by the political authorities of the two states and the people who have lived along the line for a long period of time, is the line run out and marked by the commissioners.
We repeat, however, what has been said above: The question which the chancellor had to decide upon the
The admission of the records of the proceedings of the Chancery Court of Shelby County in the three cases mentioned above would have had no effect upon the final result in these cases; and although we think there was error in the chancellor’s refusal to admit the records in evidence, the error complained of was harmless and would not justify a reversal of the decrees appealed from. It is next argued on behalf of the appellant that the court erred in not holding that the appellant and his predecessors had acquired title to the south 140 acres of each of the two Sections 16 and 17, Township 1, Range 10 West, by adverse possession. But we think there is no merit in this contention. There is no substantial evidence in the record to support the appellant’s claim that either he or the heirs of K. R. Armistead, had been in possession of or had exercised control over the south 140 acres of either of the above mentioned Sections 16 and 17 at any time after P. B. Marshall acquired title to the lands in 1926 and 1930, and prior to May 1953, when the appellant began to graze cattle on the lands.
The proof offered on behalf of the complainants, J. R. Phillips, Jr., and others, showed that the fractional Section 16 was sold to the State of Mississippi in 1862 for taxes assessed against the land for the year 1861, which were due and unpaid, and that the title remained in the state until 1926, when P. B. Marshall obtained a forfeited tax land patent to the land. The fractional Section 16, 100 acres, was assessed to P. B. Marshall on the 1926-1927 assessment roll, and to him and his successors in title thereafter. The proof also showed that the fractional Section 17, 69 acres, was assessed to R. E. L. Morgan as the owner thereof on the 1923-1924 assessment roll, and on the assessment rolls for each of the years
Several of the appellant’s own witnesses testified that they knew that there was a strip of land between the Armistead land on the north and the Perkins land in Section 20 that belonged to some third person. Some of the witnesses referred to the strip of land as “the widow’s land”, or “Dr. Rudner’s land”; and Ernest Nelson knew where the boundaries of the Dr. Rudner land were located. Ernest testified that, “The Rudner land starts at the State Line and goes something like 400 steps south.” The Armistead heirs were assessed with no lands' in Sections 16 and 17 in Mississippi and paid no taxes on lands in those sections in Mississippi; and none of the Armistead heirs appeared to testify in support of the appellant’s claim that they had acquired title to the Phillips lands by adverse possession.
But there is no merit in this contention for two reasons: (1) That K. R. Armistead, by his warranty deed dated December 18, 1916, conveyed to Roan and Maggie Perkins the land described as “All of fractional Section 20 in Township 1, Range 10 West, in DeSoto County, Mississpipi,” reserving no part of said Section to himself; and (2) that there is no substantial evidence in the record to show that K. R. Armistead, during his lifetime, or his heirs after his death, claimed title to, or exercised acts of ownership over the strip of land off the north side of Section 20 mentioned above or the land lying west of the ravine.
The rule is well settled by the decisions of our own Court that where one enters into possession of land, claiming title by deed, his possession by law will be deemed co-extensive with the boundaries stated in his deed. Hanna v. Renfroe, 32 Miss. 125; Welborn v. Anderson, 37 Miss. 155; Wilson v. Williams’ Heirs, 52 Miss. 487. Actual possession of part of a tract of land under color of title of the whole is constructive possession of the whole. Native Lumber Co. v. Elmer, 117 Miss. 720, 78 So. 703.
“Where land fronting on a river or other body of water is conveyed by deed, the right to accretion already attached passes to the grantee, although not specially mentioned, unless it is expressly excepted or reserved, or
It is true that the appellant produced several witnesses who testified that Boan Perkins had made verbal statements to them that an iron pipe on Bocky Chute marked the northeast corner of his land, and that his land extended only to the ravine on the west. But those statements were at variance with the deed under which Boan Perkins had acquired title to the land, and the testimony of the witnesses who testified that Boan had made such statements was at variance with the testimony of the members of Boan Perkins’ family who lived on the land with him and the testimony of several other witnesses who, so far as this record shows, had no interest in the controversy, and the chancellor had a right to reject that testimony as being untrue.
The record shows that Boan Perkins purchased the land from K. B. Armistead on December 18, 1916, for the sum of $3,025.20, of which amount the sum of $1,200 was paid in cash and the balance was evidenced by four promissory notes, due January 1, 1918, 1919, 1920 and 1921, respectively, which were secured by a mortgage deed of trust on the land. Armistead conveyed the land to Boan and Maggie Perkins by the same description as that which appeared in the deed executed to him by the AndersonTully Company. After his purchase of the land Boan began clearing the land and building houses on the land; and he and his wife and his daughter, Ella Smith, moved on the land in 1919. Several other relatives of Boan and his wife moved on the land soon thereafter. Boan built five houses on the .land and cleared and cultivated about 68 acres. He sold timber from the land, built fences, pastured his cattle and work stock on the land, and paid the taxes assessed against the lands each year. Boan granted permission to others to hunt and fish on the
Ella Smith testified that no one except Roan and Maggie claimed any part of the land in Section 20 during the time they lived on the land. Ella stated that Richard Armistead, K. R. Armistead’s son, stayed with her and her husband two years after his father’s death in 1926, while he was looking after the Armistead land on Cow Island in Tennessee, and that he never claimed any of the land in Mississippi that Roan and Maggie had purchased from his father. Corinne Smith, who was Roan’s niece, testified that Roan claimed all the land to the river on the west side, ‘ ‘ plum down to the river. ’ ’ Charlie May Battle testified that Roan was her grandfather, and that she lived with Roan and Maggie after 1919, and that' Perkins ’ land on the west side extended to the river — ‘ ‘ They always said from Rocky Chute to the river belonged to my grandfather.” Charlie Matthews testified that he helped Roan build the first fence that was put there, and that they brought the fence to the river’s edge. Ed Nelms testified that he grew up on Cow Island and had known Roan Perkins and Maggie Perkins all his life, and that Roan Perkins owned all the land to the river. Fred Knichel, who was State and Federal Game Warden, testified that he obtained written permission from Mag
The above testimony in our opinion was sufficient to support the chancellor’s finding that Roan Perkins and his wifé took possession of all of the land in Section 20 under their deed from K. R. Armistead, and that they occupied the same and claimed it as their own until the time of their deaths, and that their heirs and devisees claimed it after their deaths.
Armistead’s deed to Roan and Maggie Perkins conveyed to the grantees therein all the land in Section 20, including the accretions to Section 20 formed along the east bank of the river, as the river gradually receded westward, and there is no substantial evidence in the record to support the appellant’s claim that Armistead or his heirs had exercised any acts of ownership or control over the land or asserted any claim to any part of the land after the conveyance of the land to Roan and Maggie Perkins in 1916.
We find no reversible error in the record, and the decrees of the lower court are therefore affirmed.
Affirmed.