
    Colotta et ux. v. Middleton et al.
    
    (In Banc.
    Jan. 27, 1947.
    Suggestion of Error Overruled Feb. 24, 1947.
    Motion to Correct Judgment Sustained April 28, 1947.)
    [28 So. (2d) 847.
    No. 36197.]
    [30 So. (2d) 90.
    
      Forrest G. Cooper, and Jack E. Harper, Jr., both of Indianola, for appellants.
    
      Harold Cox, and Watkins & Eager, all of Jackson, for appellee, Mrs. Lillie E. Cox.
    
      Lyon & O’Donnell and B. B. Allen, all of Indianola, for appellee, W. H. Middleton.
   Roberds, J.,

delivered the opinion of the court.

Lot 3 of subdivision of Lot 24, Block O, of the Maclin Addition to the Town of Indianola, Mississippi, is bounded by Second Street on the north, and the right-of-way of the Columbus and Greenville Railway Company on the south. That lot is 248 feet deep, north and south, and approximately 65 feet wide, east and west.

On December 15, 1926, appellant, D. Colotta, owned the north 166 feet of Lot 3. On that day, he and his wife executed a trust deed conveying the north 150 feet of that lot. That deed of trust was foreclosed June 10, 1933, and the property, as described in the trust deed, was purchased by appellee, Mrs. Lillie Cox. In other words, the trustee’s deed conveyed to Mrs. Cox the north 150 feet of Lot 3. That left in Colotta the title to 16 feet lying immediately south of the said 150 feet.

On August 12, 1944, D. Colotta and Mary Colotta, his wife, filed this bill in equity seeking to establish and confirm in themselves title to that part of Lot 3 which begins 100 feet south of Second Street and extends south 66 feet, and to remove as a cloud upon their title the claims thereto of the appellees, Mrs. Cox and Middleton. The 66 feet in question includes the south 50 feet of the 150 feet conveyed by the deed of trust and the trustee’s deed. Complainants asserted title in themselves to this 66 feet on the ground (1) that the inclusion of 50 feet thereof in the deed of trust was an error; and (2) if mistaken in this, that they were vested with title to that 50 feet by acts of adverse possession exercised thereover since the sale under the trust deed June 10, 1933; and (3) the 16-foot strip was never conveyed by them.

Mrs. Cox, by her answer, denied that the Colottas had title to any part of the 150 feet conveyed by the said deed of trust, and, by cross-bill, claimed title to the south 16 feet on the ground that (a) thát parcel was erroneously left out of the deed of trust, but, if mistaken as to that; (b) that she had title thereto by adverse possession.

Middleton, in his answer, took the same position as to the claims of the Colottas as was asserted by Mrs. Cox, except that he made no claim to the 16 feet, and he made his answer a cross-bill as to Mrs. Cox, and asked for a personal decree against her upon the warranty in her deed to him in case the court should find Mrs. Cox did not have good title to said 150 feet.

It is thus seen that the record legal title to the 50-foot tract was in Middleton as the grantee of Mrs. Cox, and that the record title to the 16-foot parcel was in Colotta.

The chancellor found from the evidence, as a question of fact and conclusion of law, that the inclusion of the 50-foot tract in the deed of trust executed by the Colottas December 15,1926, was not a mistake and that the parties intended to so include it, and that the evidence failed to show that Colotta had title thereto by adverse possession. Likewise, he found and concluded that the omission of the 16-foot tract from said deed of trust was not an error and that the evidence failed to establish in'Mrs. Cox title to that parcel by 'adverse possession. He entered a decree dismissing the bill outright and confirmed in Mrs. Cox, as of July 28, 1944, the date of her deed to Middleton, and in Middleton as of the date of the decree, title to the north 150 feet of Lot 3, which included the 50-foot tract in question, and cancelled and removed as a cloud thereon all claims of the Colottas thereto, and, to' that extent, sustained the cross-bills.

From that decree, the Colottas prosecute a direct appeal, and Mrs. Cox and Middleton cross-appeal to this Court.

The questions presented were questions of fact. It would serve no good purpose to detail the evidence bearing thereon. It is sufficient to say the chancellor had ample evidence to support his findings on all of them — at least, we cannot say he was manifestly wrong, — and, in such case, we have no'right to reverse him. However, he was in error in dismissing the bill. His decree should have confirmed the title of D; Colotta to the 16-foot parcel, and sustained his bill to that extent. Mrs. Cox contested his right to that parcel. We are forced to reverse his action in that regard. Accordingly, a decree will be entered here confirming the title of D. Colotta to said 16-foot parcel and sustaining the bill to that extent, and .affirming the decree of the lower court on the cross-bills.

Affiirmed on cross-appeals, reversed on direct appeal, and judgment here.

On Motion.

Per Curiam.

The motion to correct the judgment hereinbefore rendered by this Court in this case will be sustained, and that judgment will be set aside, and another entered, reading as follows:

This cause having been submitted at a former day of this term on the record herein from the Chancery Court of Sunflower County, and this Court having sufficiently examined and considered the same, and being of the opinion that there is partial error therein, doth order and adjudge and decree that the decree of said Chancery Court rendered in this cause on the 20th day of November, 1945, be and the same is hereby affirmed and shall remain in full force and effect except insofar as it dismisses the original hill of complaint of D. Colotta and Mary Colotta, and this Conrt now here proceeding- to render the decree that should have been rendered in the court below on the original bill of complaint doth order and adjudge and decree that as against W. H. Middleton and Mrs. Lillie Cox, the appellant, D. Colotta, is the owner in fee simple of the hereinafter described property .in the City of Indianola, Sunflower County, Mississippi, described as: a parcel of land in Lot 3 of Subdivision of Lot 24 of Block 0 of the Maclin Addition to the City of Indianola, Sunflower County, Mississippi, described as a parcel 16 feet wide from North to South and bounded on the Bast and West by the East and West lines of said Lot 3 and lying immediately South of the North 150 feet, off of said Lot 3, and that the title of D. Colotta to said property is quieted and confirmed in him, and all claim of the said W. H. Middleton and the said Mrs. Lillie B. Cox thereto is can-celled and annulled' as a cloud on his said title. It is further ordered and adjudged and decreed that the appellants do have and recover of and from the appellees and cross-appellants all of the costs in this Court.  