Harris, Special Judge,
delivered the opinion of the court.
This litigation was begun in September, 1897, and this is [746]*746its fourth appearance before this court. The esssential facts of the case, so far as they are necessary to be stated for a proper understanding of this opinion, are as follows: R. S. Bowles died intestate in 1878, owning two adjoining tracts of land in Leflore county; one tract containing eighty acres, and the other tract three hundred and twenty .acres. He left surviving him as his heirs at law his widow, Mary Bowles, and five children, F. N. Bowles, P. B. Bowles, Pink Wood, Ida Phelan, and Julia Bowles. In 1873 a judgment was rendered against R. S. Bowles and Mary Bowles jointly in the circuit court of Grenada county for the sum of $468.78. After the death of R. S. Bowles — that is to say, in April, 1879 —execution on this judgment was issued and levied on the three-hundred-and-twenty-acre tract of land, and the same was advertised for sale. At the time, F. N. Bowles was thirty-three years of age; Pink Wood, nineteen years of age; P. B. Bovdes, seventeen years, and Ida Phelan, thirteen years. The widow, Mary Bowles, after making repeated efforts to raise the money to pay off the judgment, applied to Jones & Son, of Grenada, to lend money on the lands sufficient- to pay off the judgment, which Jones & Son agreed to do; .but, finding that the title was not in Mrs. Bowles, Jones & Son agreed to buy in the land and hold the same, giving Mrs. Bowles the right to pay the debt at some future time. Hnder an arrangement between F. N. Bowles and his mother and the other heirs, F. N. Bowles took possession of all the land, including the eighty-acre tract, in 1881, for the purpose of working out the debt with the proceeds of the land. In 1886 Mrs. Bowles died intestate. In 1890 Julia Bowles died intestate; F. N. Bowles still being in possession of the land. In November, 1889, F. N. Bowles, still in occupancy of the land, paid with the proceeds arising therefrom the amount due Jones & Son, and took title to the three hundred and twenty acres of land in his own name. At the time the other heirs, his cotenants, were not living [747]*747in Leflore county. Mrs. Phelan was living in Grenada, P. B. Bowles in Arkansas, and Mrs. Wood and Julia Bowles elsewhere. None of them had any knowledge of the fact, at the time or until 1893, that F. N. Bowles had taken the title to this property in his own name. There seems to have been no accounting between the parties, but F. N. Bowles remained in occupation of the land from the time of his entry, receiving the income from the property and disposing of it at his discretion.
In 1897, after it had been learned that F. N. Bowles was claiming title in himself to the whole three hundred and twenty acres of land-, Mrs. Pink Wood filed her bill in the chancery court of Leflore county, setting up the facts as above set forth, and asking for a partition of the land and for an accounting. F. N. Bowles and the other heirs at law were made defendants to this bill. The bill was demurred to. The demurrer was overruled, and appeal taken to this court, and a decree was affirmed (23 South., 1014), and F. N. Bowles required to answer. Pro confessos were taken against Ida Phelan and P. B. Bowles. It appears that after F. N. Bowles entered into possession of the land he acquired the interest of Mrs. Phelan and P. B. Bowles in the eighty-acre tract, so that at the time of the bringing of the suit he owned a three-fourths interest in the eighty-acre tract and admits that he held the eighty-acre tract as tenant in common with Mrs. Wood. After the cause was remanded, F. N. Bowles answered, and one I). L. Bain acquired the interest of P. B. Bowles in the three-hundred-and-twenty acre tract and was made a party to the suit; the pro confesso as to P. B. Bowles being set aside. There were many amendments and exceptions, a good deal of proof taken, and a final decree rendered, decreeing that F. N. Bowles held the land as tenant in common, and a partition of the land was ordered, and a commissioner appointed to take an account between the parties as to the rents and profits, etc. From this decree an appeal was [748]*748taken to this court, and the decree affirmed in April, 1906, without written opinion. A suggestion of error was filed and overruled, and the case was remanded for the accounting which was afterwards had; and F. N. Bowles again brings the case to this court.
. Through all the various pleadings and amendments had in the case, the consistent theory upon which the complainant’s ease relied was that F. N. Bowles, a tenant in common in possession of the lands, holding the same for common benefit, for the purpose of relieving it from debt, secretly acquired an outstanding title, which he was asserting against his cotenants. While Bowles controverts this fact, there was ample testimony to support the finding of the chancellor, and to maintain the complainant’s case, and this finding of the chancellor, as stated above, was affirmed by this court. On this appeal the court is asked to reopen the case, to review its former decision and reverse the case on the merits.
The main contention of the counsel for appellant in his brief and in oral argument was that this was an attempt to establish an express trust by parol; that is to say, that it was incompetent to show by parol evidence the agreement by which Jones & Son held the title to the property under their purchase at the execution sale. But we think that on the real aspects of the case it is entirely immaterial as to' how Jones & Son held the title. The case does not depend upon that fact. The true point for consideration was: Could F. N. Bowles acquire an outstanding title under the circumstances disclosed by the pleadings and the facts, and set it up as against his cotenants ? The chancellor found, and his finding in this respect was affirmed by this court, that F. N. Bowles was occupying the land as a tenant in common at the time he acquired that outstanding title; that’ his cotenants were not aware of his having acquired this title, or of any intent upon his part to assert that title in'himself adversely to them, until 1893; and that before the bar of the statute had attached the [749]*749original bill in this case was filed. We find no sufficient reason on this ground for reviewing the former decision.
It is very earnestly urged by counsel for the appellant, as an additional reason for the court now reviewing its former decision, that this case was on the former appeal argued orally before a special judge, sitting in the place of the chief justice, and two regular judges, and that before the opinion was delivered the special judge retired and the chief justice resumed his seat on the bench, and the opinion was read by thq chief justice, and that therefore some right of the appellant had been invaded. We think this point of counsel entirely without merit. It is true that the chiéf justice did read the opinion, and it is true that the special judge had retired from the bench; but two of the regular judges who heard the oral argument concurred in the opinion read by the chief justice, and the decision was the decision of the court and binding on the parties. We have said this much in review of the case, because it was so earnestly urged by counsel for appellant that the former decision in this case was wrong, and should be reversed; but the court adheres to its former ruling.
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Harris, Special Judge,
delivered the opinion of the court.
This litigation was begun in September, 1897, and this is [746]*746its fourth appearance before this court. The esssential facts of the case, so far as they are necessary to be stated for a proper understanding of this opinion, are as follows: R. S. Bowles died intestate in 1878, owning two adjoining tracts of land in Leflore county; one tract containing eighty acres, and the other tract three hundred and twenty .acres. He left surviving him as his heirs at law his widow, Mary Bowles, and five children, F. N. Bowles, P. B. Bowles, Pink Wood, Ida Phelan, and Julia Bowles. In 1873 a judgment was rendered against R. S. Bowles and Mary Bowles jointly in the circuit court of Grenada county for the sum of $468.78. After the death of R. S. Bowles — that is to say, in April, 1879 —execution on this judgment was issued and levied on the three-hundred-and-twenty-acre tract of land, and the same was advertised for sale. At the time, F. N. Bowles was thirty-three years of age; Pink Wood, nineteen years of age; P. B. Bovdes, seventeen years, and Ida Phelan, thirteen years. The widow, Mary Bowles, after making repeated efforts to raise the money to pay off the judgment, applied to Jones & Son, of Grenada, to lend money on the lands sufficient- to pay off the judgment, which Jones & Son agreed to do; .but, finding that the title was not in Mrs. Bowles, Jones & Son agreed to buy in the land and hold the same, giving Mrs. Bowles the right to pay the debt at some future time. Hnder an arrangement between F. N. Bowles and his mother and the other heirs, F. N. Bowles took possession of all the land, including the eighty-acre tract, in 1881, for the purpose of working out the debt with the proceeds of the land. In 1886 Mrs. Bowles died intestate. In 1890 Julia Bowles died intestate; F. N. Bowles still being in possession of the land. In November, 1889, F. N. Bowles, still in occupancy of the land, paid with the proceeds arising therefrom the amount due Jones & Son, and took title to the three hundred and twenty acres of land in his own name. At the time the other heirs, his cotenants, were not living [747]*747in Leflore county. Mrs. Phelan was living in Grenada, P. B. Bowles in Arkansas, and Mrs. Wood and Julia Bowles elsewhere. None of them had any knowledge of the fact, at the time or until 1893, that F. N. Bowles had taken the title to this property in his own name. There seems to have been no accounting between the parties, but F. N. Bowles remained in occupation of the land from the time of his entry, receiving the income from the property and disposing of it at his discretion.
In 1897, after it had been learned that F. N. Bowles was claiming title in himself to the whole three hundred and twenty acres of land-, Mrs. Pink Wood filed her bill in the chancery court of Leflore county, setting up the facts as above set forth, and asking for a partition of the land and for an accounting. F. N. Bowles and the other heirs at law were made defendants to this bill. The bill was demurred to. The demurrer was overruled, and appeal taken to this court, and a decree was affirmed (23 South., 1014), and F. N. Bowles required to answer. Pro confessos were taken against Ida Phelan and P. B. Bowles. It appears that after F. N. Bowles entered into possession of the land he acquired the interest of Mrs. Phelan and P. B. Bowles in the eighty-acre tract, so that at the time of the bringing of the suit he owned a three-fourths interest in the eighty-acre tract and admits that he held the eighty-acre tract as tenant in common with Mrs. Wood. After the cause was remanded, F. N. Bowles answered, and one I). L. Bain acquired the interest of P. B. Bowles in the three-hundred-and-twenty acre tract and was made a party to the suit; the pro confesso as to P. B. Bowles being set aside. There were many amendments and exceptions, a good deal of proof taken, and a final decree rendered, decreeing that F. N. Bowles held the land as tenant in common, and a partition of the land was ordered, and a commissioner appointed to take an account between the parties as to the rents and profits, etc. From this decree an appeal was [748]*748taken to this court, and the decree affirmed in April, 1906, without written opinion. A suggestion of error was filed and overruled, and the case was remanded for the accounting which was afterwards had; and F. N. Bowles again brings the case to this court.
. Through all the various pleadings and amendments had in the case, the consistent theory upon which the complainant’s ease relied was that F. N. Bowles, a tenant in common in possession of the lands, holding the same for common benefit, for the purpose of relieving it from debt, secretly acquired an outstanding title, which he was asserting against his cotenants. While Bowles controverts this fact, there was ample testimony to support the finding of the chancellor, and to maintain the complainant’s case, and this finding of the chancellor, as stated above, was affirmed by this court. On this appeal the court is asked to reopen the case, to review its former decision and reverse the case on the merits.
The main contention of the counsel for appellant in his brief and in oral argument was that this was an attempt to establish an express trust by parol; that is to say, that it was incompetent to show by parol evidence the agreement by which Jones & Son held the title to the property under their purchase at the execution sale. But we think that on the real aspects of the case it is entirely immaterial as to' how Jones & Son held the title. The case does not depend upon that fact. The true point for consideration was: Could F. N. Bowles acquire an outstanding title under the circumstances disclosed by the pleadings and the facts, and set it up as against his cotenants ? The chancellor found, and his finding in this respect was affirmed by this court, that F. N. Bowles was occupying the land as a tenant in common at the time he acquired that outstanding title; that’ his cotenants were not aware of his having acquired this title, or of any intent upon his part to assert that title in'himself adversely to them, until 1893; and that before the bar of the statute had attached the [749]*749original bill in this case was filed. We find no sufficient reason on this ground for reviewing the former decision.
It is very earnestly urged by counsel for the appellant, as an additional reason for the court now reviewing its former decision, that this case was on the former appeal argued orally before a special judge, sitting in the place of the chief justice, and two regular judges, and that before the opinion was delivered the special judge retired and the chief justice resumed his seat on the bench, and the opinion was read by thq chief justice, and that therefore some right of the appellant had been invaded. We think this point of counsel entirely without merit. It is true that the chiéf justice did read the opinion, and it is true that the special judge had retired from the bench; but two of the regular judges who heard the oral argument concurred in the opinion read by the chief justice, and the decision was the decision of the court and binding on the parties. We have said this much in review of the case, because it was so earnestly urged by counsel for appellant that the former decision in this case was wrong, and should be reversed; but the court adheres to its former ruling.
The real question for consideration on this appeal arises on the decree of the chancellor in confirming the report of the commissioner who stated the account between the parties. We think on this branch of the case, and on this alone, the decree must be reversed on the direct appeal on one point. The court is of the opinion that the amount of rent allowed by the commissioner was excessive. F. N. Bowles was charged rent at the rate of $5 per acre on the cultivated land from 1881 down to the time of the rendition of the decree. We think the proof on this point is that a fair rental for these lands would be $4 per acre, instead of $5. F. N. Bowles testified that the land was hard to rent, and that $4 was the best he could get, never over $4.50; and he is corroborated on this point by Avant, who had rented the land for some years, who knew it well, and testified that the land was hard to [750]*750rent, that it was not well kept up, and that his land, which was very much better and in much better condition, brought only $5 to $6 per acre. It is also shown that throughout the time that F. N. Bowles was in possession rents were fluctuating, the value of land was much lower than to-day, and rent lower than it is to-day. Avant testified that for many years they were fully twenty-five per cent under what they 'are today, and we are therefore of the opinion that $4 per acre would bé the proper rent for these lands, as an average for the whole time..
The case is here on appeal and cross-appeal. The cross-appeal is by Ida Phelan, one of the defendants below, and one of the cotenants. The chancellor found that Mrs. Phelan should pay a solicitor’s fee of $300, together with her share of the costs, fee to go to the solicitors for the complainants; and from these parts of the decree of the chancellor Mrs. Phelan appeals. We think it is clearly error on the part of the chancellor to tax Mrs. Phelan with any solicitor’s fee. This was a controverted case, and not a proper case, in our view, for taxing her with any solicitor’s fee. Her position was really adversary to complainant. Walker v. Williams, 84 Miss., 392, 36 South., 450. She should, however, pay her proper costs, not including any of the cost for stating the account. i
For the reasons indicated, and for those only, and to that extent only, the decree of the chancellor is reversed, both on the direct and on the cross-appeal, and the case remanded, to be proceeded with in accordance with this opinion.
Whitfield, C. J., being disqualified recused himself in this case and J. B. Harris, Esq., a member of the supreme court bar, was appointed and commissioned to preside in his place.