IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2016-CA-00590-COA THE ESTATE OF JAMES R. POUNDS; JAMES BRADLEY POUNDS, INDIVIDUALLY AND AS EX ECUTOR OF THE ESTATE OF JAMES R. POUNDS; SONYA POUNDS TUCKER; AND EULA MAE POUNDS APPELLANTS

v. J.L. SHIRLEY AND LINDA SHIRLEY APPELLEES
DATE OF JUDGMENT: 04/06/2016 TRIAL JUDGE: HON. C. MICHAEL MALSKI COURT FROM W HICH APPEALED: PRENTISS COUNTY CHANCERY COURT ATTORNEY FOR APPELLANTS: GREG E. BEARD ATTORNEYS FOR APPELLEES: CASEY LANGSTON LOTT JOE-COLBY RAY LANGSTON NATURE OF THE CASE: CIVIL - REAL PROPERTY DISPOSITION: AFFIRMED - 10/10/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ. WESTBROOKS, J., FOR THE COURT: ¶1. The executor of the estate of Jam es R. Pounds (Pounds Estate), and heirs individually , appeal the ruling of t h e P r e n t i ss County Chancery Court. The chancellor ref orm ed the warranty deed of the s ubject property , f i nding that the deed m istakenly included p roperty not

m utually agreed upon by

the decedent and the owner. Finding no error, we af f irm

. FACTS AND PROCEDURAL HISTORY ¶2. Jim

“J.L.” Shirley

(Shirley ) was deeded land east of the Brown’s Creek Channel by his uncle, H.C. Shirley , in 1 970. T he d eed c onvey e d “all t hat part of [ eight tracts] ly ing andbeing east of Brown’s Creek C h a n n e l

. ” I n 1988, Shirley was convey ed the land west of

Brown’s C reek by his uncle’s widow, Eloise Cavaness Shirley

. S h i r l e y l e a sed his land to Jam es 1 f or f a rm i ng p u rposes f

or a num ber o f y e ars. In 1997, Shirley , suf f ering f rom cancer, decided to sell the tract of his land east of

Brown’s Creek to Jam es. ¶3. Shirley and J am es undertook discussions a b out t he sale and p urchase of the land e ast of Brown’s Creek, b ut t hey never discussed t he exact acreage. The 1997 convey a nce f rom Shirley to Jam e s was f

or the purchase price of $105,000 and was o wner f i nanced b y Shirley , who held a deed of trust that was never r ecorded. T here were two deeds relating to the 1997
convey ance of land. T he f i rst deed was signed on January 13, 1997. That deed read in part: “In consideration of the s um of ten dollars a n d other valuable consideration

. . . , I [ ] hereby

c onvey to [ ] J.L. S hirley [ ] t he f ollowing described land i n Prentiss County , Missi s s i p p i , to-wit: All that part of the f ollowing described l and ly i ng and being East of Brown’s Creek Channel . . . .” ¶4. The s econd deed, a purportedly corrected deed, wa s s i g n e d t h e f o llowing day , on January 14, 1997. Both Shirley and his wif e, Linda, signed the second deed, though Linda’s signature was not necessary because the deed was titled in Jam es’s nam e only

. ¶5. The 1997 deeds w ere prepared b y a local a ttorney , E l lis Finch. There were only three
p e o p l e ( Shirley , Jam e s, and F inch) present when the property was transf erred. The 1997 deeds contained the exact l anguage set f orth in the second two paragraphs of the 1970 deed. However, Finch m oved the language specif y ing that the only part of the land b eing c onvey ed

1 Due to the num

ber of parties with t he sam e last nam e, we will ref er t o the d ecedent, Jam es Pounds, as Jam e s. 2was “all that part of [ e ight t racts] ly ing a n d being east o f Brown’s Creek” f rom the f irst paragraph to the second p aragraph of the deed. Though the 1 997 deed contained nearly the

exact sam e language as that of the 1970 d eed, t he f ollowing alterations created the ca s e in controversy : For and i n consideration of the sum of [ t]en [ d ]ollars ($10.00) and other good and v aluable considerations, the receipt and suf f iciency o f all of which is hereby acknowledged, I, J.L. Shirley , d o hereby convey and warrant to Jam es R. Pounds, the land situated in Prentiss County , Mississippi, and being m ore particularly described as f ollows: A ll that part o f the f ollowing described l and ly ing and being [ e]ast of

Brown’s Creek Channel . . . . ¶6. Jam es becam e ill and passed away in J u ly 2014. Jam es Bradley P o u n d s ( B r a d ley ),
Jam es’s son, undertook the f arm ing operations on his f a ther’s l and. Bradley had his f ather’s l a n d s u r v e y ed f

ollowing his death. As a result of the d escription of the property in t h e corrected deed, the survey or included land w e s t of Brown’s Creek in his survey . The Shirley s were not aware o f any claim t o the land west of Brown’s Creek. On Decem ber 29, 2014, Jam es’s surviving heirs convey ed the entirety of t he survey ed property , including the disputed tract, to Bradley . Bradley recorded the deed on Decem ber 30, 2014. ¶7. Af ter discovering that Jam e s’s heirs asserted a claim against c ertain portions of land

west of Brown’s C reek, the Shirley s f iled a com

plai n t a g a i nst the Pounds E state. In their

com plaint , the Shirley s argued that the warranty d eed should be voided f or f raud or civil

c o n s p i r a c y , or ref

orm e d due to a m

utual m istake, or, in the alternative, the title to t h e property should b e conf

irm ed b ased on adverse p ossession. At trial, Shirley testif ied that the sale o f the land west o f Brown’s Creek was never c ontem plated. Linda, who is Finch’s cousin, testif

ied that Shirley n ever discussed selling the property wes t o f Brown’s Creek.

3Linda testif ied t hat the west side of the property held sentim ental value to her a n d Shirley , and it was part of their livelihood. ¶8. Shirley ’s s o n - i n - l a

w , H a r o l d S m i t h , t e s t i fi ed that Shirley would bushhog t he sam e land that the Pounds Estate claim ed o wnership of , but he nev e r w i t n e ssed Jam es bushhog or

m aintain the property

. Eula Mae Pounds, Jam es’s wif e, t estif ied t hat she knew that he had purchased land west of Brown’s Cr e e k. However, Shirley ’s counsel i m p eached her trial testim o ny with her deposition statem ents that she had never heard her husband state at any tim e that h e purchased land w est of Brown’s Creek. At trial, Bradley testif ied that his f

ather

never told him that he intended t o b u y p r o perty west of B rown’s Creek. B ut Bradley contended that h is f

ather knew that he o w n e d l a nd on the west side o f Brown’s Creek but

was unaware of the exact acreage. Bradley testif ied that h is f

ather never told him that Shirley intended t o s ell l and west of Brown’s Creek. Bradley a cknowledged that if certain tracts of land west of Brown’s Creek were sold to his f a ther, two o f t h e tracts would e ssentially be landlocked. ¶9. At trial, the judge a sked Bradley wh y h i s f a t h e r w o u l d p u r c h a s e t r act f ive, a landlocked tract, s urrounded b y Shirley ’s land. Bradley a dm itted that a mistake had been

m ade in the deed; nevertheless, Bradley asserted that the t ract w as to a ccom pany property on the east side of the l and, though the tract was located o n the west side. B radley also argued that the deed had an easem ent across Shirley ’s land. Nevertheless, B radley conceded that the property had n o possible use, and he did not know why his f ather would h ave purchased the landlocked tract.

4¶10. Randy Paul Pounds (Randy ), Jam es’s brother, a lso testif ied at trial. Ran d y f

a r me d land with Jam es. Randy testif i ed that af ter f arm ing Shirley ’s land f

or a num b er of y ears, his brother decided to purchase s om e of the land. He testi f i e d t h a t b e f

ore the purchase was

m ade, there was no d i scussion about the purchase of land west of Brown’s C reek. However, Randy explained that his brother was aware that he would be purchasing around 200 acres

on the east side a nd 120 acres on the west s ide of Brown’s Creek. Randy acknowledged that he never heard S hirley state that he sold Jam es land we s t o f Brown’s Creek. Randy also testif i ed t hat Shirley i nstalled a gate on an adjoining neighbor’s l and that separated the land west of Brown’s Creek. Since Jam es f arm ed a portion of

the land west of Brown’s Creek, Shirley provided h im with a key to access the land. Randy testif ied t hat though Shirley gated

som e of the land, he d id so out of necessity to prevent t respassers f r om entering the property

. ¶11. Randy also testif

ied that he saw Shirley b ushhog and “ spray ” d itches with weed killer

to prevent vegetation on the land that he considered Jam e s’s land; but h e had not s een Shirley bushhogging f

or f ive or m ore y ears. R andy also bushhogged the land in question, installed

a culvert t o c r o s s c r e e ks, and assisted with f ixing “blow-outs” that occurred as a result of
f looding. However, Randy testif ied that they b ushhogged and i nstalled d itches regardless of w h e t h e r Jam es leased or owned the land. W h en asked to identif y the land convey e d to Jam es, Randy

could not identif

y a tract of land that he f

arm ed with Jam es. ¶12. Af ter trial, the court issued its m em orandum opinion a nd f inal judgm ent, f

inding that the w arranty deed m istakenly i ncluded property west of Brown’s C reek. The c ourt f ound that the Shirley s di d not prove f r aud by clear and convincing evidence. The c ourt ordered the

5Shirley s to r epay the P ounds Estate f or the taxes Jam es p a i d f o r the property

. Finding a

m utual m istake had occurred, the court ref orm ed the warranty deed. It is f rom that order that this appeal is taken. On appeal, the Pounds Estate argues:
I. THE CHANCELLOR ABUSED HIS DISCRETION IN FINDING A MUTUAL MISTAKE.
II. THE SHIRLEYS’ CLAIMS W ERE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS.

STANDARD OF REVIEW ¶13. “W e will n o t d i s t u r b t h e chancellor’s opinion when it is supported b y substantial evidence unles s t h e c hancellor abused [ his] discretion, o r was m anif estly wrong or clearly

e r r o n e ous.” K

elly v. Barry , 115 So. 3d 131, 133-34 (¶10) (Miss. Ct. App. 2013) ( q u o t i n g Olive v. McNeal , 47 So. 3d 7 3 5, 739 (¶10) ( Miss. Ct. App. 2010)). “Additionally , we will

reverse the chance l l o r ’ s d e c i s ion if [ he] applied an erroneous legal standard.” Id. “ W e review questions of

law de novo.” Id. A deed m ay be ref orm ed where it is shown to have resulted f rom the m utual m istake of

the parties in contracting f o r it.” Id. a t 134 (¶12).
DISCUSSION
I. Whether t he chancellor’s m em orandum opini o n and judgm e nt finding m utual m istake w as m a nifes t l y w r o ng and clearly erroneous. ¶14. The Pounds Estate a r g u e s t h a t t h e c o u r t a b u s e d i t s d i s c r e t i o n in rely ing on

assum ptions and circum stantial evidence to ref orm th e d e ed, rather than u sing the best evidence, the warranty d e ed. In support of its c ontentions, the P ounds Estate argues that the chancellor’s opinion contained several errors and f i ndings of f

a c t t hat require f

urther

6explanation. T h e c hancellor f ound that the f

acts surrounding the convey ance denoted a

mu tual m istake. The c hancellor reiterated Shirley ’s testim ony , that w hen he sig n e d t h e warranty deed, he intended to o nly convey the l and east o f B rown’s Creek to Jam es. Bef ore the execution of the warranty deed to J am es, Shirley l eased land to Jam es. Both J am es and Shirley executed an agricultural-land rent agreem ent t hat r e q u i r e d Jam es to m ake two
pay m ents of $15,000. The initial agreem e n t did n ot specif y which land was leased or what
acreage the lease concerned. The chancellor noted that t he agreem ent c o ntinued a f ter the warranty deed was executed. ¶15. The Pounds Estate cites to m any i n d ividual f indings in the chancellor’s decision in support of the contention that t he chanc e l l or a bused his discretion. The P ounds Estate
argues: (1) the installation of a gate on neighboring land was not evidence of m utual m istake; (2) it was error to f

ind that Jam es did not m aintain the land west of Brown’s C reek; (3) the court did not acknowledge the actions that Jam e s took to m aintain the l and; (4) the court’s characterization of the purchased tracts of land w est o f B rown’s Creek as “bizarre” is of no
consequence; ( 5) the court erred i n characterizing the land west of Brown’s Creek as m ore valuable than the land on the east; and (6) the evidence relied u pon b y the court w as indirect

or c ircum s tantial evidence, a nd the court abused i ts d iscretion i n ignoring the best evidence of the parties’ intent, the warranty deed. ¶16. T h e Shirley s argue that their case is supported by m u ch m ore than j ust t h e i r o w n testim o ny . They argue that the evidence taken as a whole supports t he chancellor’s f inding of a mu t u a l mi s take. “It is well established that this Court will not reverse a chancellor’s

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indings unless t hey are clearly erroneous.” Norris v. Cox , 860 So. 2d 319, 322 (¶10) (Miss.
Ct. App. 2003) ( citing Sproles v. Sproles , 782 So. 2d 742, 746 ( ¶ 1 2 ) ( M i s s . 2 001)). The Mississippi Suprem e C ourt has illustrated this standard by s ay ing, “a f inding of f

act is ‘clearly erroneous’ w hen although there is evidence to support it, the reviewing court on the entire evidence is l ef

t with a def

i nite and f irm conviction that a m istake has been m ade.” Id. (internal quotation m arks om itted). ¶17. “ I n a n a c t i o n to ref orm a deed based on a m istake theory , the petit i o n e r mu s t dem onstrate a m

utual m istake am ong the parties or a unilateral m i stake in com bination with
f raud or inequitable conduct on the part of the benef itting party .” Elchos v. Haas , 178 So.
3 d 1 1 8 3 , 1 1 9 1 -92 (¶25) (Miss. 2015). “The burden rests with t he p etitioner to p rove th e

m utual m istake occurred between the parties bey ond a reasonable doubt.” Id. ¶18. The chancellor was presented with s ubst a n t i a l e v i d e n c e t h at the property west of
Brown’s Creek was never intended to be included in t he 1997 warranty deed. A m ajority of the witnesses testif

ied t hat Jam es n ever inf

orm ed them of his intent to p urchase land west of
Brown’s Creek. R andy could not identif y one of the tracts of land t hat he alleged belonged

to his brother, though he f arm ed with him

. B r a dley t estif ied that the inclusion of a landlocked tract of

land was a m istake in the deed and that he did not know why h is f ather

w o uld have purchased a landlocked tract t hat was essentially useless. As a result, the chancellor f

ound that the totality of the evidence supported a f inding of a m

u tual m istake in the warranty d eed, warranting ref orm ation. “W here there is s ubstantial evidence to support [ the chancellor’s] f

i ndings, th i s C o urt is without the authority to disturb [ his] c onclusions,

8although it m ight have f o und otherwise as an original m a tter.” Joel v. J o el , 43 So. 3d 424,
429 (¶14) (Miss. 2010). Accordingly , we f ind t hat the chancellor did not abuse h is discretion in ref orm ing the warranty

deed.
II. Whether the Shirley s’ claim s w ere b arred by t he s t atute of lim itations. ¶19. The Pounds Estate argues that the Shirley s’ claim of concealed f

raud is tim e-barred because they w ere put on notice o f the f raud or m i stake once the deed was recorded. At trial, the court f

ound no c lear and convincing proof that Jam es con s p i r e d t o unlawf ully or f raudulently act. As a result, the court f ound that the cl a i m f

o r f r a u d a n d civil conspiracy
f ailed. Our suprem e court has held that “where a plaintif f alleging a possessory

interest in the land brings a n action to clear t itle or to recover l and obtained by f raudulent convey ance, that action is governed by the ten-y ear s t a t u t e o f l i mitations.” Lott v. Saulters , 133 So. 3d 794, 799 (¶7) (Miss. 2014). ¶20. I n t h e i r c o m

plaint, the Shirley s alleged that the transcription error was a resul t o f intentional t r i c k ery and f

raud. T he Shirley s also argued that the deed of trust that Bradley recorded on Decem

ber 30, 2014, was a n a ttem pt to f r audulently i m

p air and cloud the title to the property

. The Pounds Estate argues that t he S h i r l ey s’ cause of a c tion is tim e-barred, since they were put o n notice of m istake whe n t h e d eed was recorded. The Pounds Estate f urther asserts that if the ten-y ear statute of l i mi t a t i o ns does apply pursuant to Mississippi Code An n otated section 15-1-7 (Rev. 2012), then the Shirley s claim s are s till tim e-barred, since they brought t he action eighteen y ears af ter the deed was recorded. W e do not agree. “Actions to recover land are s ubject to the ten-y ear statute of lim itations f ound in [ section]

915-1-7 and [ Mississippi Code Annotated section] 15-1-9 [ (Rev. 2012)]. Lott , 133 So. 3d at

799 (¶8). ¶21. In relevant part, section 15-1-17 provides:
A person m ay not m ake an entry or com m ence an a ction to recover land except within ten years next after the time at which the right to make the entry or to bring the action shall have first a c crued to s o m e person through whom he claim s, or, if the right shall not have a c crued t o any person through whom he claim s, then except within ten y ears next a f ter the tim e at which the right to m ake the entry or b ring the action shall have f i rst accrued t o the person m aking or bringing the sam e. (Em phasis added). Section 15-1-9 states that a claim ant in a land dispute m a y not bring suit

to reco v e r t h e land except in accordance with section 15-1-7. However, in every case of concealed f

raud, the right to bring suit a c c r u e s when the f raud is f irst k nown or, with reasonable diligence, discovered. Miss. Code Ann. § 15-1-9. ¶22. The S hirley s com m en c e d a n action t o recover l and based o n t heir assertion that the land was either f

raudulently or m i stakenly convey ed to Jam es. Their cause of action did not

accrue u ntil they becam e aware of the adverse claim to the l and west of Brown’s Creek. No action was ever taken by Jam es while he was alive to possess and control any tract of land

west o f Brown’s Creek. Theref ore, the cause of action did not a c crue u ntil the Pounds Estate sought to enf

orce the 1997 warr anty deed. “[ S]tatutes of lim itation do not begin to run against one in actual or constructive possession o f l a n d s u ntil an adverse entry has been

m ade.” Lloyd v. G ibbes , 910 So. 2d 5 87, 589 (¶9) (Miss. Ct. App. 2005) (quoting Leech v. Masonite Corp ., 68 So. 2d 297, 300 (Miss. 1953)). ¶23. Accordingly , we f ind t hat the statute of lim ita t i o n s d i d n ot prohibit the chancellor

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rom hearing and ruling on the Shirley s’ case. According l y , t he chancellor’s judgm ent is af f irm ed. ¶24. AFFIRMED. LEE, C.J., GRIFFIS, P.J., B A R N ES, CARLTON, FAIR, WILSON AND GREENLEE, JJ., CONCUR. IR V I N G , P . J ., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

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