author: ROBERTS, J.,

text:
    Timothy LEARY d/b/a Timothy Leary Real Estate, Appellant v. David STOCKMAN, Kevin Bzoch, Tonya Zimmern, Danny Zimmern, Stockman & Co., Inc., Remax Southern Realty and Scoggins Realty, Appellees.
    No. 2005-CA-01514-COA.
    Court of Appeals of Mississippi.
    Sept. 12, 2006.

      William Carl Miller, Biloxi, attorney for appellant.
    Arthur F. Jernigan, Samuel Ernest Linton Anderson, Ridgeland, attorneys for ap-pellees.
    Before LEE, P.J., CHANDLER and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. This litigation between real estate professionals arose incident to construction of a series of condominiums on the Mississippi Gulf Coast. Through his corporation, Coastal Land Development Company, Inc. (Coastal), Richard Landry attempted to establish a condominium project called Beau View Towers in Biloxi, Mississippi. Coastal eventually failed to meet its financial obligations and faced a complaint for judicial foreclosure. Coastal attempted to find alternative sources of financing, but those sources required a number of sold units as a condition precedent.

¶ 2. To that end, in October of 2002, Landry entered into a written agreement with Timothy Leary, a real estate broker licensed in Mississippi. Leary agreed to sell condominium units individually or-the project as a whole. In exchange, Coastal agreed to compensate Leary on a commission basis.

¶ 3. Shortly afterwards, Leary met Tonya Zimmern, a real estate agent licensed in Florida. Zimmern was aware of a group of individuals who . expressed interest in purchasing the project. Leary agreed to split his commission with Zimmern, should Zimmern’s group resolve to purchase the project. Ultimately, the group did not purchase the project.

¶ 4. Zimmern continued to search for potential purchasers. Through various sources, Zimmern contacted Davis Heritage, Ltd., a Florida development company. Davis Heritage was interested in purchasing the entire project. Meanwhile, the foreclosure proceedings progressed. In February of 2004, the chancellor appointed a special master to market the project for ninety days and report all offers to the chancellor and the parties. If the property did not sell by the ninety-first day, foreclosure proceedings were to begin.

¶ 5. Representatives of Davis Heritage met with Landry and negotiated a contract to purchase the project. Landry received no other offers during the ninety day period. On May 28, 2004, Davis Heritage and Coastal entered into a contract entitled “Contract for the Purchase and Sale of Real Estate.” The contract provided brokerage fees for four percent of the sale price; one percent each to Stockman, Bzoch, Tonya Zimmern,' and Danny Zim-mern. The chancellor ratified the contract.

¶ 6. Leary sued Zimmern, among others. Leary alleged that he and Tonya Zimmern had an agreement to split any commission that resulted from the sale of the project. Additionally, Leary alleged that Zimmern and the other Davis Heritage representatives violated the Mississippi Real Estate Brokers Act when they conducted a real estate transaction without using a Mississippi broker. Leary sought brokerage fees and penalties as a “person aggrieved” pursuant to Section 73-35-31(2) of the Mississippi Code.

¶ 7. Among other things, the chancellor found that Leary lacked standing to qualify as a “person aggrieved” and that Leary was not entitled to recover under the.Mississippi Real Estate Brokers Act. The chancellor also found that Leary failed to prove that he and Zimmern had an agreement to split commissions. Aggrieved, Leary appeals and raises three issues, listed verbatim:

I. WHETHER THE CHANCELLOR’S FINDING THAT LEARY AND ZIM-MERN HAD NO CO-BROKERAGE AGREEMENT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND THUS MANIFESTLY WRONG.

II. WHETHER THE ACT OF ONE CO-BROKER SHOULD REDOUND TO THE BENEFIT OF THE OTHER CO-BROKER.

III. WHETHER LEARY WAS AN AGGRIEVED PERSON UNDER MISS. CODE ANN. § 73-35-31 AND THUS WAS ENTITLED TO PURSUE STATUTORY PENALTIES AGAINST THE FOREIGN BROKERS.

Finding no error, we affirm.

FACTS

¶ 8. In 2000, Richard Landry, the president and sole shareholder of Coastal Land Development Company, commenced development of the Beau View Towers condominium project (the project) in Biloxi, Mississippi. Coastal acquired several parcels of land, secured financing, and began construction. Landry hired Keiko Palmero as Coastal’s director of marketing.

¶ 9. After the attack on the World Trade Center on September 11, 2001, Coastal’s construction lender withdrew its financing commitment. Coastal defaulted to its creditors and contractors, one of whom filed a complaint and sought foreclosure. That complaint became a case in the Second Judicial District of the Harrison County Chancery Court, styled as Roy Anderson Corp. v. Coastal Land Development Co., C2402-01-01055. Coastal attempted to find alternative sources of financing, but Coastal found itself in a “Catch-22” of sorts. Those lenders required at least sixty-five to seventy per cent of the units of the first tower of the multiple tower project to be pre-sold before they would issue commitments to make construction loans. At the same time, Coastal could not close sales on units without the security of definite financing.

¶ 10. In July of 2002, Landry met with Timothy Leary. On October 4, 2002, Landry and Leary entered into a written listing agreement to sell reservation agreements for individual condominium units so that Landry could obtain additional financing. Landry provided Leary with a five per cent commission on the sale price of any individual unit, a weekly draw on these commissions in the amount of $1,000 for sixteen weeks, and an agreement to negotiate a commission if Landry procured the sale of the entire project. The agreement allowed either party to terminate the agreement with sixty days written notice. Neither party ever gave written notice of termination. Landry testified that he never terminated the agreement.

¶ 11. During late 2002 or early 2003, Tonya Zimmern, an agent with Coldwell Banker JME Realty, a real estate company in Florida, visited the Beau View Towers sales trailer and met with Leary. Leary testified that Zimmern responded to an advertisement he placed in a publication called the Destín Log. Zimmern testified that she was not aware of any advertisement. Rather, Zimmern testified that she worked for a nearby condominium project, that she wanted to see “the competition,” and that she was curious about the project. Zimmern held a real estate agent’s license in Florida, but she was not licensed in Mississippi.

¶ 12. In any event, during that initial meeting, Leary and Zimmern discussed Leary’s commission agreement with Landry. Leary and Zimmern agreed that Leary would pay Zimmern or her Florida brokerage two and a half percent of the sales price for any units that produced sales. Leary downloaded a form for a cooperating brokerage agreement from the Mississippi Real Estate Commission’s web site and faxed the agreement to Zimmem’s attention at her Florida brokerage. Zim-mern never returned a signed copy of the agreement.

¶ 13. Zimmern first produced a group of potential purchasers, collectively called the “Nieman Group.” The Nieman Group negotiated for the- purchase of thirty-four units. The group agreed to sign the documents at the Mississippi site. Zimmern accompanied them. The Nieman Group agreements never came to fruition because Landry was never able to secure the necessary construction financing.

¶ 14. Leary and Zimmern continued to seek out potential sales. However, Coastal faced an increasingly difficult financial outlook. Trial testimony described the Towers project as “floundering” at this point. Eventually, Landry was unable to pay Leary. Zimmern alluded to the fact that Landry fired Leary, though Leary disputed that and Landry denied it outright. In any event, it was undisputed that Leary stopped operating the Coastal sales trailer on a daily basis during the Spring of 2003.

¶ 15. In the meantime, Zimmern left Coldwell Banker and transferred her license to Scoggins Realty. Zimmern brought another group of potential purchasers to Coastal. According to Leary, Zimmern did not inform him of that subsequent attempt at a transaction.

¶ 16. Leary testified that, sometime in January of 2004, at Zimmern’s request, he gave Zimmern information about John Case, the contractor who was to build the condominium towers and the first mortgage holder on the property. According to Leary, Zimmern stopped taking his phone calls afterwards. Zimmern testified that she became aware of Case after her ex-husband, Danny Zimmern, ran a title search on the Towers property.

¶ 17. Regardless, Zimmern arranged a meeting between Case and Davis Heritage, a group of potential joint investors. Davis Heritage employed Stockman & Company, a Florida-based company, to procure projects such as Beau View Towers. In January of 2004, Case met with Stockman personnel, David Stockman and Kevin Bzoch, as well as Tonya Zimmern, Danny Zimmern, and Lee Leonards all Florida real estate brokers and/or agents that represented Davis Heritage. The purpose of the meeting was to ascertain whether the Davis Heritage group could enter into a joint venture with Landry on the Beau View Towers project.

¶ 18. On February 20, 2004, incident to the judicial foreclosure proceedings, the chancery court issued an order and directed that Beau View Towers be placed on the market for ninety days for commercial sale. The chancellor appointed Charliene Roemer as special master to market the property. The chancellor directed Roemer to report all offers to the court and to all parties to the foreclosure action. If the property did not sell within the ninety day period, the foreclosure proceedings were to commence on the ninety-first day.

¶ 19. After the chancellor’s order, Davis Heritage abandoned plans to joint venture with Landry. Davis Heritage pursued purchase of the entire project and entered negotiations with Landry. No other offers were made to purchase the property during the ninety day marketing period.

¶ 20. On May 28, 2004, Davis Heritage and Landry entered into a “Contract for the Sale and Purchase of Real Estate.” That contract provided for brokerage fees of four pércent of the purchase price of $18, 984,207 ($759,368) to be paid as follows: one percent to David Stockman of Stockman & Co., one percent to Kevin Bzoch of Stockman & Co., one percent to Tonya Zimmern of Southern Remax Realty, and one percent to Danny Scoggins of Scoggins Realty.

¶ 21. On June 9, 2003, the chancery court entered an order and ratified the contract. The chancery court was unaware that the brokers who were to be paid commissions were not licensed in Mississippi.

¶ 22. On August 12, 2004, the sale closed. On that same date, the parties who expected commissions executed a document titled “Acknowledgment Regarding Brokerage Fees.” By that document, the closing agent was directed to disburse the full amount of the commission to Stockman & Co. for further disbursement pursuant to the understanding of the parties to the acknowledgment.

¶ 23. On that same date, the parties named in the contract to receive commissions, as well as James Scoggins, broker of Scoggins Realty, and Brad Shoults, broker of Remax Southern Realty, executed a document entitled “Acknowledgment Regarding Dispersment [sic] of Brokerage Fees.” By that document, Lee Leonard, an agent who worked under Tonya at Remax, was to receive $40,000 while Danny Zim-mern, Tonya Zimmern, David Stockman, and Kevin Bzoch were each to receive one percent of the remaining balance— $179,842 each.

¶ 24. Leary was never paid any commission for the sale. None of the brokers and agents who received commissions were licensed by the State of Mississippi. The foreign brokers and agents discussed whether a Mississippi broker would be necessary. They came to the conclusion that they were not required to use a Mississippi broker.

PROCEDURAL HISTORY

¶ 25. On August 2, 2004, Leary filed a complaint in the Second Judicial District of the Harrison County Chancery Court. Leary named seven defendants: David Stockman, Kevin Bzoch, Tonya Zimmern, Danny Zimmern, Stockman & Co., Inc., Remax Southern Realty, and Scoggins Realty. Leary alleged that the defendants violated the portion of the Mississippi Real Estate Brokers Act that bars unlicensed foreign real estate brokers from receiving commissions where they do not cooperate with a properly licensed Mississippi real estate broker.

¶ 26. Leary amended his complaint on August 26, 2004, and again on December 15, 2004. In his second amended complaint, Leary alleged that he and Tonya Zimmern entered into a cooperating broker’s agreement with a common goal of sale of either individual units of a condominium project called Beau View Towers in Biloxi, Mississippi, or the sale of the entire condominium project. Leary also alleged that after the sale of the entire project, each of the defendants, none of whom were licensed to act as real estate brokers in Mississippi without his presence as a cooperating licensed Mississippi broker, received real- estate commissions in violation of Mississippi law. According to Leary, he was an aggrieved person under the applicable statute because the defendants failed to pay his commission. Leary asserted that he was entitled to his commission plus any penalty the chancery court found appropriate. Coastal filed a motion to intervene and also sought to recover against Zimmern under the Mississippi Real Estate Brokers Act. The chancery court allowed Coastal’s intervention on February 24, 2005.

¶ 27. On April 13-14, 2005, the parties went to trial. Leary first called Keiko Palmero. Palmero, a real estate broker licensed in Mississippi, testified that her understanding was that Zimmern, unlicensed in Mississippi, was cooperating with Leary. Leary then called Zimmern as an adverse witness.

¶ 28. Zimmern testified that Landry paid her as the selling agent incident to a reservation agreement regarding one condominium. Zimmern also testified that she never had an agreement with Leary to sell condominium units. Zimmern conceded that she and Leary worked together on the Nieman Group, but she stated that they had no agreement beyond the Nie-man Group.

¶ 29. Afterwards, Leary took the stand. Leary testified that he and Zimmern never entered into a written cooperating broker agreement, though he tried to get her to enter one. Leary also testified that he and Zimmern had a verbal agreement and that he expected to be paid after Davis Heritage purchased the project. When asked why he did not make a claim at the court ordered sale, Leary explained that he did not know who was going to purchase the project or whether he would be entitled to anything. Further, Leary testified that he did not want to interfere with the sale because he feared personal liability if the sale did not reach fruition. Finally, Leary testified that Zimmern procured the Davis Heritage sale.

¶ 30. Court adjourned for the evening after Leary testified. The next morning, Leary called Richard Landry. Landry testified that he never terminated his agreement with Leary and that he did not fire Leary or lock him off the premises. Landry also testified that it was his understanding that Zimmern and Leary worked together to sell condominium units. On cross-examination, Landry testified that he did not make Leary a part of the closing because he thought Zimmern and Leary would communicate as they had been. Finally, Landry testified that he wired $5,000 for an advance on Zimmern’s future commissions to Zimmern on October 9, 2003.

¶ 31. After trial, the parties submitted findings of fact and conclusions of law. On July 1, 2005, the chancellor issued his judgment. The chancellor found that Leary failed to establish standing to assert a claim as a “person aggrieved” under the Mississippi Real Estate Brokers Act. The chancellor also found that Leary failed to establish a contractual relationship between himself and Zimmern. Additionally, the chancellor also found that Leary failed to present any evidence that he was entitled to a commission on the sale and that Leary could not show that he had a reasonable expectation of financial profit from the sale. The chancellor also found that Leary was not the procuring cause of the Davis Heritage sale approved by the June 9, 2004 order. Aggrieved, Leary appeals.

STANDARD OF REVIEW

¶ 32. Our mandate requires that we decline to interfere with a chancellor’s findings of fact unless the chancellor’s findings are “manifestly wrong” or “clearly erroneous.” Weissinger v. Simpson, 861 So.2d 984(¶ 11) (Miss.2003). Additionally, we will reverse a chancellor’s decision in the event the chancellor applied an “erroneous legal standard.” Id. However, we review the chancellor’s interpretation and application of the law according to a de novo standard. Id.

ANALYSIS

I. WHETHER THE CHANCELLOR’S FINDING THAT LEARY AND ZIM-MERN HAD NO CO-BROKERAGE AGREEMENT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND THUS MANIFESTLY WRONG.

¶ 33. As mentioned, the chancellor found that Leary failed to establish a contractual relationship between himself and Zimmern or any other defendant. Leary claims that the chancellor’s decision was against the weight of the evidence.

¶ 34. Leary submits that he transmitted an agreement to Zimmern’s Florida broker but Zimmern never executed that document. It is undisputed that Leary and Zimmern never executed a written agreement. Leary maintains that he and Zimmern had a verbal agreement to split any commissions that resulted from the sale of the Beau View Towers project. Zimmern disputes that assertion. Zim-mern concedes that she and Leary had an agreement to split any commissions that resulted from the Nieman Group. However, Zimmern submits that their Nieman Group agreement did not apply to any other commission that resulted. Put simply, Zimmern claims that she and Leary had no agreement to split the Davis Heritage commissions. The obvious question is whether Leary and Zimmern had an implied agreement.

¶ 35. Where a broker seeks to recover payment of an alleged brokerage contract, the broker has the burden of proving the terms of the contract. Shem per v. Latter and Blum, Inc., 214 Miss. 113, 58 So.2d 359, 363 (1952). As a matter of basic contract law, the plaintiff must first demonstrate there was a mutual agreement by the parties to be bound under some duty. R.C. Const. Co., Inc. v. National Office Systems, Inc., 622 So.2d 1253, 1255 (Miss.1993) (holding formation of contract requires offer and acceptance). “The existence of an oral contract is a fact issue.” Id.

¶ 36. According to the Mississippi Supreme Court, a contract for broker’s services “does not have to be in writing.” Hill v. Capps, 248 Miss. 601, 612, 160 So.2d 186, 190 (1964). To prove the existence of an implied contract for broker’s services:

it must appear that [the broker performed such services] under ... circumstances as to give the recipient thereof some reason to think that they were not gratuitous and not performed for some other person but with expectation of compensation from recipient, and services must have been beneficial to person sought to be made liable.

Id. “A contract to pay reasonable commission may be implied from vendor’s acceptance of voluntary services of broker rendered with an expectation of payment, provided vendor knew or had reason to believe that such services were rendered with an expectation of payment.” Id. “The assent of the parties in the formation of a contract must necessarily be gathered from their words, acts and outward expressions.” Id.

¶ 37. Leary does not claim that a written contract existed. To demonstrate the existence of an implied contract, Leary points out that he was the broker for Landry and that Landry agreed to pay him a commission for either individual units sold or for the sale of the entire project. Leary also notes that Zimmern contacted him in January of 2004 for information that led to John Case. Leary claims that Zimmern refused to receive his telephone calls after she obtained the information she needed. Davis Heritage later met with John Case and eventually purchased the project. According to Leary, “[i]t strains credulity to think that Leary’s services to Zimmern were performed with no expectation of compensation and were merely gratuitous ... likewise it is apparent that Zimmern profited from all of the information she gathered from Leary from the first moment she met with him at the sales trailer in Biloxi to the last phone call she had with him wherein she gathered the information about John Case that the ultimate purchaser required.” Zimmern submits that Leary is not entitled to brokerage fees because Leary was not a procuring cause of the sale.

¶ 38. Before a broker is entitled to a commission, he must call the purchaser’s attention to the property and begin negotiations that lead to a sale. Carmichael v. Agur Realty Co., Inc., 574 So.2d 603, 608 (Miss.1990). “Absent contract to the contrary, the rule is settled that the broker’s efforts need not be the sole cause of the sale, merely a predominant one.” Id. “Pursuant to an implied brokerage agreement, the broker must with diligence and fidelity provide substantial services to his principal- — be he seller or buyer — which services become a substantial causal predicate to a consummated sale.” Id. (internal emphasis omitted). “Where, as here, the facts are in dispute, the question whether the broker is sufficiently a procuring cause of the sale is one for the trier of fact.” Id.

¶ 39. The chancellor found that Leary was not a procuring cause' of the Davis Heritage purchase. We cannot conclude that chancellor erred in his finding of that fact. Leary testified that Zimmern was the procuring cause of the Davis Heritage purchase. With our deferential standard of review in mind, we find that the chancellor’s findings were neither “manifestly wrong” nor were they “clearly erroneous.”

II. WHETHER THE ACT OF ONE CO-BROKER SHOULD REDOUND TO THE BENEFIT OF THE OTHER CO-BROKER.

¶ 40. In this issue, Leary suggests that he and Zimmern were both procuring causes of the sale to Davis Heritage. Leary states that this is a question of first impression under Mississippi law. According to Leary, Florida law is instructive on this point.

¶ 41. Leary directs us to Tassy v. Hall, 429 So.2d 30, 35 (Fla. 5th DCA 1983) and argues that a cooperating arrangement or agreement between two brokers is in the nature of a joint venture between the two professionals and, as to third parties, the acts of each broker in the pursuance of the cooperating agreement is the act of the other. Leary further asserts that where one of the cooperating brokers, while acting under such a cooperating agreement, procures a purchaser, then both brokers have been the procuring cause of the sale. According to Leary, we “should adopt the reasoning of the Florida court to find that [he] was a procuring cause of the sale because of the acts of Zimmern in pursuance of the implied cooperating brokerage agreement.

¶ 42. Zimmern does not respond to Leary’s argument in that she claims her acts should not redound to Leary. Rather, Zimmern claims that Leary waived any claim he might have had to a commission and that the doctrine of equitable estoppel precludes Leary’s argument because Leary did not claim a commission during the court-approved sale.

¶ 43. In turn, Leary asserts that Zim-mern is barred from asserting her arguments for waiver and equitable estoppel because Zimmern did not file a cross-appeal. According to Leary, because Zim-mern raised the doctrines of waiver and estoppel as affirmative defenses and the chancellor did not find that those affirmative defenses defeated his claim, then Zim-mern would have to cross-appeal from the chancellor’s decision in order to raise those defenses on appeal. As authority, Leary cites this Court’s decision in Delta Chemical and Petroleum, Inc. v. Citizens Bank of Byhalia, Mississippi 790 So.2d 862 (Miss.Ct.App.2001). In Delta Chemical, we declined to address the issue of the statute of limitations being a bar to an appellant’s recovery because the appellee failed to raise that issue in a cross-appeal. Id. at (¶ 52) (holding that an appellee must file a cross-appeal in order to gain reversal of a trial court decision about which an appellant brings no complaint).

¶ 44. Regardless whether we find that Zimmern is precluded from asserting waiver or estoppel, in Leary’s authority, Tassy, to be a co-procuring cause, there must be a finding that a cooperation agreement existed. In the issue above, we found that the chancellor did not err when he found that no cooperation agreement existed between Leary and Zimmern because Leary testified that Zimmern was the procuring cause of the Davis Heritage purchase. In light of Leary’s testimony, we cannot find that the chancellor was manifestly wrong in his decision.

III. WHETHER LEARY WAS AN AGGRIEVED PERSON UNDER MISS. CODE ANN. § 73-35-31 AND THUS WAS ENTITLED TO PURSUE STATUTORY PENALTIES AGAINST THE FOREIGN BROKERS.

¶ 45. According to the Mississippi Real Estate Brokers Act, it is

unlawful for any person, partnership, association or corporation to engage in or carry on, directly or indirectly, or to advertise or to hold himself, itself or themselves out as engaging in or carrying on the business, or act in the capacity of, a real estate broker, or a real estate salesperson, within this state, without first obtaining a license as a real estate broker or real estate salesperson ....

Miss.Code Ann. § 73-35-1 (Rev.2004). Pursuant to Miss.Code Ann. Section 73-35-31(2) (Rev.2004):

In case any person ... shall have received any sum of money ... as commission, compensation or profit by or in consequence of his violation of any provision of this chapter, such person ... shall also be liable to a penalty of not less than the amount of the sum of money so received and not more than four (4) times the sum so received, as may be determined by the court, which penalty may be sued for and recovered by any person aggrieved and for his use and benefit, in any court of competent jurisdiction.

¶ 46. The chancellor found that Leary failed to present any evidence that he was entitled to a commission from the Davis Heritage transaction and that Leary could not show that he had a reasonable expectation of financial profit from the sale. Consequently, the chancellor found that Leary was not an aggrieved person within the context of section 73-35-31(2). In effect, the chancellor found that Leary lacked standing to recover the statutory penalty detailed in Section 73-35-31(2). Leary appeals that decision.

¶ 47. The fundamental question in this issue is whether Leary qualified as a “person aggrieved.” Leary cites to Ladner v. Harsh, 239 Miss. 46, 120 So.2d 562 (1960). In Ladner, the Mississippi Supreme Court did not necessarily examine the context of the phrase “person aggrieved.” However, the supreme court did find that a foreign real estate broker was liable to sellers of property because the foreign broker was not licensed in Mississippi. Id. at 52, 120 So.2d at 565. The natural inference is that those who sell property while utilizing the services of a foreign broker may qualify as a “person aggrieved.” We are aware of no authority which grants an alleged cooperating resident broker status as a “person aggrieved” where a foreign real estate agent conducts a sale without involving that resident broker. To be clear, we do not hold that such a resident broker could not qualify as a “person aggrieved.” We merely note that no authority indicates that to be the case.

¶ 48. Leary claims that he qualifies as a “person aggrieved” because he had a financial interest in receiving his commission. ' According to Zimmern, she is exempt from Leary’s assertion of section 73-35-31(2) by virtue of Mississippi Code Annotated § 73-35-3(6)(c) (Rev.2004). According to Section 73-35-3(6)(c), the Mississippi Real Estate Brokers Act does not apply to “acts of any person while acting as a receiver, trustee, administrator, executor, guardian or under court order,, or while acting under authority of a deed of trust or will.” Zimmern submits that she is exempt because the Davis Heritage sale occurred under the supervision of the special master appointed by the chancellor. Zimmern’s assertion is not before this Court. The chancellor concluded that the sale did not close under court order and Zimmern did not appeal that decision.

¶ 49. “[Rjeview of a trial court’s interpretation of a statute presents a question of law; we review questions of law de novo.” 32 Pit Bulldogs and Other Property v. County of Prentiss, 808 So.2d 971(¶ 8) (Miss.2002). “Our duty is to carefully review statutory language and apply its most reasonable interpretation and meaning to the facts of a particular case.” Pope v. Brock, 912 So.2d 935(¶ 8) (Miss.2005). “Where a statute is ambiguous ... we are required to interpret it in light of various rules of statutory construction.” Id. at (¶ 9). “Interpreting using the rule of statutory construction simply means we look for clues in certain time-honored rules as well as other places in order to apply the most reasonable interpretation of the statute’s language and intent.”

¶ 50. We interpret the statute to apply to situations in which a foreign broker or agent receives a commission from either the buyer or the seller; so that the foreign broker or agent is penalized for his unlicensed transaction. Leary’s remedy was through breach of contract, rather than through the statute. Although Leary is undoubtedly “aggrieved” by the factual circumstances, that does not necessarily mean he qualifies as a “person aggrieved” by Zimmern’s unlicensed real estate transaction within the context of Section 73-35-31. Rather, he was aggrieved by Zim-mern’s alleged breach of contract. We note that the chancellor found that Landry — owner of Coastal — qualified as a “person aggrieved” because Landry advanced commission fees to Zimmern when she was not a Mississippi-licensed real estate broker or agent. We cannot conclude that the chancellor erred in his interpretation of the statute. Accordingly, we affirm.

¶ 51. THE JUDGMENT OF THE SECOND JUDICIAL DISTRICT OF THE HARRISON COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR.


source: Caselaw Access Project

license: Public Domain

text:
    Terry Richard PHELPS, Appellant v. Tammy Diane PHELPS, Appellee.
    No. 2005-CA-01281-COA.
    Court of Appeals of Mississippi.
    Sept. 12, 2006.

      Mark B. Strickland, Gulfport, attorney for appellant.
    John Vernon Woodfield, Long Beach, attorney for appellee.
    Before LEE, P.J., CHANDLER and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. Tammy Diane Phelps and Terry Richard Phelps agreed to a divorce on the ground of irreconcilable differences, which was approved by the Chancery Court of Harrison County. Having no children of the marriage, the sole issues before the court were of alimony and division of property. In its judgment awarding a divorce based upon irreconcilable differences entered on November 15, 2004, the trial court ordered Terry to pay $2,500 in property ' division, lump sum alimony in the amount of $6,500, periodic alimony of $1,000 per month, and to supply Tammy with health insurance for one year. In addition, Tammy was granted an interest in Terry’s pension while Terry was awarded the parties’ 1991 Chevrolet S-10 truck. Terry now appeals. Finding no error, we affirm.

FACTS

¶ 2. Tammy and Terry were married on June 24, 1988. Subsequently, they separated on or about February, 17, 2004 and their plea for divorce on the ground of irreconcilable differences was heard on September 8, 2004, by the Chancery Court of Harrison County, First Judicial District, placing before the court the issues of alimony and property division. Testimony indicated that the parties had been living with Tammy’s parents for the past several years and during that time spent $20,000 on renovations to the home. Further testimony revealed that Tammy suffered from several ailments, to include fibro-myalgia, Raynaud’s disease, Scleroderma, a chronic obstructive pulmonary disease, hypoglycemia, high cholesterol, osteopenia, endometriosis, and had a small growth on her left lung. Tammy continued that her annual cost for the various prescriptions she required was $6,350 a year. Additionally, Tammy testified that she needed extensive dental work at a total cost of $6,500. Finally, she testified to a myriad of other medical expenses, all of which were documented in her exhibits to the court. The chancellor found that Tammy’s sole income came from her Social Security benefits, which, after a $66 deduction for her Medicare premium, amounted to $503 a month, and whatever part-time work she could find. After the parties separated, Tammy continued to live with her parents and split the household expenses.

¶ 3. Throughout the majority of the parties’ marriage, Terry worked as a longshoreman with P & O Ports. He testified that at the time of trial he made approximately $26 per hour and worked, on average, 33.7 hours a week, though he testified that he could work 40 hours a week if he wanted to. In addition, Terry received a fluctuating amount from his employer representing a bonus at the end of each year. The chancellor noted that, assuming a 40— hour work week, Terry’s gross and net monthly incomes would be $4,506.66 and $3,380, respectively. Finally, there was contradictory testimony that Terry told Tammy of a safe deposit box in which he kept $5,000.

¶ 4. In a judgment filed on November 15, 2004, the chancellor awarded the parties a divorce on the ground of irreconcilable differences and addressed equitable property division and alimony. The chancellor awarded as follows: property distribution to Tammy of $2,500 based on the testimony regarding the safe deposit box, Tammy awarded an equitable interest in Terry’s retirement account, Tammy awarded lump sum alimony in the amount of $6,500, payable over 24 months, ordered Terry to provide Tammy medical insurance for one year, awarded Tammy periodic alimony in the amount of $1,000 per month, and, lastly, awarded Terry the 1991 Chevrolet S-10 pickup truck that the parties owned.

¶ 5. Subsequent to the November 2004 judgment, Terry filed his motions for relief from judgment; for reconsideration; to open judgment and take additional testimony; amend judgment; amend findings of fact; for new trial, and other relief on November 24, 2004, wherein Terry requested, generally, the judgment be altered based upon his claim that it was “onerous, burdensome, oppressive, unjust and inequitable.” The chancellor filed his judgment on Terry’s motions on May 31, 2005. In denying the majority of Terry’s motions, the chancellor noted that Terry failed to provide any grounds that would warrant reconsideration. Notwithstanding Terry’s lack of argument, the chancellor did review the pertinent facts surrounding the divorce and granted Terry’s motion to alter or amend the judgment, and awarded Terry a $10,000 lien on Tammy’s parents’ house based upon the $20,000 the parties spent renovating the home. As a result of the amended judgment, Tammy filed her motion to reconsider on June 15, 2005.

¶ 6. Not waiting on the formality of a judgment on an outstanding motion and obviously aggrieved by the lower court’s initial judgment and. denial of his several motions, Terry filed his notice of appeal on June 28, 2005, raising four issues. Specifically, Terry asserts that the chancellor erred in: (1) awarding Tammy $2,500, (2) awarding Tammy lump sum alimony of $6,500, (3) awarding Tammy medical insurance provided by Terry, and (4) awarding Tammy periodic alimony of $1,000 per month.

¶ 7. Subsequent to Terry’s notice of appeal, Tammy filed her motion for contempt on October 17, 2005, asserting that Terry failed to abide by the chancellor’s November 2004 judgment. In a judgment filed on December 2, 2005, for both Tammy’s motion for contempt and motion for reconsideration, the chancellor cited Terry for contempt, as a result of his failure to completely abide by the chancellor’s ruling and Terry’s failure to either file a bond or request a stay of the original judgment, and found that he was in arrears in the amount of $16,900.35. Though technically granted, it appeared that Tammy’s motion for reconsideration was denied as the chancellor applied the $10,000 at issue against the $16,900.35 for a final judgment for the arrearage in the amount of $6,900.35.

JURISDICTION

¶ 8. As the timing of Terry’s appeal and Tammy’s post-trial motions overlap, we must first determine if Terry’s appeal is timely. The confusing set of procedural facts above are intended to show that Terry filed notice of his appeal while a motion on the judgment was outstanding. To make the procedural waters slightly more murky, Tammy filed an additional motion four months after Terry’s notice of appeal. Finally, on December 2, 2005, the Chancery Court of Harrison County entered its judgment on Tammy’s outstanding motions.

¶ 9. Rule 4(d) of the Mississippi Rules of Appellate Procedure states that a “notice of appeal filed after announcement or entry of the judgment but before disposition of any of the above [post-trial] motions is ineffective to appeal from the judgment or order ... until the entry of' the order disposing of the last such motion outstanding.” M.R.A.P. 4(d). The comment to Rule 4(d) states further that “[a] notice filed before the filing of one of the specified motions or after the filing of a motion but before its disposition is, in effect, suspended until the motion’s disposition, whereupon the previously filed notice effectively places jurisdiction in the Supreme Court.” M.R.A.P. 4(d) cmt.

¶ 10. In accordance with Rule 4(d), Terry’s timely notice of appeal was suspended pending disposition of Tammy’s motions. Upon their disposition, Terry’s notice was revived with an effective filing date of December 2, 2005. As such, his appeal is properly before this Court.

STANDARD OF REVIEW

¶ 11. This Court’s review of an appeal taken from a chancery court is limited. Stevens v. Stevens, 924 So.2d 645(¶ 5) (Miss.Ct.App.2006) (citing Carrow v. Carrow, 642 So.2d 901, 904 (Miss.1994)). The findings of a chancellor will not be disturbed unless the chancellor was clearly erroneous, manifestly wrong, or applied an erroneous legal standard. Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990). “[I]t is not this Court’s province to undermine the chancellor’s authority by replacing the chancellor’s judgment with our own.” In re Estate of Carter, 912 So.2d 138(¶ 18) (Miss.2005) (citing Madden v. Rhodes, 626 So.2d 608, 616 (Miss.1993)).

ISSUES AND ANALYSIS

¶ 12. As Tammy failed to provide this Court with a brief, we would normally have two alternatives. See W.T. Raleigh v. Armstrong, 165 Miss. 380, 380, 140 So. 527, 527-28 (1932). Those two alternatives being:

When the record is complicated or of large volume, and the case has been thoroughly briefed by appellant with a clear statement of the facts, and with applicable citations of authorities, so that the brief makes out an apparent case of error, we will not regard ourselves as obliged to look to the record or to search through it to find something by which to avoid the force of appellant’s presentation, but will accept appellant’s brief as confessed and will reverse. Or when the record is in such condition that we can conveniently examine it, and when upon such an examination we can readily perceive a sound and unmistakable basis or ground upon which the judgment may be safely affirmed, we will take that course and affirm, thereby to that extent disregarding the default of appellee. But when, taking into view the argument presented by appellant, the basis or grounds of the judgment, and the facts in support of it are not apparent, or are not such that the court could with entire confidence and safety proceed to affirmance, the judgment will be reversed without prejudice.

In re Estate of Hanna, 919 So.2d 104(¶ 5) (Miss.Ct.App.2005) (other citations omitted). The case on appeal is not the norm. In addition to Tammy’s failure to file a brief, Terry has failed to cite any authority for his points of argument, or anywhere in his brief, save for the standard of review we must employ. As to this, the appellant carries the duty to provide authority for any error claimed. Groves v. Slaton, 733 So.2d 349(¶ 15) (Miss.Ct.App.1999) (citing Drennan v. State, 695 So.2d 581, 585-86 (Miss.1997)). Any argument not supported by authority need not be considered. Grey v. Grey, 638 So.2d 488, 491 (Miss.1994). In accordance with this oft— stated principle, it is not necessary for this Court to consider any of Terry’s issues on appeal.

¶ 13. Notwithstanding Terry’s deficiency of authority, it is clear from a review of the record that the chancellor made extensive findings of fact based on substantial evidence in the record and applied those findings, in conjunction with the applicable law, to arrive at the judgment Terry now appeals. Therefore, we find that Terry’s four issues on appeal are, despite their procedural bar, without merit.

¶ 14. THE JUDGMENT OF THE CHANCERY COURT OF HARRISON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.


author: SOUTHWICK, J.,

text:
    Demetrius SMITH, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01916-COA.
    Court of Appeals of Mississippi.
    Sept. 12, 2006.
    David Clay Vanderburg, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before KING, C.J., SOUTHWICK and IRVING, JJ.
   SOUTHWICK, J.,

for the Court.

¶ 1. Demetrius Smith was convicted by a Panola County Circuit Court jury of capital murder. His only appellate issue is whether a knife found in a vehicle that he often drove was erroneously admitted into evidence. We conclude that there was no reversible error and affirm.

FACTS

¶ 2. Carnesha Nelson was a University of Mississippi student, having just finished her sophomore year. On May 27, 2004, Nelson was attacked in her apartment. She managed to escape from the apartment and ran through her apartment complex seeking help. At around 1:00 a.m. Nelson began banging on the door of a nearby apartment. The person occupying that apartment was frightened and did not know what to do. According to the resident’s testimony, Nelson was screaming to be let into the apartment. She also begged that the police be called because somebody was chasing her. Nelson was barefoot and said that her attacker got into her apartment and raped her. Nelson said that her attacker was at her vehicle and planned to hurt her.

¶ 3. The resident opened the door but left the door chain attached. Nelson tried to get into the apartment by tugging on the chain to the point of almost stripping the screws that secured it to the door. During this brief encounter, Nelson screamed again as she saw her attacker coming towards her. Not being able to get inside the apartment, Nelson ran away. The other resident called the police. While on the phone, she heard what she testified could have been a car alarm or squealing tires. After hanging up with the emergency operator, the resident hid in the pantry of her apartment and called a family member.

¶ 4. A patrol unit located about two miles away from the apartments conducting a traffic stop responded to the telephone call. The officers arrived at the apartments in less than a minute from receiving the dispatch. Acting upon the information they had, the officers immediately began to conduct a search of the apartment complex and the surrounding area. The officers were unable to discover anything relevant. They remained unaware of Nelson’s identity and abduction.

¶ 5. In the early morning hours of May 29, Nelson’s birthday, two fishermen found her body floating in the upper lake of Sardis Dam. Nelson was dressed in the same clothes she was wearing on May 27. Her hands were bound together in front of her body with a phone cord. The cause of death was determined to be fresh water drowning. The injuries Nelson sustained were consistent with her being held under water. After identifying her, police obtained a description of her vehicle from the University of Mississippi Police Department. Nelson’s vehicle was found at another apartment complex adjacent to the complex where she resided. It had been towed upon the request of the apartment manager. Investigators determined that soil found inside Nelson’s vehicle and on its tires was consistent with the location at Sardis Lake where her body was found. The vehicle was unlocked and the keys were in the ignition.

¶ 6. Investigators also determined that a struggle had taken place in Nelson’s apartment. A belt and tape were found around a sheet on Nelson’s bed that indicated someone had been bound. The door of the apartment was locked but a window screen was pushed in and lying on the floor of Nelson’s bedroom. By the time of trial, laboratory results had been obtained indicating that Smith’s DNA was in semen found on the bed in Nelson’s apartment, and his fingerprints were on the tape found on her bed.

¶ 7. On May 31, 2004, Smith was detained for questioning. Smith was pulled over driving a Malibu that was owned by Smith’s girlfriend. Smith regularly used this vehicle. Smith often resided with his girlfriend in her apartment, adjacent to the apartments where Nelson lived. At other times, Smith resided in the same apartment complex as Nelson. Nelson’s vehicle was abandoned in the same complex where Smith’s girlfriend lived. Evidence collected from the Malibu and presented at trial included a compact disk case and a book that belonged to the victim. A knife was found on the floor between the door panel and the driver’s seat. This knife was admitted into evidence over defense objection. Smith testified that he kept the knife in the vehicle.

¶ 8. After a jury trial, Smith was found guilty of capital murder and sentenced to life in prison without the possibility of parole. His appeal has been deflected to this Court.

DISCUSSION

¶ 9. Smith argues that the trial court erred in allowing a knife to be admitted into evidence. His contention is that the knife is irrelevant because it was never connected to Nelson’s abduction and murder. He cites two precedents that he argues require reversal.

¶ 10. The first opinion that Smith relies upon has been withdrawn by this Court and a modified opinion substituted when we granted the State’s motion for rehearing. Fuqua v. State, No. 2004-KA-00491-COA at (111), 938 So.2d 277, 2006 WL 540549 (Miss.Ct.App. Mar. 7, 2006) (withdrawing Fuqua v. State, No. 2004-KA-00491-COA (Miss.Ct.App. Sept. 13, 2005)). In our final opinion, this Court held that a shank — a kind of amateurishly-made knife — found under a couch at a crime scene may have been properly admitted into evidence. That was true even though there was no evidence that the shank had been used in the crime. However, even if there was insufficient probative value to that knife and it should have been excluded from evidence, the error was harmless. Fuqua, at (¶¶ 16-17), 938 So.2d at 282 (Mar. 7, 2006). The Fuqua opinion as modified on rehearing is of no assistance to Smith. - Indeed, as we will discuss below, we follow that same reasoning to affirm Smith’s conviction regardless of whether the.knife in his case should have been admitted into evidence.

¶ 11. The second case Smith relies on dealt with excluding certain pictures. Wade v. State, 583 So.2d 965 (Miss.1991). The factual issue was whether Wade had shown specific pornographic pictures to children. Id. at 967. There was conflicting testimony of whether the children were shown a book of nude pictures, but there was no credible evidence that the children had been shown the different pictures that were in a bag. Id. The bag of pictures should not have been introduced into evidence because they had no probative value on any issue in the case. The Court held that these pictures were highly inflammatory and prejudiced the defendant. Reversal occurred. Id. Whether the knife in Smith’s car, even if not admissible, was such an inflammatory piece of evidence as to require reversal is the issue that ultimately resolves this appeal.

¶ 12. The State contends that the trial court did not abuse its discretion in admitting the knife. The State relies on a precedent that allowed burglary tools to be admitted when the trial court found that the tools were close enough to the scene of a burglary in time and place to have evi-dentiary value. Wilkins v. State, 264 So.2d 411, 414 (Miss.1972). The Supreme Court also stated that “objects used or useful in the commission of a crime” are permissible in determining the intent of the defendant. Id. at 413. In Wilkins, a defendant was apprehended on the scene of a burglary where a hole had been cut into a roof. Id. An axe and bag of tools were found within 150 feet of the building. Id. .

¶ 13. In Smith’s prosecution, the trial court reasoned that the knife had probative value because the very nature of the charge against Smith involved “inveigling or restraining.’.’ Since the knife could have been used and would have been useful in committing the crime, it had sufficient relevance to be introduced into evidence.

¶ 14. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” M.R.E. 401. Even if a trial judge determines that evidence has probative value, the evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.... ” M.R.E. 403.

¶ 15. Here, there were no injuries consistent with those inflicted by a knife. Nelson had a small scrape or abrasion on her face about one-half inch in length; the State does not argue that this was the kind of injury caused by a knife. The knife, to have relevance, needs to have evidentiary value on the question of whether Smith was more or less likely to have kidnaped or murdered Nelson.

¶ 16. The admissibility of evidence is within the discretion of the trial judge. Regardless of whether the knife was admissible or not, reversal occurs only if the trial judge committed an abuse of discretion and that abuse significantly prejudiced Smith. Flora v. State, 925 So.2d 797, 821 (Miss.2006). For a new trial, the error in admitting the knife must be so great that no doubt remains that Smith was prejudiced. Hammons v. State, 918 So.2d 62, 65 (Miss.2005). We agree with Smith that the probative value of the knife is minimal and added little to the case.

¶ 17. Instead of delving into the legal and factual issues that would need to be resolved in determining whether this knife was admissible evidence, we find a clearer result to arise from the nature of this evidence. Even when evidence is erroneously admitted, there is no right to reversal unless prejudice to the accused resulted. A defendant is not entitled to a perfect trial, only a fair one.

¶ 18. The knife itself was not per se inflammatory. It was not especially dangerous in appearance nor was its admission so volatile for other reasons as to stir the jurors’ emotions. Since there was no evidence that a knife was used on the victim, and defense counsel had adequate opportunity to emphasize that fact (though neither party asked for the arguments to be transcribed and they are not part of the record), there is very little incriminating about the knife. The most the State could have argued was that Smith might have been used this knife to intimidate Nelson. The defense with equal plausibility could have argued that nothing indicates that anyone used a knife and the State was simply speculating. There were many other ways by which Smith or some other perpetrator could have forced Nelson into complying with his demands. Indeed, Smith could have committed the crime but without the knife. That fact makes the knife both less relevant and less prejudicial.

¶ 19. In a prosecution in which a flashlight may have improperly been admitted as it may not have been the flashlight used to strike the victim, the Supreme Court noted that the flashlight was irrelevant to the actual charge, but that errors in admission of evidence were harmless where “the same result would have been reached had they not existed.” Burnside v. State, 882 So.2d 212, 216 (Miss.2004) (quoting Lancaster v. State, 200 So. 721, 722 (Miss.1941)).

¶ 20. The evidence against Smith largely arose from what was at Nelson’s apartment and what was found belonging to Nelson within Smith’s car. Here, the knife was the least of the incriminating evidence against Smith and inconsequential to his conviction. Smith’s fingerprints were on the sticky side of tape found on Nelson’s bed. Nelson screamed to the other tenant that she had just been raped and Smith’s semen was found on Nelson’s bed. Smith had no reasonable explanation of his location at the time of the crime.

¶ 21. We find that the same result would have occurred had the knife not been admitted into evidence. Consequently, whether it was properly admitted or not need not be decided.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF PANOLA COUNTY OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT POSSIBILITY OF PAROLE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PANOLA COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.


author: CHANDLER, J.,

text:
    Dwight F. WICKER, Appellant v. James Ford HARVEY, Appellee.
    No. 2005-CA-00596-COA.
    Court of Appeals of Mississippi.
    Sept. 12, 2006.

      Irving Conrad Mord, attorney for appellant.
    Gene Horne, Centreville, attorney for appellee.
    Before MYERS, P.J., IRVING, CHANDLER and ROBERTS, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. This boundary line dispute involves dueling claims for an approximately ten-acre parcel of land. situated in Walthall County. The ease commenced on July 8, 2002, when James Ford Harvey filed a complaint in the Chancery Court of Walt-hall County seeking to enjoin Dwight F. Wicker from trespassing upon Harvey’s property. Harvey prayed for damages and also requested that the court establish the boundaries of the land at issue. On July 31, 2002, Wicker answered and moved to dismiss the complaint, asserting that he was a bona fide purchaser for value without notice.

¶ 2. At a hearing on January 19, 2005, both Harvey and Wicker sought bo establish their ownership of the subject property. In a final judgment entered on February 7, 2005, the chancellor found that Harvey owned the property as the record title holder or, alternatively, through adverse possession. Wicker appeals, arguing that the chancellor’s findings were based on an erroneous application of the law and were manifestly erroneous.

¶ 3. Finding no error, we affirm.

FACTS

¶ 4. The approximately ten acres at issue are situated south of Old Holmesville Road in the northwest quarter of the northwest quarter of Section 25, Township 3 North, Range 9 East in Walthall County. Old Holmesville Road runs east-west through the quarter-quarter section. North of Old Holmesville Road is Leatherwood Creek, which runs roughly east-west through the area. To the east of the quarter-quarter section, Old Holmesville Road intersects with Saint Paul Road. Near that intersection is the former site of Smyrna Church, which was torn down after 1951.

¶ 5. The chancellor found that the land at issue was part of a 426-acre parcel of timber land, the history of which is related below. On December 14, 1960, Edward Harvey by warranty deed conveyed the 426-acre parcel to Harvey’s father, Melba L. Harvey, Sr. and Nathaniel Presley Chesnut. On March 26, 1973, Chesnut conveyed his undivided interest in the 426 acres to W.E. Parks Lumber Company, Inc. On April 13, 1973, W.E. Parks Lumber Company quitclaimed its interest in the parcel to Melba L. Harvey, Sr., who harvested timber from the property to finance the purchase. Melba L. Harvey, Sr. died on October 29, 1985, and his three children, James Ford Harvey, Melba L. Harvey, Jr., and Rosemary Harvey Jackson, acquired the parcel and other property by devise. On November 30, 1987, James, Melba, and Rosemary executed a timber deed conveying certain timber to Southern Lumber Company, Inc. The deed embraced the 426-acre parcel as well as other timber land.

¶ 6. On October 31, 1995, a final decree closing the estate of Melba L. Harvey, Sr. was recorded. The decree found the three children to be Melba L. Harvey, Sr.’s sole heirs and devisees, and declared them to be owners as equal tenants in common of the 5,700 acres of land and mineral interests which Harvey, Sr. had owned in Mississippi at the time of his death. On April 22, 1998, the three children executed a deed of exchange whereby they divided and conveyed to each other various tracts of land. The parties conveyed the 426-acre parcel to James Harvey, the appellee. The deed of exchange was recorded in Walthall County on May 26,1998.

¶ 7. All of the aforementioned documents were admitted into evidence. Each deed, save the timber deed, shows that the deed was recorded in the Deeds of Conveyance Records Book of Walthall County. Each deed contained the same legal description of the 426 acres. That legal description included the following property involved in this appeal: “all that part of north half of northwest quarter south of Tylertown-Holmesville public road, less that part south of Smyrna and Letherwood Creek gravel road, 32 acres, more or less, Section 25, Township 3 North, Range 9 East....” Testimony at the hearing established that the Tylertown-Holmesville Public Road is the paved public road that is currently named Old Holmesville Road.

¶ 8. On January 20, 1936, Cleon Magee acquired the southwest quarter of the northwest quarter of Section 25, Township 3 North, Range 9 East. On August 28, 1943, Magee bought adjoining property from George and W.W. Vaught. The Vaughts conveyed to Magee:

All that part of the North West Quarter of North West Quarter (NW 1/4 of NW 1/4) Section 25, Township 3 North, Range 9 East that lying and being south of the Smyrna and Leather Wood Creek Gravel Road as said Road now runs through said forty, containing three acres, more or less.

The Magee purchases totaled approximately forty-three acres. On July 3, 1980, Cleon Magee’s widow, Laurance O. Magee, executed an oil, gas, and mineral lease of the Magee property, including the above described property. All these conveyances were recorded. Wicker, the appellant, bought the Magee property from Laurance Magee on February 11, 2002. More concerning that purchase will be related below.

¶ 9. As written, the legal descriptions in the Harvey and Magee deeds appear to be harmonious. According to their language, Harvey owns certain property extending from the Tylertown-Holmesville (now Old Holmesville) Public Road south to the Smyrna and Leatherwood Creek Gravel Road, and Magee owned “three acres, more or less” south of the Smyrna and Leatherwood Creek Gravel Road. The deeds establish the Smyrna and Leather-wood Creek Gravel Road as the south boundary of the Harvey property and as the north boundary of the Magee property. Unfortunately, the Smyrna and Leather-wood Creek Gravel Road could not be located or its past existence confirmed, giving rise to this litigation.

¶ 10. In late 2001, Laurance Magee listed the Magee property for sale with real estate broker Doug Rushing; Alan Bride-vaux was the listing agent. Bridevaux obtained the listing from Laurance Magee’s attorney because Laurance was no longer handling her own affairs. Rushing placed an advertisement in a local newspaper rep-, resenting that the Magee property consisted of fifty-one acres abutting Old Holmes-ville Road. Harvey saw the advertisement. Either Harvey or his business associate, William Bridges Netterville, notified Rushing that the Magee property did not abut Old Holmesville Road because Harvey owned land lying between Old Holmesville Road and the northern boundary of the Magee property. Harvey had leased this and other land to a hunting club. Rushing testified that a hunting club member told him that an old road formed the southern boundary of the Harvey property. Rushing went upon the property three or four times, but never saw any evidence of an old road. He further testified that the tax assessment map showed that the Magee property extended all the way to Old Holmesville Road.

¶ 11. Rushing testified that, when Wicker became .interested in buying the Magee property, he advised Wicker to obtain a survey due to the boundary line problem. Rushing arranged for Bracey Land Surveying to perform a survey of the Magee property and to determine whether the northern boundary of the Magee property was an old gravel road or was the Old Holmesville Public Road. This survey was paid for by Wicker. The Bracey survey indicated that the Magee property consisted of 52.922 acres abutting Old Holmes-ville Road.

¶ 12. Bracey Land Surveying was owned and operated by Ronald Bracey, a professional land surveyor. Ronald employed his son, Randy Bracey, to perform the field work for the survey. Randy Bra-cey was a land surveying intern. Randy was told to look for any evidence of an old gravel road lying south of Old Holmesville Road. Randy testified that he looked for the road, but found no evidence of it, nor did he see any painted lines demarcating a boundary line. Ronald Bracey reviewed the legal description of the Magee property, but did not review land records .pertaining to adjoining property. Ronald admitted that the Magee deed called for only forty-three acres. He testified that, when no old road was found, he concluded that the Magee property extended all the way to Old Holmesville Road. After the survey, Netterville contacted Ronald and informed him that a red painted line marked the boundary between the Harvey and Magee properties. Netterville agreed to meet Ronald at the property to point out the line, but the two never accomplished the meeting.

¶ 13. Wicker bought the Magee property by warranty deed. The legal description in the deed was from the survey performed by Bracey Land Surveying. Wicker cleared trees from the disputed property. He placed a mobile home on the disputed property and built a driveway leading from Old Holmesville Road to the mobile home.

¶ 14. Harvey testified that the approximately ten acres at issue were part of the Harvey timber holdings, which were customarily marked with red painted lines. Harvey stated that, since the 1960s, a red painted line had marked the boundary between his property and the Magee property. Harvey paid taxes on the disputed property. For the past twenty years, the property had been leased to a hunting club. Arthur Crochet was a member of the club and testified that the club used the property almost every weekend during deer season and occasionally during the rest of the year. The club built deer stands on the property.

¶ 15. Netterville testified that he has done business with the Harvey family all of his life and was familiar with the disputed property. He stated that he performed an appraisal of the property in 1981; at that time, the red line was intact. He testified that Southern Lumber harvested timber from the property in 1987, and that more timber was cut in 1994. After the 1994 cut, the property was replanted in pine. Further, around 1987, Netterville observed timber being harvested on the Magee property; the harvesters had flagged the Harvey property along the red line and did not cut trees from the Harvey property. Netterville testified that he checked on the property from time to time and had painted or caused to be painted

the red line between the Magee and Harvey properties.

¶ 16. On the day of the hearing, the chancellor visited the property. The chancellor thoroughly related his observations in his opinion, a portion of which we quote:

The court personally observed the red line which began at the northwest corner of the property in question going south along the west line of the disputed area. The line then turned east at the southwest corner (marked by an old iron pipe with red paint on it which Mr. Wicker identified as being there prior to the survey) of the disputed area. The red line was consistently apparent along the south line of the disputed area with the exception of the area immediately around Mr. Wicker’s home (it was obvious that this area had been cleared of some trees and Mr. Wicker testified that he did a lot of clearing and cleaning up in that area).
The court also was able to notice that there were at least two different ages of red paint at various places along the red line on the south side of the disputed area.
The court notes that on the west side of the property there was clear evidence of a timber difference between the property which is undisputedly the Magee property south of the red line and the property in dispute which is north of the red line. In other words, the timber observed by the court (especially on the west side of the tract in question) clearly showed a distinct difference along the red line which Mr. Harvey contends is his south line and the Magee (now Wicker) north line.
Further, the court noticed that there was evidence of the tracks of a skidder, commonly used logging equipment, that led across a substantial part of the tract north of the red line but the skidder tracks ended at or very close to the red line (the tracks did not go south onto the Magee tract).
The court was also able to observe that the timber on the land between the road and the red line (disputed area) had been cut over and in many areas there was young pine trees which were similar to pine plantation trees that Mr. Netter-ville testified had been planted back on a portion of the disputed area. Further, Mr. Crochet testified that for the twenty years he had leased the disputed area (together with other land) he had posted the land against trespassers. The signs observed by the court ran the entire length of the disputed area along the road frontage of Old Holmesville Road. The signs were of two different ages.

In the order denying Wicker’s motion to alter or amend the judgment, the chancellor stated that the red line consisted of paint on trees and blaze marks, as well as red painted corner stakes.

¶ 17. Wicker testified that he had not seen a red painted line on the property until visiting the property with the chancellor. He further testified that he had purchased the Magee property without notice of a title problem. He stated that he had not known until after he purchased the property of the possible existence of an old road or that his property might not extend to Old Holmesville Road.

¶ 18. The chancellor found that Harvey was the record title holder of the disputed property. Alternatively, the chancellor found that Harvey had acquired the property through adverse possession. We review those findings below.

STANDARD OF REVIEW

¶ 19. This Court adheres to a limited standard of review of the decisions of a chancellor. Nichols v. Funderburk, 883 So.2d 554, 556(¶ 7) (Miss.2004). We will reverse only when the chancellor’s determinations were manifestly wrong or clearly erroneous, or when the chancellor applied an incorrect legal standard. Id. If substantial evidence supports the chancellor’s fact-findings, this Court must affirm. Id.

LAW AND ANALYSIS

I. DID THE CHANCERY COURT ABUSE ITS DISCRETION, APPLY AN ERRONEOUS LEGAL STANDARD, AND COMMIT MANIFEST ERROR IN FAILING TO SUSTAIN WICKER’S MOTION TO DISMISS THE COMPLAINT?

¶ 20. In the lower court, Wicker sought to establish that he was the record title holder of the disputed property. Wicker contended that the Smyrna and Leather-wood Creek Gravel Road and the Tyler-town-Holmesville Public Road (now Old Holmesville Road) referenced in the Harvey and Magee deeds were one and the same road. Therefore, Wicker argued, he owned all of the property in the northwest quarter of the northwest quarter of Section 25 lying south of Old Holmesville Road. To support this argument, Wicker presented the testimony of George R. Brumfield and Nell Slipher, who were born in Walthall County in 1938 and had grown up in the relevant area. Brumfield and Slipher testified that the location of Old Holmesville Road had not changed in their lifetimes. Brumfield stated that he did not recall a gravel road lying south of Old Holmesville Road. Slipher testified that, when she was a child, the local roads did not have definite names. She testified that, back then, Old Holmesville Road was also known as Smyrna Road and Leather-wood Road, and that all three roads were one and the same. Doug Rushing testified that he was sixty-one years old and was raised a mile-and-a-half east of the disputed property. He had spent time on the disputed property as a child and did not recall a gravel road lying south of Old Holmesville Road.

¶ 21. The chancellor recognized that, even if the Tylertown-Holmesville Public Road and the Smyrna and Leatherwood Creek Gravel Road were one and the same road, the deeds could exist without overlap. This was because, under Harvey’s deed to the north half of the northwest quarter south of the Tylertown-Holmes-ville Public Road (now Old Holmesville road), Harvey could hold title to any part of the northeast quarter of the northwest quarter south of the road and Wicker could own the northwest quarter of the northwest quarter south of the road. However, the chancellor rejected Wicker’s one-road theory. The chancellor observed that both deeds were drafted by persons old enough at the relevant times to have been involved in the deed preparation process. Those drafters were obviously older than Brumfield, Slipher, and Rushing, each of whom was born around the time that the Magee deed was drafted in 1943. The court found that, despite the lack of present-day evidence of the Smyrna and Leatherwood Creek Gravel Road, the ancient documents of record were more reliable evidence of what actually existed at the times of the two deeds than the witness recollections. The chancellor further observed that the evidence was uncontra-dicted that the red painted line had marked the accepted boundary between the Harvey and Magee properties for more than forty years. The chancellor found that this was strong evidence that the red painted line represented the true common boundary line. Relying on the above findings, the chancellor held that the red line represented the common boundary line between the Harvey and Wicker properties. The chancellor ordered a survey of the boundary line to be made and recorded in the land records of Walthall County.

¶ 22. Wicker argues that the chancellor was bound to accept the parol evidence provided by Brumfield, Slipher, and Rushing to the effect that the Smyrna and Leatherwood Creek Gravel Road was one and the same as the Tylertown-Holmesville Public Road (now Old Holmes-ville Road). An ambiguity in a contract “may arise from words which are uncertain when applied to the subject matter of the contract.” I.P. Timberlands Operating Co. v. Denmiss Corp., 726 So.2d 96, 110(¶ 59) (Miss.1998). Deeds are construed in a manner similar to contracts. Martin v. Fly Timber Co., 825 So.2d 691, 696(¶ 11) (Miss.Ct.App.2002). Because the Smyrna and Leatherwood Creek Gravel Road was used as a monument in the deeds but could not be located, the deeds were ambiguous. Therefore, Wicker correctly argues that parol evidence was admissible to explain the ambiguity. I.P. Timberlands, 726 So.2d at 110(¶ 59).

¶ 23. However, the chancellor was not obligated to accept the evidence provided by Brumfield, Slipher, and Rushing and to ignore the other extrinsic evidence pertaining to the issue. “In Chancery Court, ‘the Chancellor is vested with the responsibility to hear the evidence, assess the credibility of the witnesses, and determine ultimately what weight and worth to afford any particular aspect of the proof.’ ” In re Boundaries of the City of Laurel, 922 So.2d 791, 795(¶ 7) (Miss.2006) (quoting Rainey v. Rainey, 205 So.2d 514, 515 (Miss.1967)). The chancellor’s credibility determination is a fact-finding and will not be disturbed unless it is manifestly wrong. Id. In this case, the chancellor did not manifestly err in weighing the testimony of Brumfield, Slipher, and Rushing and concluding that, due to the relative youth of these witnesses, they provided less credible evidence of the existence of the Smyrna and Leatherwood Creek Gravel Road than the fact that the drafters of both deeds had represented that the road existed.

¶ 24. Moreover, the chancellor’s finding that the red painted line was the accepted boundary line between the two properties was supported by substantial evidence. Harvey testified that the line existed in the 1960s and Netterville testified that he had checked on the line in 1981 and thereafter.' The chancellor observed that the line featured at’ least two ages of red paint. There was evidence that Magee had recognized the red line as the boundary because, during a Magee timber harvest, the harvesters flagged the red line and stopped cutting timber at the line. Conversely, during Harvey timber cuts, timber was harvested from Old Holmesville Road south to the red line. This evidence was supported by the chancellor’s view of the property, which revealed that timber harvesting and planting activities were specific to each side of the red line.

¶ 25. Further, the chancellor correctly applied the law by finding that the historical acceptance of the red painted line as the boundary line was strong evidence that the red painted line was the true boundary line. “Acquiescence in a wrong boundary line will not establish it as the true line, but such acquiescence for a long period of time is evidence that such line is the true line.” Hulberb v. Fayard, 230 Miss. 1, 10, 92 So.2d 247, 251 (1957). The court has also stated that, “recognition of, and acquiescence in, a line as the true boundary line, if continued for a suffi-dent length of time, will afford a conclusive presumption that the line thus acquiesced in is the true boundary line.” York v. Haire, 236 Miss. 711, 716, 112 So.2d 245, 247 (1959). We find that the chancellor’s decision that the red painted line constituted the actual common boundary line between Wicker’s and Harvey’s properties was supported by substantial evidence and was not manifestly erroneous.

¶ 26. As an affirmative defense to Harvey’s trespass action, Wicker asserted in his motion to dismiss that he was a bona fide purchaser for value without notice. In finding for Harvey, the chancellor did not expressly address this issue. Respecting an issue in which the chancellor has made no specific finding, this Court assumes that the chancellor resolved such fact issue in favor of the appel-lee. Cotton v. McConnell, 435 So.2d 683, 685 (Miss.1983).

¶ 27. That a purchaser of real estate was a bona fide purchaser for value without notice is “an affirmative defense and must be sustained by competent proof.” Memphis Hardwood Flooring Co. v. Daniel, 771 So.2d 924, 933(¶ 32) (Miss.2000). The innocent purchaser must prove (1) a valuable consideration; (2) the presence of good faith; and (3) the absence of notice of the adverse interest. Id. It was undisputed that Wicker paid valuable consideration for the Magee property as it was described in the Bracey survey, and Wicker’s warranty deed to that effect was admitted into evidence. Wicker contends that he bought the disputed property in good faith and without notice of Harvey’s interest. We find that this contention is refuted by substantial evidence in the record that supports the chancellor’s findings.

¶ 28. A prospective purchaser of real estate in Mississippi is charged with constructive notice of every statement of fact contained in the various conveyances constituting the chain of title. Bedford v. Kravis, 622 So.2d 291, 295 (Miss.1993). The Magee property was advertised for sale as abutting Old Holmesville Road. Wicker had constructive notice via the Ma-gee deed that the northern boundary of the Magee property was a road called the Smyrna and Leatherwood Creek Road. Wicker may have thought this road was one and the same as Old Holmesville Road. However, Harvey told Rushing that he owned property between Old Holmes-ville Road and the Magee property and that the true boundary line was an old road. A hunter told Rushing that the property was under lease to the hunting club. Though Wicker denied having any knowledge of Harvey’s claim before his purchase of the property, Rushing testified that he advised Wicker to get a survey because an old road, not Old Holmesville Road, might actually be the northern boundary of the Magee property. The credibility of Rushing’s testimony about Wicker’s knowledge was supported by the facts that Wicker obtained a survey of the property and the purpose of that survey was to discern the true boundary line. This was substantial evidence that Wicker knew of Harvey’s adverse claim to the property before the purchase.

¶ 29. Moreover, as discussed below, the chancellor found that Harvey’s use of the property met the elements of adverse possession. “Open and notorious possession of land under claim of title is sufficient to put subsequent purchasers on inquiry as to the possessor’s rights therein.” Beauchamp v. McLauchlin, 200 Miss. 83, 94, 25 So.2d 771, 775 (1946). Therefore, Harvey’s possession of the property in a manner meeting the elements of adverse possession was notice to Wicker of Harvey’s claim.

¶ 30. Anticipating the conclusion that he had notice, Wicker argues that his procurement of the survey was all that a reasonable person having notice of Harvey’s claim would have done to satisfy himself that the Magee property abutted Old Holmesville Road.

[W]hen, in respect to a matter in which he has a material interest, a person has knowledge of such facts as to excite the attention of a reasonably prudent man and to put him upon guard and thus to incite him to inquiry, he is chargeable with notice, equivalent in law to knowledge, of all those further relevant facts which such inquiry, if pursued with reasonable diligence, would have disclosed.

Crawford v. Brown, 215 Miss. 489, 503, 61 So.2d 344, 350 (1952) (quoting First Nat'l Bank of Laurel v. Johnson, 177 Miss. 634, 643, 171 So. 11,14 (1936)). We find that there was substantial evidence that, although Wicker hired a surveyor to ascertain the true boundary line, Wicker’s inquiry as to the true boundary line was not reasonably diligent and he is charged with the knowledge that a reasonably diligent investigation would have disclosed to him. Harvey’s 1998 deed of exchange was recorded and indicated on its face that the Smyrna and Leatherwood Creek Road was south of the Tylertown-Holmesville Public Road (now Old Holmesville Road), not one and the same as Old Holmesville Road. Neither Wicker nor surveyor Ronald Bra-cey reviewed Harvey’s deed. Given the fact that Harvey claimed ownership of property between Old Holmesville Road and an old road and the fact that the Bracey survey added approximately ten acres to the amount of acreage represented by the Magee deed, a reasonably diligent inquiry would have included a review of Harvey’s record title. And, the chancellor’s description of the red painted line, posted signs, timber activities, and other indicia of Harvey’s possession support the conclusion that these indicia would have been observed in the exercise of reasonable diligence. We affirm the chancellor’s implicit finding that Wicker was not a bona fide purchaser for value without notice.

¶ 31. We affirm the chancellor’s finding that Harvey owned the disputed property as the record title holder and free and clear of any claims by Wicker. Notwithstanding this holding, we discuss the chancellor’s alternative finding that Harvey had acquired the disputed property from Magee through adverse possession. We conclude that the finding was supported by substantial evidence.

¶ 32. To establish an adverse possession claim, the party claiming adverse possession must show six elements by clear and convincing evidence. Blackburn v. Wong, 904 So.2d 134, 136(¶ 15) (Miss.2004). “[F]or possession to be adverse it must be (1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” Id. A period of adverse possession may be tacked to that of a predecessor in title if there is privity of contract. Crowder v. Neal, 100 Miss. 730, 736, 57 So. 1, 3 (1911).

(1) Under claim ofoumership

¶ 33. As found by the chancellor, Harvey and his predecessors in title had claimed exclusive ownership of the disputed property for a period well in excess of the ten-year statutory period for adverse possession. Miss.Code Ann. § 15-1-13(1) (Rev.2003).

(2) Actual or hostile

¶ 34. Actual possession has been defined as “effective control over a definite area of land, evidenced by things visible to the eye or perceptible to the senses.” Blankinship v. Payton, 605 So.2d 817, 819-20 (Miss.1992). Possession is hostile and adverse when the adverse possessor intends to claim title notwithstanding that the claim is made under a mistaken belief that the land is within the calls of the possessor’s deed. Alexander v. Hyland, 214 Miss. 348, 357, 58 So.2d 826, 829 (1952). The chancellor recognized that Harvey’s painting of lines, putting down steel markers, posting the property, leasing the property, managing the timber on thé property, and placing deer stands on the property all were acts of possession. And, Harvey’s possession was hostile because he claimed title to the property with the belief it was embraced by the legal description in his deed.

(S) Open, notorious, and visible

¶ 35. Mere possession does not satisfy the requirement that possession be open, notorious, and visible. Craft v. Thompson, 405 So.2d 128, 130 (Miss.1981). Rather, an adverse possessor “must unfurl his flag on the land, and keep it flying, so that the (actual) owner may see, and if he will, that an enemy has invaded his domains, and planted the standard of conquest.” Blankinship, 605 So.2d at 820. The chancellor found that Harvey’s posses-sory acts were sufficiently open, notorious, and visible to announce Harvey’s claim to the world. In so holding, the chancellor relied upon the following authority:

[B]oth the quality and quantity of pos-sessory acts necessary to establish a claim of adverse possession may vary with the characteristics of the iand. Adverse possession of “wild” or unimproved lands may be established by evidence of acts that would be wholly insufficient in the case of improved or developed lands. The question in the end is whether the possessory acts relied upon by the would be adverse possessor are sufficient to fly his flag over the lands and to put the record title holder upon notice that the lands are held under an adverse claim of ownership.

Lynn v. Soterra, Inc., 802 So.2d 162, 167(¶ 17) (Miss.Ct.App.2001) (quoting Rawls v. Parker, 602 So.2d 1164, 1168 (Miss.1992)).

¶ 36. In his argument, Wicker considers each possessory act by Harvey in isolation and posits why each act, on its own, was insufficient to establish the open, notorious, and visible element. However, the chancellor’s decision was based upon the totality of Harvey’s possessory acts. The chancellor found that Harvey’s painting of lines, putting down steel markers, posting the property, leasing the property, managing the timber on the property, and placing deer stands on the property “clearly qualified as open, notorious, and visible” such that anyone having a claim of ownership of the property would have seen, without doubt, that Harvey was “flying his flag” over the property.

¶ 37. Given that the property at issue consisted of unimproved timber land, the chancellor did not manifestly err in finding that Harvey’s activities sufficed to “fly his flag of ownership” on the property. In Kayser v. Dixon, 309 So.2d 526, 529 (Miss.1975) (quoting McCaughn v. Young, 85 Miss. 277, 292, 37 So. 839, 842 (1905)), involving adverse possession of timber land, the court stated that an important question is whether the claimant exercises the “same character of control” that he would apply toward property that was actually his, and which he would not apply toward property that he did not own. In Jackson v. Peoples Bank & Trust Co., 869 So.2d 422, 424(¶ 8) (Miss.Ct.App.2004), this Court found that an adverse claimant exercised such control over timber lands by maintaining an orange painted boundary line for over forty years, by regularly inspecting the property for insect and beaver infestation, and by cutting timber on the property. As in the case sub judice, the adverse claimant maintained the disputed property in the same manner as his other timber holdings. We found that these acts of control were sufficient for a finding of adverse possession. Id. at 425(¶ 10). The chancellor’s finding in the instant case was consistent with our holding in Jackson.

¶ 38. We observe that, in addition to those acts recited above, Harvey paid taxes on the property. “Payment of taxes ... is very important and strong evidence of a claim of title.... ” McCaughn, 85 Miss, at 293, 37 So. at 842 (quoting Holtzman v. Douglas, 168 U.S. 278, 284, 18 S.Ct. 65, 42 L.Ed. 466 (1897)). And, as recognized by the chancellor, neither Magee nor anyone else ever disputed Harvey’s ownership of the property until Wicker became interested in purchasing it. The evidence was undisputed that Magee had recognized the red painted line as the boundary between the two properties. “A possession which is adverse and actually known to the true owner is equivalent to a possession which is open and notorious and adverse.” Id. at 294, 37 So. at 842.

(I) Continuous and uninterrupted for a period often years

¶ 39. The chancellor found that Harvey’s possession of the property was continuous and without interruption from at least 1980 until 2001, when Rushing began showing the property. There was no evidence in the record to refute this finding.

(5) Exclusive

¶ 40. Exclusive possession evinces “an intention to possess and hold land to the exclusion of, and in opposition to, the claims of all others, and the claimant’s conduct must afford an unequivocal indication that he is exercising dominion of a sole owner.” Rawls v. Parker, 602 So.2d 1164, 1169 (Miss.1992). All of the evidence showed that Harvey had this intention. Harvey’s ownership of the property was challenged for the first time when the property was listed for sale by Rushing. When Harvey discovered that the property was being advertised for sale, he responded immediately and asserted his claim of ownership. As recognized by the chancellor, there was no evidence that Harvey’s possession was less than exclusive.

(6) Peaceful

¶ 41. The evidence was undisputed that Harvey and his predecessors in title peacefully possessed the property for a period exceeding ten years. No party contested Harvey’s ownership of the property until Rushing listed it for sale.

¶ 42. In conclusion, we affirm the decision of the chancellor that Harvey is the record title holder of the disputed property. Notwithstanding our holding, we find that the chancellor relied upon substantial evidence in finding that Harvey proved the elements of adverse possession by clear and convincing evidence.

¶ 43. THE JUDGMENT OF THE CHANCERY COURT OF WALTHALL COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.