Archer v. Helm

• Citation: 69 Miss. 730,11 So. 3
• Court: United States State Supreme Court of Mississippi
• Decision Date: 02 May 1892
• Parties: GEORGE F. ARCHER v. G. H. HELM

11 So. 3

69 Miss. 730

GEORGE F. ARCHER v. G. H. HELM

Supreme Court of Mississippi

May 2, 1892

FROM the circuit court of Washington county, HON. R. W WILLIAMSON, Judge.

Helm the appellee, brought ejectment against the appellant Archer, to recover a narrow strip of land lying along the boundary line between their plantations. The controversy involves the correctness of the location of the boundary line between their lands. Each holds under conveyances which describe the land according to the government surveys, and the contention arises, not from any uncertainty of description, but as to the true location of the section lines. It is unnecessary to set out the evidence relative to the various surveys, since the court reverses the judgment on a question of law.

The defendant, Archer, offered evidence for the purpose of showing that the line contended for by him as the true boundary had been settled and fixed by a parol agreement between him and Helm, the plaintiff; that surveys, made at different times, to ascertain the true line had all differed and that the location of the line, being thus in dispute and uncertain, was fixed by a verbal agreement, each party taking possession of his tract, and improving the same. The court refused to permit this evidence to be introduced, and this is made the ground of an exception by the appellant.

The judgment was in favor of plaintiff, Helm, and Archer appeals.

Reversed.

Campbell & Starling, for appellant.

The question is not whether one who points out a particular line as the boundary between his estate and that of another, through mistake, is estopped to claim to the true line when discovered, nor whether a known and well-marked boundary can be changed and relocated by parol agreement; but whether owners of adjoining estates, where their dividing line is in dispute and uncertain, can compromise the dispute and define the line by parol agreement, and especially where the parties have taken possession on the faith of the agreement. We submit that the overwhelming weight of authority is that such an agreement can be made.

The authorities agree in this conclusion, but they are at variance as to the principle on which it is based. Some say that the statute of frauds does not apply, because no title or interest in the land is passed, but the respective tracts are merely located, the boundaries in the deed being simply applied. Others hold that the agreement does, in effect, pass title to land, but that, if possession is taken on the faith of the agreement, and improvements are made, the other party is estopped to dispute the boundary. Still others hold that possession for a longtime up to the agreed line, even without improvements, binds, on the doctrine of estoppel. See Natchez v. Vandervelde, 31 Miss. 706; 13 Am. Dec., 224; 25 Ib., 452; 27 Ib., 120; 32 N.Y. 561; 85 Pa. 409; 23 Ark. 704; 64 Mo. 218; 25 Cal. 619; 82 Ill. 498; 88 Ind. 342; 13 Neb. 415; 58 Tex. 494; 11 Am. St. Rep., 589; 17 Ib., 549; Sedg. & Wait, Trial of Land Titles, 867; 2 Reed, Stat. of Frauds § 745; 2 Herman on Estoppel, 1172.

Yerger & Percy, for appellee.

There is no claim in this case of ignorance on the one side and knowledge and fraudulent representation on the other. The simple contention is that an uncertain boundary line may be fixed by parol agreement. There are few questions upon which there is greater conflict among authorities, but, clothe it in whatever web of reasoning you may, it is in direct conflict with the statute of frauds, and opens the door to the flood of evils at which that statute is aimed. The decisions relied on by appellant, only harmonize in the result reached. Each court seems determined to reach the result, but rejects the flimsy reasoning used by the others. Some of the cases apply the principle of estoppel, and others that of long acquiescence, as proof of an agreement or evidence of the correctness of the boundary line. See 70 Am. Dec., 57; 69 Ib., 707. The note to this case holds, from a review of all the cases, that such an agreement is never valid except where there has been long acquiescence, and then it binds by way of estoppel. See also 4 Am. Rep., 398; 27 Ib., 226.

The decisions holding that the evidence is incompetent, are harmonious and logical. To constitute estoppel, there must be knowledge and misrepresentation on one side, and ignorance and reliance on the other. Where parties agree upon the boundary line, and make improvements accordingly, neither is estopped from recovering to the true line. Bigelow on Estoppel, 467; 39 Am. Dec., 694; 33 lb., 172; 88 Ib., 577; 64 Ib., 577; 13 Ib., 222; 2 Smith, Lead Cas., 759.

The establishment of a boundary, by partition or otherwise, is within the statute of frauds, and, to be binding, must be in writing. May v. Baskin, 12 Smed. & M., 428.

While parol partitions have been upheld, it is upon an entirely different line of reasoning by this court, and this doctrine will be applied within the precise limits in which the court finds it. Pipes v. Buckner, 51 Miss. 848.

The principle upon which parol partitions among tenants in common are upheld, when followed by possession in severalty, is entirely different from the principle sought to be applied here. The parol agreement does not operate as a conveyance but simply as a...