
    Wadsworth M. White v. Mary E. Jones et al.
    1. ChANCeey Practice. Oral testimony. Written agreement. Code 1893, l 1764.
    An agreement to take testimony orally in open court, not previously reduced to writing by inadvertence, will, when written, signed and filed! nune pro nune after final decree, be fully operative and sustain a decree based on such evidence, under Code 1892, § 1764, providing for the examination of witnesses orally in the chancery court on agreement of the parties in writing.
    2. Same. Jury trial. Code 1893, g 507.
    In a trial by jury in chancery, under Code 1892, § 507, providing therefor, the testimony of witnesses ore tenus in open court is admissible, without an agreement by the parties.
    Erok the chancery court of DeSoto county.
    Hon. James C. Long-street, Chancellor.
    Jones and others, appellees, were complainants in the court below; White, appellant, was defendant there. Erom a decree in complainant’s favor the defendant appealed to the supreme court.
    The facts are fully stated in the opinion of the court.
    
      B. L. Dabney, for appellant.
    All the nunc pro tunc agreement shows is, that each side had the right to call on the other to sign an agreement in accordance with the latter clause of Code 1892, § 1764. The appellee did not before the trial avail himslf of this right, and so far as the record proper shows, there was no legal evidence before the court.
    Judge Calhoun says, in Dickerson v. Askew, 82 Miss., 436, s.c., 34 So. Hep., 157, “The rule is universal to try all equity causes on depositions. It is, of course, and must remain, universal to the full extent not changed by statute.” He then demonstrates that Code of 1892, § 1764, is restrictive of §§ 1950, 1951 of the Code of 1880, in that it required notice, even in probate matters.
    Here we have a bill, answer, request for a jury, tender and joinder of issue, and a final decree for complainants, without a particle of evidence; it is not even recited in the decree how the evidence came before the court, and the only explanation of this unusual procedure is the nunc pro tunc agreement which shows that at the time of the trial, and of the final decree, there was no agreement in writing to take oral evidence in court. And it is only by courtesy of appellant’s counsel that there is anything in the record except the pleadings and the final decree.
    
      F. G. Holmes, for appellees.
    It affirmatively appears from said decree that there was proof before the court and the jury, and it further appears from the agreement of counsel in the record that the proof was made orally by witnesses in open court, and with the express consent of appellant. Otherwise, the chancellor would not have proceeded with the trial, as is the natural inference from said agreement and the facts therein recited.
    
      Dickerson v. Askew, 82 Miss., 436; s.c., 34 So. Rep., 151, is not in point, for that was a case in which notice of the taking of oral proof was served, under the misapprehension that it was of that class of cases referred to in § 1764 of the code of 1892. And oral proof was taken over the objection of the other party.
    
      Gox v. Kyle, 75 Miss., 667, is not in point, for in that ease the record showed that the proof was oral, and failed to show that it was by consent, or that proper notice was given.
    
      Grego v. Qrego, 78 Miss., 443, is in point, and announces the only tenable position that can be taken. In that case the decree recited that the oral proof was taken by agreement, and this court held that such being the case, and there being no bill of exceptions, the recital wras conclusive.
    In the case at bar it was within the discretion of the chancellor to try the issues of fact, or to submit them to a jury. PUt-
      
      man v. Lamb, 53 Miss., 594 Upon, tbe petition of appellant said issues were submitted to a .jury, and no steps were taken by bim to get rid of tbe verdict against bim in tbe chancery court, consequently tbe issue will not be reopened bere. Norton v. Coley, 45 Miss., 125.
    Tbe procedure in a jury trial in tbe chancery court is tbe same as in tbe circuit court. Tbe law does not contemplate proof to the jury by depositions, §' 501, Code 1892. All of tbe provisions with reference to obtaining’ bills of exceptions in tbe circuit court apply to the chancery court, § 555, Code 1892.
   ‘OaehooN, J.,

delivered tbe opinion of tbe court.

Certain devisees (appellees bere) of certain specified lands under the will of their grandfather, J. 0. White, filed their bill in chancery, alleging that bis son, tbe appellant, Walter M. White, procured from bim a deed twelve days before bis death, conveying to bis said son bis entire estate, real and personal, on credit, and upon a consideration grossly inadequate, even as recited in tbe deed. They aver that tbe execution of this instrument was procured by undue influence, and that J. 0. White was of unsound mind when be executed it. Issue was joined on these last two propositions, and tried by a jury, which was impaneled on tbe motion of appellant himself, and it decided both issues against bim and in favor of tbe appellees, and the decree of tbe court reciting that, “defendants having elected to have tbe issues of fact tried by a jury,” and reciting the impanelment, “after bearing tbe evidence” and reciting tbe verdict, decreed tbe cancellation of tbe deed, and that tbe will was in full force as to tbe land devised. From this Walter M. White appeals on the naked record, with no bill of exceptions setting out any testimony whatever, and bis only point is that tbe record shows no agreement in writing that oral testimony might be taken, and bis sole reliance for reversal is on tbe case of Dickerson v. Askew, 82 Miss., 436; s. c., 34 So. Rep., 157, decided by this court.

Tbe record does show that tbe trial was bad and tbe decree rendered on February Y, 1903, and it sets out an agreement of counsel thereafter made, and of date June 23, 1903, by which it is agreed that before the hearing it had been agreed that the proof should be oral, and that it was so stated at the hearing to the court. This agreement further states that the prior agreement. was agreed to be put in writing and filed, but “by inadvertence and oversight” its formal preparation ’ in writing was omitted. It then proceeds thus: “Now, therefore, to supply said omission, this agreement is filed this 13th day of June, A. D. 1903,” and it is signed by the counsel of the respective parties. This agreement puts of record in writing nunc fro tunc the act.ual precedent agreement, and is enough to satisfy the law. Grego v. Grego, 78 Miss., 443; 28 South., 817. Besides, Dickerson v. Askew has no relevancy to cases tried by jury. Code 1892, §§ 50Y, 555.

Affirmed.  