
    Page v. Lang
    No. 40864
    October 13, 1958
    105 So. 2d 552
    
      May 18, 1959
    111 So. 2d 927
    
      Reeves, Brumfield &■ Reeves, McComb, for appellant.
    
      
      B. D. Statham, Magnolia, for appellee and cross-appellant.
   Roberds, P. J.

The errors assigned by appellant Leo Page are without merit. The finding that Mrs. Rosa Lang was without mental capacity to execute the deed to appellant dated October 14, 1954, was supported by the evidence.

There are other errors which are not assigned but which we must notice under Rule 6 (2) Revised Rules of the Supreme Court. The chancellor should not have cancelled the deed from Mrs. Rosa Lang to appellant except as to the interest of appellee. The other heirs of Mrs. Rosa Lang may not desire the relief. They were not parties to the suit. No one sought to have the land sold and the proceeds divided, and it was error for the chancellor to order the land sold by a commissioner and the proceeds distributed as ordered.

The decree below is reversed insofar as it cancelled the deed from Mrs. Rosa Lang to appellant as to the interests in said land of the heirs of Mrs. Rosa Lang, other than appellee, but without prejudice to the other heirs to seek cancellation of the deed in another and proper action. The decree below is also reversed insofar as it ordered the lands sold and the proceeds distributed. The rights of appellant to claim reimbursement for the $300 paid Mrs. Vert Simmons for the deed to Mrs. Rosa Lang dated October 8, 1954, is not to be prejudicated by these proceedings.

Affirmed in part and reversed in part.

Hall, Holmes, Ethridge and Gillespie, JJ., concur.

ON MOTION TO RETAX COSTS

This case was handed down and judgment entered therein on October 13, 1958. The judgment taxed the costs of the appeal against Lang. On May 1, 1959 Lang filed a motion in the cause asking that the costs be retaxed. The motion to retax the costs was not filed within sixty days as required by Rule 19, Revised Rules of the Supreme Court, nor does this case fall within the exception recognized by this Court in the case of Clara Richardson, et al. v. George V. Cortner, Trustee, (Miss.), 105 So. 2d 456. It follows that the motion to retax must be and it is hereby overruled.

Motion to retax costs overruled.

Hall, Holmes, Ethridge, and Gillespie, JJ., concur.  