1. Appeal — decree sustaining defendant's motion to exclude — Supreme Court must accept as true facts complainant's evidence tended to establish — with all reasonable inferences.
On appeal from decree sustaining defendant's motion made after complainant rested her case, to exclude complainant's evidence and to dismiss bill, Supreme Court must accept as true the facts which complainant's evidence fairly tended to establish, together with all reasonable inferences to be deducted therefrom.
2. Boundaries — evidence — prima facie case — old fence recognized as boundary line — motion to exclude erroneously sustained.
In suit involving boundary line, accepting the facts and inferences therefrom, evidence made out a prima facie case that the old fence was the recognized boundary line between the adjoining tracts involved, and decree sustaining motion made at conclusion of complainant's case to exclude complainant's evidence and to dismiss the bill would be reversed and case remanded for new trial.
Headnotes as approved by Roberds, P.J.
ROBERDS, P.J.
The parties to this litigation own adjoining lands in Amite County, Mississippi. Mrs. Mullins, in her bill herein, asserts that an old fence is located upon, and for many years has been recognized by the owners of the lands as, the true boundary line between the two tracts. Wroten denies that and says he has recently placed a fence upon the true line. When Mrs. Mullins rested her case, the chancellor sustained Wroten's motion to exclude the evidence Mrs. Mullins had offered and to dismiss the bill. From that decree, Mrs. Mullins appeals here.
(Hn 1) In passing upon that action of the learned chancellor, we must accept as true the facts which complainant's evidence fairly tends to establish, together with all reasonable inferences to be deducted therefrom. U.S. Realty Sales, Inc. v. Kuhn, et al., 206 Miss. 123, 39 So.2d 776; Stewart v. American Home Fire Ins. Co., 211 Miss. 523, 52 So.2d 301; Coker v. 52 Taxi Service, 211 Miss. 820, 52 So.2d 356; Montgomery v. Kimbrough Homes, Inc., 214 Miss. 519, 59 So.2d 273; Kirkland v. Harrison, 221 Miss. 714, 74 So.2d 820; Irene Bethea v. Garrett P. Mullins, No. 39,914, decided by this Court February 13, 1956. (Hn 2) So accepting the facts and the inferences therefrom, we think Mrs. Mullins made out a prima facie case that the old fence was the recognized line between the two tracts of land. This necessitates a retrial of the cause. U.S. Realty Sales, Inc. v. Kuhn, et al., and Irene Bethea v. Garrett P. Mullins, supra. Since the case is to be retried, we refrain from detailing the testimony or commenting upon its effect and weight.
Reversed and remanded.
Hall, Arrington, Ethridge and Gillespie, JJ., concur.