Sea Food Co. v. Meyer
| Decision Date | 27 September 1926 |
| Docket Number | 25734 |
| Citation | 109 So. 674,144 Miss. 96 |
| Court | Mississippi Supreme Court |
| Parties | SEA FOOD CO. v. MEYER. [*] |
BOUNDARIES. That when lot was conveyed according to plat, parties thought fence was on true line and acted on that understanding, held no defense to ejectment for part of other lot on wrong side of fence.
That when plaintiff conveyed land to defendant, describing it as lot 10 according to plan and map the parties thought the fence between lots 10 and 11 was on the true line and acted on that understanding, will not defeat ejectment for that part of lot 11 which was on the wrong side of such fence, as the conveyance cannot be amended by parol.
APPEAL from circuit court of Harrison county, HON. W. A. WHITE Judge.
Action by Joseph F. Meyer against the Sea Food Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Affirmed.
John L. Heiss and W. L. Guice, for appellant.
I. The court below erred in refusing to give the peremptory instruction requested by appellant. Meyer sold to the Sea Food Company the specific thing he acquired from Ada Bailey and, according to his own testimony, he not only acquired but claimed for twenty-five years the very land he is now suing the Sea Food Company to recover.
While we know that the construction of deeds is such that where there is a particular description that is complete in itself, generally the court will not go ahead to consider the meaning of the general grant, still in this state this is not a hard and fast rule. Barksdale et al. v. Barksdale, 45 So. 615.
We submit, therefore, that the evidence of the appellee in this case showed that he purchased this land from Mrs. Bailey, held it for years, and then, as an entirety, by his deed, sold it to the Sea Food Company, and in the record on behalf of appellee there is no evidence to show anything that the court could construe as a reservation of this land that was under fence when the deed was given to the Sea Food Company.
II. The court below erred in refusing to give an instruction for the defendant, giving the jury a right to consider what the intention of the appellee in selling this land was, admitting for the sake of argument that there was some evidence which the jury could consider in determining whether or not the appellee had withheld any of the land he owned which was under fence. All this instruction said to the jury was that the jury had a right to decide from the evidence what the appellant had purchased and what the appellee had sold.
By reason of the general rights and equities of the appellant, we submit that the case should be reversed and remanded.
Mize & Mize, for appellee.
Under the testimony it was purely a question of fact for the jury to determine whether or not Mr. Meyer was entitled to this five feet of land. The issue was clear cut as to whether or not the defendant had been in possession of this strip for a period of more than ten years, and on this issue the jury found in favor of the appellee.
The appellee informed the plaintiff when the transaction was being made that the fence was not on the line between Lots 10 and 11; and in corroboration of this statement the testimony shows that just a short time after the deed was delivered appellee moved the fence to its correct position and it remained there until he left Biloxi and went to New Orleans, and it was then moved back by the defendant, and that this was not done before October 2, 1913; and this statement of facts the jury accepted as true and correct.
The instruction sought by appellant was properly refused because there was no evidence on which to base it.
Appellee, Joseph F. Meyer, brought ejectment in the circuit court of Harrison county against appellant, Sea Food Company to recover of the latter a strip of land described as "five feet off the east side of lot 11 of block 3 in the plan of Summerville in the city of Biloxi, county of Harrison." There was a trial resulting in a verdict for appellee upon which verdict a judgment was entered for the strip of land involved, according to the verdict of the jury. From that judgment appellant prosecutes this appeal.
Appellant contends, first, that under the law and evidence it was entitled to a directed verdict, which it requested and which the trial court refused to grant. That question was settled against the appellant's contention on the farmer appeal of this case. Meyer v. Sea Food...
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