text:
    In the Matter of the Succession of F. Grady MACK and Mary Purvis Mack. Melissa Mack LINDER, J. D. Mack & Prestley Mack, Plaintiffs and Appellants, v. Columbus BLOUNT and Nellie Mack Blount, Defendants and Appellees.
    No. 12381.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.
    Curtis K. Stafford, Jr., Baton Rouge, counsel for plaintiffs and appellants.
    Davis A. Gueymard, Baton Rouge, counsel for defendants and appellees.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   CHIASSON, Judge.

Plaintiffs-appellants in this case seek to have reversed a judgment dismissing their petition for collation which was rendered pursuant to a motion for judgment on the pleadings filed by the defendants-appellees. Under the provisions of Article 965 of the Louisiana Code of Civil Procedure, we are limited in this case to a perusal of the pleadings and may include attached exhibits made part of the pleadings. We must assume as true all allegations of the petition not denied by the defendants and all well pleaded allegations of the answer. Succession of Killingsworth, 194 So.2d 331 (La.App. 1st Cir. 1966), writ refused 250 La. 175, 194 So.2d 738 (1967).

Our courts favor giving a party his day in court hence judgment on the pleadings and summary judgments are granted only when the legal right is clearly established. Brown v. B & G Crane Service, Inc., 172 So.2d 708 (La.App. 4th Cir. 1965). Therefore, the question on this appeal is whether that right has been clearly established by the pleadings.

The facts revealed by the pleadings are as follows: F. Grady Mack died intestate in Livingston Parish in November of 1948. His survivors were his wife, Mary Purvis Mack, and his four children, Melissa Mack Linder, J. D. Mack, Prestley Mack, and Nellie Mack Blount. On July 28, 1951, Mrs. Mary Purvis Mack and three of the children, Prestley Mack, J. D. Mack and Melissa Mack Linder, sold to the fourth child, Nellie Mack Blount, and her husband, Columbus Blount, the following property:

“A certain tract of land containing 90 acres of land more or less, and being the South 14 acres of the SEVi of SWVi of Section 4, T6S, Range 5 East, and the NEVi of NWVi, and NVs of SEVi of NW1/», and all the land in North 30 acres of NWVi of NWVi lying East of a certain Gravel Highway, known as Doyle North Gravel Highway, lying and being in Section 9, T6S, Range 5 East, and being a part of the F. Grady Mack Estate, and being a portion of that land described in CB 63 page 404, 58, page 266, 58 page 169, 57 page 458, 56 page 403 and 42 page 595, and 15 page 531, of the Livingston Parish Public Records, LESS one acre tract previously reserved and dedicated as a cemetery. With all buildings and improvements thereon.”

The act of sale recited that the sum of $1,000.00 cash was paid, receipt of which was acknowledged by the sellers. The defendants, the purchasers of the property, answered that the property was purchased subject to a mortgage on which was due a principal balance of $950.00 plus interest, which amount defendants paid in full.

Mary Purvis Mack died intestate in Livingston Parish in February of 1977. Mary Purvis Mack had married twice after the death of F. Grady Mack, but no children were born of these marriages. She was survived solely by .her four children named hereinbefore.

Melissa Mack Linder was appointed by the court as administratrix for F. Grady Mack’s and Mary Purvis Mack’s successions. On October 28,1978, Mrs. Linder individually, and in her capacity as administratrix of the successions, filed suit with J. D. Mack and Prestley Mack against Nellie Mack Blount and Columbus Blount for collation and to annul the 1951 sale on the basis that it was a donation in disguise.

The plaintiffs aver that the sale of the undivided interest belonging to Mrs. Mary Purvis Mack at the time of the sale was a donation in disguise since the price paid was below one-fourth of the real value of the property at the time of sale. Additionally, plaintiffs aver that this donation exceeded the disposable portion of the estate of the deceased and that the law requires collation and/or reduction accordingly.

Defendants in their answer affirmatively plead the defense of estoppel by deed; allege that in addition to the $1,000.00 paid, that an additional $950.00 was paid at the time of sale on the then due principal balance and interest on a mortgage on the property; and that Nellie Mack Blount was never the recipient of a donation from her mother and therefore no action for collation or reduction lies in favor of the decedent’s remaining heirs.

Defendants plea of estoppel by warranty, sometimes known as estoppel by deed, is based on the theory that since plaintiffs executed the act of sale with their mother, they warranted complete title of the property to the vendees and are therefore forever estopped from denying the validity of the vendees’ title or asserting an interest contrary to the title. Defendants cite the following cases as authority for their estop-pel argument: Jeannin v. Bowman, Orleans No. 7386, annotated in West Louisiana Digest, Estoppel, Section 14, 8 La. D-80 (an unreported Orleans Court of Appeal 1918); Schultz v. Ryan, 131 La. 78, 59 So. 21 (1912); Lewis v. King, 157 La. 718, 103 So. 19 (1925) [overruled on other grounds]; Gaines v. Crichton, 187 La. 345, 174 So. 666 (1937); and Humble Oil & Refining Company v. Boudoin, 154 So.2d 239 (La.App. 3rd Cir. 1963).

Plaintiffs-appellants argue that under La. Civil Code Article 2444 that they, as forced heirs, are allowed to attack the sale of an immovable made by a parent to one of their children as a donation in disguise since the alleged price paid was below one-quarter of the real value of the immovable property sold at the time of sale.

Defendants-appellees’ argument is that this action cannot be maintained since the appellants are estopped from attacking the sale on the basis of the warranty they gave when they signed the act of sale. The jurisprudence has recognized the affirmative defense of estoppel by warranty in the cases cited by defendants. We find that defendants-appellees’ plea of estoppel by warranty is an extension of this jurisprudential concept.

The facts reveal that this is a sale of property by the mother and three co-heirs to a fourth heir of immovable property. The vendors were co-owners in indivisión of this property, which was part of their deceased father’s estate, and they gave a full and general warranty of title in the act of sale which extends to the entire title.

In Schultz, supra, the Supreme Court stated, “. . . the reason why the obligation of a joint vendor is held to extend to the entire title is that this obligation is from its very nature indivisible; but that this reason no longer applies when it comes to reimbursing the price, for then the obligation, being a mere money obligation, is necessarily divisible.” The vendors are now asserting an interest contrary, to the warranty they individually and jointly recited in the act of sale conveying the whole of the property.

While plaintiffs-appellants are bound by their own warranty of title and cannot attack the title of their vendees, they may still seek collation as provided by law. Even the unconditional acceptance of a succession does not deprive the heirs of the right to demand collation of each other. Gonsoulin v. Gonsoulin, 132 La. 737, 61 So. 774 (1913).

The trial court therefore erred in dismissing the plaintiffs-appellants’ petition for collation on a motion for judgment on the pleadings.

For these reasons the judgment of the trial court is reversed and the case is remanded to the district court for further proceedings. Costs of this appeal are taxed against defendants-appellees; all other costs are to await the final disposition of this case.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: CULPEPPER, Judge.

license: Public Domain

text:
    Succession of James Ware GARDINER.
    No. 6774.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 3, 1979.
    Rehearing Denied Feb. 6, 1979.
    Writs Refused March 23, 1979.

      Camp, Carmouehe, Palmer, Barsh & Hunter, A. J. Gray, III, Lake Charles, for plaintiff-appellant.
    Liskow & Lewis, Stephen T. Victory, Marilyn C. Maloney, J. Barnwell Phelps, New Orleans, Stockwell, Sievert, Viccellio, Clements & Shaddock, Oliver P. Stock-well, Richard E. Gerard, Edward D. My-rick, Gary A. Book, Reid K. Herbert, Lake Charles, William Booker Ferguson, Houston, Tex., Francis A. Dressier, Daniel K. Rester, Lake Charles, for defendant-appellee.
    Before CULPEPPER, FORET and CUTRER, JJ.
   CULPEPPER, Judge.

This is an action to annul a testament. The testament of James Ware Gardiner, a domiciliary of Connecticut at his death, was admitted to probate in that state. In an ancillary proceeding in Louisiana, the validity of the will was recognized insofar as it pertained to immovable property of the deceased located in Louisiana. The will provides that all of the immovable property owned by the deceased located outside of Connecticut, along with the remainder of his estate not otherwise disposed of in the will, shall make up the corpus of a trust. The trustees are bound to reserve the im-movables as the last corpus asset to be alienated. Upon the death of the last income beneficiary of the trust, the ownership of the remaining corpus descends to the then living grandnephews of the deceased and to St. Patrick’s Hospital in Lake Charles, the St. Joseph’s Hospital in Connecticut, and Washington and Lee University in Virginia. The plaintiff, Katherine Garrison Brewer, a niece of the deceased, alleges the trust, as well as other provisions of the will affecting the disposal of the Louisiana property, are null and void under Louisiana law, and therefore the property should descend by the Louisiana laws of intestacy. The defendants, who include the executors, income beneficiaries, and the corpus beneficiaries, filed exceptions of no right of action and no cause of action. The trial court sustained these exceptions and dismissed the plaintiff’s suit. From this judgment, the plaintiff appealed.

The issues before us are: (1) Does the plaintiff have a right of action? (2) Does the plaintiff allege a cause of action?

There are fundamental differences between the exception of no right of action and the exception of no cause of action. The exception of no right of action questions the right of the plaintiff to institute the suit, i. e., his interest in the subject matter of the proceeding and/or his capacity to sue. The exception of no cause of action questions the sufficiency in law of the petition and the exhibits attached thereto or made a part thereof. LSA-C.C.P. Articles 681 and 927; Hargroder v. Columbia Gulf Transmission Company, 290 So.2d 874 (La.1974); Parks v. Winnfield Life In surance Company, 336 So.2d 1021 (3rd Cir. 1976). Evidence is admissible at the hearing of an exception of no right of action, but no evidence may be introduced to support or convert the objection that the petition fails to state a cause of action, the latter being triable entirely on the face of the petition, together with any documents made a part thereof. LSA-C.C.P. Article 931; Hargroder v. Columbia Gulf Transmission Company, supra; Parks v. Winnfield Life Insurance Company, supra.

Of particular application to the present proceedings is LSA-C.C.P. Article 2972, dealing with oppositions filed in succession proceedings. Comment (b) under that article states:

“(b) No person should be permitted to file an opposition in a succession proceeding unless he has a justiciable interest in doing so. The definition of this interest has been left for the determination of the courts’ and the requirement has been stated only implicitly in the term “interested person.’ ”

NO RIGHT OF ACTION

In the case at bar, plaintiff alleges that she is a niece of the deceased, that there were no direct ascendants or descendants surviving at the death of the testator and that the plaintiff is therefore a legal heir and will inherit in the event of intestacy. No evidence was introduced at the trial of the exception of no right of action to contradict these allegations. Other possible legal heirs alleged are David L. Garrison, Jr., a nephew of the deceased, and Odille Gardiner, a half-sister of the deceased who has died since the death of the testator. They have been made parties to this suit upon the plaintiff’s motion.

As a legal heir, the plaintiff would inherit, or share in the inheritance, if the will were declared null insofar as it affects the Louisiana immovable property. Under these circumstances, she has a right of action to contest the validity of the testament. Succession of Feitel, 187 La. 597, 175 So. 72 (La.1937); Succession of Wilson, 210 So.2d 602 (2d Cir. 1968).

NO CAUSE OF ACTION

The defendants contend plaintiff’s petition states no cause of action because of two portions of article Fortieth of the testament. The first portion in question contains a penal clause and reads as follows:

“FORTIETH: If any devisee, legatee or beneficiary under this Will or any person claiming under or through any devisee, legatee or beneficiary or any person who would be entitled to share in my Estate through inheritance or intestate succession shall, in any manner whatsoever, directly or indirectly contest this will or attack, oppose or in any manner seek to impair or invalidate any provision hereof, or shall in any manner whatsoever conspire or cooperate with any person or persons attempting to do any of the acts or things aforesaid or shall acquiesce in or fail to oppose such proceedings, then in each of the above mentioned cases, I hereby bequeath to such person or persons the sum of One ($1.00) Dollar only, and all other bequests devises and interest in this Will given to such person and the spouse and/or issue of such person shall be deemed to have lapsed and shall become part of my Residuary Estate hereunder to be administered in accordance with the terms thereof.”

The validity of such a clause in Louisiana has not been judicially determined with finality. Commentators have stated the governing statutory provision is LSA-C.C. Article 1519:

“In all dispositions inter vivos and mortis causa impossible conditions, those which are contrary to the laws or to morals, are reputed not written.”

Oppenheim, 10 La.Civil Law Treatise, Sec. 129; Aubrey and Rau, Droit Civil Francais, Civil Law Translations 3, Section 692, p. 295; and Wood Brown, Provisions Forbidding Attack On A Will, 4 Tulane Law Review 421 (1929). Article 1519 is taken directly from the Code Napoleon and is found almost verbatim in nearly every civil law jurisdiction. Oppenheim, supra; and Brown, supra. The French solution is to look to the effect of the penal clause. Aubrey and Rau state the French rule:

“The penal clause . . will be valid and obligatory if the purpose thereof is to insure the execution of dispositions that, containing nothing contrary to public order or good morals, would be susceptible of attack only for causes of private interests. . . (Sec. 692, p. 296, supra)

Wood Brown, in 4 Tulane Law Review, 421, at 423, explains:

“. . . where the principal dispositions of the will (those which it is forbidden the legatee or heir to attack) have nothing of public import in them, and where the right against which the penal clause operates is only of a private or pecuniary nature, the penalty is good and if an attack is made it will operate to divest the unfortunate litigant of his share. However, if the principal disposition is against good morals, then the penal clause automatically becomes against good morals also, since it is surely, so the commentators argue, to the public interest that such dispositions in wills be attacked.”

One Louisiana case appears to favor the French rule. In Succession of Kern, 252 So.2d 507 (4th Cir. 1971), the testament contained a penalty clause that if it be challenged in “any way by any heir it becomes null and void and my entire estate is to be given to “The Crippled Children Hospital . . ..” A nephew, not named in the will, attacked the disposition in favor of the hospital, contending they were prohibited substitutions. The court refused to uphold this type of penal clause but implied that a penal clause which is restricted to protest by a special legatee may be considered valid. The court stated:

“If the clause in question were restricted to protests or challenges by the legatees receiving a benefit from the will, there would be little problem in the absence of forced heirs. However, the clause in question prohibits protest by ‘any heir,’ whether or not he is a party to the will or benefits thereby. Under the circumstances, the legatees are virtually helpless and at the mercy of any heir not mentioned in the will.
ík * * * * *
“Such a provision is repugnant to law and good morals and cannot be sanctioned by the courts LSA-R.C.C. art. 1519.”

We conclude it is unnecessary to decide the validity of the penal clause at issue here. Even assuming, as plaintiff contends, that the penalty clause is invalid, the effect of such a holding would be to strike the penalty clause from the testament, leaving the remainder of the will as written. Succession of Walters, 261 La. 59, 259 So.2d 12 (1972); Carter v. Succn. of Carter, 332 So.2d 439 (La.1976); and Succession of Burgess, 359 So.2d 1006 (4th Cir. 1978).

If we eliminate the penalty clause from the testament, this does not affect the validity of the second portion of article Fortieth which reads as follows:

“If as a result of any attack or contest of this Will an intestacy would otherwise result as to all or any portion of my estate, then in such event, with respect to any such portion of my estate, I hereby give, devise and bequeath such portion of my estate in equal shares to and among the charitable entities named as ultimate remaindermen of my Residuary Estate, excluding any persons and the spouse and ascendents and descendents of any persons attacking, contesting, opposing and/or cooperating or acquiescing in any such attack, contest or opposition. For the purpose of this article, an action for declaratory relief or for instructions or any similar action shall be deemed to constitute an attack upon this Will where the purpose of the institution of such action for declaratory relief or for instructions would be to oppose, impair or invalidate any provision hereof.”

It is clear from this provision that even if the attack by plaintiff on the testament were upheld, any donations which are declared invalid would fall to the enumerated charities as residuary legatees. A testamentary provision for residual beneficiaries is not prohibited by Louisiana and is permissible. See the somewhat similar ease of Succession of Feitel, supra, in which it was held that the opponent of the testament had no right of action since the nullity of the special legacies attacked would result only in their going to the residuary legatee, and not to the plaintiff in nullity.

This result is supported by the rule that in the interpretation of testaments the court must seek to carry out the intention of the testator. This intention must be ascertained from the will as a whole, and effect must be given to every part of the will insofar as the law will permit. Carter v. Succession of Carter, 332 So.2d 439 (La.1976). Reading as a whole the testament in this case, it is clear the testator intended the charities to be residuary legatees, and that no part of his estate would descend by the laws of intestacy.

The plaintiffs argue the above quoted provision making the charities residuary legatees as to any invalid donations is inseparable from the “penalty clause” contained in the first sentence of article Fortieth. We find this contention without' merit. From the language of the two provisions it is clear they are intended as alternatives. The purpose of the penalty clause is to ward off attack on the will by any legatee or heir. The purpose of the second provision of article Fortieth, quoted above, is to provide for the disposition of any invalid donations in the event an attack is made and is successful. This interpretation is required by the rule that the courts must endeavor to carry out the intention of the testator as ascertained from the will as a whole and must give effect to every part of the will as far as the law will permit. Carter v. Succession of Carter, supra.

We conclude that plaintiff has no cause of action to annul the testament at issue.

We are aware that paragraph 10 of plaintiff’s original petition alleges “The decedent lacked testamentary capacity to execute a last will and testament, and, as such, said will is invalid in its entirety insofar as the same disposes of Louisiana property.” On appeal, plaintiff makes no argument regarding these allegations. Even if plaintiff did contend she states a cause of action under this paragraph of her petition, the argument would be without merit. Our jurisprudence is settled that although an exception of no cause of action admits all well pleaded facts, it does not admit conclusions of law contained in the petition. State ex rel Garland v. Guillory, 184 La. 329, 166 So. 94 (1935); Ward v. Leche, 189 La. 113, 179 So.2d 52 (1938). The allegations of plaintiff’s petition that the decedent lacked testamentary capacity, and that the will is therefore invalid are not well pleaded facts. This is simply a conclusion of law, and is not sufficient to state a cause of action.

Having concluded that plaintiff’s petition fails to state a cause of action, it is unnecessary for us to decide the merits of the difficult questions raised by plaintiff with regard to whether the trust provisions contain prohibited substitutions or fidei com-missa,. whether the trust provisions violate laws dealing with the length of time im-movables can be kept out of commerce and the rule that all beneficiaries of a mortis causa trust must be “in being” at the death of the testator, and whether certain provisions of the trust are invalid in granting too much discretion to the trustees in distributing the corpus and income of the trust. Like the trial judge, we do not reach a consideration of the merits of these questions.

For the reasons assigned, the judgment of the trial court is reversed and set aside insofar as it sustains the exception of no right of action. Otherwise, the judgment is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

REVERSED IN PART, AFFIRMED IN PART.


author: GUIDRY, Judge.

text:
    Michael D. SHAW, Plaintiff-Appellee, v. LOUISIANA DEPARTMENT OF EDUCATION and Department of Employment Security, Defendant-Appellant.
    No. 6762.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 4, 1979.
    L. Paul Gianfala, Church Point, Julius Johnson, Baton Rouge, for defendant-appellant.
    John E. Demoruelle, Kinder, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and SWIFT, JJ.
   GUIDRY, Judge.

MOTION TO REMAND

The plaintiff-appellee, Michael D. Shaw, moves to dismiss the appeal of the defendant-appellant, Louisiana Department of Education, on the grounds that the defendant did not perfect its devolutive appeal within the delay allowed by law. LSA-C.C.P. Article 2087.

The plaintiff obtained a confirmed default judgment on May 2,1977, for the sum of $18,000 plus interest and costs. The defendant, the Louisiana Department of Education, did not appeal from this judgment.

On February 22, 1978, the defendant-appellant filed a petition seeking to nullify the default judgment. A contradictory hearing was held on March 17,1978, and on that date, the district court denied and dismissed the appellant’s petition for nullity. A formal judgment of dismissal was signed on April 14, 1978.

In its answer to the appellee’s Motion to Dismiss, the appellant alleges that it mailed to the trial court, with a copy to the clerk of court, a motion for an appeal from the judgment dismissing its suit for nullity on June 13, 1978, which was well within the delay it had to perfect a devolutive appeal. Under the facts of this case, the appellant had until June 26, 1978 in which to perfect its appeal. LSA-C.C.P. Art. 2087(1). The record shows that the trial court did not sign the motion until June 28, 1978. The record does not show why the motion, if received prior to June 26, 1978, was not signed.

It is primarily the duty of the aggrieved party seeking an appeal to be certain the order has been signed within the delay allowed by our Code of Civil Procedure. Generally, an appellate court is without authority to hear the appeal if the appeal order and required bond has not been properly and timely signed. However, our jurisprudence has long recognized an exception to this principle. As stated by our Supreme Court in Graves v. Kaiser, 319 So.2d 323 (La.1975):

“When the motion for appeal has been timely made within the delay period allowed . . . the appeal as ultimately perfected has been held valid . where the failure to perfect it within the delay period results from the erroneous refusal of the trial court to sign an appeal order timely after it has been presented to it . . . .”

See also, Succession of Frederick Jacobs, 5 Robinson 270 (1843). Under these circumstances, the fault is generally regarded as imputable to the court system rather than to the appellant.

Therefore, in the interest of justice, and under the authority contained in LSA-C.C.P. Articles 2082 and 2164, we hereby remand this appeal to the trial court for the purpose of having that court promptly conduct a hearing to determine (1) on what date -fras the appellant’s motion for an appeal received, and (2) if received prior to June 26, 1978, why was it not signed until June 28, 1978.

For the reasons assigned, the above captioned appeal is hereby remanded to the Thirty-Third Judicial District Court, Parish of Allen, for the purpose of having that court conduct a hearing in compliance with the order herein contained.

APPEAL REMANDED.


author: EDWARDS, Judge.

text:
    John H. MORGAN, Individually and as Administrator of the Estate of his minor child, Dan Morgan v. MATLACK, INC., State Farm Mutual Insurance Company, Inc., Cumis Insurance Society, Inc., the Louisiana Department of Highways and Parish of East Baton Rouge.
    No. 12243.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 10, 1979.
    Rehearing Denied Feb. 12, 1979.

      Chapman L. Sanford, Baton Rouge, of counsel for plaintiff-appellant, John H. Morgan, Indiv., Etc.
    Frank M. Coates, Jr., Baton Rouge, of counsel for defendant-appellee, Cumis Ins. Society.
    Vincent J. de Salvo, James A. George, Baton Rouge, of counsel for defendants-ap-pellees, Matlack, Inc. & Rollins Intern.
    Anthony J. Clesi, Jr., Baton Rouge, of counsel for defendant-appellee State Farm Mut. Auto. Ins. Co.
    Joseph F. Keogh, Parish Atty., A. Foster Sanders, III, Asst. Parish Atty., Baton Rouge, of counsel for defendant-appellee, Parish of East Baton Rouge.
    Lawrence A. Durant, Charles William Roberts, Baton Rouge, of counsel for defendant-appellee, Dept, of Hwy., State of Louisiana.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   EDWARDS, Judge.

Plaintiff, John H. Morgan (individually and as administrator of the estate of his minor son, Dan Morgan), filed this suit against inter alia Matlack, Inc. and the Louisiana Department of Highways to recover damages for injuries sustained by Dan Morgan in an automobile accident. A jury trial was had as to the claim against Matlack and resulted in a verdict in favor of Matlack, finding no fault on its part. The claim against the Department of Highways was tried by the court, which rendered judgment in favor of the Department dismissing plaintiff’s suit. Plaintiff appealed.

The accident occurred on November 3, 1973, a foggy night, at approximately 12:01 a. m. on Louisiana Highway 30 (Nicholson Drive) just south of the intersection of Bob Pettit Boulevard in Baton Rouge. La. 30 had previously been resurfaced and no center stripe had been installed at the time of the accident.

Dan Morgan, a student at Lee High School, had attended earlier that night a high school football game and a levee bonfire, at which alcoholic beverages were being consumed. At the bonfire, Morgan encountered Robert G. Gutierrez, a friend from school, who admittedly had been drinking. The two, Morgan and Gutierrez, left the bonfire in a borrowed Volkswagon with Gutierrez driving to get some beer from a store on Bob Pettit Blvd. They turned westbound onto La. 30 and proceeded toward Baton Rouge. When they were approximately .3 of a mile south of the intersection, the Volkswagon collided with the rear wheels of an eastbound tractor-trailer vehicle, owned by Matlack and driven by Matlack’s employee, Douglas M. McEvers.

McEvers, the only eyewitness who could recall details of the collision, testified that the Volkswagon veered into his lane and, despite his efforts to pull onto the shoulder, collided with his rear wheels. Lt. Aubrey Hamilton of the State Police, who investigated the accident, testified that the point of collision was in McEver’s (the eastbound) lane.

The jury’s verdict, on the claim against Matlack, answered the interrogatory “Do you find that the driver of the Matlack truck was at fault?” in the negative.

The trial judge in Written Reasons for Judgment found that the Department was not liable for the accident inasmuch as it had no duty to re-stripe La. 30 with a center line and in any event that the absence of a center line was not a cause in fact of the accident.

MATLACK

Plaintiff assigns three errors allegedly committed in the trial court in connection with his claim against Matlack: 1) the trial judge erred in failing to instruct the jury that Matlaek’s failure to call a witness listed on the pretrial order raises a presumption that his testimony would be adverse to Matlack; 2) the jury failed to interpret properly the evidence at trial; and 3) the jury erred in finding Matlack free of negligence.

The first issue concerns plaintiff’s contention that the trial judge erred in refusing to give a requested jury instruction. In this regard, LSA-C.C.P. art. 1793 provides in pertinent part:

“A party may not assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.”

Counsel’s objection in this case was not made in the record until after the court had instructed the jury and after the jury had retired to consider its verdict. Were it not for certain language in the record indicating that there may have been a stipulation that objections to the charge would be dictated into the record after the jury retired, we would conclude that the objection was not timely and that the right to complain on appeal was waived. Compare Watts v. Aetna Casualty & Surety Company, 309 So.2d 402 (La.App. 2nd Cir. 1975). However in view of this stipulation and the failure of counsel for Matlack to complain of the tardiness of the objection, we will not rest our decision on the failure to object timely to the charge, rather we will reach the merits of the objection.

Plaintiff argues 1) that Matlack’s failure to call an investigating officer, listed by Matlack on the pre-trial order, raises an adverse presumption that the officer’s testimony would have been unfavorable to Mat-lack and 2) that the jury should have been instructed regarding this presumption.

It is well established that such a presumption is available in this state. See e. g. Walters v. Coen, 228 La. 931, 84 So.2d 464 (1955); Tillman v. Canal Insurance Co., 305 So.2d 602 (La.App. 1st Cir. 1974); Wolfe v. Employers Commercial Union Insurance Co., 272 So.2d 714 (La.App. 3rd Cir. 1973); The Work of the Louisiana Appellate Courts for the 1967-1968 Term — Evidence, 29 La.L.Rev. 310, 317 (1969). This principle states that the unexplained failure of a party to call a witness who possesses peculiar knowledge of material facts pertinent to the resolution of the litigation entitles the opposing party to the presumption that the witness’ testimony would be unfavorable.

The witness in the instant case, a private investigator, was not an eyewitness to the accident. By plaintiff’s own admission, this witness was not on the scene until the Monday following the accident at a time when the vehicles had long since been moved. The investigation consisted only of an inspection of the accident scene, which was equally accessible to all parties.

Under these circumstances, we do not feel that this witness qualifies as one possessing peculiar knowledge of material facts such that the failure to call the witness raises the adverse presumption. Feehan v. Travelers Insurance Company, 251 So.2d 534 (La.App. 1st Cir. 1971). The trial judge correctly declined to give the requested instruction.

The remaining issues concern the jury’s verdict and finding that Matlack was not at fault in causing the accident.

It is well recognized that jury verdicts are accorded great weight on appeal and should not be disturbed unless there is no reasonable evidentiary basis for the jury’s conclusions. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

We cannot find manifest error in the jury’s conclusion that Matlack was not at fault, i. e. not negligent. There is ample evidence in the record which, upon a reasonable evaluation by the trier of fact, would support this conclusion.

DEPARTMENT OF HIGHWAYS

Plaintiff contends that the trial court’s judgment in favor of the Department is erroneous and argues: 1) the trial court erred in finding that the Department did not have a duty to re-stripe the center line of La. 30 or, in the alternative, to place warning signs on the highway; and 2) the trial court erred in finding that the lack of a center line was not a cause in fact of the accident.

Addressing the latter contention first, there is a total absence of evidence to establish that the lack of a center line was a cause in fact of the accident, i. e. a substantial factor in bringing about the harm. Dixie Drive It Yourself System New Orleans Co. v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962). The testimony of Gutierrez, who was driving the Volkswagon, is to the effect that the absence of the center line did not hinder his driving or cause the accident. We conclude that the trial court’s determination that the absence of highway markings was not a cause in fact of the accident is correct. We can find no manifest error.

In view of the above conclusion on causation, we find it unnecessary to and do not address the issue of the Department’s duty to center stripe all highways and/or to post warning signs.

For the above reasons, the judgment appealed is affirmed at plaintiff’s cost.

AFFIRMED.

      . Other defendants were also sued, however they were each dismissed from this suit as a result of a compromise with plaintiff prior to trial.


text:
    Dennis I. OVERBEY v. STATE of Mississippi.
    No. 50742.
    Supreme Court of Mississippi.
    Jan. 24, 1979.
    Brewer, Deaton & Evans, Norman C. Brewer, Jr., Greenwood, for appellant.
    A. F. Summer, Atty. Gen., by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   AFFIRMED.

PATTERSON, C. J., ROBERTSON, P. J., and WALKER, BROOM, LEE and BOWLING, JJ., concur.


author: COFER, Justice,

text:
    M. D. HAYLES LUMBER, INC. and Bituminous Casualty Corporation v. Wilford J. HAMILTON.
    No. 50454.
    Supreme Court of Mississippi.
    Aug. 9, 1978.
    Rehearing Denied Sept. 13, 1978.
    Daniel, Coker, Horton, Bell & Dukes, James F. Steel, Thomas H. Suttle, Jr., Jackson, for appellant.
    Shell, Buford, Bufkin, Callicutt & Perry, K. Hayes Callicutt, Sam S. Allred Jackson, for appellee.
    Before ROBERTSON, SUGG and COF-ER, JJ.
   COFER, Justice,

for the Court:

This case has reached this Court on appeal from a judgment of the Circuit Court of Pike County affirming the decision of the Mississippi Workmen’s Compensation Commission.

Claimant Wilford J. Hamilton, a millwright employed by appellant, M. D. Hayles Lumber, Incorporated, was engaged in the duties of his employment when on April 23, 1970, while placing a wood block under a jack, he suffered an injury to his back. The employer provided certain medical treatment for him and paid to him temporary total disability amounts of $40 per week from April 23, 1970, to December 31, 1972, all payments having been stipulated to amount to $5,600.

There was an adversary hearing before an administrative judge, from whose decision the matter was taken before the full commission which found, on substantial evidence, that claimant had reached maximum medical recovery on April 1, 1975, and that his injury was total and permanent from the date of his injury, that condition not having changed in character or quality, even though there was some degree of medical recovery after the date of the injury. The commission found, however, that 70% of his total and permanent disability was attributable to his prior physical condition, and provided compensation to him based upon a 30% contribution by his injury of April 23, 1970.

The commission’s order directed payment of $40 per week without apportionment, from his injury to April 1, 1975, date of his maximum medical recovery and thereafter at the apportioned rate of $12 per week for the period provided by statute. It further required appellants, the employer and its insurance carrier, to pay or reimburse claimant for all hospital bills, drug bills, and medical charges incurred as a result of his injury, “including two hospitalizations in Mississippi Baptist Hospital in Jackson, and in the Kings Daughters Hospital in Brook-haven.” Travel pay was directed as well as provision for and payment of all reasonable medical services and supplies made necessary to claimant by his injury and the process of his recovery. Appellants were also required to pay the 10% penalty “on all unpaid payments of compensation, computed from the due date of each payment, after having taken credit for all payments of compensation already made.”

The employer and its carrier appealed from the commission’s order, and, on af-firmance thereof by the circuit court, have appealed to the Supreme Court, assigning numerous errors, some of which they have not argued in their briefs, and of all of which we consider as meriting attention by us those assignments that the full commission erred (1) in ordering payment for medical bills other than those relating to the injury here involved; (2) in not making the date of the injury the date from which apportionment should be applied; (3) in not applying apportionment to all permanent total disability benefits, and the total benefits paid to the claimant and, (4) in assigning penalties against the employer and carrier.

Noticing first the second and third errors asserted above, appellants quote Mississippi Code Annotated, section 71-3-7 (1972), which became law on August 9, 1968, and was in force at the time of appel-lee’s injury. Quotation of this section of the code is refutation of appellant’s argument that the commission erred in its apportionment of compensation. Closest scrutiny of this statute will not find a difference between permanent and total injury and injury of lower quality and character.

The second paragraph of the statute reads:

Where a preexisting physical handicap, disease, or lesion is shown by medical findings to be a material contributing factor in the results following injury, the compensation which, but for this paragraph, would be payable shall be reduced by that proportion which such preexisting physical handicap, disease or lesion contributed to the production of the results following the injury.
* * * * * *
(a) Apportionment shall not be applied until the claimant has reached maximum medical recovery.
* * * * * *
(c) After the date the claimant reaches maximum medical recovery, weekly compensation benefits and maximum recovery shall be reduced by that proportion which the preexisting physical handicap, disease, or lesion contributes to the results following injury. (Emphasis added.)

It takes little effort, we conclude, to find that this statute as to quality and character of injury provides the same test — date of maximum medical recovery — to all claims involving apportionment of recoverable compensation. The commission correctly so held.

In reaching the conclusion that the compensation is not apportionable until the date of maximum medical recovery, it follows that the commission correctly applied the penalty of 10%. Mississippi Code Annotated, section 71-3-37 (1972).

As to the requirement for payment or reimbursement for charges for hospitalization, the record reveals one period in Beac-ham Hospital, Magnolia, Mississippi, two hospitalizations in Doctors’ Hospital, Jackson, and one stay at Baptist Hospital, Jackson, related to the injury and the commission’s finding and adjudication will be modified to reflect only expenses of these hospitalizations rather than those hospitalizations as set forth in the commission’s order.

As modified, the commission’s order is affirmed, and the cause is remanded to the commission for ascertainment of medical and hospitalization expenses actually related to his injury and for computation of penalty for non-payment, if any, of any part of compensation required under its order.

As to the cross appeal, the commission as the facts-finder decided that 70% of appel-lee’s disability arose from a preexisting physical handicap, disease or lesion, and we do not feel we are warranted in holding it to be an erroneous finding.

AFFIRMED AS MODIFIED ON DIRECT APPEAL; AFFIRMED ON CROSS APPEAL; AND REMANDED TO THE COMMISSION.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.


author: WALKER, Justice,

text:
    Ruben ELLINGTON v. STATE of Mississippi.
    No. 50736.
    Supreme Court of Mississippi.
    Aug. 16, 1978.

      A. R. Wright, Jr., Morris C. Phillips, Jr., Carthage, for appellant.
    A. F. Summer, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, BROOM and BOWLING, JJ.
   WALKER, Justice,

for the Court:

The appellant was convicted in the Circuit Court of Leake County, Mississippi, of the unlawful possession of intoxicating liquor and sentenced “to pay a fine of $150.00 and all costs of court and serve 60 days in the county jail; but upon payment of the fine of $150.00 and all costs of court and serving 30 days in the county jail, the balance of the 60-day sentence will be suspended.”

The court committed reversible error by allowing the county attorney to state, over objection of the defendant in closing argument, that “The constable did not have anything to gain by being out there that night,” when an offer of proof during trial showed that the arresting constable in fact received one-third of the fines in whiskey possession cases, such as this, and had a pecuniary interest in the outcome of the case. Therefore, the statement of the county attorney had no basis in fact and was so prejudicial under the facts of this case as to constitute reversible error. Moreover, the receipt of these fines by law enforcement officers is not authorized by law. Hancock County v. Vairin, Sheriff, 119 Miss. 315, 80 So. 780 (1919). In that case, the Court said, referring to Chapter 124, Laws of 1912, forerunner of the present Mississippi Code Annotated section 99-27-37 (1972), upon which the state relies:

We do not think the sheriff is entitled to one-third of the fines from the simple fact that he made the arrest and furnished the evidence for conviction. It is his duty as an officer to give information to a peace officer for a violation of law coming to his notice; and it was his duty to execute the process directed to him in arresting parties and summoning witnesses. The sheriff may when authorized by the board, employ persons to procure evidence and pay such sums as the board may agree to pay for that purpose, and be reimbursed for such sums paid out for this purpose if the board has authorized the funds to be appropriated for that purpose, but he cannot receive additional compensation under this statute for his own services; and his fees for his services in this class of work are provided for in other provisions of the law. (119 Miss. at 324, 80 So. at 781).

The Court’s rationale in Hancock County v. Vairin, supra, also applies to constables so as to prohibit them from receiving additional compensation under Mississippi Code Annotated section 99-27-37 (1972) for procuring evidence in intoxicating liquor cases.

The judgment of the circuit court is reversed and the cause remanded for a new trial.

REVERSED AND REMANDED FOR A NEW TRIAL.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, BROOM, LEE, BOWLING and .COFER, JJ., concur.


text:
    Sterling G. ACHEE, Jr. v. STATE of Mississippi.
    No. 50685.
    Supreme Court of Mississippi.
    Aug. 30, 1978.
    Rehearing Denied Feb. 7, 1979.
    Hawkins & Henry, W. Eugene Henry, Joe Ben Hawkins, O’Barr, Hurlbert & O’Barr, Clyde 0. Hurlbert, Biloxi, for appellant.
    A. F. Summer, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., WALKER and BOWLING, JJ., and W. W. BROWN, Commissioner.
   AFFIRMED.


author: SUGG, Justice,

text:
    The CITY OF LAUREL, a Municipal Corporation, the Laurel Urban Renewal Agency, a Body Corporate and Politic, v. Viola D. POWERS and Curtis N. Jones.
    No. 50659.
    Supreme Court of Mississippi.
    Jan. 10, 1979.

      Pickering & McKenzie, Franklin C. McKenzie, Jr., Gibbes, Graves, Mullins, Bullock & Ferris, Ernest W. Graves, Laurel, for appellant.
    Lunsford Casey, Thomas Gene Clark, Laurel, for appellee.
    Before PATTERSON, SUGG and BOWLING, JJ.
   SUGG, Justice,

for the Court:

This is an appeal from a final decree of the Chancery Court of Jones County, awarding damages to complainants, Curtis N. Jones and Viola D. Powers, for taking private property by the City of Laurel by inverse condemnation. The complainants owned Lot 7 of the Commercial Block Addition to the City of Laurel, and on September 18, 1959, Jones executed a deed which conveyed his one-half interest in Lot 7 to the city. His deed provided for a reverter in the following language:

This conveyance is made in order that the grantee may establish thereon a public parking lot and is made only for so long as the property conveyed is used for a public parking lot, and if, at any time, it shall cease to be used for such purpose, title shall automatically and immediately revert to the grantor, his heirs, successors or assigns.

On September 1, 1959, Viola D. Powers, executed a lease contract with the city leasing her one-half interest in Lot 7 to it. The lease contained a provision giving the city an option to purchase her interest which was exercised by the city on September 20, 1973. Her deed contained the same provision for reverter as the Jones deed.

Complainants alleged in their bill of complaint that title to a part of Lot 7 reverted to them when the city conveyed part of Lot 7 to the Laurel Urban Renewal Agency (hereinafter LURA) for the purpose of using that part of the lot for a street rather than for parking; that acquisition of the property by LURA was made with federal or federal aid funds; that the ultimate result will be that LURA will return the property to the city, thus enabling the city to accomplish indirectly what it could not do directly because of the reverter provisions in the deeds from complainants; that the action of the city amounts to inverse condemnation; that complainants are entitled to compensation for the property taken with damages to the remainder, and are also entitled to reasonable expenses, including reasonable attorneys’ fees, appraisal and engineering fees. Complainants prayed for a decree adjudging them to be the true owners of Lot 7, for cancellation of the deed from the city to LURA. In the alternative, they prayed for a decree for the fair market value of the property, including damages to the remainder with interest together with costs, reasonable attorneys’ fees and appraisal and engineering fees.

At the trial the parties stipulated the following:

1. That Lot 7 contained 7500 square feet.

2. That the city conveyed to LURA 3,264.39 square feet of Lot 7 on December 11, 1973.

3. That LURA used the portion of Lot 7 deeded to it by the city for widening Fifth Street and Auburn Avenue, as a part of the “Laurel Central Business District Urban Renewal Area Project R-27.”

4. That federal funds were used in Project R-27. That in consideration of the conveyance by the city to LURA of a part of Lot 7, the city received as credit toward payment of its part of the cost of Project R-27 the amount of $23,831.00 which amount was arrived at as follows:

A. Pair market value of the fee simple title to that portion of Lot 7 conveyed by the city to LURA.$ 14,690.00
B. Severance damages to the remainder of Lot 7 . $ 7,836.00
C. Value of the improvements on that portion of Lot 7 conveyed by the city to LURA ... $ 1.305.00
$ 23,831.00

From the exhibits attached to the stipulation it was established that the number of parking spaces on Lot 7 was reduced from twenty-four to six after widening Fifth Street and Auburn Avenue.

The final decree adjudged that the complainants were entitled to recover compensation damages in the amount of $23,831.00 for the inverse condemnation with interest from December 11, 1973 at the rate of 6 percent per annum until July 1, 1977 in the amount of $5,004.51. The decree further provided that the interest should be added to the damages making a total of $28,-835.51, plus $3,000.00 attorneys’ fees which was allowed for a total judgment of $31,-835.57. The decree also provided that the judgment should bear interest at the rate of 8 percent per annum from the date of the decree, July 1, 1977, until paid.

The city appealed and assigns the following as error:

1. The trial court erred in finding as a matter of law that the use of the property for street widening purposes constituted a violation of a reverter provision limiting the use of the property to a public parking lot.
2. The trial court erred in finding as a matter of law that the conveyance of the property by the City to the Urban Renewal Agency constituted a voluntary abandonment of the property for use as a public parking lot, thereby causing title to the property to revert to Appellees.
3. The trial court erred in awarding judgment to Appellees for damages to the remainder of the property not used for street widening purposes and in awarding damages for paving improvements on the property used.
4. The trial court erred in awarding interest on the judgment from the date the property was conveyed by the City to the Urban Renewal Agency.

Before treating the assignments of error, the respective interests of the complainants and the city under the deeds should be noted. Complainants conveyed to the city Lot 7,

[F]or so long as the property conveyed is used for a public parking lot, and if, at any time, it shall cease to be used for such purpose, title shall automatically and immediately revert to the grantor, his heirs, successors or assigns.

These deeds created a determinable fee estate in the city, with a possibility of re-verter, in fee simple absolute, remaining vested in the complainants. Jones v. Burns, 221 Miss. 833, 74 So.2d 866 (1954). When complainants conveyed Lot 7 to the city “so long as” it might be used for public parking, it was not a conveyance of a fee simple title cut down by a later limitation. The only title the city ever had was during the time the property should be used for public parking. The title ceased when the public parking use ended. The cessation of the use of the property for public parking was a condition subsequent and not a covenant.

We have also held that a reservation to the grantor or his heirs is a vested interest and is not within the rule against perpe-tuities. St. Regis Pulp & Paper Corp. v. Floyd, 238 So.2d 740 (Miss.1970); Jones v. Burns, supra. The protected status granted a possibility of reverter from the rule against perpetuities has been the subject of much criticism. In the City of Klamath Falls v. Bell, 7 Or.App. 330, 490 P.2d 515 (1971), the Court stated in footnote 3 the following:

It is well settled that the rule against perpetuities does not apply to possibilities of reverter. Gray, The Rule Against Perpetuities 46, 348, 349, §§ 41, 313, 314 (4th ed. 1942); Simes and Smith, The Law of Future Interests 311, § 825 (2d ed. 1956); Tiffany, Real Property 167, § 404 (3d ed. 1939). This historical anomaly has been criticized for allowing ‘dead hand rule’ and creating ‘appalling practical results’ when a possibility of reverter does fall in many years after the original grant. Leach, Perpetuities in Perspective: Ending the Rule’s Reign of Terror, 65 Harv. L.Rev. 721, 789 (1962); Leach, Perpetuiti-es: The Nutshell Revisited, 78 Harv.L. Rev. 973, 980 (1965).
However, as pointed out in 18 Or.L. Rev. supra, at 79:
'* * * [A] rule restricting the alienation of such interests will tend to avoid a long-outstanding ‘contingent’ interest and thereby effectuate the policy behind the rule against perpetuities * * * it would be far more desirable to expressly make rights of entry and possibilities of reverter subject to the rule against perpetuities rather than accomplish the same result by indirection.’
Where the rule against perpetuities has been applied to possibilities of reverter, it has always been done by legislative action. See, 78 Harv.L.Rev. 973, supra, at 989; Sparks, A Decade of Transition in Future Interests, 45 Va.L.Rev. 339, 362 (1959).

Many legal text writers agree that where the rule against perpetuities has been applied to possibilities of reverter it has always been done by legislative action. It appears illogical to grant this protective status to a possibility of reverter and subject property to a special limitation by some ancient document; however, this is a legislative question. We do not treat this question further because it is not necessary for a decision of this case, but take this method of calling the legislature’s attention to this question for possible action by it to subject possibilities of reverter to the rule against perpetuities.

The first two assignments of error will be treated together and may be summarized as follows: did the use of a part of Lot 7 for street widening purposes violate the revert-er provision?

The city argues that the street widening improvements were not contrary to or violative of the reverter provisions in the deeds, but to the contrary, are complementary to and auxiliary to the use of the property for public parking purposes. The city relies heavily on Patrick v. Miss. State Highway Commission, 184 So.2d 850 (Miss.1966) as authority for its position. In 1903 the Antioch Baptist Church received a deed to a parcel of land. The deed contained a provision that if the land ceased to be used for church and graveyard purposes, title would revert to the grantor, his heirs and assigns. In 1961 the church deeded .93 acres of the land to the Highway Commission in order to widen a public highway. In his opinion, the chancellor distinguished the Patrick case and this case as follows:

The contention is made by the defendants that in view of the case of Patrick v. Mississippi State Highway Commission, (184 So.2d 850, 1966), and the fact that the Laurel Urban Renewal Agency had the power of condemnation, that the rules of ordinary title law do not apply. The Patrick case does have essentially the same elements as the case at bar with the exception of the fact that the Laurel Urban Renewal Agency could not exercise the power of eminent domain against the City of Laurel and the fact that by virtue of the deed of record from the City of Laurel to the Laurel Urban Renewal Agency there was a voluntary abandonment of the property for parking lot purposes by the City of Laurel. In the Patrick case there was no voluntary abandonment but was simply a settlement by the church with the State Highway Commission under the threat of eminent domain by the State Highway Commission. Comparing the position of the church with that of the City of Laurel, both of whom held title to their respective properties subject to a possibility of reverter, the church property, including the possibility of reverter in the Patrick ease, could have been condemned under the power of eminent domain by the State Highway Commission, but in the instant case the city voluntarily, by execution of the deed, subjected the property to a different use and the city, as opposed to the church, is not subject to the power of eminent domain except with its voluntary consent. (Miss. Code 1972, Section 43-35-17). Had the City taken no action at all, no use of the property in violation of the condition subsequent could have been made by Laurel Urban Renewal Agency. No threat of eminent domain could have been imposed against the city had the city voluntarily, by execution of a warranty deed, conveyed that property which it held for parking lot purposes only to an urban renewal agency for the purposes of widening a street. Therefore, it is this Court’s opinion that the Patrick case would not be applicable to the facts in this case. In addition, it should be pointed out that this is not a suit to cancel the original deeds from the Complainants to the City of Laurel, but is rather a suit by the Complainants to recover the value of the property in question.
It is the Court’s opinion that the execution of the warranty deed by the City of Laurel to the Laurel Urban Renewal Agency on December 11,1973, was a violation of the condition subsequent in each of the deeds and caused the property at that time to revert to the original owners as of December 11, 1973. To hold otherwise would allow the governmental subdivisions to purchase property with extensive restrictions on them validly placed there by the grantors, and subsequent thereto to convey the same to other political subdivisions and effectively negate every restriction or reservation which the grantors originally placed upon the property. Effectively, this would side-step the constitutional requirements in regard to the taking of private property for public use without just compensation. One political subdivision could purchase property from a land owner for very restricted uses and subsequently convey it to another political subdivision and negate every restriction which the land owner originally placed on the property without any compensation whatsoever to the land owner.

We hold this assignment of error is not well taken for the reasons stated by the chancellor in his opinion. The portion of Lot 7 conveyed by the city to LURA reverted to the complainants and they are entitled to damages for the inverse condemnation.

In the third assignment of error the city argues that the chancellor erred in awarding judgment to complainants for damages to the remainder of Lot 7 which was not used for street widening purposes and in awarding damages for improvements on the property used for street widening purposes.

The city conveyed LURA approximately one-half of Lot 7 which was converted from a parking lot to a street with the remaining part of Lot 7 continuing to be used for a parking lot. The chancellor did not include any damages for the value of the fee for the portion of Lot 7 which'is presently used as a parking lot. The chancellor held that the execution of the deed by the city to LURA on December 11, 1973 was a violation of the condition subsequent in each of complainants deeds and caused “the property” to revert to the original owners. The opinion does not specify what property was included in the term “the property.” In our opinion the term “the property,” as used in the opinion, means only the property included in the deed from the city to LURA. This is consistent with the fact that the chancellor awarded severance damages to the part of Lot 7 retained by the city, which it continued to use for public parking, but did not award any damages for the value of the fee to the part of Lot 7 which was retained by the city.

Complainants did not file a cross appeal so the question of whether Lot 7 in its entirety reverted to them is not before us. The city owns that portion of Lot 7 not included in the deed to LURA subject to the possibility of a reverter to the complainants.

Are complainants entitled to compensation for severance damages to the remainder of Lot 7 now being used by the city for public parking? In Hemphill v. Miss. State Highway Commission, 245 Miss. 33, 145 So.2d 455 (1962) we stated:

A different position is suggested by the Restatement of Property, called the im-minency or probability test. The holder of a fee simple defeasible is entitled to the entire award in condemnation if the event on which that estate is to end is not probable within a reasonably short period of time. If on the other hand the stated probability exists, the award is to be shared by the parties proportionately to the value of their two interests.
Courts which have applied the Restatement’s probability test recognize the harshness and unreality in many instances of the general rule. They constitute procedents [sic] reflecting a trend away from it. Moreover, there are other soundly reasoned cases, in a minority, holding that a future interest in land which is not tenuous and which is capable of evaluation is a compensable right when taken or damaged by the state for public use. Brugh v. White, 267 Ala. 575, 103 So.2d 800 (1958); Callison v. Wabash Ry. Co, 219 Mo.App. 271, 275 S.W. 965 (1925); . . .
We decline to follow the majority rule which denies compensation to owners of all future interests taken by the state. There is no rational basis for such a general doctrine. It is not equitable, and is not consistent with other legal principles related to such existing estates in land. In each case it should be determined whether the particular interest is of a sufficiently substantial character to warrant protection, or whether it is too tenuous for that purpose.
(245 Miss. at 49, 50, 51; 145 So.2d at 462, 463).

In our case part of Lot 7 is being used by the city for public parking, and there is no showing that the city will cease using it for public parking within the foreseeable future. We conclude that the possibility of reverter vested in the complainants to the balance of Lot 7 is not of a sufficiently substantial character to warrant protection. Therefore, complainants are not entitled to recover severance damages to the remainder of Lot 7; neither are they entitled to recover the value of the fee for the remainder of Lot 7.

We therefore reverse the holding of the chancellor that complainants were entitled to severance damages to the remainder of Lot 7. We affirm the allowance of damages as follows:

1. Fair market value of the fee to that portion of Lot 7 conveyed by the city to LURA .$ 14,690
2, Value of the improvements on that portion of Lot 7 conveyed by the city to LURA .$ 1.305
TOTAL . $ 15,995

Interest on $15,995 will be allowed from December 11, 1973 until July 1, 1975 at the rate of 6% per annum and at the rate of 8% per annum from July 1, 1975 until paid. We also affirm the allowance of $3,000 attorneys’ fees as authorized by section 43-37-9 Mississippi Code Annotated (Supp. 1976) together with interest on $3,000 from the date of the decree, July 1, 1977, until paid.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.

      . The term determinable fee is sometimes called a base or qualified fee, or a fee simple defeasible. In Bradford v. Federal Land Bank of New Orleans, 338 So.2d 388 (Miss.1976) we held that where an estate is determined by an event not certain to occur, it is a fee simple defeasible.


text:
    Debbie L. SIMPSON and Charles Alexander v. STATE of Mississippi.
    No. 50853.
    Supreme Court of Mississippi.
    Jan. 17, 1979.
    Rehearing Denied Feb. 7, 1979.
    James H. Heidelberg, Fielding L. Wright, Pascagoula, for appellants.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and BOWLING, JJ.
   SUGG, Justice,

for the Court:

This is an appeal from the Circuit Court of Jackson County wherein defendants were convicted of distribution of a controlled substance and sentenced to twenty (20) years in the Mississippi Department of Corrections, and to pay a fine of $10,000 each. Defendants waived their right to trial by jury and appeared before the Hon. Darwin M. Maples, serving as the trier of fact.

Agent Don Richards of the Mississippi Bureau of Narcotics infiltrated a ring of cocaine dealers in the Jackson County area. On January 27,1977, Frank Rogers notified Agent Richards that he had received a shipment of cocaine that the agent had agreed to buy. A meeting was set for 5:00 o’clock p. m. the next day, January 28, in Rogers’ apartment in Gautier, Mississippi. On the 28th, Agent Richards met Frank Rogers and William (Bill) Rogers at Frank’s apartment in Gautier. At the apartment, Bill Rogers exhibited a blue makeup pouch which contained approximately two ounces of cocaine. Agent Richards took the two men back to Moss Point, Mississippi where Agent Fred McDonald was waiting in a motel. The agents checked the two ounces of cocaine and inquired about the remainder of the eight ounces they had agreed to purchase. Bill Rogers advised them that his supplier desired to see if they had the money, whereupon the agents gave Bill Rogers $3,500 for the two ounces, and agreed for him to obtain the remaining six ounces from his supplier.

Frank Rogers and Agent McDonald remained in the motel while Agent Richards drove Bill Rogers to Gautier to pick up his motorcycle. On the way they stopped for Bill to call his supplier. Agent Richards then left Bill in Gautier and returned to the motel. Prior to Agent Richards’ return, Agent McDonald learned from Frank that their supplier for the cocaine was from the Mobile area. However, no names were revealed.

Bill Rogers returned at approximately 6:55 o’clock p. m. with the remaining six ounces of cocaine. The transaction was completed and the brothers placed under arrest. During interrogation, Frank Rogers advised Agent Richards that the cocaine was being sold for another party and that they were waiting for the money at Bill’s house in Moss Point. Frank did not know the address, but drove with the agents to Bill’s house and pointed it out. At the residence, the agents observed a burgundy Grand Prix with an Alabama license plate.

At approximately 10:00 o’clock p. m. that evening the agents entered Bill Rogers’ residence and recovered the $3,500 in the official state funds that were used earlier that evening to purchase the two ounces of cocaine. Subsequent to recovery of the money the defendants, Debbie Simpson and Charles Alexander, were arrested and charged with distribution of a controlled substance.

The defendants’ first three assignments of error attack the validity of the search of Bill Rogers’ residence and the evidence obtained therein. The defendants contend that the narcotic agents initiated an illegal search of Bill Rogers’ residence and obtained evidence, namely, money which was tainted by the illegal search. The money was not introduced into evidence, but defense counsel, on cross-examination of state’s witnesses Frank Rogers and Don Richards, elicited testimony about the search of the residence and the seizure of the money which was used to purchase the cocaine. The general rule is that a defendant cannot complain of the evidence which he himself brings out. Stone v. State, 210 Miss. 218, 49 So.2d 263 (1950). It was held in Fondren v. State, 253 Miss. 241, 175 So.2d 628 (1965) that the rule applies to evidence, introduced by a defendant, that would be inadmissible if offered by the state because of an illegal search. The state did not rely on the fruits of the search to prove its case, but presented evidence of the guilt of defendants independent of the search.

Defendants’ fourth assignment of error is that the judgment of guilt was against the overwhelming weight of the evidence. In support of this assignment, the defendants argue that the testimony of the accomplices was substantially impeached; therefore, it was not sufficient to support the judgment of guilt. The prosecution’s case was based primarily on testimony of the accomplices of the defendants, Frank and Bill Rogers. Both Frank and Bill Rogers stated that they were to sell the cocaine for the defendants and receive $200 per ounce. We held in Black v. State, 336 So.2d 1302 (Miss.1976), that the uncorroborated testimony of an accomplice will support a verdict of guilty. However, an accomplice’s testimony will be viewed with great caution and suspicion and must be reasonable and not improbable or self contradictory, or substantially impeached. The accomplice’s testimony in this case is sufficient to withstand this test. We have held:

In reviewing the sufficiency of the evidence to support the verdict, this Court must accept as having been established all that was proved by the evidence, as well as all that such evidence reasonably tended to prove, together with all reasonable inferences to be drawn therefrom, favorable to the theory of the prosecution. [Carroll v. State, 196 So.2d 878, 883 (Miss.1967)].

The evidence was sufficient to sustain the judgment of the circuit judge.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.


text:
    CITY OF MOUND BAYOU, a Municipal Corporation v. LaHarry NORMAN et al.
    No. 50814.
    Supreme Court of Mississippi.
    Jan. 17, 1979.
    Rehearing Denied Feb. 7, 1979.
    Alexander, Johnston & Alexander, Robert G. Johnston, Cleveland, for appellant.
    Jacobs, Griffith, Pearson, Eddins & Po-vall, L. Ellis Griffith, Benjamin E. Griffith, Cleveland, for appellees.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   REVERSED AND REMANDED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE and COFER, JJ., concur.


text:
    In the Interest of Robert Melton BRYAN, a minor.
    No. 50819.
    Supreme Court of Mississippi.
    Jan. 24, 1979.
    Robert L. Williams, Southaven, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and BOWLING, JJ.
   REVERSED AND REMANDED WITH DIRECTIONS.

SMITH and ROBERTSON, P. JJ., and WALKER, BROOM and LEE, JJ., concur.

COFER, J., took no part.


text:
    Betty Sue FLOWERS v. T. Graydon FLOWERS, Jr.
    No. 50820.
    Supreme Court of Mississippi.
    Jan. 24, 1979.
    Luckett, Luckett, Luckett & Thompson, Kay Farese Luckett, Clarksdale, for appellant.
    Holcomb, Dunbar, Connell, Merkel, Tolli-son & Khayat, Jack F. Dunbar, Clarksdale, for appellee.

      Before SMITH, P. J., and SUGG and COFER, JJ.
   AFFIRMED.


text:
    J. R. KYNERD, Jr. v. The CITY OF MERIDIAN.
    No. 50839.
    Supreme Court of Mississippi.
    Jan. 31, 1979.
    Bourdeaux & Jones, Thomas R. Jones, Meridian, for appellant.
    Singley, Minniece, Neville & Hamill, James T. Singley, Meridian, for appellee.
    Before ROBERTSON, WALKER and LEE, JJ.
   WALKER, Justice,

for the Court:

This is a suit to obtain a hardship exception to a city zoning law prohibiting mobile homes in certain types of residential zoned areas. Suit was initially filed before the Zoning Board of Appeals which did not grant the exception. The case then was appealed to the City Council of Meridian which granted the exception. On appeal, the Circuit Court of Lauderdale County upheld the City Council. On this appeal, Kyn-erd assigned several errors, however, since we reverse, only one need be considered.

Kynerd argues that the City Council in granting the exception failed to follow its own zoning ordinances and mobile home ordinance. We agree.

The Meridian Zoning Ordinance makes no provision for mobile homes to be allowed in Zones A-0, A-l or A-2. It does allow for mobile homes in the A-3 classification. The neighborhood in question is located in an A-l zone. The only exception allowed by ordinance is the “hardship exception” which is covered by the 1974 Meridian Mobile Home Ordinance. The particular section provides:

The Zoning Board of Appeals in cases of hardship, may grant a special exception to this section upon an application signed by the owner of the property and by the owners and tenants of all adjacent property. (Emphasis added).

In the present case the application was not signed by all owners of adjacent property. In fact one adjacent owner and several neighborhood property owners specifically objected. The city may not violate their own ordinance in granting an exception. City of Las Vegas v. Cragin Industries, Inc., 86 Nev. 933, 478 P.2d 585 (1970); Meyer v. Seifert, 216 Ark. 293, 225 S.W.2d 4 (1949); See also Edwards Hotel and Railroad Co. v. City of Jackson, 96 Miss. 547, 51 So. 802 (1910).

Since the requirements of the ordinance were not satisfied, we reverse.

REVERSED AND JUDGMENT HERE FOR APPELLANT.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, BROOM, LEE, BOWLING and COFER, JJ., concur.


author: SMITH, Presiding Justice,

text:
    Eugene HOGAN v. STATE of Mississippi.
    No. 50916.
    Supreme Court of Mississippi.
    Jan. 31, 1979.
    Travis T. Vance, Jr., Vicksburg, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker Underwood, Special Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, SUGG and COFER, JJ.
   SMITH, Presiding Justice,

for the Court:

Eugene Hogan was tried in the Circuit Court of Warren County upon an indictment charging him with the murder of Mildred Washington, a woman with whom he had lived for some twelve years, although they had never married, and by whom he had four children. He was convicted and sentenced to life imprisonment.

The defense was the alleged insanity of Hogan at the time of the homicide.

It appears from the evidence that at some time prior to the date on which he killed Mildred Washington, she had left Hogan and their children and had moved in with another man, refusing Hogan’s request that she return to him. On the day of the homicide, Hogan had telephoned her at the Headstart Center where she was employed. Hogan’s testimony was to the effect that he had made the call seeking a reconciliation, but witnesses at Headstart Center who heard the other end of the conversation, testified that Washington’s only remark was that she was not going to sign anything. Shortly thereafter, Hogan came to Headstart Center, carrying a coat which belonged to Washington. He testified that his purpose in bringing the coat to Washington had been to give him an opportunity to persuade her to return to him.

When Hogan arrived at Headstart Center, he walked directly to the kitchen area where Washington worked. At the door of the kitchen, and from a distance of about two feet saying “You son-of-a-bitch take this,” he shot Washington three or four times. As he stood over her as she lay dead or dying he shot her twice more.

Hogan left the center, got in his automobile and drove away. He testified that he remembered nothing about the actual shooting and said that it was not until after he had driven a few blocks that he realized that he had killed Washington. Whereupon, he said, he drove to the police station and surrendered, informing the police that he had just killed Washington.

On appeal it is contended in Hogan’s behalf that his testimony that he remembered nothing of the killing, saying “I didn’t realize I had killed Mildred, sir, until I got up on Washington Street and I had a gun in my hand,” was sufficient to put in issue the question of Hogan’s sanity at the time of the shooting. It is argued that this testimony, plus Hogan’s unsupported assertion that he had experienced “blackouts” before, was sufficient to place upon the State the burden of proving beyond a reasonable doubt that, when he killed Washington, Hogan had been capable of distinguishing between right and wrong and of appreciating the nature and consequences of his act. There was no denial on Hogan’s part that he recalled the circumstances leading up to the killing, as well as those which followed, with the exception of the short time which elapsed between his departure from Head-start Center and his reaching Washington Street.

The police officer to whom Hogan surrendered following the killing, testified that Hogan came in, gave him the pistol and informed the officer that he had just killed Washington. There was also testimony from Hogan’s employer that he had observed Hogan on the day before and on the day after the homicide and that on those occasions there had been nothing in Hogan’s behavior to indicate that he was insane or incapable of knowing right from wrong. It was the opinion of this witness that Hogan was capable of knowing right from wrong and of appreciating the consequences of his acts. Other witnesses testified to Hogan’s conduct before, at the time of, and after the homicide. Taking all of the evidence as a whole, together with all reasonable inferences which the jury was justified in drawing from it, we have concluded that it was sufficient to support a finding on the part of the jury that Hogan’s action in going to Headstart Center, armed with a pistol, was for the premeditated purpose of shooting Washington and that he had done so because she had deserted him for another man and had refused to return to him.

This case, in its material aspects, is similar to Jones v. State, 288 So.2d 833 (Miss.1974), in which this Court said:

Assuming but not deciding, that appellant’s testimony was sufficient to raise the reasonable doubt of his sanity, the trial court in passing on this question pointed out that the defendant pled not guilty by reason of temporary insanity. After this plea the state in developing its case, rebutted insanity by showing by its witnesses appellant acted in a normal manner after he was arrested and his actions were the same as they had been before the murder. . . The issue of temporary insanity was submitted to the jury under proper instructions and the jury found that appellant was not temporarily insane when he murdered his wife. We thoroughly discussed the issue raised by this assignment of error in the very recent case of Herron v. State, Miss., 287 So.2d 759, decided January 7, 1974, and deem it unnecessary to repeat here what was said in that case.
(288 So.2d at 835).

See also Warren v. State, 285 So.2d 756 (Miss.1973).

The trial court submitted the issue of Hogan’s sanity to the jury by appropriate instructions granted at the request of the State and the defendant. The contention that the verdict of the jury was against the weight of the evidence is without merit.

Appellant challenges two jury instructions granted at the request of the State. The objections now made are not those interposed to the instructions in the trial court and are made for the first time on appeal. Nevertheless, they have been considered and are found to be without merit.

Photographs of the deceased showing the numerous wounds suffered as the result of the shooting are said to have been inflammatory and without evidentiary value. The circumstances of the shooting, including the numerous times that Hogan shot his victim, were in evidence. Therefore, the value of the pictures as an aid to the jury in reaching its conclusions may have been slight. However, the trial court has considerable discretion in this area and we are unable to say that the introduction of the pictures was so prejudicial as to require a reversal of the conviction. Actually, the objection in the trial court, when the pictures were offered, was to testimony relating to the pictures rather than to the pictures themselves.

The conviction and sentence' will be affirmed.

AFFIRMED.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.


text:
    Joe Ed SMITH v. STATE of Mississippi.
    No. 50900.
    Supreme Court of Mississippi.
    Jan. 31, 1979.
    Wilkins, Ellington & James, Samuel H. Wilkins, Barbara A. Raley, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Calvin Coolidge Williams, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   AFFIRMED.

PATTERSON, C. J., ROBERTSON, P. J., and WALKER, BROOM, LEE and BOWLING, JJ., concur.


text:
    Earl ALEXANDER v. TISHOMINGO COUNTY BOARD OF EDUCATION et al.
    No. 50830.
    Supreme Court of Mississippi.
    Jan. 31, 1979.
    Johnston & Adams, Lem Adams, III, Brandon, for appellant.
    Price & Krohn, James E. Price, Corinth, for appellees.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   AFFIRMED.


text:
    Terrance UPSHAW v. STATE of Mississippi.
    No. 50962.
    Supreme Court of Mississippi.
    Jan. 31, 1979.
    Stanfield, Holderfield, Brown & Hall, Percy Stanfield, Jr., Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   AFFIRMED.


text:
    Leslie KNIGHTEN v. Glenda S. BRODERICK.
    No. 50867.
    Supreme Court of Mississippi.
    Jan. 31, 1979.
    Leslie E. Knighten, pro se.
    Pritchard, Myers & Gordon, William H. Myers, Pascagoula, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   AFFIRMED.


text:
    In the Interest of Robbie BECKHAM, a minor, by Louis Petty, adult next friend.
    No. 50937.
    Supreme Court of Mississippi.
    Jan. 31, 1979.
    Laurel G. Weir, James R. Allen, Philadelphia, for appellant.
    A. F. Summer, Atty. Gen. by Susan L. Runnels, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   AFFIRMED.


text:
    PEOPLES & GREENE CONSTRUCTION COMPANY, INC. v. Homer S. HUTCHINSON, Evelyn W. Hutchinson & Carl McMurry, Inc.
    No. 50828.
    Supreme Court of Mississippi.
    Jan. 31, 1979.
    Marshall E. Hanbury, Jackson, for appellant.
    M. A. Lewis, Jr., L. 0. Smith, Jr., John E. Stone, Jackson, for appellee.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   AFFIRMED.


text:
    Lillian B. Pearce JAMES v. BANK OF LEAKESVILLE.
    No. 50815.
    Supreme Court of Mississippi.
    Jan. 31, 1979.
    Horton Hillman, Leakesville, for appellant.
    Curtis Breland, Leakesville, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   REVERSED IN PART, AFFIRMED IN PART AND JUDGMENT HERE FOR THE BANK OF LEAKESVILLE UPON PAYMENT OF APPELLATE COSTS.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE and COFER, JJ., concur.


author: MADDOX, Justice.

text:
    Phillip BUKLEY and wife, Willodean Bukley v. N. S. CARROLL and wife, Lela O. Carroll.
    S.C. 2308.
    Supreme Court of Alabama.
    March 3, 1978.
    Robert B. French, Jr., Fort Payne, for appellants.
    C. M. T. Sawyer, II and Charles M. Scott, Fort Payne, for appellees.
   MADDOX, Justice.

This appeal and cross-appeal is from a decree of the Circuit Court of DeKalb County which fixes a bitterly disputed boundary line between adjoining landowners.

The plaintiff-cross-appellant, N. S. Carroll, and his wife, filed suit against the defendant-appellant, Phillip Bukley and his wife, to establish the true boundary line between them. Additionally, Carroll asked that damages be assessed against Bukley for the cutting of some trees and fence posts, and Carroll also sought an injunction against further trespassing by Bukley. Bukley answered, and filed an offer of judgment under Rule 68, A.R.C.P., in which he agreed to accept as the true boundary, a line contained in the legal description used by the plaintiff Carroll in his complaint.

The court, at Carroll’s request, appointed E. J. Ladd to survey the disputed boundary. Bukley objected to the line established by Ladd and claimed that Ladd had used the calls in his (Bukley’s) deed rather than using the calls in Carroll’s deed. Bukley was permitted to hire his own surveyor, who used the calls in Carroll’s deed in order to locate the boundary. Needless to say, the location of the boundary by the two different surveys conflicted.

Testimony was taken ore tenus and the trial judge personally viewed the property. The evidence showed that Carroll had once owned the Bukley property and that in 1938, and again in 1945, Carroll employed Ladd to conduct a survey of his land. In 1944, Carroll purchased the adjoining land and Bukley subsequently purchased the Carrolls’ first tract.

At one point in time, the two farms in question were a part of a larger place. The present Carroll farm was in the northern part or northwestern córner of the larger farm, and the present Bukley farm constituted the rest of the original farm. The Bukley farm roughly bordered the Carroll farm on the southeast and southwest. In 1922, the southeasterly boundary of the present Carroll farm joined the Bukley farm in a straight line extending approximately northeast and southwest. The location of this boundary line lay west of a creek which runs across the Bukley farm. In 1922, the present Bukley farm was owned by one McCurdy, and the present Carroll farm was owned by one Chitwood, but the farm was known in the community as the “Widow Jones” place. These coterminous owners, McCurdy and Chitwood, in 1922, carved out a portion of the Bukley farm and added it to the Carroll farm so that the Carroll farm would reach the creek. A deed was made from McCurdy to Chitwood accordingly. This parcel is referred to in the record of this case as “the water right,” even though it was not a mere easement, but was a fee simple conveyance. In describing this “water right” McCurdy and Chitwood measured from the northeast corner of the “Widow Jones farm” (now Carroll’s), a common corner between the two farms, easterly to the east bank of the creek. The deed shows this distance to be 198 feet. The court ordered survey by E. J. Ladd in this case found the distance to be 197 feet to a concrete abutment, which Carroll contends the evidence shows is the point on the east bank of the creek which would be one end of the disputed boundary. Carroll also claims that the 1922 measurements of the “water right” show a distance down the creek along the east bank in a southwesterly direction approximately 104.-445 feet, and then the description of the “water right” turns northwesterly to a walnut tree on the original line between the two farms. Carroll says that there are inconsequential discrepancies between the measurements in these calls in the 1922 “water rights” deed and the court survey in this case. Carroll claims that the disputed boundary progresses from the east bank of the creek at the concrete abutment around the “water right” tract in a clockwise direction by going down the east bank of the creek back to the original line at the walnut tree. All these features, he claims, are mentioned in the deeds of both parties. From the walnut tree, the disputed boundary goes southwesterly to a point, he says, and thence turns northwesterly some distance and finally bends northward to a point at the middle of the section, with the other end of that part of the boundary being the most seriously disputed.

Carroll bought the present Bukley place in 1938 from a man who stated that he didn’t know where the lines were located. Carroll then had E. J. Ladd (the same person appointed by the court to survey the property in this case) to survey the property. Ladd began at the southeast corner of section 17. He progressed around to the Bukley farm (then owned by Carroll) in a counter-clockwise direction. This was done without reference to the “water right” tract, which had been erroneously omitted from the deed. This survey, therefore, showed as a boundary corner the point referred to as the “Widow Jones” corner. This survey caused no dispute among the various landowners who were directly or indirectly affected.

In 1945, Carroll sold the present Bukley property to one John Comer, making an exception of the “water right” tract, but otherwise using the description in the previous deed and using Ladd’s 1938 survey, all of which referred to monuments consisting of the walnut tree, the creek, and two stone corners on the foot of Sand Mountain. Carroll then bought the farm which he owns at the present time, consisting of the “water right” tract and the large tract formerly known as the “Widow Jones” farm. To verify the description used in his deed, he had Ladd to survey all around this property. To do this, Ladd ran a tie line from the southeast corner of section 17. Carroll contends that this is a corner verified by join-der with several owners, by reputation in the community, and by using other surveys in addition to Ladd’s 1938 survey of the Bukley place. Ladd’s survey, proceeded along the line of his former survey from the southeast córner of section 17 to the “Widow Jones” corner, thence to the walnut tree, and thence along the common boundary to the northernmost stone referred to in the 1938 land survey, which corner Ladd determined to be the middle of section 17. Carroll claims that this midpoint of the section is the beginning point in the description in his present deed, which reads:

“COMMENCING at the Southwest corner of the Southwest Vi of the Northeast Vi of Section 17, Township 7 South, Range 8 East, DeKalb County, Alabama

Ladd admitted that he had never used the point of beginning called for in the Carroll deed. He testified on cross-examination:

“Q But, in reality, there never has been a survey, made by you, that starts at the point of beginning called for on Carroll’s deed, has there?
“A On this deed here?
“Q Yes sir.
“A I have never started there, no sir. They ended up there, and is the same difference.
“Q Well, now, wait a minute. You say it is the same difference to end up there?
“A Just like going from Chattanooga to Atlanta, you can go from Atlanta to Chattanooga.”

Bukley came into the picture when he bought the farm formerly owned by Carroll. Shortly after Bukley purchased his farm, Carroll informed him that something must be done about the fence existing between them. The fence had been built by Carroll’s father when Carroll owned the Bukley farm. Carroll told Bukley that the fence had been built too far over on the land Carroll later purchased which is now the Carroll farm. Bukley was of the opinion that it was on the land line and belonged to his farm. The fence being discussed by Carroll and Bukley was the predecessor to the present fence.

About 1953 or 1954, Carroll offered to help build a line fence, but Bukley refused to participate. Carroll testified:

“Q Tell us what was said in that conversation.
“A I told him that we needed a fence between us, and he said, ‘Well, I am not able to buy no wire to build no fence.’ He said, T don’t have the time to build no fence,’ but he said, ‘You build the fence and I’ll help you use it.’ I told him then, I said, ‘I’ll build the fence but I am not going to build it on the line, I’ll build the fence to where I can move it any time I get ready,’ and that’s what I did.
“Q All right. What kind of fence did you build?
“A I build a five strand barbwire fence.
“Q With what kind of poles?
“A With cedar posts.
“Q At the time you built that fence was there still evidence there of the line Mr. Ladd had surveyed twice?
“A There were.
“Q Where did you,place that fence in relation to that line?
“A Within — I tried to make it ten to twelve feet from the line.
“Q What part of the line are you talking about?
“A I’m talking about from the line over on me. Put the fence over on me ten to twelve feet from the line.”

Carroll built a stock fence on his own land and stated that he believed that the neighboring cattle herds should be kept at least four feet apart. Bukley began to run some cattle on his farm and Carroll testified that some of Bukley’s cattle broke through the fence and got with his registered breeding stock. He testified that he had to have two of his registered cows aborted because of this problem. Bukley put some electric wire on the fence posts on his side and Carroll protested. Carroll sought to improve the fence by adding new wire and new posts. Bukley cut off some of the posts and also some trees. This culminated in the present case.

Bukley frames the issue: “Whether the trial court erred in entering the second final decree and granting plaintiffs 4 feet of land outside the fence and finding the line to be on the outside margin of said 4 foot strip of land.”

Carroll, by cross-appeal, claims that the court erred in not decreeing that the Ladd survey established the true boundary. We affirm in both instances.

On appeal, a judgment establishing a boundary line will be affirmed if, under any reasonable aspect of the case, the decree is supported by credible evidence. The trial court will not be reversed unless there is a clear and decided preponderance of the evidence against its judgment. Ferrell v. Shomo Land Co., 345 So.2d 297 (Ala.1977).

The issues presented by both appellant and cross-appellant are answered succinctly in Crew v. W. T. Smith Lumber Co., 268 Ala. 628, 109 So.2d 721 (1959), wherein it was said:

“The appellant insists that the trial court erred in describing the line between the appellant and B. C. Owen; that the course of the line decreed by the court to be the true boundary line between the parties’ lands differed from the course described in the pleadings. Such difference does not necessarily mean that the court erred in determining the boundary line. The case of Stansell v. Tharp, 245 Ala. 270, 16 So.2d 857, 859, states that,
‘If [the] complainants do not satisfactorily show that their contention is correct as to the true line, the cause is not due to be dismissed, nor does it necessarily result in finding according to the contention of respondent; but the court will proceed to find the true line, whether it is as either party contends. They may both be wrong in respect to their contentions.’ ”

There was evidence that Carroll initially put the fence on his property. There was also evidence that neighboring cattle need to be kept at least four feet apart, or they tend to break in and get with other cattle. In short, there was evidence to support the decree of the court establishing the true line, even though the line found by the court is not “as either party contends.”

Both Carroll and Bukley question the division of costs. Rule 54(d) leaves the taxing of costs within the sound discretion of the trial judge. We find no abuse.

The cause is due to be affirmed.

AFFIRMED.

TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.