Biloxi Development Commission v. Frey

401 So. 2d 716
CourtMississippi Supreme Court
DecidedJuly 15, 1981
Docket52693
StatusPublished
Cited by4 cases

This text of 401 So. 2d 716 (Biloxi Development Commission v. Frey) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Biloxi Development Commission v. Frey, 401 So. 2d 716 (Mich. 1981).

Opinion

401 So.2d 716 (1981)

BILOXI DEVELOPMENT COMMISSION — Urban Renewal Agency of the City of Biloxi, Mississippi, Successor to the City of Biloxi Housing Authority
v.
Abe FREY, et al.

No. 52693.

Supreme Court of Mississippi.

July 15, 1981.
Rehearing Denied August 12, 1981.

Grier J. Gregory, W. Raymond Hunter, Bryant & Stennis, Gulfport, for appellant.

Charliene Roemer, Thomas L. Wallace, Sekul, Hornsby, Wallace & Teel, Biloxi, for appellees.

Before PATTERSON, C.J., and LEE and HAWKINS, JJ.

*717 PATTERSON, Chief Justice, for the Court:

This appeal emanates from a confirmation of title suit brought by the Biloxi Development Commission (hereinafter City) and a cross-bill to confirm title by Abe, Morris, and Rose Spector Frey (hereinafter Freys) in the Second Judicial District of Harrison County Chancery Court. The property, or a part of it, in dispute, was condemned in a prior suit brought in the Special Court of Eminent Domain of the County Court of Harrison County. To understand the posture of this case, it is necessary to review its prior litigation.

The City filed a petition for condemnation of certain property owned by the Freys on November 1, 1971. The property was described as:

That certain lot or parcel of land bounded on the North by Jackson Street, on the East by property now or formerly of Atkinson; on the South by property now or formerly of Patton; and on the West by Couevas Street, having a frontage on Couevas Street of 47'8" and running back East between parallel lines 108 1/2' more or less, said lot or parcel of land within all improvements thereon and lying and being located in and a part of the Private Claim of Angelique Fasier, designated on the U.S. Government Township Plat as Section or Claim Number 27, Township 7 South, Range 9 West in Harrison County, Mississippi, and being the same property acquired by Mrs. Stella Joachim by Deed dated January 21, 1946, and recorded in Book 282, pages 26-27 of the Records of Deeds of Harrison County, Mississippi.
SUBJECT HOWEVER, to the East 12 feet of the above described property heretofore conveyed to the United Gas Corporation by Deed dated September 16, 1965, as the same is recorded in Book 560 at Page 319 of the Land Deed Records of Harrison County, Mississippi.
LESS HOWEVER, approximately the North 6 and 6/10 feet used of said property for the widening of Jackson Street hereby retained by the City of Biloxi for Jackson Street.
Being Parcel No. 33-6 and apparently owned by ABE FREY and MORRIS FREY.

The controversy arises because there are two lots in Parcel 33-6 and only one is described in some detail. A lot, probably the northern one, with a frontage of 47.8 feet on Couevas Street is described in some particularity; but the remaining lot in Parcel 33-6 is not described in metes and bounds.

The Freys were paid $22,500.00 for their land which was taken in the eminent domain proceeding. The judgment of March 20, 1972, did not contain a detailed description of the 71 foot lot, which is now in dispute, although Parcel 33-6, composed of the 47.8 foot lot and the 71 foot lot, was used in the description.

Subsequently, on November 7, 1973, the Freys brought suit against the City to cancel a cloud and confirm title in them to the 71 foot lot. A demurrer was sustained to this bill because of no equity and no deraignment of title. The chancellor also abated any conveyance of the 71 foot lot and granted leave to amend. The Freys did not amend their bill of complaint and the cause was thereafter dismissed by the court.

This brings us to the present confirmation suit by the City to quiet title to the 71 foot lot which it alleges it owns via the eminent domain proceeding. The Freys answered, denying the title of the City and seeking confirmation of title in Rose Spector Frey, the wife of Abe. The City thereupon moved to dismiss the Freys' claim because of res judicata, estoppel, accord and satisfaction, or in the alternative, a motion to strike the Freys' affirmative defenses.

The trial court determined it could not alter the judgment of the eminent domain court. In considering that judgment, the chancellor ruled it contained two incompatible descriptions and the more specific description controlled; therefore, confirmation of title in the City was denied.

It also ruled the Freys' previous cloud suit was not res judicata to their cross-bill to confirm title because there was no identity *718 of the cause of action or the thing sued for. Further, the cross-bill failed to show the Freys were in possession of the land or there was no adverse occupancy; and therefore, it was dismissed with prejudice with costs assessed against the City. The final decree leaves the title to the litigated property undecided and in dispute.

The City appeals, assigning three errors:

1. The chancellor was manifestly wrong in overruling appellant's Motion to Dismiss in the Nature of a Plea in Bar.
2. The chancellor erred as a matter of law in failing to confirm title to the disputed property in the City as the property sought to be confirmed is a portion of the same property that was taken in a prior eminent domain proceeding.
3. The chancellor erred as a matter of law in that the effect of the final decree holds title to the disputed property in abeyance.

The Freys cross-appeal assigning as error that the trial court erred in failing to make a positive determination as to the ownership of the property.

We are of the opinion the trial court erred in not finding the Freys equitably estopped to deny the City's title. The record of the eminent domain proceeding leads us to this conclusion. John M. Smallwood, Sr., an appraiser, testified concerning block 33, parcel 6 in the condemnation proceeding. Portions of his condemnation testimony follow:

As Acquisition Officer are you familiar with the maps and things that you have?
A. I am.
Q. Do you have a map that will reflect a true picture of the subject property, which the Judge earlier, I don't know if he read it yet, which I believe is described as that certain lot or parcel of land bounded on the north by Jackson Street, on the east by the property now or formerly of Atkinson, on the south by the property now or formerly of Patton, on the West by Couevas Street, having a frontage on Couevas Street of forty seven feet eight inches and running back east between parallel lines one hundred and eight and a half feet more or less, said lot of land with all improvements thereon lying and being located in and a part of the Private Claim of Angelique Fasier, designated as U.S. Government Township Plat, Section Number Twenty Seven, Township Seven South, Range Nine West, Harrison County, and being the same property acquired by Miss Helen Joachim by deed dated January 21, 1946 as recorded in Book 282, pages 26 and 27 of the Record of Deeds of Harrison County, subject, however, to the east twelve feet of the above property heretofore conveyed to United Gas Company by deed dated September 16, 1965, as the same is recorded in Book 563 19 of the Land Deed Records of Harrison County, Mississippi, less, however, approximately the north six and sixtenths feet used for the widening of Jackson Street hereby retained by the City of Biloxi, Lot 33, Parcel 6 of the Property Map SD 3 Project Mississippi R 30, prepared by Thomas Seabrook and Associates?
A. Yes, Sir, I have such a map.
Q.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

City of Waynesboro v. McMichael
856 So. 2d 474 (Court of Appeals of Mississippi, 2003)
Infiniti of Mobile, Inc. v. Office
727 So. 2d 42 (Supreme Court of Alabama, 1999)
State Highway Commission v. Charmar, Inc.
569 So. 2d 1132 (Mississippi Supreme Court, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
401 So. 2d 716, Counsel Stack Legal Research, https://law.counselstack.com/opinion/biloxi-development-commission-v-frey-miss-1981.