         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2016-CA-00590-COA

THE ESTATE OF JAMES R. POUNDS; JAMES                                       APPELLANTS
BRADLEY POUNDS, INDIVIDUALLY AND AS
EXECUTOR OF THE ESTATE OF JAMES R.
POUNDS; SONYA POUNDS TUCKER; AND
EULA MAE POUNDS

v.

J.L. SHIRLEY AND LINDA SHIRLEY                                               APPELLEES

DATE OF JUDGMENT:                          04/06/2016
TRIAL JUDGE:                               HON. C. MICHAEL MALSKI
COURT FROM WHICH 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 James R. Pounds (Pounds Estate), and heirs individually,

appeal the ruling of the Prentiss County Chancery Court. The chancellor reformed the

warranty deed of the subject property, finding that the deed mistakenly included property not

mutually agreed upon by the decedent and the owner. Finding no error, we affirm.

                       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 1970. The deed conveyed “all that part of [eight tracts] lying and
being east of Brown’s Creek Channel.” In 1988, Shirley was conveyed the land west of

Brown’s Creek by his uncle’s widow, Eloise Cavaness Shirley. Shirley leased his land to

James1 for farming purposes for a number of years. In 1997, Shirley, suffering from cancer,

decided to sell the tract of his land east of Brown’s Creek to James.

¶3.    Shirley and James undertook discussions about the sale and purchase of the land east

of Brown’s Creek, but they never discussed the exact acreage. The 1997 conveyance from

Shirley to James was for the purchase price of $105,000 and was owner financed by Shirley,

who held a deed of trust that was never recorded. There were two deeds relating to the 1997

conveyance of land. The first deed was signed on January 13, 1997. That deed read in part:

“In consideration of the sum of ten dollars and other valuable consideration . . . , I [] hereby

convey to [] J.L. Shirley [] the following described land in Prentiss County, Mississippi,

to-wit: All that part of the following described land lying and being East of Brown’s Creek

Channel . . . .”

¶4.    The second deed, a purportedly corrected deed, was signed the following day, on

January 14, 1997. Both Shirley and his wife, Linda, signed the second deed, though Linda’s

signature was not necessary because the deed was titled in James’s name only.

¶5.    The 1997 deeds were prepared by a local attorney, Ellis Finch. There were only three

people (Shirley, James, and Finch) present when the property was transferred. The 1997

deeds contained the exact language set forth in the second two paragraphs of the 1970 deed.

However, Finch moved the language specifying that the only part of the land being conveyed

       1
       Due to the number of parties with the same last name, we will refer to the decedent,
James Pounds, as James.

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was “all that part of [eight tracts] lying and being east of Brown’s Creek” from the first

paragraph to the second paragraph of the deed. Though the 1997 deed contained nearly the

exact same language as that of the 1970 deed, the following alterations created the case in

controversy:

       For and in consideration of the sum of [t]en [d]ollars ($10.00) and other good
       and valuable considerations, the receipt and sufficiency of all of which is
       hereby acknowledged, I, J.L. Shirley, do hereby convey and warrant to James
       R. Pounds, the land situated in Prentiss County, Mississippi, and being more
       particularly described as follows: All that part of the following described land
       lying and being [e]ast of Brown’s Creek Channel . . . .

¶6.    James became ill and passed away in July 2014. James Bradley Pounds (Bradley),

James’s son, undertook the farming operations on his father’s land. Bradley had his father’s

land surveyed following his death. As a result of the description of the property in the

corrected deed, the surveyor included land west of Brown’s Creek in his survey. The

Shirleys were not aware of any claim to the land west of Brown’s Creek. On December 29,

2014, James’s surviving heirs conveyed the entirety of the surveyed property, including the

disputed tract, to Bradley. Bradley recorded the deed on December 30, 2014.

¶7.    After discovering that James’s heirs asserted a claim against certain portions of land

west of Brown’s Creek, the Shirleys filed a complaint against the Pounds Estate. In their

complaint, the Shirleys argued that the warranty deed should be voided for fraud or civil

conspiracy, or reformed due to a mutual mistake, or, in the alternative, the title to the

property should be confirmed based on adverse possession. At trial, Shirley testified that the

sale of the land west of Brown’s Creek was never contemplated. Linda, who is Finch’s

cousin, testified that Shirley never discussed selling the property west of Brown’s Creek.


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Linda testified that the west side of the property held sentimental value to her and Shirley,

and it was part of their livelihood.

¶8.    Shirley’s son-in-law, Harold Smith, testified that Shirley would bushhog the same land

that the Pounds Estate claimed ownership of, but he never witnessed James bushhog or

maintain the property. Eula Mae Pounds, James’s wife, testified that she knew that he had

purchased land west of Brown’s Creek. However, Shirley’s counsel impeached her trial

testimony with her deposition statements that she had never heard her husband state at any

time that he purchased land west of Brown’s Creek. At trial, Bradley testified that his father

never told him that he intended to buy property west of Brown’s Creek. But Bradley

contended that his father knew that he owned land on the west side of Brown’s Creek but

was unaware of the exact acreage. Bradley testified that his father never told him that Shirley

intended to sell land west of Brown’s Creek. Bradley acknowledged that if certain tracts of

land west of Brown’s Creek were sold to his father, two of the tracts would essentially be

landlocked.

¶9.    At trial, the judge asked Bradley why his father would purchase tract five, a

landlocked tract, surrounded by Shirley’s land. Bradley admitted that a mistake had been

made in the deed; nevertheless, Bradley asserted that the tract was to accompany property on

the east side of the land, though the tract was located on the west side. Bradley also argued

that the deed had an easement across Shirley’s land. Nevertheless, Bradley conceded that the

property had no possible use, and he did not know why his father would have purchased the

landlocked tract.



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¶10.   Randy Paul Pounds (Randy), James’s brother, also testified at trial. Randy farmed

land with James. Randy testified that after farming Shirley’s land for a number of years, his

brother decided to purchase some of the land. He testified that before the purchase was

made, there was no discussion about the purchase of land west of Brown’s Creek. However,

Randy explained that his brother was aware that he would be purchasing around 200 acres

on the east side and 120 acres on the west side of Brown’s Creek. Randy acknowledged that

he never heard Shirley state that he sold James land west of Brown’s Creek. Randy also

testified that Shirley installed a gate on an adjoining neighbor’s land that separated the land

west of Brown’s Creek. Since James farmed a portion of the land west of Brown’s Creek,

Shirley provided him with a key to access the land. Randy testified that though Shirley gated

some of the land, he did so out of necessity to prevent trespassers from entering the property.

¶11.   Randy also testified that he saw Shirley bushhog and “spray” ditches with weed killer

to prevent vegetation on the land that he considered James’s land; but he had not seen Shirley

bushhogging for five or more years. Randy also bushhogged the land in question, installed

a culvert to cross creeks, and assisted with fixing “blow-outs” that occurred as a result of

flooding. However, Randy testified that they bushhogged and installed ditches regardless

of whether James leased or owned the land. When asked to identify the land conveyed to

James, Randy could not identify a tract of land that he farmed with James.

¶12.   After trial, the court issued its memorandum opinion and final judgment, finding that

the warranty deed mistakenly included property west of Brown’s Creek. The court found that

the Shirleys did not prove fraud by clear and convincing evidence. The court ordered the



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Shirleys to repay the Pounds Estate for the taxes James paid for the property. Finding a

mutual mistake had occurred, the court reformed the warranty deed. It is from 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 WERE BARRED BY THE
              APPLICABLE STATUTE OF LIMITATIONS.

                               STANDARD OF REVIEW

¶13.   “We will not disturb the chancellor’s opinion when it is supported by substantial

evidence unless the chancellor abused [his] discretion, or was manifestly wrong or clearly

erroneous.” Kelly v. Barry, 115 So. 3d 131, 133-34 (¶10) (Miss. Ct. App. 2013) (quoting

Olive v. McNeal, 47 So. 3d 735, 739 (¶10) (Miss. Ct. App. 2010)). “Additionally, we will

reverse the chancellor’s decision if [he] applied an erroneous legal standard.” Id. “We

review questions of law de novo.” Id. A deed may be reformed where it is shown to have

resulted from the mutual mistake of the parties in contracting for it.” Id. at 134 (¶12).

                                      DISCUSSION

       I.     Whether the chancellor’s memorandum opinion and judgment
              finding mutual mistake was manifestly wrong and clearly
              erroneous.

¶14.   The Pounds Estate argues that the court abused its discretion in relying on

assumptions and circumstantial evidence to reform the deed, rather than using the best

evidence, the warranty deed. In support of its contentions, the Pounds Estate argues that the

chancellor’s opinion contained several errors and findings of fact that require further



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explanation. The chancellor found that the facts surrounding the conveyance denoted a

mutual mistake. The chancellor reiterated Shirley’s testimony, that when he signed the

warranty deed, he intended to only convey the land east of Brown’s Creek to James. Before

the execution of the warranty deed to James, Shirley leased land to James. Both James and

Shirley executed an agricultural-land rent agreement that required James to make two

payments of $15,000. The initial agreement did not specify which land was leased or what

acreage the lease concerned. The chancellor noted that the agreement continued after the

warranty deed was executed.

¶15.   The Pounds Estate cites to many individual findings in the chancellor’s decision in

support of the contention that the chancellor abused his discretion. The Pounds Estate

argues: (1) the installation of a gate on neighboring land was not evidence of mutual mistake;

(2) it was error to find that James did not maintain the land west of Brown’s Creek; (3) the

court did not acknowledge the actions that James took to maintain the land; (4) the court’s

characterization of the purchased tracts of land west of Brown’s Creek as “bizarre” is of no

consequence; (5) the court erred in characterizing the land west of Brown’s Creek as more

valuable than the land on the east; and (6) the evidence relied upon by the court was indirect

or circumstantial evidence, and the court abused its discretion in ignoring the best evidence

of the parties’ intent, the warranty deed.

¶16.   The Shirleys argue that their case is supported by much more than just their own

testimony. They argue that the evidence taken as a whole supports the chancellor’s finding

of a mutual mistake. “It is well established that this Court will not reverse a chancellor’s



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findings unless they 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 (¶12) (Miss. 2001)). The

Mississippi Supreme Court has illustrated this standard by saying, “a finding of fact is

‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the

entire evidence is left with a definite and firm conviction that a mistake has been made.” Id.

(internal quotation marks omitted).

¶17.   “In an action to reform a deed based on a mistake theory, the petitioner must

demonstrate a mutual mistake among the parties or a unilateral mistake in combination with

fraud or inequitable conduct on the part of the benefitting party.” Elchos v. Haas, 178 So.

3d 1183, 1191-92 (¶25) (Miss. 2015). “The burden rests with the petitioner to prove the

mutual mistake occurred between the parties beyond a reasonable doubt.” Id.

¶18.   The chancellor was presented with substantial evidence that the property west of

Brown’s Creek was never intended to be included in the 1997 warranty deed. A majority of

the witnesses testified that James never informed them of his intent to purchase land west of

Brown’s Creek. Randy could not identify one of the tracts of land that he alleged belonged

to his brother, though he farmed with him. Bradley testified that the inclusion of a

landlocked tract of land was a mistake in the deed and that he did not know why his father

would have purchased a landlocked tract that was essentially useless. As a result, the

chancellor found that the totality of the evidence supported a finding of a mutual mistake in

the warranty deed, warranting reformation. “Where there is substantial evidence to support

[the chancellor’s] findings, this Court is without the authority to disturb [his] conclusions,



                                              8
although it might have found otherwise as an original matter.” Joel v. Joel, 43 So. 3d 424,

429 (¶14) (Miss. 2010). Accordingly, we find that the chancellor did not abuse his discretion

in reforming the warranty deed.

       II.    Whether the Shirleys’ claims were barred by the statute of
              limitations.

¶19.   The Pounds Estate argues that the Shirleys’ claim of concealed fraud is time-barred

because they were put on notice of the fraud or mistake once the deed was recorded. At trial,

the court found no clear and convincing proof that James conspired to unlawfully or

fraudulently act. As a result, the court found that the claim for fraud and civil conspiracy

failed. Our supreme court has held that “where a plaintiff alleging a possessory interest in

the land brings an action to clear title or to recover land obtained by fraudulent conveyance,

that action is governed by the ten-year statute of limitations.” Lott v. Saulters, 133 So. 3d

794, 799 (¶7) (Miss. 2014).

¶20.   In their complaint, the Shirleys alleged that the transcription error was a result of

intentional trickery and fraud. The Shirleys also argued that the deed of trust that Bradley

recorded on December 30, 2014, was an attempt to fraudulently impair and cloud the title to

the property. The Pounds Estate argues that the Shirleys’ cause of action is time-barred,

since they were put on notice of mistake when the deed was recorded. The Pounds Estate

further asserts that if the ten-year statute of limitations does apply pursuant to Mississippi

Code Annotated section 15-1-7 (Rev. 2012), then the Shirleys claims are still time-barred,

since they brought the action eighteen years after the deed was recorded. We do not agree.

“Actions to recover land are subject to the ten-year statute of limitations found in [section]


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15-1-7 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 may not make an entry or commence an action 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 accrued to some person through whom he
       claims, or, if the right shall not have accrued to any person through whom he
       claims, then except within ten years next after the time at which the right to
       make the entry or bring the action shall have first accrued to the person making
       or bringing the same.

(Emphasis added). Section 15-1-9 states that a claimant in a land dispute may not bring suit

to recover the land except in accordance with section 15-1-7. However, in every case of

concealed fraud, the right to bring suit accrues when the fraud is first known or, with

reasonable diligence, discovered. Miss. Code Ann. § 15-1-9.

¶22.   The Shirleys commenced an action to recover land based on their assertion that the

land was either fraudulently or mistakenly conveyed to James. Their cause of action did not

accrue until they became aware of the adverse claim to the land west of Brown’s Creek. No

action was ever taken by James while he was alive to possess and control any tract of land

west of Brown’s Creek. Therefore, the cause of action did not accrue until the Pounds Estate

sought to enforce the 1997 warranty deed. “[S]tatutes of limitation do not begin to run

against one in actual or constructive possession of lands until an adverse entry has been

made.” Lloyd v. Gibbes, 910 So. 2d 587, 589 (¶9) (Miss. Ct. App. 2005) (quoting Leech v.

Masonite Corp., 68 So. 2d 297, 300 (Miss. 1953)).

¶23.   Accordingly, we find that the statute of limitations did not prohibit the chancellor



                                             10
from hearing and ruling on the Shirleys’ case. Accordingly, the chancellor’s judgment is

affirmed.

¶24.   AFFIRMED.

    LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, FAIR, WILSON AND
GREENLEE, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION.




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