Sea Food Co. v. Meyer , 144 Miss. 96 ( 1926 )

^* Corpus Juris-Cyc References: Boundaries, 9CJ, p. 245, n. 5. Evidence, 22CJ, p. 1126, n. 36. Fence as evidence of agreement as to boundary, see 4 R.C.L. Supp. 252. 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 former appeal of this case. Meyer v. Sea Food Co., 136 Miss. 869, 101 So. 702.

The court refused to instruct the jury at appellant's request that if they believed from the evidence that appellant purchased the strip of land in question at a time when the west boundary thereof was marked by a fence, and that in purchasing the land it was the intention of both the appellee and the appellant "to sell and purchase the land as marked by said fence, then the jury should find for the defendant" (appellant). Appellant contends that the refusal of that instruction was error.

Lot 10 is adjoined on the west by lot 11. Appellee conveyed lot 10 to appellant along with other property. In the evidence it is undisputed that the property conveyed is property described according to the plan and map of Summerville in the city of Biloxi. Appellant's position is that when it purchased the lot from appellee the dividing line between lots 10 and 11 was marked by a fence, supposed at the time to be on the true line; that appellee at the time of the conveyance pointed this fence out to appellant as being on the true line; and, relying on that representation, the sale and purchase were made. Appellant's evidence tended to establish those facts. Appellee for some time prior to the bringing of this action and at the trial thereof was the owner of lot 11. The evidence showed without conflict that the fence between lots 10 and 11 was not on the true line between those lots, but was five feet over on lot 11, which belonged to appellee; that, therefore, if appellant got by its deed the land up to the fence as then located, it got five feet more than was described in the conveyance to it by appellee. Soon after the conveyance appellee moved the fence on the true line between lots 10 and 11. Thereafter appellant moved the fence back onto the false line. After the expiration of nearly ten years from the latter event, appellee brought this action of ejectment for the five-foot strip of land in question.

Appellant argues that it is entitled to retain possession of the strip of land because both parties to the conveyance agreed orally at the time of the conveyance that it was a part of the land conveyed, notwithstanding that it is shown without dispute that it was not in truth and in fact within the calls of appellant's conveyance. Does the fact that both parties thought at the time of the conveyance that the fence between lots 10 and 11 was on the true line, and acted on that understanding, bar appellee from recovering the strip of land which was no part of the land within the calls of appellant's deed? We think not. This action was brought in a court of law. It is an ejectment suit. The parties are bound by the conveyance. The land conveyed can neither be added to nor taken from by parol. Lot 10 has its description according to the plan and map of Summerville in the city of Biloxi, and lot 11 likewise has its description. Appellee in his conveyance to appellant described, in addition to other property unnecessary to mention, lot 10 according to such plan and map. That is what the conveyance purported to convey. No part of lot 11 was described in the conveyance. Regardless of what the intention of the parties was, the conveyance cannot now be amended by parol so as to include a part of lot 11. It follows from these views that the court committed no error in refusing the instruction requested. We think this is the only question calling for discussion.

Affirmed.