BEFORE ROY NOBLE LEE, P.J., DAN LEE AND SULLIVAN, J.J.
DAN LEE, J., FOR THE COURT:
Charles Ferrell Sumrall and others brought suit in the Chancery Court of Jasper County seeking partition of an alleged 1/6 interest in land inherited from his grandfather, W. D. Sumrall, Sr. Sumrall also sought damages from Bay Springs Forest Products, Inc. (Bay Springs) and Georgia Pacific Corp. (Georgia Pacific) for timber cut and removed from part of this land. The chancellor held that Sumrall was estopped equitably, judicially, and barred by the doctrine of laches; whereupon, he granted summary judgment against Sumrall and in favor of all defendants. A fourth defendant, Treeland Products, Inc., was also granted summary judgment but was later dismissed from this appeal without opposition.
Sumrall appeals, assigning as error:
I. The lower court erred in granting Summary Judgment in favor of the Appellees on the grounds of equitable estoppel.
II. The lower court erred in granting Summary Judgment in favor of Appellees on the grounds of laches.
This dispute involves land that was owned by W. D. Sumrall, Sr., a widower who apparently died intestate in 1967, was survived by five children: P. O. Sumrall, Hazel Sumrall, Beatrice Tupman, Idell Sumrall, and W. D. Sumrall, Jr. A sixth child, William Oree Sumrall, who predeceased his father, had two sons: the appellant, Charles Ferrell Sumrall and Billy Ree Sumrall, who died in 1975. (Billy's wife, Phyllis, and daughter, Renee, were also plaintiffs in the suit below which is still pending against the appellees in the Chancery Court of Jasper County.) The parties do not dispute that Charles Ferrell Sumrall and his brother each inherited a 1/12 interest in the Sumrall property at W. D. Sumrall, Sr.'s death, through Mississippi's laws of descent and distribution, and, thus, became co-tenants.
In April 1970, unknown to Charles Ferrell Sumrall, four of the still living children of W. D. Sumrall, Sr. conveyed their interest to the fifth living child, W. D. Sumrall, Jr. Another deed, with the same language but with a corrected description, was executed by the same parties to W. D., Jr. on November 3, 1970. The deed stated that the grantors and the grantee were the [sole heirs] * of W. D., Sr., and it purported
to convey to W. D., Jr. the complete title to the property. At that time, however, neither Appellant Charles Ferrell Sumrall, nor his brother, Billy Ree Sumrall, had signed the deeds. Charles Ferrell Sumrall testified he learned of the deed to W. D., Jr. some months later, probably in 1971.
On August 1, 1977, W. D., Jr. and his wife executed a timber deed to an 18-acre tract of the Sumrall property to Bay Springs Forest Products, Inc., who, in turn, sold it to Georgia Pacific. This timber deed was not signed by the appellant, and neither Bay Springs nor Georgia Pacific sought Charles' permission to cut timber.
Charles maintained that he and Billy Ree Sumrall went to the uncle, W. D. Sumrall, Jr., before Billy Ree's death in 1975 and told W. D., Jr. of their joint inherited 1/6 interest in the property. According to Charles, W. D., Jr. did not readily acknowledge Charles' and Billy Ree's interest; however, after consulting with his attorney, W. D., Jr. "come around and reconciled to the fact that we was entitled to it." W. D., Jr. stated that he would correct the problem, yet nothing was done, other than the preparation of his will naming Charles as executor.
W. D., Jr. died in 1980. The record does not contain a copy of his will, but the chancellor noted that it was admitted to probate in the Jasper County Chancery Court. The will named Appellant Charles Ferrell Sumrall as executor and he served in that capacity. Although the record is unclear on this point, the will apparently was not probated in its original form, as some of its provisions were contested by various heirs of W. D., Jr. An agreed settlement of W. D., Jr.'s estate was entered on May 13, 1981. Of worthy note is that Appellant was not an heir of W. D., Jr. and was not party to any of the family's disputes or contest of the will; rather, his role with regard to the probate and settlement of the will was that of executor only.
The decree closing the estate purported to adjudicate title and distributed the 120-acre Sumrall estate among W. D., Jr.'s heirs.
The decree, signed by "Charles Ferrell Sumrall, executor," stated that it represented an agreed disposition of W. D., Jr.'s property. The trial court placed great reliance on this document and Charles' signature in determining that Charles was estopped or barred from ...