Gillespie v. Magruder

46 So. 77 | Miss. | 1908

Mayes, T.,

delivered the opinion of the court.

The chancellor decreed the true boundary line between the parties to this litigation to be the line as laid out in the diagram and plat attached to the deposition of Wilcox, surveyor and •civil engineer, and ordered Mrs. Gillespie to surrender possession to complainant of all land claimed by her lying east of same. We would not disturb the decree, were it not for the fact that the claim of Mrs. Gillespie that she has obtained title to the strip of land in question by adverse possession for a period of more than thirty years seems to have been ignored by the chancellor. Hnder the pleadings in this case, the question is not where the true line may -be shown by the surveyors to be; but the question is, conceding that Mrs. Gillespie claims a strip of land that belongs within'the calls of the deed made to Magruder by Geo. W. Carlisle and others, has she held the land in controversy for the statutory period, claiming it as her land, asserting ownership of it, and claiming it as against all parties ? It is undoubtedly shown that a part of the land in controversy is within the calls of the deed to Magruder; but the undisputed testimony shows that she has been claiming the land in question as against all persons for nearly thirty years. As to this there is no conflict in the testimony. All the witnesses introduced by her establish the fact of her claim, and this is not disputed in any way by Magruder. He says that he knows of no particular line that she has claimed, and does not know how long she has claimed it. In short, no proof is attempted to be made disputing her claim of adverse possession.

Since it appears from the record that the chancellor did not consider this question when on trial before him, his attention being addressed to another feature of the complaint, and in order that the parties may be given full opportunity to take testimony on all the issues of this case, we think that the decree should be reversed and the case remanded, with leave to either party to take further testimony and fully develop all the contentions; and it is so ordered.

Reversed.