Archer v. Helm , 69 Miss. 730 ( 1892 )

Cooper, J.,

delivered the opinion of the court.

. There is much conflict in the authorities upon the question ■whether disputed and uncertain boundaries may be fixed by the parol agreement of coterminous proprietors. By some •courts it is held that such an agreement is substantially for the sale of lands, and required to be in writing by the statute of frauds. Others seem" to concede the application of the statute, but hold that where possession is taken under a parol agreement and continued for a long time, or is followed by ■valuable improvements, the other party is precluded by estoppel from controverting the correctness of the boundary agreed on. Others hold that such an agreement, when entered into in good faith for the purpose only of fixing a disputed and uncertain boundary, is not an agreement for the sale of lands, but is a mere .application of the title to the subject, and is therefore not within the operation of the statute.

In Natchez v. Vandervelde, 31 Miss., 706, this court seems to have adopted the rule last noted, and, so far as we are advised, it has not since been otherwise decided in this state.

In that case the court expressly declared that an agreement by parol to fix uncertain boundaries was not a contract for the sale of lands, and within neither the spirit nor the letter of the statute of frauds.

The subject is somewhat confused by the fact that in the same opinion the court declared that “ there is no substantial difference in principle between such an agreement, when carried out by taking possession in severalty under it, and a parol partition of lands, between parties in possession and claiming title, accompanied and followed by possession by each party of the part conceded to him; and such partitions are held to be valid and binding upon the parties. Jackson v. Harden, 4 Johns., 202 ; Slice v. Derrick, 2 Rich., 627; Wilder v. Bonney, 31 Miss., 644.”

In Wilder v. Bonney the court seems to have laid stress upon the fact that possession followed the parol partition (which would seem to be unnecessary, except as evidence of the contract, if the agreement was not within the statute of frauds), and relied upon decisions in states where part performance of a contract within the statute of frauds will withdraw it from its operation.

It may be that in these instances — parol partition and agreements fixing disputed and uncertain boundaries — the court has drifted into the position of engrafting an exception upon the statute of frauds, contrary to its often repeated assertion that it would never do so.

In Pipes v. Buckner, 51 Miss., 848, this court upheld a parol partition followed by possession in severalty, but declared that it “ would not extend the doctrine, but will apply it within the precise limits in which we find it.” It must be admitted that there seems to be a want of harmony in the announcement of the principle in Natchez v. Vandervelde, for it is difficult, in view of all that was said therein, to determine whether the agreement was held to be not within the statute, or taken out of its operation by the possession which followed the contract. But the rule is certainly announced that a parol agreement, followed by possession under it, is valid to fix disputed and uncertain boundaries. Following this decision, we must hold that the court below erred in excluding the evidence offered by the defendant to establish the agreement.

Reversed.