author: BROOM, Justice,

text:
    REALTY TITLE GUARANTY COMPANY, a Mississippi Corp., et al. v. I. N. HOWARD, III, et al.
    No. 49726.
    Supreme Court of Mississippi.
    Nov. 9, 1977.
    On Rehearing March 15, 1978.
    Gray, Montague, Jackson & Pittman, James C. Pittman, Jr., Hattiesburg, for appellant.
    Holmes & Dukes, Thomas H. Bates, Hat-tiesburg, for appellee.
    Before INZER, P. J., and WALKER and BROOM, JJ.
   AFFIRMED.

ON PETITION FOR REHEARING

EN BANC.

BROOM, Justice,

for the Court.

Petition- for rehearing granted solely as to last proposition argued, and cause remanded for further hearing, etc.

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


source: Caselaw Access Project

author: 0. GUYTON IDOM, Commissioner

license: Public Domain

text:
    Ernest G. THOMAS v. Betty M. PREWITT et al.
    No. 49863.
    Supreme Court of Mississippi.
    Feb. 15, 1978.

      Ellis, Ellis & Bost, William M. Bost, Jr., Vicksburg, for appellant.
    James W. Newman III, Jackson, for ap-pellees.
    Before PATTERSON, C. J., BROOM and BOWLING, JJ., and IDOM, Commissioner.
   0. GUYTON IDOM, Commissioner

for the Court:

Complainants, Betty M. Prewitt and Norma Ruth Kellum, brought an action for specific performance for an alleged contract to sell securities in the Chancery Court of Warren County, Mississippi, against defendant, Ernest G. Thomas. Defendant, by way of answer, specifically denied that he entered into an agreement to sell his stock in the corporation and, in his amendment answer, affirmatively pleaded that the alleged contract between defendant and complainants was void and unenforceable by virtue of Mississippi Code Annotated, Section 75-8-319 (1972) [Investment Securities Statute of Frauds section].

A special stockholders meeting of Belmont Realty, Inc., a small Mississippi corporation with real property holdings in Vicksburg, was held on August 18, 1975. The meeting was called for the purpose of discussing a proposal to sell all of the stockholders’ stock (1200 shares) in the corporation. Financial woes had plagued this corporation from its inception and, for that reason, the stockholders were eager to rid themselves of the financial burden that became associated with the corporation. Seven (7) of the twelve (12) stockholders, including Ernest G. Thomas, hereinafter referred to as “Seller”, attended the meeting.

At this meeting, John Prewitt, the corporation’s attorney and himself a stockholder, informed those present that Betty M. Prew-itt and Norma Ruth Kellum, hereinafter referred to as “Buyers”, were interested in purchasing all the stock of the corporation, assuming an acceptable agreement could be reached. After much discussion regarding what would constitute acceptable terms for the proposed sale, an apparent understanding was reached. The stockholders made an offer to sell their stock to the buyers, based upon that prior understanding. Several days later and prior to any revocation of the offer, buyers notified the stockholders of their acceptance of the offer. All of the stockholders except defendant seller, transferred their stock to buyers in accordance with the agreement. Seller refused to do so because he maintained that there was no “meeting of the minds” between himself and buyers, in that his offer to sell was contingent upon buyers agreeing to sell to him certain real property which belonged to the corporation.

This action for specific performance was commenced after extensive correspondence between seller and buyers failed to resolve the dispute. At trial, buyers called witnesses to show that the agreement in question was absolute and not subject to any contingency. Seller testified that he agreed to sell the stock upon the condition that buyers agreed to sell to him a certain piece of real property. The only writing evidencing the existence of the alleged contract to sell stock is the minutes of the special stockholders’ meeting.

The chancellor in his findings of fact and conclusions of law held that the contract was not within the statute of frauds because “. . .it was a complete contract made by the corporation in which these two ladies bought the entire stock and the entire property of the corporation.” Furthermore, the chancellor held that even if the statute of frauds did apply, that seller was “equitably estopped” from relying on the statute.

The first question presented is whether the agreement in the case at bar was within the purview of the statute of frauds [Miss. Code Ann. Sec. 75-8-319 (1972)]. This statute provides:

A contract for the sale of securities is not enforceable by way of action or defense unless
(a) there is some writing signed by the party against whom enforcement is sought or by his authorized agent or broker sufficient to indicate that a contract has been made for sale of a stated quantity of described securities at a defined or stated price; or
(b) delivery of the security has been accepted or payment has been made but the contract is enforceable under this provision only to the extent of such delivery or payment; or
(c) within a reasonable time a writing in confirmation of the sale or purchase and sufficient against the sender under paragraph (a) has been received by the party against whom enforcement is sought and he has failed to send written objection to its contents within ten (10) days after its receipt; or
(d) the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract was made for sale of a stated quantity of described securities at a defined or stated price.

We are of the opinion the Investment Securities Statute of Frauds by its terms is applicable to this transaction.

The question remains, however, whether the provisions of the Investment Securities Statute of Frauds were satisfied in the instant case. Four elements are required to satisfy this statute:

(1) A writing;
(2) Signed by the party to be charged, or his agent or broker, providing for the sale of;
(3) A stated quantity of described securities; and
(4) At a defined or stated price.

See Tripp v. Pay ’N Pak Stores, Inc., 268 Or. 1, 518 P.2d 1298 (1974).

The only writing which evidences the contract in the instant case is the minutes of the special stockholders’ meeting, prepared by the corporation’s attorney, John Prewitt, and signed by the president, Jerry Derivaux and secretary, Gene Calhoun, of the corporation. These minutes were prepared a week to ten (10) days subsequent to the stockholders’ meeting and include, inter alia, (1) the offer to sell made by the stockholders and, (2) the purported acceptance of the offer by the buyers. It should be noted that the actual acceptance by the buyers did not occur until two days after the meeting.

Buyers contend that the corporate minutes satisfy paragraph (a) of the statute of frauds. With this we do not agree. The minutes of the meeting were not signed by appellant, nor were they signed by an authorized agent or broker of the seller. In Konsuvo v. Netzke, 91 N.J.Super. 353, 220 A.2d 424 (1966), one Peter Konsuvo brought an action for specific performance of an alleged contract to sell stock. The parties stipulated that the contract came within the Investment Securities Statute of Frauds provision. The only writing evidencing the contract was the corporate minutes, signed by the secretary of the corporation, and taken at the meeting where the alleged agreement was reached. Konsuvo contended that the minutes constituted all the essentials of a valid contract, and, as a result, the statute of frauds was satisfied; that the secretary of the corporation was an agent of the defendant stockholders for the purpose of reducing the agreement to writing. The Court held that no agency relationship was created, citing as authority Section 15 of Restatement of Law, Agency, page 50 (1933), which provides:

An agency relationship exists only if there is a manifestation by the principal to the agent that the agent may act on his account, and consent by the agent so to act.

Before the secretary or president of a corporation can be classified as a stockholder’s agent when signing the minutes of a special stockholders’ meeting, there must first be a showing that he signed the minutes as the duly authorized agent of the stockholders, and not merely as an agent of the corporation. Asbury v. Mauney, 173 N.C. 454, 92 S.E. 267 (1917).

In 5 Fletcher Cyc Corp, § 2206 (Perm.Ed. 1976), it states:

The corporate records are not sufficient, however, to satisfy the statute as against a stockholder who did not sign them or where they do not show any understanding or agreement but merely show circumstances from which some kind of an understanding might be inferred.

Assuming arguendo that the facts in the instant case give rise to an implied authorized agency, even so, this agency would be limited solely to taking down what transpired at the meeting. In other words, events which occurred subsequent to the meeting could not be included in the minutes of the meeting. As stated earlier, the acceptance of the offer occurred subsequent to the meeting. That being so, it cannot be considered as a part of the writing. Hence, the writing would not be sufficient evidence of the existence of a contract between these parties.

The question remains whether any of the statutory exceptions to the Investment Securities Statute of Frauds section are applicable. Of the three statutory exceptions, two are clearly inapplicable on the facts of this case.

Buyers contend that the judicial admission exception in paragraph (d) applies, arguing that the seller judicially admitted the existence of the contract; that, as a consequence of such admission, the contract is taken out from under the application of the statute. The requirements for a judicial admission are:

. that the declaration relied upon was made during the course of a judicial proceeding, (2) that the statement is contrary to an essential fact embraced in the theory of recovery or defense asserted by the person giving the testimony, (3) that the statement was deliberate, clear and unequivocal, (4) that giving of conclusive effect to the declaration will be consistent with public policy, and (5) the testimony must be such as relates to a fact upon which a judgment for the opposing party may be based. Griffin v. Superior Insurance Company, 161 Tex. 195, 338 S.W.2d 415 (1960).

In the instant case, seller admitted that an agreement was reached, but added that the agreement was conditional. We hold that there was no judicial admission in either the pleadings, testimony, or otherwise, that a contract was made for the sale of a stated quantity of described securities. Furthermore, it does not appear that the evidence meets the third requirement as set out in Griffin v. Superior Insurance Company, supra, that is, that the “statement was deliberate, clear and unequivocal.”

The final question before the Court is whether the doctrine of “equitable estop-pel” may be used to take the contract out from under the statute of frauds.

Non-statutory exceptions to the writing requirement of statutes of fraud are not looked upon with favor in this state. Delta Lumber Co. v. Wall, 119 Miss. 350, 80 So. 782 (1919) is the only case we have found where this Court has recognized “es-toppel” as an exception to the writing requirement of the statute of frauds provision. We find that the Wall case has no application to the instant case because of factual dissimilarities. The reluctance of this Court in approving or recognizing non-statutory exceptions to the writing requirement of the statute of frauds provision stems from the fear of eroding the solid foundation upon which the statute is based. In Tanner v. Walsh, 184 Miss. 147, 183 So. 278 (1938), a pre-code case, we stated:

(2) What we are, in effect, asked by the appellant to do is to engraft an exception on the statute by interpreting it as if it contained, after the words, “for a longer term than one year,” the following or similar words: “unless the lessor, when making the lease, promises the lessee to observe it without its being reduced to writing, and permits the lessee to expend money on the leased premises in reliance on such promise.” This we cannot do, for this Court, contrary to the course pursued by some others, has uniformly held that it is without power to engraft exceptions on the statute, and must enforce it as written. Among the many cases so holding see Beamon v. Buck, 9 Smedes & M. 207; Box et al. v. Stanford, 13 Smedes & M. 93, 51 Am.Dec. 142; Howie v. Swaggard, 142 Miss. 409, 107 So. 556. Cf. Delta Lumber Co. v. Wall, 119 Miss. 350, 80 So. 782. To hold otherwise would destroy the purpose of the statute to prevent frauds and perjuries.

Since the decision of this Court in Tanner, the legislature of this state has adopted the Uniform Commercial Code. Under Mississippi Code Annotated, Section 75-1-103 (1972), it provides:

Unless displaced by the particular provisions of the code, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating cause shall supplement its provisions. (Emphasis added).

Furthermore, under Mississippi Code Annotated, Section 75-1-203 (1972), it provides: “Every contract or duty within this code imposes an obligation of good faith in its performance or enforcement.” The question remains whether the foregoing provisions require that we recognize “estop-pel” as a non-statutory exception to the Investment Securities Statute of Frauds section. We hold that they do not. In Cox v. Cox, 292 Ala. 106, 289 So. 609 (1974), the following pertinent commentary is made:

(4) The only question remaining is whether appellee’s contention that the oral agreements are enforceable because the appellants were guilty of fraud or they are equitably estopped to raise the defense of the Statute of Frauds is meritorious. We find no merit in this contention. It is well settled in Alabama that “an executory agreement which is void under the statute of frauds cannot be made effectual by estoppel merely because it has been acted on by the prom-isee, and has not been performed by the promisor.” Hurst v. Thomas, 265 Ala. 398, 91 So.2d 692 (1956). To admit the doctrine advanced by the appellee, that the defendants were estopped to raise the Statute of Frauds unless one of the exceptions was applicable, would be to utterly destroy the statute.
We recognize that the Statute of Frauds contained in the Uniform Commercial Code is probably more liberal than the statute dealing with contracts for the sale of land. Title 20, Section 3, Code of Alabama 1940 (Recompiled 1958). However, if the party seeking the enforcement of an oral contract cannot show he comes within one of the exceptions, we think the law set out in Hurst applies with equal force to transactions under the Uniform Commercial Code.

The decision of the Alabama Supreme Court is persuasive. We adopt the reasoning therein.

The decision is reversed and judgment entered here dismissing .the bill of complaint.

REVERSED AND JUDGMENT HERE FOR APPELLANT.

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

      . Sitting pursuant to Chapter 430, Laws of 1976. The above opinion is adopted as the opinion of the Court.


author: JAMES ARDEN BARNETT, Commissioner

text:
    Noble Clifton BOWDEN v. Linda Bowden FAYARD.
    No. 49976.
    Supreme Court of Mississippi.
    Feb. 22, 1978.

      Graves, Riley & Meadows, Joseph R. Meadows, Gulfport, for appellant.
    Sekul, Hornsby, Wallace & Teel, Biloxi, Jimmy D. McGuire, Gulfport, for appellee.
    Before PATTERSON, C. J., SUGG'and BOWLING, JJ., and BARNETT, Commissioner.
   JAMES ARDEN BARNETT, Commissioner

for the Court:

This is an appeal from a decree changing custody of three minor children from the father to the mother. Being in a state of emotional depression in March 1975 due to the recent death of their youngest child, the appellee, Linda Bowden Fayard, then the wife of appellant Noble Clifton Bowden, left him and their three children and moved into an apartment. Appellant filed a bill of complaint for divorce and custody of the minor children in the Chancery Court of the First Judicial District of Harrison County, Mississippi. Appellee filed a waiver of process and entry of appearance and did not contest the bill. On May 14, 1975, a final decree was granted awarding him an absolute divorce and full custody of the three children, subject to reasonable visitation rights in the appellee.

About two and a half months later, ap-pellee remarried, and she and her new husband now have a good home and a son born August 14, 1976. Appellant and his children have continued to live at the same location in Gulfport since moving there in 1973. In August 1976 he married a woman, who at twenty-four years of age was some ten years younger than he. Prior to his remarriage and since the original decree of divorce and custody, appellant used various baby-sitters, including his parents, to help him care for the children. Since the remarriage, his wife cares for them, and they have a good home.

On July 22, 1976, appellee filed a petition to modify the former decree so as to transfer custody from the appellant to her, alleging that she had remarried and recovered from her emotional problem and that it was in the best interest of the children that they be in her custody. At a hearing in vacation, she admitted that Mr. Bowden had done an excellent job of caring for the children, and he admitted that she was now fit but alleged that the children were happy and well cared for and that he and his new wife could continue to provide a good home.

The chancellor found that both parties were indeed fit to have custody of the minor children, but that “the law favors that custody be placed in the natural mother unless the evidence shows she is unfit for their custody. There is no such testimony in this record.” He ordered that custody should be transferred to the appellee and that appellant pay child support and have liberal visitation rights. The decree was entered on September 2, 1976, and contained a finding that a material change of circumstances had occurred which merited a change in the custody of the children. The chancellor denied a petition for rehearing or a new trial and entered a ruling reiterating that the father was a good father, but since the children were of tender age and the mother was now a fit and suitable person to have custody, it was in their best interest that custody be transferred from the father to the mother..

If the children of the parties were of tender years in September 1976 when the decree appealed from was entered, they were of even more tender years some fifteen months earlier when the court awarded appellant custody after determining that he was a fit and proper person for it. At that time, we think the court had to have found that it was in the best interest of the minor children that they be placed with their father. The record conclusively establishes that the mother was then not fit for their care and discloses that since being awarded custody, appellant has been an excellent father and has done a good job in raising them. Although the children had at one time demonstrated the effects of the strain and turmoil occurring in their home culminating in divorce, they have improved under the care of appellant and become normal, well-rounded and emotionally well adjusted children.

We find no evidence whatsoever in the record of any material change of circumstances adverse to the children’s welfare. In O’Neal v. Warden, 345 So.2d 610 (Miss.1977), the lower court awarded custody of two minor children, ages three years and fourteen .months, to the father where the mother had willingly relinquished their control. Five and a half years later the mother petitioned to modify the decree, alleging that she had remarried, was reformed, and was now suitable and fit to have their custody. This court refused to change custody of the children and stated: .

[We have] repeatedly held.that when a decree has been entered and has become final which awards custody of a child to one parent that it cannot be materially modified or altered unless subsequent thereto there has been a material change of circumstances and then only after a finding based on substantial evidence that such change of circumstances materially affects the children’s welfare adversely. Sistrunk v. Sistrunk, 245 So.2d 845 (Miss.1971); Sanderson v. Seaney, 224 So.2d 862 (Miss.1969); Brocato v. Walker, 220 So.2d 340 (Miss.1969). [345 So.2d at 612],

It is important that children have as much stability as possible when their parents are divorced. Once the court has determined which parent should have custody óf the children, then they should be allowed the stabilizing influence of knowing where • home is. A material change of circumstances of the party not having custody of the children is not in and of itself enough to warrant a change of custody. There must be a showing that a change of circumstances has occurred which materially affects the children’s welfare adversely. We think this was not demonstrated in the court below. Therefore, we are of the opinion the chancellor’s decision was against the overwhelming weight of the evidence and must be set aside leaving the original decree of May 14, 1975, still in force and effect.

REVERSED AND RENDERED.

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

      . Sitting pursuant to Chapter 430, Laws of 1976. The above opinion is adopted as the opinion of the Court.


text:
    Willie EASTERLING v. STATE of Mississippi.
    No. 50239.
    Supreme Court of Mississippi.
    March 1, 1978.
    Dale, Hathorn & Clark, Charles L. Clark, Prentiss, for appellant.
    A. F. Summer, Atty. Gen., by Karen Gil-foy, Asst. Atty.' Gen., and Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., BROOM and BOWLING, JJ., and W. W. BROWN, Commissioner.
   AFFIRMED.

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


text:
    B-T MORTGAGE COMPANY, INC. and Bankers Trust Savings & Loan Association v. CIMSCO, INC.
    No. 50058.
    Supreme Court of Mississippi.
    March 1, 1978.
    Stuart Robinson, Jackson, for appellant.
    Breland & Barnett, Norman Breland, Gulfport, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   AFFIRMED WITH CORRECTED JUDGMENT.

INZER and SMITH, P. JJ., and ROBERTSON, SUGG, WALKER and LEE, JJ., concurring.


text:
    Jan OVERSTREETv. STATE of Mississippi.
    No. 50336.
    Supreme Court of Mississippi.
    March 1, 1978.
    • John D. Guyton, Brooks & Guyton, Kosciusko, for appellant.'
    A. F. Summer, Atty. Gen., by Scherry J. LeSieur, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   AFFIRMED.


text:
    James H. MEEKS v. HOLIDAY INN OF NATCHEZ, INC.
    No. 50419.
    Supreme Court of Mississippi.
    March 1, 1978.
    Loyacono & Field, Paul Kelly Loyacono, Vicksburg, for appellant.
    Brandon, Handy & Blough, G. Stuart Handy, Natchez, for. appellee.
    Before PATTERSON, C. J., and WALKER and BOWLING, JJ.
   AFFIRMED.


text:
    Charles William ROBINSON v. Connie Diane Cole ROBINSON.
    No. 50508.
    Supreme Court of Mississippi.
    March 1, 1978.
    Rex K. Jones, Hattiesburg, for appellant.
    Aultman, Pope, Aultman & Tyner, Lawrence C. Gunn, Jr., Hattiesburg, for appel-lee.
    Before PATTERSON, C. J., and WALKER and BOWLING, JJ.
   AFFIRMED.


text:
    Mrs. Tommie Lee CURTIS v. PRUDENTIAL INSURANCE COMPANY OF AMERICA.
    No. 50111.
    Supreme Court of Mississippi.
    March 1, 1978.
    Maynard, Fitzgerald, Bradley & Willard, William H. Maynard, Clarksdale, for appellant.
    Holcomb, Dunbar, Connell, Merkel, Tolli-son & Khayat, Jack F. Dunbar, Clarksdale, William Dean Stark, Starkville, for appel-lee.
    Before INZER, P. J., and SUGG and WALKER, JJ.
   AFFIRMED.


text:
    Doris Matheny GRAVES v. Johnny Mack GRAVES.
    No. 50348.
    Supreme Court of Mississippi.
    March 1, 1978.
    Thomas J. Riley, Hattiesburg, for appellant.
    Roberts & Easterling, S. Wayne Easter-ling, Hattiesburg, for appellee.
    Before PATTERSON, C. J., and ROBERTSON and LEE, JJ.
   AFFIRMED.


text:
    Jimmie RICHARDSON v. STATE of Mississippi.
    No. 50546.
    Supreme Court of Mississippi.
    March 1, 1978.
    Murray L. Williams, Water Valley, for appellant.

      A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and WALKER and BOWLING, JJ.
   AFFIRMED.


author: BOWLING, Justice,

text:
    Hoover RICHARDSON et al. v. W. A. RILEY et al.
    No. 50056.
    Supreme Court of Mississippi.
    March 1, 1978.
    David R. Sparks, Tupelo, for appellants.
    Parker, Averill, Funderburk & Butts, Roy O. Parker, Tupelo, for appellees.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

This appeal is from the Chancery Court of Lee County, Mississippi, and involves title to a small parcel of land adjacent to the Lee-Chickasaw County line.

Appellee, W. A. Riley, filed his bill of complaint against appellants, heirs of Willis Richardson, Sr., requesting a court decree that he be declared the owner of the property in question. After the cause was filed, complainant conveyed a portion of the property in dispute to John L. Elliott, who then became one of the complainants. The primary question in the case is the location of the county line, which necessarily included the section line. These parties and their predecessors have been in constant controversy over this small piece of land for many years. Litigation has ensued, the first case starting in the year 1947. The controversy previously has been before this Court [Riley v. Richardson, 267 So.2d 901 (Miss.1972)].

Appellee Riley lives in Lee County and claims land to the Lee County line and no more. Appellants, the Richardsons, live in Chickasaw County and claim land to the county line and no more. As stated above, the question, therefore, is: “Where is the county line?”

The appellants contend that the county line follows along a roadway constructed in 1928, known as the “new county line road.” Appellees contend that the county line is south of the road and corresponds with an old hedge row and fence at that location. The disputed property is the strip approximately seventy-five feet in width located south of the road, between the road and the line as alleged by appellants.

In the case when the controversy was last before the Court we affirmed the chancellor’s dismissal of the cause. Neither the chancellor nor this Court were able to determine the county line from the record then made. We set out certain yardsticks to follow in that opinion, the principal ones being as follows: (1) When a surveyor is called upon to establish a land line between coterminous owners, the surveyor should begin at an established government corner called for by the field notes and find the evidences or some of them sufficient to show that it was a correct corner, and (2) in the event that a section corner cannot be identified by the field notes with reasonable accuracy, then the line can be established by general reputation in the community and by extrinsic evidence.

The testimony in the present case as to occupancy of the land in question and the location of the county line was about evenly divided. We shall not discuss that testimony in detail as it would serve no useful purpose in this opinion. The chancellor made an on-the-scene inspection of the area after hearing witnesses for all parties. He first found that neither appellants nor ap-pellees had established title to the strip of land by adverse possession. He was correct in this finding. He then found that the county line was as contended by appellees and as established by their testimony, their witnesses, and the court’s personal inspection. Appellees introduced one Prentiss Renshaw, a licensed surveyor of some forty-five years’ experience. Although he could not establish a section corner by government field notes, he did establish the line as contended by appellees along the old hedge row and fence line south of the road. In addition to certain markers used by him in the survey, he used his determination of the general reputation in the community as to the location of -the line. As hereinbefore stated, other witnesses introduced by appel-lees established the line as shown on the survey and based their evidence on personal knowledge as well as general reputation in the community.

After visiting the area, the chancellor found as a fact that “[T]he road has crooks and turns of such magnitude as to rule out the possibility of its following or closely paralleling the section/county line.”

The principle of law with which we are concerned has been repeated by this Court many times. It is that where the chancellor was the trier of facts, his findings of fact on conflicting evidence cannot be disturbed by this Court on appeal unless we can say with reasonable certainty that these findings were manifestly wrong and against the overwhelming weight of the evidence. Even if this Court disagreed with the lower court on the finding of fact and might have arrived at a different conclusion, we are still bound by the chancellor’s findings unless manifestly wrong, as stated above. Some of the cases repeating this principle are: McNair v. Capital Electric Power Ass’n, 324 So.2d 234 (Miss.1975); Crechale & Polles, Inc. v. Smith, 295 So.2d 275 (Miss.1974); Fayard v. Fayard, 293 So.2d 421 (Miss.1974); Brent v. Cox, 246 So.2d 552 (Miss.1971); Laher Spring & Elec. Car Corp. v. Breckenridge, 221 So.2d 718 (Miss.1969); Rainey v. Rainey, 205 So.2d 514 (Miss.1967); Sims v. Sims, 203 So.2d 804 (Miss.1967); Saxon v. Harvey, 190 So.2d 901 (Miss.1966); Dedeaux v. Young, 251 Miss. 604, 170 So.2d 561 (1965); Smith v. Fanning, 25 So.2d 481 (Miss.1946); Crichton v. Halliburton & Moore, 154 Miss. 265, 122 So. 200 (1929); see also, Griffith, Mississippi Chancery Practice § 674 (2d ed. 1950).

The testimony of the surveyor, including his plat, and the testimony of appel-lees and their witnesses, in addition to personal examination by the chancellor, reveal ample evidence and grounds on which the chancellor based his opinion and determined the county/section line at the area involved. After determining the location of the line it necessarily followed that the chancellor was bound to find that appellees owned the property north of the line, which included the strip between the road and the line. As stated above, even though there is evidence to the contrary, this Court cannot say with reasonable certainty that the chancellor’s findings were in error. It follows that the cause should be and it is affirmed.

AFFIRMED.

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

SUGG, J., took no part.


author: LEE, Justice,

text:
    The STATE of Mississippi BOARD OF PSYCHOLOGICAL EXAMINERS et al. v. Ray COXE.
    No. 49902.
    Supreme Court of Mississippi.
    March 1, 1978.

      A. F. Summer, Atty. Gen., by R. Hugo Newcomb, Sr., Asst. Atty. Gen., Jackson, for appellants.
    Bryan, Nelson, Allen & Schroeder, Robert H. Walker, Gulfport, for appellee.
    Before SMITH, ROBERTSON and LEE, JJ.
   LEE, Justice,

for the Court:

The State of Mississippi Board of Psychological Examiners appeals from a decree of the Chancery Court of the Second Judicial District, Harrison County, Chancellor Frank Alexander presiding, mandatorily enjoining it to issue a license to Dr. Ray Coxe entitling him to all rights and privileges accorded psychologists licensed in the State of Mississippi by and through the provisions of Mississippi Code Annotated Section 73-31-I, et seq. (1972).

Dr. Coxe filed an application for licensure with the State Board of Psychological Examiners on February 4, 1974, attaching thereto a certified copy of his transcript from the University of Southern Mississippi. The application was denied March 29, 1974, the reason for such denial being stated to Dr. Coxe’s attorney in a letter dated July 8,1974, that Dr. Coxe did not meet the educational requirements and specifically that he “did not meet the requirements of Section 73 — 31—13(f) of the Mississippi Code of 1972 Annotated.” On April 24, 1975, Dr. Wilson, President of the Board, wrote Dr. Coxe further that he did not meet the educational requirements because the name of his major area of doctoral study as indicated on the official transcript of his graduate work did not contain the word “Psychology.” On July 3, 1975, Dr. Coxe wrote Dr. Wilson and submitted a supplement to his original application in the form of a certified transcript identifying his major as “Guidance and Counseling — Counseling Psychology.” The Board declined to issue the license. Previously, the application of Dr. Leland Fager was rejected for the same reason stated to Dr. Coxe and when he submitted a second or amended transcript showing counseling in psychology, licensure was unanimously granted.

Appellee applied for a license under Mississippi Code Annotated Section 73-31 — 13 (1972), pertinent parts of which follow:

“The board shall issue a license as a psychologist to each applicant who shall file an application upon a form and in such manner as the board prescribes, accompanied by such fee as is required by this chapter; and who furnishes evidence satisfactory to the board that he:
(a) Is at least twenty-one (21) years of age; and
(b) Is a citizen of the United States or has declared his intention to become a citizen. A statement by the applicant under oath that he is a citizen, or that he intends to apply for citizenship when he becomes eligible to make such application, shall be sufficient proof of compliance with this requirement; and
(c) Is of good moral character; and
(d) Resides in the State of Mississippi; and
(e) Is not in violation of any of the provisions of this chapter and the rules and regulations adopted thereunder; and
(f) Holds a .doctoral degree with specialization in an area of psychology from a school or college as defined in this chapter; and
(g) Has at least one (1) year postdoctoral experience practicing psychology under supervision by a psychologist possessing qualifications substantially equivalent to those required for licensing under this chapter (at the discretion of the board, one (1) year of predoctoral experience may be deemed to meet this requirement); and,
(h) Demonstrates professional competence by passing a written and oral examination in psychology prescribed by the board; except that upon examination of credentials the board may, by unanimous consent, consider these credentials adequate evidence of professional competence.”

Appellant contends (1) that the court erred in admitting as evidence certain documents, answers to interrogatories and other matters and evidence of matters occurring after the filing of the suit for mandatory injunction. On this appeal, we will consider only the evidence before the Board of Psychological Examiners in order to determine whether or not the chancellor’s decision is supported by that evidence and whether or not the Board’s action was arbitrary and capricious. Therefore, it is unnecessary to discuss this assignment of error. We call to the attention of the Bench and Bar that in proceedings before administrative agencies and boards, the record must be made for appellate review.

The chancellor found that appellee complied with all the provisions of Section 73-31-13 except Subsection (h), and that refusal of the Board to grant licensure to Dr. Coxe constituted arbitrary and discriminatory action and was without basis or justification of law.

The evidence before the Board consisted of its minutes, letters written and received by authorized officials of the Board, the application filed by Dr. Coxe, together with certified copies of his transcript and amended transcript from the University of Southern Mississippi. The application was sworn to by appellee and specifically covered and complied with the requirements contained in Subsections (a) through (g), Section 73-31-13. No question or objection was raised or advanced by the Board of Examiners to any requirements of said subsections except Subsection (f) which was the only reason given for refusing to grant the license. The application and transcripts constituted undisputed evidence before the Board of Examiners and appellant’s contention No. 2, that the court erred in ordering issuance of a license to appellee before the Board had completed its actions, particularly as to all the qualifications of appellee, is without merit.

Appellant contends (3) that the court exceeded its powers when it superseded an act of the Board of Examiners in making its decision that appellee was eligible for licen-sure, and (4) in holding that the Board acted arbitrarily and in a discriminatory fashion.

The matter of Dr. Coxe’s application was before the Board of Examiners from February 4, 1974, until final decree was entered in the injunction suit on May 14, 1976. During that entire time, the Board maintained the position that the application was not granted because Dr. Coxe did not hold a doctoral degree in a specialization area of psychology from a school or college as defined in the section. The chancellor found that Dr. Coxe is a counseling psychologist entitled to be considered a psychologist within the meaning and definition of Mississippi Code Annotated Section 73-31-1, et seq. (1972), that there was no substantial evidence to support the refusal of the Board of Examiners to license Dr. Coxe to practice as a psychologist in the State of Mississippi, and that its refusal constituted arbitrary and discriminatory action. Courts will not substitute their judgments for those of administrative agencies when the action of the agency is not arbitrary or unreasonable, and when it is supported by substantial evidence, but the courts will not tolerate acts and decisions of a state agency when it has acted capriciously, unreasonably, arbitrarily, or has abused its discretion. Game & Fish Commission v. Marlar, 206 So.2d 628 (Miss.1968); 2 Am.Jur.2d Administrative Boards § 241, at 66-69 (1962).

When the evidence before the Board is undisputed that the requirements of the licensing statute have been met, refusal to grant the license amounts to arbitrary and capricious action. Mississippi State Board of Veterinary Examiners v. Watkins, 206 Miss. 330, 40 So.2d 153 (1949). See also Mississippi Board of Veterinary Examiners v. Love, 246 Miss. 491, 150 So.2d 532 (1963); Mississippi Board of Veterinary Examiners v. Sistrunk, 218 Miss. 342, 67 So.2d 378 (1953).

We are of the opinion that the chancellor was not manifestly wrong in holding that the Board of Examiners acted arbitrarily and in a discriminatory fashion, in declining to issue a license to appellee, and that he did not exceed his authority in ordering licensure for him.

Appellant’s contention No. 5, that appel-lee is not qualified as a psychologist eligible for licensure under State law, and No. 6, that the court erred in holding that appellee is not in violation of the statute, are without merit.

There being no reversible error, the decree of the lower court is affirmed.

AFFIRMED.

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


text:
    Barbara Evans BOND v. Tommy BOND.
    No. 50099.
    Supreme Court of Mississippi.
    March 1, 1978.

      Rex K. Jones, Hattiesburg, for appellant.
    Holmes & Dukes, James K. Dukes, Alfred B. Jernigan, Jr., Hattiesburg, for appellee.
    Before SMITH, ROBERTSON and LEE, JJ.
   LEE, Justice,

for the Court:

Barbara Evans Bond filed suit in the Chancery Court of Lamar County against Thomas Sheppard Bond seeking a divorce on the ground of habitual cruel and inhuman treatment, custody of and support for the two children of the parties, adjudication of property rights, and alimony. Bond denied the allegations of the bill of complaint and filed a cross-bill seeking a divorce on the ground of habitual cruel and inhuman treatment and custody of the children. The allegations of the cross-bill were denied by Mrs. Bond. The court entered a decree dismissing the bill of complaint, except as to alimony, granting Bond a divorce, placing custody of the children in the paternal grandparents, and awarding certain alimony to Mrs. Bond, from which decree she appeals. There is no cross-appeal.

Appellant assigns and argues the following errors in the trial of the case:

(1) The court erred in granting a divorce to appellee and in not granting a divorce to appellant.

(2) The court erred in not adjudicating property rights of appellant in jointly-owned property of the parties.

(3) The court erred in holding that neither parent was suitable to have care and custody of the children at that time and in granting custody to the paternal grandparents.

(4) The court erred in declining to award permanent alimony to appellant.

i.

Did the court err in granting a divorce to appellee and in not granting a divorce to appellant?

The testimony on behalf of the parties was directly contradictory. It consisted of lewd conduct by the parties which was admitted by them, but each contended the other party was responsible. Other misconduct of both parties is indicated in the record. No useful purpose would be served by detailing the evidence, but, suffice it to say, the testimony introduced by either party would sustain the charge against the other party, if believed by the chancellor.

The trial judge accepted the evidence introduced by appellee on the issue of divorce, and we are unable to say that he was manifestly wrong in granting a divorce to him. Fayard v. Fayard, 293 So.2d 421 (Miss.1974); Dubois v. Dubois, 275 So.2d 100 (Miss.1973); Brent v. Cox, 246 So.2d 552 (Miss.1971). Therefore, the decree is affirmed as to same.

II.

Did the court err in failing to adjudicate property rights in appellant?

The bill of complaint charged that appellee held joint property of the parties and that the court should adjudicate appellant was vested with property rights in same, and should require a property settlement. However, there is no proof in the record that appellee acquired land, cattle or business through the joint funds or joint efforts of the parties, and there is no proof that appellant had legal title to any such property. Although the court did not specifically decree appellant had no interest in the property of appellee, the effect of the decree so held. Courts are without power to order one spouse to divest himself or herself of property for the benefit of the other spouse. Bridges v. Bridges, 330 So.2d 260 (Miss.1976); Hudson v. Hudson, 284 So.2d 299 (Miss.1973); McCraney v. McCra-ney, 208 Miss. 105, 43 So.2d 872 (1950). Consequently, this assignment is without merit.

III.

Did the court err in holding that neither parent was suitable to have care and custody of the children at that time and in granting custody to the paternal grandparents?

After the bill of complaint was filed, the trial court entered a decree on June 9,1976, granting temporary custody of the minor children [a girl age fourteen (14) and a boy age ten (10)] to appellant, together with support for her and the children pending the final hearing. At trial, appellant admitted that she left the home of the parties to reside in an apartment to be paid for by appellee and that she had agreed to relinquish custody of the children to him. The court found that neither party was suitable to have the care, custody and control of the minor children “at the present time” and ordered their custody to the paternal grandparents. Liberal and reasonable visitation rights were awarded to both parents. No provision was made for the support of the children.

In Mahaffey v. Mahaffey, 176 Miss. 733, 170 So. 289 (1936), the Court said:

“It is the strong policy of the law that children shall remain in the custody of their parents, or one of them, unless they are both clearly unfit; but unfitness may be found in such a want of willingness or ability to control and discipline the child as that the child or children are obviously in serious danger of becoming immoral or otherwise delinquent to the extent of being, in the future, unacceptable members of the adult citizenship of the state.” (Emphasis added) 176 Miss. at 740, 170 So. at 292.

The Court stated in Moody v. Moody, 211 So.2d 842 (Miss.1968), citing Mahaffey v. Mahaffey, supra, that the chancellor may award child custody to some person who is not a party to the divorce suit where it is shown that both parents are unfit to have custody of the child. In the present case, neither parent was adjudicated to be unfit to have custody of the children. We reverse and remand the case to the trial court for the purpose of determining the present fitness of the parents and custody of the children and for the purpose of fixing a reasonable support for said children to be paid by appellee.

IV.

Did the trial court err in failing to award permanent alimony to appellant and in awarding temporary alimony for a period of two (2) years?

Mrs. Bond was thirty-four (34) years old at the time of the trial. She married appel-lee January 5, 1961, and, as stated, they have two children, Vivian Evelyn Bond, age 14, and Thomas Sheppard Bond, age 10 (at time of trial). Prior to their separation in April, 1976, they lived together continually as husband and wife and, from the time of their marriage when Bond was a student at Mississippi State College until their first child was born, Mrs. Bond worked and helped with the family income. After the first child was born, she devoted all her time to the children and family.

The Bonds lived in a comfortable home comprising about four thousand (4,000) square feet, centrally heated and air-conditioned with three (3) large bedrooms, a den and outside patio. The home is located in the country and they have lived in it since the daughter was two and one-half (2Vi) ■years old. Although the proof is not specific, the record indicates that appellee is a substantial landowner. He is engaged in two or more businesses, and has a gross income of fifteen hundred dollars ($1,500) to in excess of two thousand dollars ($2,000) per month. Mrs. Bond has no income, and, according to the record, she is qualified to earn income only as a beautician, in which profession she has not engaged since the birth of her daughter. She does not have property or funds with which to support herself.

Temporary alimony is not awarded on a final decree. The chancellor may have considered the twenty-four (24) monthly payments of six hundred fifty dollars ($650.00) each [aggregating fifteen thousand six hundred dollars ($15,600)] as lump-sum alimony payable in installments, but the decree does not so indicate. In Gatlin v. Gatlin, 248 Miss. 868, 161 So.2d 782 (1964), this Court held that the chancellor erred in failing to retain jurisdiction to permit reconsideration of the alimony question where custody of minor children was granted to the husband, a person of substantial means, and who was required to pay only two hundred dollars ($200) per month alimony for a period of eighteen (18) months. There, the Court cited Winkler v. Winkler, 104 Miss. 1, 61 So. 1 (1913), which set forth:

“[I]t may not be just, if her husband is comparatively rich or capable of earning money, and she is poor or weak, that she should be turned out into the world without any means of livelihood but her own exertions.” 104 Miss, at 6, 61 So. at 2.

The case is reversed and remanded to the trial court for determination of the parties’ present financial status and for determination of permanent alimony at the expiration of the 24-month period.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

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

BROOM, J., took no part.


text:
    Ronald Eugene BRADLEY and Bevie Smith Bradley v. STATE of Mississippi.
    No. 50227.
    Supreme Court of Mississippi.
    March 1, 1978.
    Ronald Reid Welch, Jackson, Pack, Rat-cliff & Thaxton, David M. Ratcliff, Laurel, for appellants.
    A. F. Summer, Atty. Gen., by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, ROBERTSON and LEE, JJ.
   LEE, Justice,

for the Court:

Ronald Eugene Bradley filed a Petition for Writ of Habeas Corpus alleging illegal detention by the Mississippi Department of Corrections as a result of his arrest pursuant to execution of a warrant of January 14, 1974, for retaking work-releasee. The petition further alleged that it was filed on behalf of all past, current and future work-releasees of the Mississippi Department of Corrections. Joined as petitioners were Beverly Smith Bradley, wife of Ronald Eugene Bradley, on behalf of all spouses and dependents of past, current and future work-releasees of the Mississippi Department of Corrections, and Lomax Printers and Stationers, Inc., employer of Ronald Eugene Bradley, work-releasee, on behalf of all Mississippi employers of past, current and future work-releasees of the Mississippi Department of Corrections. In addition to praying for Bradley’s release from custody, the petition prayed for declaratory, injunc-tive and mandatory relief, damages to Beverly Smith Bradley (wife) and damages to Lomax Printers and Stationers, Inc. (employer).

The petition was heard by the Circuit Court of Sunflower County, Honorable Arthur B. Clark presiding, and, at the conclusion of the hearing, the Court ordered that petitions of Lomax and Beverly Smith Bradley be dismissed for lack of jurisdiction, and all other relief requested in the nature of a class action, equitable and in-junctive relief, claims for damages and attorneys’ fees be denied as not being within the jurisdiction of the court, and the petition was dismissed as to Ronald Eugene Bradley.

On November 4, 1977, appellee, State of Mississippi, filed in this Court a plea in bar to the action and attached thereto an affidavit of B. C. Ruth, Director of Records, Mississippi State Penitentiary, along with exhibits. On February 1, 1978, appellee filed a supplemental exhibit to the plea in bar being an affidavit by B. C. Ruth dated January 23, 1978, which indicated that the said Ronald Eugene Bradley was discharged January 21, 1978, from Mississippi State Penitentiary upon expiration of sentence.

Mississippi Code Annotated Section 11-43-1 (1972) sets out in what cases the writ of habeas corpus applies:

“The writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto, except in the cases expressly excepted.”

In Keller v. Romero, 303 So.2d 481 (Miss. 1974), this Court said:

“The function of the habeas corpus court in Mississippi in criminal eases is to release a prisoner who is being unlawfully held or to grant him a bail bond which he can make. A habeas corpus writ cannot be used as a collateral method to prevent a trial on an indictment in this state, nor can the writ be used as a post-conviction remedy, or a method of appeal out of time.” 303 So.2d at 482.

We are unwilling to give Section 11-43-1 a construction which would cover and include all the parties and relief prayed for in the present petition for writ of habeas corpus. Since it is undisputed that the appellant, Ronald Eugene Bradley, is not presently detained at Mississippi State Penitentiary, his appeal is moot and should be dismissed. Reed v. Gilfoy, 246 Miss. 46, 148 So.2d 714 (1963); Sheldon v. Ladner, 205 Miss. 264, 38 So.2d 718 (1949); Rawlings v. Claggett, 174 Miss. 845, 165 So. 620 (1936).

AFFIRMED AS TO BEVERLY SMITH BRADLEY AND LOMAX PRINTERS AND STATIONERS, INC.; APPEAL DISMISSED AS TO RONALD EUGENE BRADLEY.

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


author: WALKER, Justice,

text:
    In the Interest of Walter Chester HOLMES, a child.
    No. 50458.
    Supreme Court of Mississippi.
    March 1, 1978.
    Yancy & Easley, Cliff R. Easley, Jr., Bruce, for appellant.
    A. F. Summer, Atty. Gen., by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and WALKER and BROOM, JJ.
   WALKER, Justice,

for the Court:

This is a case arising out of the Youth Court of Grenada County, Mississippi, wherein the minor son of the appellant was adjudicated to be a delinquent child by order of the youth court dated February 16, 1977. Said child, being the age of fifteen years and ten months, was released on probation to his mother, the appellant herein, Annie Woodall Sparks.

On or about March 8, 1977, the youth court counselor of Grenada County filed a petition with the Youth Court of Grenada County in the same cause alleging that the child had violated his probation by getting into a fight at school and being expelled from school, and being away from his home unaccompanied by his mother at 7:30 p. m. on Friday, February 25, 1977. Pursuant to the petition, the youth court judge entered an order setting the petition for hearing at 9:00 a. m. on Monday, March 21, 1977. Process was ordered issued for the child and his mother. On March 21, 1977, the matter came on for hearing. Since appellant was present in court without her minor child, the court ordered the matter continued until April 8, 1977, and further ordered appellant to have the child present at the next hearing under the penalty of contempt for failure to do so.

On April 8, 1977, the mother appeared before the youth court without her son. The court summarily found the appellant in contempt of the order of the court for failing to appear with her son and ordered her to be committed to the Grenada County jail “until said child is brought before this Court, or until the further Orders of this Court.”

The appellant was then confined in the Grenada County jail until April 13, 1977, when counsel for appellant, who had been hired by her other children, obtained an order granting her petition for bail from Justice Robertson of this Court.

Appellant advances several assignments of error, all of which are related to her contention that the lower court failed or refused to conduct a hearing or make a record of any type in this case and, therefore, the case should be reversed. We agree.

A contempt of court is either direct or constructive. In Grace v. State, 108 Miss. 767, 67 So. 212 (1914), the Court stated the following with respect to the difference between direct and constructive contempt:

“A direct contempt is an open insult, in the face of the court, to the person of the judges while presiding, or a resistance to its powers in their presence. A constructive contempt is an act done, not in the presence of the court, but at a distance, which resists their authority, as disobedience to process, or an order of the court, such as tends in its operation to obstruct, interrupt, prevent, or embarrass the administration of justice.” (108 Miss. at 773, 67 So. at 212 [quoting Ex parte Wright, 65 Ind. 504, 508 (1879)]).

We have previously held that where there is doubt whether the alleged contempt was direct or constructive, it should be regarded as the latter. Wood v. State, 227 So.2d 288 (Miss.1969); Ex Parte Redmond, 159 Miss. 449, 132 So. 328 (1931).

The action of the youth court in summarily adjudging the appellant to be in contempt and confining her in jail might have been proper if this were a case of direct contempt and if the youth court had made a proper record. However, this was not a case of direct contempt, and, even if it were, this case is deficient in an important respect as there is no record of the contemptuous act.

The state argues that this case is one of direct contempt inasmuch as the court was fully aware of its order of March 21, 1977, commanding appellant to appear before it with her minor son, and the court was also aware of appellant’s failure to comply with said order on April 8, 1977.

This argument is not well taken. If the appellant secreted her son or left him at home purposely to frustrate the will of the court, absent an admission by her before the court, this must be proved and would be constructive contempt. Her act, if willful, was one which resisted, from a distance, an order of the court, and, therefore, it falls squarely within the definition of constructive contempt quoted above. See State v. Collins, 237 La. 111, 110 So.2d 545 (1959).

Moreover, if it were true that appellant’s son ran away from home, without having been encouraged to do so by appellant, she would not be guilty of contempt at all. Prestwood v. Hambrick, 308 So.2d 82 (Miss.1975); Hansbrough v. State, ex rel. Pittman, County Attorney, 193 Miss. 461,10 So.2d 170 (1942). In order to determine the truth or falsity of appellant’s explanation, the trial court should have afforded appellant a hearing at which she could have the assistance of counsel, the right to call witnesses, the right to be heard in her own behalf, and the right to make a record. Wood v. State, supra; Ex Parte Wisdom, 223 Miss. 865, 79 So.2d 523 (1955).

Further, even if this were a case of direct contempt, the appellant should have been permitted to state her defense for the record so that the case might be reviewed properly on appeal. Ex Parte Redmon, 156 Miss. 582, 126 So. 485 (1930).

In conclusion, we would note that upon remand, the burden of proof to establish that contempt has been committed is on the party asserting that it has. Prestwood v. Hambrick, supra. Further, in a proceeding for criminal contempt, evidence of guilt must be established beyond a reasonable doubt. Id.

For the foregoing reason, the cause is reversed and remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

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

      . She alleges on appeal here that she told the judge she was unable to have her son in court that day because he had left home, and she did not know where he was; however, this is not reflected in the record.

      . In general, one who is guilty of direct contempt “. . . may be punished instantly by arrest and fine or imprisonment, upon no farther proof or examination than what is known to the judges by their senses of seeing, hearing, etc.” Grace v. State, supra; 17 C.J.S. Contempt § 62(2) (1963). However, at least where the contemptuous conduct consists of a personal attack upon the court, the judgment of contempt must be instantaneous; otherwise the matter should be tried by another judge. Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971).


author: PATTERSON, Chief Justice,

text:
    Booker HICKS, Jr. v. STATE of Mississippi.
    No. 50286.
    Supreme Court of Mississippi.
    March 1, 1978.

      Richard L. Yarbrough, Gulfport, for appellant.
    A. F. Summer, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, BROOM and BOWLING, JJ.
   PATTERSON, Chief Justice,

for the Court:

Booker Hicks, Jr. was convicted of the capital murder of James M. Bostick under the provision of Mississippi Code Annotated section 97-3-19(2)(e) (Supp.1974) and was sentenced to death. Because the case was tried before Jackson v. State, 337 So.2d 1242 (Miss.1976), his conviction and sentence must be reversed and the cause retried in accordance with its terms.

It is argued on appeal that the written confession of the appellant was erroneously admitted into evidence. The testimony of the state’s witness, Criminal Investigator George Payne, gives rise to this argument because it is uncontradicted. He testified with regard to the confession in part as follows:

BY MR. YARBROUGH (Defense Attorney):
Q. You did call him a liar, didn’t you?
A. Yes, sir, I called him a liar.
BY MR. NECAISE (District Attorney): Did you call him a liar or did you say he was lying?
A. I said that he was lying and had been lying to us.
Q. Said he better tell the truth.
BY MR. NECAISE: Did you tell him he’d better tell the truth?
A, Yes, sir. I told him it would be better if he told the truth.
MY MR. NECAISE: What did you tell him, now — that it would be better to tell the truth or you better tell the truth?
A. I told him, sir, he was lying to us and it would be better if he would tell the truth. I told him the truth was better than lying.
BY MR. NECAISE: That’s all. We don’t have anything further.

This testimony, plus much additional evidence to the same effect, places grave doubt upon the voluntariness of the confession. See Miller v. State, 243 So.2d 558 (Miss.1971); Robinson v. State, 247 Miss. 609,157 So.2d 49 (1963); Matthews v. State, 102 Miss. 549, 59 So. 842 (1912); and Mitchell v. State, 24 So. 312 (Miss.1898).

Moreover, although it may be doubtful that Detective Hargrove was present when the first confession was made to Investigator Payne, the record reveals that he was present during a great part of Hicks’ interrogation and his testimony was not offered as it should have been. See Agee v. State, 185 So.2d 671 (Miss.1966), and its progeny, including Curry v. State, 328 So.2d 328 (Miss.1976); Booker v. State, 326 So.2d 791 (Miss.1976); White v. State, 306 So.2d 299 (Miss.1975); Younger v. State, 301 So.2d 300 (Miss.1974); Bounds v. State, 271 So.2d 435 (Miss.1973); Rowell v. State, 239 So.2d 917 (Miss.1970); and Stevens v. State, 228 So.2d 888 (Miss.1969). The mere statement by Payne that Hargrove was “at the F.B.I. Academy in Washington receiving some training,” without more, does not negate his availability as a witness. Compare Curry, supra.

REVERSED AND REMANDED.

INZER and SMITH, P. JJ., ROBERTSON, SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.


author: JONES, Justice.

text:
    FIRST ALABAMA BANCSHARES, INC. v. Hayse McGAHEY.
    SC 2416.
    Supreme Court of Alabama.
    Dec. 2, 1977.
    As Corrected On Denial of Rehearing March 3, 1978.
    Lawrence B. Clark and Reid B. Barnes, Birmingham, for appellant.
    Ralph Smith, Jr., Guntersville, for appel-lee.

      T. J. Carnes, of Carnes & Carnes, Albert-ville, for intervenors.
   JONES, Justice.

This appeal arises from the denial of an injunction sought by Appellant, First Alabama Bancshares, Inc., to enforce an alleged covenant not to compete between itself and Appellee, Hayse McGahey, a past director, president and stockholder of the Citizens Bank of Guntersville. Citizens Bank, subsequent to the date the covenant was made, merged into the Bank of Gun-tersville, a wholly-owned subsidiary of Bancshares, created solely as a vehicle to acquire Citizens Bank.

The principle question raised concerns whether the exchange of stock involved in a merger constitutes a “sale” of good will within the meaning of Tit. 9, § 23, Code (§ 8-1-1, Code of Ala. 1975). If our answer to this question is in the affirmative, a covenant not to compete will be recognized under such circumstances. The trial Court, basing its interpretation upon federal taxing statutes, held that the merger could not be considered a “sale.” We reverse and remand.

Title 9, § 23, provides that:

One who sells the good will of a business may agree with the buyer . to refrain from carrying on or engaging in a similar business and from soliciting old customers . . . within a specified county, city, or part thereof, so long as the buyer or any person deriving title to the good will from him . . . carries on a like business therein.

We are called upon to interpret the language of this section which is an exception to the more general proposition contained in Tit. 9, § 22, Code, that contracts in restraint of trade are, to that extent, void. See also 54 Am.Jur.2d Monopolies, § 522.

Before we may reach this question, however, we must determine whether an individual stockholder has a vendible interest in the good will of a corporation. This appears to be a question of first impression in this jurisdiction. Therefore, and because a more complete understanding of the facts may prove enlightening, a brief recitation of the facts is appropriate.

By agreement dated December 29, 1972, McGahey, and other directors of Citizens Bank, agreed not to compete with Bancs-hares should a subsequent plan of merger between Citizens Bank and the Bank of Guntersville be approved. The two conditions upon which this agreement was based were that the plan had to be approved by the Internal Revenue Service as a tax-free exchange; and that all the terms of the “Plan.of Reorganization,” of which the covenant not to compete was a part, must be fulfilled. One additional clause of that plan was that the merger and exchange of stock would be effective only if 80% of Citizens Bank’s common stockholders approved the merger offer. McGahey agreed not to “directly or indirectly enter the banking business in Guntersville, Alabama, for a period of five (5) years from the date on which the exchange [was] declared effective.”

A second agreement, a “Plan of Merger,” was executed by Citizens Bank, the Bank of Guntersville and Bancshares on November 13, 1973. On February 20, 85% of Citizens Bank’s shareholders voted to ratify the Plan of Merger. (Thus, all requisites of the Plan of Reorganization were fulfilled because the IRS had previously approved the transaction as being tax-free.) The F.D.I.C. approved the merger, and, on April 1, 1974, the merger of Citizens Bank and the Bank of Guntersville became effective.

McGahey served as director and president of the successor bank for approximately one year after the merger, at which time he voluntarily resigned and became president of the Security Bank and Trust Company of Arab, Alabama. He continued at this position from April, 1975, until May, 1976.

In May, McGahey left Security Bank and re-entered the banking business in Gunters-ville by seeking to establish the Home Bank of Guntersville. It is this participation in the organization of Home Bank which led to the instant suit.

The rule in California, relied upon by McGahey, is that the good will of a corporation is the property of that corporate entity, and can be transferred only by it. Dodge Stationery Co. v. Dodge, 145 Cal. 380, 78 P. 879 (1904); and Merchants Asign Co. v. Sterling, 124 Cal. 429, 57 P. 468 (1899).

This proposition, however, overlooks the well-settled rule in Alabama that the stockholders of a corporation are the equitable owners of its assets. Williams v. North Ala. Express, 263 Ala. 581, 83 So.2d 330 (1955). Therefore, because the good will of a corporation is a corporate asset, a stockholder is the equitable owner of that good will in the proportion that his shares bear to the total outstanding shares of stock in the corporation. Or, as specifically held in Wylie v. Wylie Permanent Camping Co., 57 Mont. 115, 187 P. 279 (1920), “Good will is not a thing apart, but an incident to and inherent in the thing itself — the business.”

The view we have taken is followed by other states which have considered this question. In Bessel v. Bethke, 56 N.D. 1, 215 N.W. 868, 869 (1929), it was stated:

“Where one sells his stock he necessarily disposes of his interest in the good will of the business conducted by the corporation to the same extent as he parts with his interest in any other property of the corporation.”

See also Public Opinion Publishing Co. v. Ransom, 34 S.D. 381, 148 N.W. 838 (1913); Buckhout v. Witwer, 157 Mich. 406, 122 N.W. 184 (1909); and 54 Am.Jur.2d, Monopolies, § 526.

In Key v. Perkins, 173 Okl. 99, 46 P.2d 530, 532 (1935), statutes and facts were similar to the instant case. After examining the above-noted cases, as well as the California rule, the Court stated:

“As we view it, the weight of authority and sound reasoning and logic support the contention that the owner of an appreciable interest in the stock and property and assets of a corporation has a proportionate interest in the good will of the business; and that on a sale thereof such owner is bound by a contemporaneous agreement, supported by an adequate consideration not to engage in a similar business within the territorial and time limits . .

Therefore, we conclude that an individual stockholder may sell the good will of a corporation in proportion to his interest in that corporation.

Thus viewed, then, we must now determine whether, under the facts before us, there was a “sale” of good will pursuant to Tit. 9, § 23, Code. McGahey’s contention that we must interpret “sale” as that term is used for federal tax purposes is without merit. Whether the transfer is taxable is immaterial to our consideration; and this for the reason that it is only the specific exclusionary provision which prevents this transfer from being taxable as a “sale or exchange.” I.R.C., §§ 354, 368(a), 1001(c). While some gain may be realized, it is merely not recognized as a taxable incident by the terms of the federal revenue code.

McGahey’s assertion that contracts in restraint of trade and employment are looked upon with disfavor is true. Tit. 9, § 22, Code; and Hill v. Rice, 259 Ala. 587, 67 So.2d 789 (1953). This, however, does not compel the interpretation of the word “sale” to mean “cash sale.” See Shelton v. Shelton, 238 Ala. 489,192 So. 55 (1939); and Davis v. Christopher, 219 Ala. 346, 122 So. 406 (1929).

The intent of the Legislature in passing § 23 was to protect purchasers of a business from prior entrepreneurs where the good will of that business is one of the assets purchased. Shelton, supra. We perceive no set of circumstances more illustrative of the legislative purpose than the instant case. Here, a statewide corporation merged and acquired the assets of a local banking institution. The utmost trust and personal faith is required of a banker by his customers. Obviously, then, the good will of Citizens Bank was an important asset acquired by Bancshares; and, therefore, Bancshares had a legitimate interest in preventing McGahey, who had helped establish and nourish that good will, from competing locally with it. The term “sale,” as included in Tit. 9, § 23, Code, must be interpreted to include a transfer or acquisition. No less-expansive interpretation could foster the legislative intent. Indeed, because the Legislature, at the time of this statute’s passage, could not foresee the complexities involved in today’s corporate mergers, the generic interpretation is the only reasonable solution to this situation.

Finally, McGahey alleges that the covenant not to compete was executory and, therefore, unenforceable. This, however, is fallacious because the two agreements are separate contracts, each supported by adequate consideration. The fact that Bancshares would not have entered the merger agreement absent this covenant supplies sufficient consideration to support the obligation in that the promisee, McGahey, has suffered a legal detriment. See National City Bank of Mobile v. Barret, 217 Ala. 611, 117 So. 55 (1928); Baumhauer v. McGill, 15 Ala.App. 433, 73 So. 753 (1917); and Corbin, Contracts, §§ 121-23.

Therefore, the covenant not to compete is valid and enforceable within the limitations of Tit. 9, § 23, Code, and the injunction is due to be issued.

REVERSED AND REMANDED.

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


author: BEATTY, Justice.

text:
    COMMERCIAL UNION INSURANCE COMPANY v. James W. RYALS and Dollories Ryals.
    SC 2443.
    Supreme Court of Alabama.
    Jan. 27, 1978.
    Robert G. Kendall of Johnston, Johnston & Kendall, Mobile, for appellant.

      Erling Riis, Jr. and T. E. Sharp, III, for Vickers, Riis, Murray & Curran, Mobile, for appellees.
   BEATTY, Justice.

The defendant appeals from a judgment of the trial court affirming an arbitration award to the plaintiff in the amount of $96,243.00. We affirm.

The plaintiff’s restaurant building was insured against fire by a policy issued by the defendant. The insuring (or limitation) clause provided that the building was insured:

[t]o the extent of the actual cash value of the property at the time of the loss, but not exceeding the amount which it would cost to repair or replace the property with material of like kind and quality.

The policy also contained an appraisal provision stating in part:

The appraisers shall then appraise the loss, stating separately actual cash value and loss to each item; ... An award in writing, so itemized, of any two when filed with this Company shall determine the amount of actual cash value and loss. .

The restaurant was damaged by fire and because of a disagreement on the amount of the loss, the insurer and the insureds appointed appraisers in accord with the policy provisions. An umpire was appointed by the trial court. After these three made an arbitration award, the insureds petitioned the circuit court for a judgment on the award, and following the filing of the insurer’s answer, the trial court held a hearing. That court interpreted the limitation clause of the policy to allow the reasonable cost of repair not exceeding the actual cash value of the building. The trial court also held that the policy provisions which referred to the actual cash value and loss to each item meant actual cash value and loss to the building as an item, rather than to each item comprising the building. The arbitrators then entered an amended award establishing the actual cash value of the building at the time of loss at $161,000.00, and the appraised loss to the building at $96,243. At a hearing held on this amended award both appraisers testified that it would not be possible to separately appraise the “actual cash value” of each component part of the building. At the conclusion of this hearing the trial court’s judgment confirmed the amended award.

The defendant contests the two interpretations of the policy provisions made by the trial court, and so the issues before us are:

(1) Whether the limitation clause establishes the measure of recovery as the reasonable costs of repairs when those costs do not exceed the actual cash value of the entire building, and

(2) Whether these policy provisions allow a building to be construed as an “item.”

According to the defendant, all that the appraisers did was to determine replacement and repair cost. They did not attempt to establish actual cash value which, defendant maintains, involves either an allowance for depreciation or a finding of market value. Defendant cites us to Reliance Ins. Co. v. Orleans Parish School Board, 322 F.2d 803 (5th Cir. 1963) for the Louisiana rule which follows repair or replacement cost less depreciation. We are also referred to our own case of Glens Falls Ins. Co. of New York v. Garner, 229 Ala. 39, 155 So. 533 (1934) for the statement contained in that opinion, that actual cash value “means, and can only mean, what the thing is worth in money, allowing for depreciation.” An earlier case, Sussex Fire Ins. Co. v. Barton, 225 Ala. 570, 574,144 So. 439 (1932), contains a dictum recognizing market value as the measure of recovery. Those Alabama cases do not set out the specific policy provisions for our comparison with those applicable here, and, indeed, the plaintiff does not quarrel with those statements, but takes the position that they are inapplicable here. The plaintiff’s position is that this particular clause limits the total amount for which the entire building is insured to the actual cash value of that building, rather than establishing actual cash value as a measure of loss. This ceiling, plaintiff asserts, does not otherwise limit cost of repair as the measure of loss, according to the terms of the policy. That is, the measure of recovery is the cost of replacement or repair up to but not exceeding the actual cash value of the building at the time of the loss.

We believe that the interpretation given to identical policy terms in Great American Ins. Co. v. Railroad Furniture Salvage of Mobile, Inc., 276 Ala. 394, 400, 162 So.2d 488, 494 (1964) controls here. In that case a windstorm policy provided coverage:

‘To the extent of the actual cash value of the property at the time of the loss, but not exceeding the amount which it would cost to repair or replace the property with material of like kind and quality . .

Describing this provision as “certain and free from ambiguity,” this Court added:

It expressly limits the damages for which the defendant is liable to the actual cash value of the property at the time of loss, but not to exceed the cost of repair, or replacement with goods of like kind within a reasonable time after loss, (emphasis added)

That interpretation is the rule in Alabama upon the measure of damages under such a policy when the insured sustains a partial loss. This view finds support in other jurisdictions. Accord, Glens Falls Ins. Co. v. Gulf Breeze Cottages, 38 So.2d 828, 830 (Fla.1949), where the Court observed:

Bearing in mind that the purpose of the contract was to indemnify the owner against loss, . . . the property should have been placed in as nearly as possible the same condition that it was before the loss, without allowing depreciation for the materials used. Certainly it was not intended that the repairs should be made with materials which were not new. If depreciation were allowed, it would cast upon the owner an added expense which we do not believe was contemplated by the parties when they entered into the insurance contract.

We also conclude, as did the trial court, that an itemized account of the components which made up the damaged building was unnecessary; that is to say, it was proper for the appraisers to compute the loss to the building as one item. The pertinent policy provision is:

In case the insured and this Company shall fail to agree as to the actual cash value or the amount of loss, then, on the written demand of either, each shall select a component and disinterested appraiser and notify the other of the appraiser selected within twenty days of such demand. The appráisers shall first select a competent and disinterested umpire; and failing for fifteen days to agree upon such umpire, then, on request of the insured or this Company, such umpire shall be selected by a judge of a court of record in the state in which the property covered is located. The appraisers shall then appraise the loss, stating separately actual cash value and loss to each item; and, failing to agree, shall submit their differences, only, to the umpire. An award in writing, so itemized, of any two when filed with this Company shall determine the amount of actual cash value and loss. .

This identical language was contained in the insurance policy whose terms were in issue in Phoenix Assurance Company of New York v. Singer, 221 F.Supp. 890, 892 (E.D.Mo.1963). As in the case before us, it was there argued by the insurance company that the policy required more than a monetary amount representing the loss to the dwelling. The Court rejected that contention at page 893:

Under plaintiff’s apparent interpretation, the appraisers would be required to itemize minutely the actual cash value of each part of the building immediately prior to the fire as well as the loss. But the agreement did not provide for any further breakdown than the one item, the dwelling in question. .

In the case before us as well, there is only one item referred to under “Coverage A-Building(s),” and that is “Loe. No. 1 Bldg. No. 1,” described as a “Restaurant & Lounge.” And as the United States Court of Appeals stated in affirming the Phoenix decision:

We agree that the word ‘item’ refers to items as listed in the policy and not to a detailed specification of all of the minute elements of damage giving rise to the total damage with respect to each item listed on the policy. (331 F.2d 10, 12, 8th Cir. 1964).

Accord, Campbell v. Union Mut. Fire Ins. Co., 124 A. 469 (R.I.1924).

The issues having been correctly decided by the trial court, his decision is due to be, and is, affirmed.

AFFIRMED.

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


text:
    Gertrude B. MILFORD, Executrix of the Estate of Floyd S. Milford and M. & M. Coal Company, Inc. v. TENNESSEE RIVER PULP AND PAPER COMPANY et al.
    SC 2494.
    Supreme Court of Alabama.
    Jan. 27, 1978.

      Al E. Tidwell, Associate, of John D. Self, Hamilton, for appellants.
    Charles R. Stephens, of Bankhead, Savage & Stephens, Jasper, for appellee, Tennessee River Pulp & Paper Co., a Corporation.
    Bill Fite, of Bill Fite, Vinson & Guyton, Lander Beasley and Lee West, Hamilton, for appellees.
   JONES, Justice.

Floyd S. Milford filed this detinue action for the return of certain personal property held by Appellees, Tennessee River Pulp and Paper Company and Lander G. Beasley. This action was consolidated for trial with a declaratory judgment action subsequently filed by C. 0. May against these same Defendants. The trial Court, sitting without a jury, found for both Tennessee River and Beasley, and entered judgment pursuant thereto. We affirm.

The facts leading to these suits are somewhat involved and require preliminary recitation. Wood-Burleson Coal Company, as fee owners, installed a coal washing operation upon the land in question. It maintained this equipment for twelve years before selling the surface estate to Tennessee River in 1960.

In 1962, Wood-Burleson conveyed the mineral estate to May, who used the washer operation (consisting of a washer, tipple, scales, two settling ponds and various other items) in conjunction with his mineral interests. May sold this washing equipment and leased his mineral rights to Beasley in 1968. Approximately one year thereafter, on August 15, 1969, Beasley agreed to sell the screening and washing concern to Milford. (Though the details of this agreement are in dispute, it is not an issue presently before the Court.)

The settling ponds have been used as such from the time Wood-Burleson operated the washing process. They have not been mentioned, however, in any sale of the operation or conveyance of the surface or mineral estates.

Milford, doing business as M. & M. Coal Company, used the washing operation to clean coal brought from other locations. Because he considered the property to be “lost land,” he never instituted a title search concerning the surface estate. Moreover, he never paid rent to the surface owner, though an agreement to this effect was requested by agents of Tennessee River on several occasions.

Due to physical infirmities, Milford discontinued the business in 1972. This suit was filed when Beasley and Lee West, pursuant to a lease with Tennessee River, entered upon the property, began extracting coal from the settling ponds, and allegedly used personal property belonging to Appellant.

The trial Court held that Milford could recover his personalty located on the property, but permitted Beasley and West to reclaim the coal from the settling ponds pursuant to their lease agreement. All pieces of equipment attached to the realty were found to be fixtures and, thus, were awarded to Tennessee River as surface owner.

Milford raises two primary contentions on this appeal. First, he asserts that the coal in the settling ponds is personalty and, as such, belongs to him. Secondly, he insists that the washer, tipple and scales are not fixtures but are merely personalty. Even should this Court hold such property to be fixtures, he contends, they should be deemed trade fixtures which should also be recoverable.

It is well settled that minerals un-severed from the soil, lying in place, are part of the freehold. When such minerals are severed from the soil, however, they become personalty. Forbes v. Gracey, 94 U.S. 762, 24 L.Ed. 313 (1876); Aldrich Mining Co. v. Pearce, 169 Ala. 161, 52 So. 911 (1910); Williams v. Gibson, 84 Ala. 228, 4 So. 350 (1887); and 58 C.J.S. Mines and Minerals § 133. Therefore, the coal processed through this washer operation had become the personalty of the mineral estate owner.

Milford contends that it is inconsistent to allow him to recover his other personalty, while not permitting recovery of the coal refuse. This, however, is fallacious because, whereas there was no abandonment of his other personal property, the refuse is merely abandoned personalty.

A determination whether certain personalty is abandoned stems from a consideration of the nature of the particular property, the intent to abandon, and some external act evidencing this intent. Quinnelly v. City of Prichard, 292 Ala. 178, 291 So.2d 295 (1974); and Alabama Power Co. v. Daily, 31 Ala.App. 441, 18 So.2d 142 (1944). It is from the party’s conduct, then, that his intent may be discerned. Llewellyn v. Philadelphia & Reading Coal & Iron Co., 308 Pa. 497, 162 A. 429 (1932).

Though ordinarily there exists a presumption that one does not intend to abandon his property, this presumption is not attendant where the article claimed to have been abandoned is generally considered valueless. Fidelity-Philadelphia Trust Co. v. Lehigh Valley Coal Co., 294 Pa. 47, 143 A. 474 (1928). In the case at bar, Milford admits he considered the coal valueless and that all purchasers had refused future shipments of it. Moreover, prior to Beasley’s and West’s occupancy, no one had used the ponds for several years. (Unlike the coal refuse, the washing operation and equipment were locked and obviously not abandoned.) Therefore, the Court properly held that the coal refuse was abandoned property. As such, it could be legally appropriated by Tennessee River. See Llewellyn, supra; Fidelity, supra.

Appellant’s second contention is also without merit. A “fixture” is “ ‘an article which was once a chattel, but which, by being physically annexed or affixed to the realty, has become accessory to it and part and parcel of it.’ ” Farmers & Merchants Bank v. Sawyer, 26 Ala.App. 520, 522, 163 So. 657, 658 (1935). It is only from an examination of the circumstances of each case that doubt may be resolved as to whether a certain item is a fixture. Criteria for this determination include:

“(1) Actual annexation to the realty or to something appurtenant thereto; (2) Appropriateness to the use or purposes of that part of the realty with which it is connected; (3) The intention of the party making the annexation of making permanent attachment to the freehold. This intention of the party making the annexation is inferred; (a) From the nature of the articles annexed; (b) The relation of the party making the annexation; (c) The structure and mode of annexation; (d) The purposes and uses for which the annexation has been made.” Langston v. State, 96 Ala. 44, 46, 11 So. 334, 335 (1891).

See also Walker v. Tillis, 188 Ala. 313, 66 So. 54 (1914); and 35 Am.Jur.2d, Fixtures, §4.

In the case before us, the first two requirements have obviously been fulfilled. The washer equipment is set into concrete and permanently attached to the realty. The process is particularly appropriate for this land in that the property itself is coal producing. Furthermore, extensive strip-mining is conducted in the area.

The final requirement, however, is in dispute. Intent to affix property to the realty may be express or implied; but where a building or other structure has been voluntarily erected, such intent is presumed. North British & Merchantile Insurance Co. v. Sciandra, 256 Ala. 409, 54 So.2d 764 (1951); Sullivan v. Lawler, 222 Ala. 628, 133 So. 911 (1931); and 35 Am.Jur.2d, Fixtures, §§ 35, 78, and 82.

Though the determination of whether an article is a chattel or a fixture is a mixed question of fact and law, the trial Court clearly ruled correctly in this case. The property is of such nature that permanent affixment must certainly have been originally intended. Furthermore, the equipment has been attached and in place for well over twenty years. The only inference properly drawn from this evidence is that the pieces of equipment, so annexed to the realty, are fixtures.

Thus viewed, we must now determine one final point in controversy. Milford contends that he was either a licensee or a tenant at will and, as such, is entitled to remove trade fixtures attached during his tenancy. If we hold that Milford attained such status, his assertion is correct. See Walker, supra; Poole’s Case, 1 C. 368 (1703); and 35 Am.Jur.2d, Fixtures, § 39. It is this assertion as to Milford’s status, however, with which we disagree.

Milford was under no lease or sale agreement with Tennessee River. He neither sought nor obtained permission to remain on the land. Furthermore, Tennessee River, through its agents, consistently opposed his rent-free possession. Therefore, because occupancy must be permissive before one may be considered a licensee, Milford cannot be deemed to have attained this status. See Messer v. City of Birmingham, 243 Ala. 520, 10 So.2d 760 (1942); and Hicks Brothers v. Swift Creek Mill Co., 133 Ala. 411, 31 So. 947 (1902). The mere fact that no suit is brought by the true owner does not create a tenancy relationship, nor elevate a trespass to a tenancy at will. From the evidence presented, Milford must be deemed a trespasser. See Alexander v. Letson, 242 Ala. 488, 7 So.2d 33 (1942); and Foust v. Kinney, 202 Ala. 392, 80 So. 474 (1918).

As a trespasser, one has no claim to fixtures attached to the realty of another. See North British, supra; Worley v. Ehret, 36 Ill.App.3d 48, 343 N.E.2d 237 (1976); Titus v. Poland Coal Co., 275 Pa. 431, 119 A. 540 (1923); 35 Am.Jur.2d, Fixtures, § 82, and 36A C.J.S. Fixtures § 25.

“It is . true generally, that if there is a tortious entry upon lands, and the tortfeasor makes improvements upon them, annexed to the soil, for the better use and enjoyment of the lands, such improvements become a part of the realty; all property in them is vested in the proprietor of the soil, who is under no legal or equitable obligation to make compensation for them, or to suffer them dissevered and removed.” Jones v. New Orleans and Selma Railroad Company and Immigration Association, 70 Ala. 227, 231 (1881).

Both questions raised concern a mixture of fact and law. As such, a presumption of correctness attends the decision of the trier of fact. Ford v. Washington, 288 Ala. 194, 259 So.2d 226 (1972); and 5A C.J.S. Appeal and Error §§ 1642, 1647. Because no error is manifest upon the record, the judgment of the trial Court is due to be affirmed.

AFFIRMED.

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


author: MADDOX, Justice.

text:
    David G. GRIFFIN v. Welton GREGORY.
    SC 2501.
    Supreme Court of Alabama.
    Jan. 27, 1978.

      Barry N. McCrary, of Dixon, Wooten, Boyett, McCrary & Thornton, Talladega, for appellant.
    William M. Acker, Jr., Birmingham, Tom Radney, Alexander City, Henry C. Chappell, Jr., Montgomery, for appellee.
   MADDOX, Justice.

In this personal injury action, the jury returned a verdict in favor of the defendant counter-claimant for the sum of $60,000. The original plaintiff appeals, claiming the trial court erred in:

(1) Refusing to allow a wrecker operator to state his opinion as to the point of collision of the two automobiles;
(2) Allowing a state trooper to state his opinion about point of impact;
(3) Admitting into evidence a diagram which was not drawn in court;
(4) Refusing to give an instruction on the legal consequences of an act of God;
(5) Refusing to grant a new trial because the verdict was excessive;
(6) Refusing to grant a new trial because of improper argument of counsel.

The accident occurred on Alabama Highway 21 in Coosa County. Plaintiff, David Griffin, was travelling north in a Volkswagen. Defendant, Welton Gregory, was going south in a Chevrolet. Each party claimed the other had crossed the center line. The jury obviously believed Gregory’s version of the facts.

I

Plaintiff Griffin claims that the trial judge erred in refusing to permit, over defendant’s objection, a truck operator, who was also a garage mechanic, to give his opinion as to the “portion on the Volkswagen which was hit by the Chevrolet.” Whether a particular witness will be permitted to testify as an expert is largely discretionary with the trial court, whose discretion will not be disturbed on appeal except for abuse. Hagler v. Gilliland, 292 Ala. 262, 292 So.2d 647 (1974).

II

The trial judge permitted a state trooper to give, over objection, his opinion as to the point of impact of the automobiles. Here again, whether a particular person will be permitted to testify as an expert is largely discretionary. We find no reversible error here. In Madison v. State, 40 Ala.App. 62, 109 So.2d 749 (1958), a highway patrolman was permitted to give a conclusion as to the point of impact based on his personal observation as a “shorthand rendering of a collective fact.” That is what happened here.

III

Griffin objected to the introduction of a diagram, admittedly not prepared in court, but which the witness identified as a drawing which correctly portrayed and depicted the highway, the position of two vehicles at the time of collision, and subsequent thereto.

Griffin claims the diagram was inadmissible and argues in brief:

“The introduction of the exhibit into evidence, however, had a much more sinister effect, as was noted by the Court of Appeals of Alabama in the case of Catrett v. State, 25 Ala.App. 331, 146 So. 287 (1933). In Catrett, the court observed that the most incriminating evidence allowed upon the trial of the case was a map prepared by a witness for the State, which was allowed into evidence over the objection and exception of the appellant. The Court of Appeals noted that the diagram or map with its indicia, notations and characters, operated in effect as a perfect picture of the homicide complained of, and a portrayal of the killing in line with the theory and insis-tencies of the prosecution. The witness who prepared the map admitted he knew nothing whatever relative to the killing of the deceased, or the locus in quo of the offense, and that he prepared the map solely upon information given him by other parties in the absence of the appellant. The Court of Appeals further noted that the map showed in detail practically every fact upon which the State relied for a conviction, and was highly prejudicial to the substantial rights of the accused. The court stated that the map, being predicated upon hearsay only, should not have been allowed in evidence and the exception reserved to its introduction had to be sustained.”

Suffice it to say that in Catrett v. State, 25 Ala.App. 331, 146 So. 287 (1933), the Court noted:

“. . . Some locations and points of the map were verified by witnesses in their testimony, but no witness undertook to testify that the red dots or marks indicated thereon as the tracks of the defendant, were correct.” (emphasis added).

Here, there was testimony that the diagram correctly portrayed the scene. In his objection to the admission of the diagram, counsel for plaintiff stated, “. . . why don’t the defendants take the blackboard there and draw a scene instead of all this . . Obviously, a diagram or model, whether prepared in court or out of court, must fairly and accurately portray what it purports to portray and must be relevant and material. Defendant’s complaint during trial that the diagram was not drawn on the blackboard was without merit. The deficiency noted in Catrett is not present here. There was no error in admitting the diagram into evidence. As this Court said in James v. Mizell, 289 Ala. 84, 265 So.2d 866 (1972):

“Further, a diagram or drawing may be used by a witness to make more clear his testimony. If the witness testifies to the correctness of a map or diagram, whether made by himself or by someone else, and has personal knowledge of the matter depicted, such matters furnish a sufficient predicate for the admission of the map or plat. It is not necessary that the authenticity of the plat be first established by the cartographer or author of the plat or map. Cooper v. State, 274 Ala. 683, 151 So.2d 399. No merit therefore attaches to assignment of error No. 40.”

IV

Griffin claims that because there was evidence of rain and high winds, and that he was driving a Volkswagen, and the defendant testified that he was on the wrong side of the road, that “the jury could infer from the evidence, and had a right to do so, that the Volkswagen was blown from its straight course of travel without any fault on the part of the plaintiff.” In the first place, there was no written request for an instruction on the legal consequences of an act of God. Secondly, there was no evidence that an act of God, as defined in Alabama Pattern Jury Instructions, § 28.18, was the proximate cause of the accident. There was no error here.

V

Griffin’s argument that the jury verdict of $60,000 for the defendant-counter-claimant was excessive is without merit. There was evidence that Gregory had actual medical expenses of $10,339.45, that he underwent an extensive and painful rehabilitation process and would be permanently disabled. The trial court heard the evidence, observed the witness, and refused to grant a new trial. The verdict is not excessive. R. C. Bottling Co. v. Sorrells, 290 Ala. 187, 275 So.2d 131 (1973).

VI

Griffin claims the trial court should have granted a mistrial because of remarks made by Gregory’s counsel during closing arguments, as follows:

“MR. RADNEY: I noticed the other day for five acres of land over here, $96,-000 for five acres of land.
“MR. TEEL: If the court please—
“BY THE COURT: Sustained.
“MR. RADNEY: What five acres of land?
“MR. TEEL: If the court please—
“BY THE COURT: Sustained.
“MR. TEEL: I ask that the jury be instructed to completely disregard that argument.
“MR. RADNEY: Your Honor, I am suggesting that I can compare land to the hurt of somebody.
“MR. McCRARY: May it please the court—
“BY THE COURT: Objection is sustained and I grant the motion to exclude that from the jury’s instructions.
“MR. McCRARY: Also other remarks made while we were making our objections.
“BY THE COURT: They are included.
“MR. McCRARY: Move the court for a mistrial.
“BY THE COURT: Motion for a mistrial denied.”

No prejudicial error to reverse is shown here. The trial judge took immediate action to instruct the jury to disregard the argument. Griffin’s argument that the remarks were ineradicable is without merit.

The judgment is due to be affirmed.

AFFIRMED.

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