Holcomb v. McClure, 37957

• Citation: 52 So.2d 922,211 Miss. 849
• Decision Date: 11 June 1951
• Docket Number: No. 37957,37957
• Court: Mississippi Supreme Court
• Parties: HOLCOMB et al. v. McCLURE.

Page 922

52 So.2d 922

211 Miss. 849

HOLCOMB et al. v. McCLURE.

No. 37957.

Supreme Court of Mississippi, Division B.

June 11, 1951.

L. Barrett Jones, Jackson, Ben Stevens, Hattiesburg, Evelyn Hunt Conner, Newton, for appellant.

C. R. Bolton, Tupelo, for appellee.

ALEXANDER, Justice.

Bill was filed by appellee to confirm his title to a certain lot in the City of Tupelo, and to remove the cloud cast by the claim of Mrs. Myrtle C. Shaw to a strip 45 feet wide along the north side of this lot, and in the alternative for a decree against W. E. Holcomb and wife upon their warranty of title to appellee.

The property involved is a lot described as beginning at the southeast corner of the southweat quarter of section 30, township 9, range 6 east, and running north along the west boundary of Madison Street, a distance of 225 feet. The western calls of the property are not for the moment important since the controversy centers in the amount of frontage on Madison Street. The other calls are left to be adjusted with reference thereto.

Appeal is from a decree sustaining the cross-bill of Mrs. Shaw and confirming her title to a lot 65 feet fronting on Madison Street, adjudging appellee to have acquired a frontage of only 180 feet, and awarding damages in favor of appellee against the Holcombs on their warranty in the sum of $2000. There is a cross-assignment of error by appellee attacking confirmation of title to the 65 foot strip in Mrs. Shaw.

The matter is fraught with difficulty, involving as it does an examination of all precedent deeds with a view to establishing not only line measurements but also the location of fixed monuments and boundaries. The chancellor detected the original source of the disputes as arising from the fact that many people assumed that the starting point almost invariably used--the southeast corner of the southwest quarter of section 30--was located in fact on the south line of Jackson Street rather than at a point 45 feet north. Madison Street is the east boundary and Jackson Street is the southern boundary of the lot in question.

The deed from the Holcombs to McClure warranted title to a lot beginning at that corner and running north 225 feet. These termini have been established by surveys and accepted by the chancellor. The conflict arises when it is found that a point 225 feet north of the established corner invades the lot of Mrs. Shaw for a distance of 45 feet.

Now, while most of the deeds exhibited as being in the chain of title use this corner as a point of beginning, practically all of them utilize established monuments or other deeds to identify the locations.

The deed, which Mrs. Shaw asserts is adversely affected by the claims of appellee, described as a beginning point a location 290 feet north of the established southeast corner of the southwest quarter of section 30. This point of beginning is further described as the southeast corner of the lot 'now owned by W. E. Ballard.' From this point of beginning, the lot is described as running south 65 feet. It is seen, therefore, that superficially there is no inconsistency between the recited locations of the lots of McClure and Mrs. Shaw. A frontage on Madison Street of 290 feet would admit two lots of a width of 225 and 65 feet respectively.

The discrepancy arises, however, from the fact that the lines of the Ballard lot were found by the chancellor to be established. Its frontage is 100 feet on Madison Street and it lies immediately south of what is often referred to as the Hagood or Kirk lot. The latter lot has as its south line a fixed stone wall and has been so identified for many years. Some of the lots which lie north of Mrs. Shaw's 65-foot lot are described with reference to the north line of Lot 51 of the Weatherford and Hilderbrand Survey, and the deeds make continual references one to another. So that when one proceeds southward from the north line of Lot 51, each succeeding description being tied to an earlier deed or monument, there is a certain clash with descriptions which proceed northward from Jackson Street or the half-section corner, provided the line measurements are accepted absolutely. As already stated, there would be no discrepancy if the starting point had been 45 feet south of the now established corner. But this is not the fact and the warranty deed to appellee calls for an overlap onto Mrs. Shaw's lot of 45 feet.

We need not servey the muniment of title whereby Mrs. Holcomb got title to these lands, except to say that while it appeared to indicate a lot fronting on Madison Street 290 feet, it was further described with reference to the Hagood lot whose south line lay 100 feet north of appellants' north line. The Hagood lot, as heretofore stated, is too well established and identified to be displaced by recited distances.

When monuments and distances are both given, the monuments control and the distances must be lengthened or shortened if necessary to prevent inconsistency. Burdick on Real Property, Section 284, page 761; Devlin on Real Estate (3d Ed.) ...