author: DOMEN GE AUX, Judge. CULPEPPER, Judge,

text:
    G. W. HOLLEYMAN, Plaintiff and Appellant, v. Adrienne GARBARINO et al., Defendants and Appellees.
    No. 6423.
    Court of Appeal of Louisiana, Third Circuit.
    April 19, 1978.
    Rehearing Denied May 24, 1978.
    Writ Refused June 30, 1978.
    J. Norwell Harper, Lake Charles, for plaintiff and appellant.
    Knight & Knight, by William N. Knight, Jennings, Richard E. Gerard, Lake Charles, Carrol D. Van Geffen and George H. Van Geffen, New Orleans, Bean & Rush, by James W. Bean, Lafayette, for defendants and appellees.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   DOMEN GE AUX, Judge.

This declaratory judgment suit was filed by G. W. Holleyman in 1966 to annul a 1945 tax sale of an undivided one-half interest in five acres of land. Holleyman was record owner of the land at the time of the sale. Issue was joined, and the suit lay dormant until 1972 when further pleadings were filed and the litigation reactivated. Holley-man died in 1974, and his widow and son were substituted as parties plaintiff. The defendants are former stockholders and successors in title of The Latreille Estate, Inc., which purchased the property at the 1945 tax sale. The property had been erroneously assessed in the name of The Latr-eille Estate for the year 1944. Instead of paying the taxes, Latreille bought the property at tax sale. Trial was held in 1977, and the trial judge found that the sale was not void under any recognized exception to the 5-year peremption of Article 10, Section 11 of the 1921 Constitution. From a judgment dismissing plaintiffs’ suit and confirming and quieting defendants’ title to the land in question, plaintiffs have appealed.

The substantial issues on appeal are: (1) Does a tax sale to one in whose name property is erroneously assessed constitute only payment of the taxes? (2) Did the plaintiffs, record owners, corporeally possess the property through possession by a railroad company of a servitude across the property, so that the five-year peremptive period did not run? (3) Should there be judgment in favor of the plaintiffs under the doctrine of equitable estoppel or does general equity demand such a judgment?

All of the facts are stipulated by agreement of the parties. The essential facts are: The land involved is a 5-acre tract in a rural area. G. W. Holleyman acquired ownership of this property in 1939. Plaintiffs, Holleyman’s widow and son, were placed in possession of his interest in the property by judgment of recognition and possession in 1975. The Latreille Estate, Inc. first purchased the property at the tax sale in 1942 for taxes for 1941 assessed in the name of G. W. Holleyman. G. W. Holleyman redeemed the property from The Latreille Estate, Inc. by tax redemption deed dated March 26, 1943. Although this deed was filed for record on March ■ 31, 1943, the property was erroneously assessed to The Latreille Estate, Inc. for the year 1944. G. W. Holleyman did not receive a tax notice on the property for the taxes of that year and did not pay taxes on the property for 1944. There was no dual assessment. The Latreille Estate, Inc., to whom the property was assessed for 1944, failed to pay the taxes for the year 1944. As a result, another tax sale, was held on June 6, 1945. The successful bidder at the sale for $3.66, was The Latreille Estate, Inc., acting through its employee and agent, Norberta Blessing-ton, in whose name the tax deed was executed and recorded on June 8, 1945.

In October of 1950, The Latreille Estate, Inc. caused Norberta Blessington to execute a quitclaim on this property in favor of the said corporation. This deed was recorded on November 8,1950. The stated consideration of $7.61 was not paid to Norberta Blessington since it represented the total of the taxes, interest, notice and filing costs that had been paid by the vendee, The Latreille Estate, Inc., when it purchased the property for itself in the name of Norberta Blessington at the tax sale on June 6, 1945.

G. W. Holleyman did not personally, physically and corporeally possess the property subsequent to the year 1944.

In 1901, Holleyman’s ancestors in title acquired title to this property “subject to and less a right of way 200 feet wide across said land for La. W.R.R. Co.” The Souths era Pacific Railroad (successor to the Louisiana Western Railroad) has been in corporeal possession of this 200-foot strip, by maintaining its track and operating its trains daily, since prior to 1901. This strip is completely fenced and traverses the property at issue here. (There is no stipulation that the remainder of the property was fenced or otherwise enclosed.)

The Latreille Estate, Inc. was placed into liquidation after 1950. In 1954, as part of the distribution of assets to shareholders, a deed purporting to convey the property at issue here to the defendants was executed, filed and recorded.

In 1965, G. W. Holleyman and the defendants each executed an oil, gas and mineral lease on this land in favor of William V. Conover. This suit was filed in 1966.

For the plaintiffs to be successful in their attempt to set aside the tax sale, they must overcome the constitutional peremption set forth in LSA-Constitution of 1921, Article 10, Section 11, which provides in part:

“No sale of property for taxes shall be set aside for any cause, except on proof of payment of the taxes for which the property was sold prior to the date of the sale, unless the proceeding to annul is instituted within six months from service of notice of sale, which notice shall not be served until the time of redemption shall have expired and within five years from the date of the recordation of the tax deed, if no notice is given.”

As noted in King v. Moresi, 223 La. 54, 64 So.2d 841 (La.1953), the language used in this constitutional provision is very broad and announces the public policy of this state, to set at rest tax titles once and for all..

In addition to the exception to the 5-year peremptive period contained in the above quoted portion of the Constitution of 1921, i. e., proof of payment of the taxes, our jurisprudence has established two other exceptions. First, where the tax debtor remains in continuous corporeal possession of the property. Second, where there was no assessment of the property. Gulotta v. Cutshaw, 283 So.2d 482 (La.1973); Verret v. Norwood, 311 So.2d 86 (La.App. 3rd Cir. 1975).

Plaintiffs’ first contention is that the purchase at a tax sale by one erroneously assessed with the taxes amounts only to the payment of the taxes by one under a duty to pay them, and that the tax sale is therefore absolutely null because the taxes for 1944 were paid. Plaintiffs admit they can find no Louisiana case to support this position. The issue is res nova in this state.

Of course, plaintiffs emphasize White v. White, 233 So.2d 289 (La.App. 1st Cir. 1970) and cases cited therein for the proposition that a purchase at a tax sale by a person who is under a legal or fiduciary duty to pay the taxes, is deemed as payment of the taxes. However, none of these cases deal with facts similar to the ones here. As the able trial judge noted: “It has to be a co-owner or one under some special duty because of his relationship to the record owner to pay the taxes who fails to pay the taxes and then buys it at the tax sale to prevent the peremptive period from running.” None of the cases dealt with a tax sale purchaser who had been erroneously assessed with the taxes.

The trial judge correctly noted a property tax is an obligation on the land, not a personal obligation. Ducote v. City of New Orleans, 176 So.2d 198 (La.App. 4th Cir. 1965). The record owner of immovable property at the time of advertisement and sale for delinquent taxes is the delinquent tax debtor. Kuhn v. Sandefur, 28 So.2d 515, 517 (La.App. 2nd Cir. 1946). The only basis on which we could hold that The Latr-eille Estate, Inc. was under a duty to pay the taxes on the property at issue here is that the property was erroneously assessed in its name. Clearly, an erroneous assessment cannot alone create a duty to pay taxes. We conclude the sale cannot be attacked by plaintiffs on the basis that the taxes for 1944 were paid.

The second issue is whether the plaintiffs and their ancestors in title corporeally possessed the land through the possession by the railroad company of the 200 foot wide servitude across the property, so that the 5-year peremption did not run.

It was stipulated that except for the extent of possession by the railroad of a 200 foot strip of land traversing the property, Holleyman did not personally, physically and corporeally possess the property subsequent to the year 1944, the date of the tax sale.

The stipulated facts show that the property is subject to a right-of-way in favor of Southern Pacific Railroad (successor to the Louisiana Western Railroad) which was granted sometime prior to 1901. The right-of-way affects a 200 foot strip of land traversing the property in an east-west direction located in the North Half of the property. The strip is fenced on both sides which completely separates it from the remainder of the property thereby dividing the property into two (2) separate pieces of property. The only corporeal possession to the property is limited to this strip and is by the railroad. The trial court’s written opinion correctly disposes of appellant’s argument concerning possession which we quote with approval as follows:

“Plaintiffs argue that Holleyman has remained in possession of the subject property, and, therefore, the five year per-emptive period has been suspended. It 'was stipulated that except for the extent of the use by the railroad of a 200 foot strip of land traversing the subject property, Holleyman did not personally, physically and corporeally possess the property after the year 1944, the year of the tax sale.
It is well established that the possession required to prevent the loss of the property by virtue of peremption must be open, actual, physical and corporeal possession and of such a nature as to be a continuing protest against the tax sale. Board of Commissioners v. Sperling, 205 La. 494, 17 So.2d 720 (1944); Staring v. Grace, 97 So.2d 669 (La.App. 1st Cir. 1957). In Board of Commissioners v. Sperling and in Staring, the court discussed the type of possession necessary in order to prevent the peremptive period from running. Basically, one must have an exclusive domain over the property and the possession must be such that it acts as a continuing protest against the tax sale.
In this case, plaintiffs rely on the completely fenced 200 foot right-of-way which traverses the property in an east-west direction and which is located on the northern half of the subject property. Plaintiffs’ argument that possession of part of the tract by or for the benefit of the record owner amounts to possession of the entire tract is basically correct. The type of possession necessary to defeat the running of the peremptive period is similar to the type of possession necessary to acquire prescription in ten years, but it must also be of such character as to be a continuing protest against the tax sale by the tax debtor. The use by the railroad of the 200 foot strip was commenced before 1901, was the same prior to the 1944 tax sale, and has been the same ever since. This type of possession cannot be considered as a protest by the plaintiffs against the tax sale. The plaintiffs have failed to meet the burden required of them to prove possession in order to avoid the running of the peremp-tive period.”

Our review of the jurisprudence dealing with possession in these type cases shows that it is given a narrow scope in that it must be corporeal and not civil or constructive. E. g., Westover Realty Co. v. State, 208 La. 163, 23 So.2d 33 (1945). Also, as spoken by the trial judge, the possession must be “in effect a continuous protest against the tax sale.” Kuhn v. Sandefur, supra.

The thrust of plaintiff’s argument concerning possession is that possession of a part of a tract by or for the benefit of the record owner amounts to possession of the entire tract and that corporeal possession of the 200 foot strip by the railroad enures to their benefit and is corporeal possession of the entire tract. This would be a viable argument if this was a possessory, petitory or boundary action. However, counsel has cited no case where this principle of law has been applied to the possession issue in a tax sale under the constitutional peremptive period. This type of possession has been a creature of the jurisprudence, the rationale for the rule being that it must be of such character as to be a continuous protest against the tax sale by the tax debtor. As pointed out by the trial court the possession by the railroad of the 200 foot fenced strip which separates the property has been the same since prior to 1901; was the same prior to the 1944 tax sale; and has been the same since. This by itself is certainly no protest on the part of Holleyman, the tax debtor, of the tax sale. The most that can be said is that it is evidence of possession of the servitude rights of the railroad.

Although appellants seek to distinguish the case of Kaufman v. Jackson, 221 La. 957, 60 So.2d 886 (1952), we feel that this case is pertinent to the issue of possession. Kaufman was a proceeding to confirm and quiet a tax title. The claim of defendants that they and the deceased original tax debtor had continued in “actual, corporeal possession of the property” gave rise to a discussion of the nature of the possession of a piece of land, owned in undivided parts. The case involved title to an undivided V^rd interest in certain property. The entire property consisted of 81 acres, of which 27 acres or exactly Várd of the property, was located next to the plaintiff’s farm and was divided from the rest by a small creek. The heirs of the original tax debtor had exercised some acts of possession over the remaining 54 acres. In discussing possession the Court said:

“The Court of Appeal refers to the ‘equal possession’, of the ‘dual occupancy of the 27 acres’ by the parties. Conceding that they had equal possession or that they dually occupied 27 acres of the whole tract, that would not avail the defendants anything for under the law it was necessary for them to have the exclusive control and dominion over the whole property in order to defeat the tax title which the plaintiff had acquired and which had been recorded more than five years previously. If the defendants really intended to dispute and contest the plaintiff’s tax title they should have insisted that he had no rights of possession at all. Instead of that they openly acknowledged his ownership, never insisting against any rights of possession on his part or protesting in any manner as to the use he made of it.”

In the case before us now, even if it could be said that possession of the fenced 200 foot strip by the railroad was possession for appellant (a position which was not upheld by the trial court), under the law it was necessary for them to have exclusive control and dominion over the whole property in order to defeat the tax sale which by stipulation they did not have. Therefore, appellant has failed to prove the corporeal possession necessary to suspend the running of the five year peremptive period and the judgment of the trial court should be sustained on this issue.

Concerning the third issue, the Louisiana Supreme Court in the case of American Bank and Trust Company v. Trinity Universal Insurance Company, 251 La. 445, 205 So.2d 35, at page 40 (La.1967) said:

“Equitable estoppel may be defined as the effect of the voluntary conduct of a party whereby he is precluded from asserting rights against another who has justifiably relied upon such conduct and changed his position so that he will suffer injury if the former is allowed to repudiate the conduct. Founded upon good faith, the doctrine is designed to prevent injustice by barring a party, under special circumstances, from taking a position contrary to his prior acts, admissions, representations, or silence.”

Under that doctrine, the conduct of the party estopped must be relied upon by the other party, and thus relying, he must be led to act upon it to his prejudice. Here there is no reliance whatsoever by Holley-man on the conduct of Latreille.

Our courts have had numerous opportunities in the past to apply equitable principles in cases of this type, but they have not. See e. g., Cortinas v. Murray, 224 La. 686, 70 So.2d 589 (La.1954), and Staring v. Grace, supra. It should be noted, in referring to equitable principles, that when Holleyman redeemed the property from Latreille in 1943 he had the duty to see that his taxes on the land were promptly paid in the year 1944. This he failed to do. Now, after many years, he (and the present plaintiffs) seek to rescind the tax sale. We do not find that equitable estoppel is applicable to this case. Additionally, any equitable feelings which he may have for plaintiffs must succumb to the strong public policy favoring the validity of tax sales and our inability to place the- facts of this case in any of the aforementioned exceptions to the five year constitutional peremptive period.

For the above and foregoing reasons the judgment of the district court is affirmed at appellants’ costs.

AFFIRMED.

CULPEPPER, J., dissents and assigns written reasons.

CULPEPPER, Judge,

dissenting.

As to issue number 1, I agree with the majority that the purchase at the tax sale by the Latreille Estate, in whose name the property was erroneously assessed, did not constitute payment of the taxes. I also agree as to issue number 3 that estoppel does not apply.

However, as to the second issue, it is my view that the plaintiffs and their ancestor in title corporeally possessed the land continuously since the tax sale in 1945 through the possession by the railroad company of the 200-foot wide servitude across the property, and this continuous corporeal possession prevented the five-year peremptive period from running.

In the recent case of Parkway Development Corporation v. City of Shreveport, La., 342 So.2d 151 (La.1977), our Supreme Court held that a servitude granted for a railroad is a limited personal-servitude, and, as such, is a real right. The court also held that the grantee of the servitude possesses the servitude for himself, but he possesses the land precariously for the owner of the land. Applying this rule to the present case, the railroad company corporeally possessed the 200-foot wide strip of land for the plaintiffs and their ancestor in title. See also Lawton v. Anthony, 92 So.2d 747 (La.App. 2d Cir. 1957) and Welsh Southern Oil Company v. Scurlock Oil Company, 201 So.2d 376 (La.App. 3rd Cir. 1967).

LSA-C.C. Article 3498 provides that “When a person has a title and possession conformably to it, he is presumed to possess according to the title and to the full extent of its limits.” Jurisprudence construing this article has established the rule that when a person has title to a tract of land, corporeal possession of a part of the tract constitutes corporeal possession of the whole. Kilchrist v. Conrad, 191 So.2d 705 (La.App. 3rd Cir. 1966); Johnson v. LaBokay Corporation, 326 So.2d 589 (La.App. 3rd Cir. 1976). In the present case, the plaintiffs and their ancestor in title had a record title to the land in question. Thus, although the entire tract was not enclosed, the corporeal possession exercised by the railroad company of the 200-foot strip of land constituted corporeal possession of all of the land included within plaintiffs’ title.

The next question is whether this corporeal possession by the plaintiffs and Mr. G. W. Holleyman, through the railroad company as grantee of the servitude, was sufficient to prevent the running of the five-year peremptive period applicable to tax sales. In Board of Commissioners for Atchafalaya Basin Levee District v. Sperling, 205 La. 494, 17 So.2d 720 (1944), our Supreme Court described the nature of the required possession as follows:

“[1] As pointed out by the Court of Appeal in its opinion on the rehearing of this case, reported in 12 So.2d [41] at page 42: ‘The kind and nature of possession required to operate as a suspension of the prescription involved, is that of a corporeal detention of the property. Levenberg v. Shanks, 165 La. 419, 115 So. 641, 642. In that case it is also stated that “no other possession than actual corporeal possession is sufficient to operate as a continuing protest against the tax title, and thereby prevent the peremption from accruing.” ’
* * * * * *
“[2] Therefore, in order to interrupt the running of the prescription of five years pleaded by Egle, the burden is on the Sperling heirs to show actual corporeal possession by which they exercised some claim of exclusive dominion over the property, a claim operating as a continuing protest against the tax title held by Egle.”

In the case of Westover Realty Company v. State, 208 La. 163, 23 So.2d 33 (1945), the tax debtor cut the weeds and grass on the land on several occasions during the five-year period and also visited the property on several other occasions. The court held this was not continuous corporeal possession and was not sufficient. The opinion states:

“But the possession must be a corporeal possession and not a mere civil possession flowing from the title deed or a constructive possession following the termination of a corporeal possession. Levenberg v. Shanks, 165 La. 419, 115 So. 641.”

In Kuhn v. Sandefur, 28 So.2d 515 (La.App. 2d Cir. 1946), writ of certiorari denied the court held:

“[5,6] The best that can be said of plaintiff’s possession of the lot in question is that it is and has been only civil, which is not adequate to prevent the operative effect of the pleaded prescription. The possession required to prevent the current of such prescription must be open, actual and physical; of such character as to be in effect a continuous protest against the tax sale; it must be of such character as to form the basis of the prescription of ten (10) years. This is lacking in the present case. Board of Commissioners for Atchafalaya Basin Levee District v. Sperling, 205 La. 494, 17 So.2d 720.”

Under these cases, and the others cited therein, the jurisprudence is established that continuous corporeal possession is required to prevent the running of the five-year peremption. The term “corporeal possession” is defined in our statutory law, LSA-C.C. Articles 3426, 3427, 3428, 3430, and 3436. In the comment under LSA-C. C.P. Article 3660, it is explained that terms such as “actual possession”, “real and actual possession”, “physical possession”, etc., used in some of the jurisprudence, are all included within the term “corporeal possession.”

Of course, the meaning of the term “corporeal possession” is well established in our jurisprudence. In the recent case of Liner v. Louisiana Land and Exploration Company, 319 So.2d 766 (La.S.Ct.1975), our Supreme Court reviewed the jurisprudence as to what constitutes corporeal possession of different types of land, such as agricultural land, wood land, swamp land, etc. I mention this only to make the point that our jurisprudence has established clearly the meaning of the term “corporeal possession”, and this is the term which has been used in all of the prior jurisprudence in describing the type of possession necessary to prevent the running of the five-year peremption. Of course, in the present case there is no issue as to the fact that the railroad exercised corporeal possession of the 200-foot strip of land, because this was stipulated by the parties.

Summarizing my view, the railroad has been in continuous corporeal possession of the 200-foot strip of land since the tax sale in 1945, this possession by the railroad is possession of the strip of land for the owner, and possession of part of the five-acre tract is possession of the whole of the five acres to which plaintiffs have title.

The majority has held that something more than “corporeal possession”, as this term is defined and used in our law, is required to prevent the running of the five-year peremptive period. The majority opinion states:

“In the case before us now, even if it could be said that possession of the fenced 200-foot strip by the railroad was possession for appellant (a position which was not upheld by the trial court), under the law it is necessary for them to have exclusive control and dominion over the whole property in order to defeat the tax sale which by stipulation they did not have. Therefore, appellant has failed to prove the corporeal possession necessary to suspend the running of the five year peremptive period and the judgment of the trial court should be sustained on this issue.” (emphasis supplied)

In effect, the majority is holding that the possession required of the tax debtors must be by them personally and not through others who possess for them. Of course, this differs from the above discussed rule of corporeal possession established in our law that the owner can possess through others. Furthermore, the majority is holding that to prevent the running of the five-year peremption the tax debtors must possess “the whole property”, which I take to mean that they must have some type of fences or other enclosures, as is required of the corporeal possession necessary for 30 years acquisitive prescription.' This is contrary to the rule that corporeal possession of part is corporeal possession of the whole within a person’s title.

The majority has established a new type of special, sui generis possession required to prevent the running of the five-year per-emptive period. It is my view that this will only add confusion to the already complex rules controlling suits to quiet tax sales. It would be far better to follow the cases cited above which clearly hold that the type of possession required to prevent the running of the five-year peremptive period is continuous corporeal possession, as these terms are defined and established in our law.

Apparently the majority considers this an unusual case because the continuous corporeal possession was by a railway company possessing a servitude for itself and possessing the land for the owner. The rationale of the majority in this regard must be that a person who sees a fenced railroad track crossing a piece of land would not consider this notice that the railroad company was possessing the strip of land for the owner. It is my view that, under established rules and concepts of our law, it makes no difference whether this was a railroad company possessing for the owner, or whether it was a usufructuary cultivating the 200-foot strip, or a lessee living on the strip, or the owner of any other real or personal right possessing the land for the owner.

For the reasons assigned, I respectfully dissent.


source: Caselaw Access Project

license: Public Domain

text:
    J. C. SEARCY, Jr., et al. v. TOMLINSON INTERESTS, INC., et al.
    No. 50160.
    Supreme Court of Mississippi.
    April 19, 1978.
    Rehearing Denied May 24, 1978.
    Craig Castle, Jackson, William E. Hat-horn, Prentiss, for appellants.
    Heidelberg, Woodliff & Franks, Kenneth I. Franks, Luther M. Thompson, Jackson, for appellees.
    Before ROBERTSON, P. J., SUGG and WALKER, JJ., and BIZZELL, Commissioner.
   WILLIAM H. BIZZELL, Commissioner for the Court:

This is an appeal from a decree of the Chancery Court of Jefferson Davis County sustaining general and special demurrers and dismissing a bill of complaint which sought to remove clouds on title to a one-fourth mineral interest and reform a 1952 deed so as to make clear the reservation thereby of the mineral interest in question.

The bill alleges, and for the purpose of the demurrers we assume as true, the following facts: W. C. McLeod owned eighty acres of land, less one-half the minerals which had been reserved by an earlier owner. In 1952, McLeod conveyed the eighty acres to Vester Thompson, Jr. by warranty deed in which was stated: “One Fourth interest in all minerals and oil is reserved to the Grantor.”

Both the grantor McLeod and the grantee Thompson, as well as the preparer of the deed who was a person unskilled in the law, knew that one-half of the minerals had previously been reserved, and that McLeod owned only one-half, and all three intended that McLeod reserve one-fourth and that Thompson receive only the remaining one-fourth. The bill sets out certain facts claimed to support this allegation including an instrument executed in 1974 by Thompson and the heirs of McLeod, recognizing that one-fourth of the minerals remained in McLeod and his heirs, and reforming the deed by agreement to provide that the one-fourth reservation to Grantor was in addition to mineral interests previously reserved. Meanwhile, however, in 1971 Thompson had executed a mineral lease to one Sims. This lease did not define the interest owned by Thompson but contained a “proportionate reduction clause” providing that rentals and royalties would be proportioned to the interest actually owned by lessor. Defendants, appellees, are the present owners of this lease. In 1974 and 1976 complainants, appellants, acquired all mineral interests owned by the heirs of McLeod.

The bill of complaint sought a decree recognizing that appellants own the one-fourth mineral interest alleged to have been reserved by their predecessor McLeod, and removing as clouds the claims of appellees. By amendment to the bill appellants prayed for reformation of the 1952 deed so as to make clear the reservation thereby of the one-fourth mineral interest in question. To the bill of complaint as amended the defendants, appellees, filed a general demurrer, a special demurrer based upon the Statutes of Limitations, Mississippi Code Annotated, Sections 15-1-7 and 15-1-9 (1972), plus an answer which included the affirmative defense that appellees are innocent purchasers for value without notice. The chancellor sustained the special demurrer and the general demurrer and dismissed the bill of complaint.

On its face the 1952 deed conveyed and warranted the entire tract except for the reservation of one-fourth of the minerals; accordingly, its apparent effect was to convey three-fourths of the minerals. Since McLeod only owned one-half of the minerals, the apparent result was to convey that one-half, breach the warranty as to one-fourth, and reserve nothing to McLeod. See Brannon v. Varnado, 234 Miss. 466, 106 So.2d 386 (1958), and the cases cited therein.

The bill of complaint alleges however that the above result was not intended by either of the parties, and that the language constituted a mutual mistake. As between the parties the deed is certainly subject to reformation - to show the real intent. The case of Smalley v. Rogers, 232 Miss. 705, 100 So.2d 118 (1958) allowed reformation of a deed in which the mutual mistake was practically identical to the one alleged here.

The principal question on this appeal is whether the ten year statute now bars a reformation. Sections 15-1 — 7 and 15-1-9, applicable here, speak in terms of “make an entry” and “commence an action to recover land.” In Newman v. J. J. White Lumber Co., 162 Miss. 581, 139 So. 838 (1932), this Court held that these statutes do not begin to run against one in the actual or constructive possession of land, and who has the right to such possession. Hence the Statute of Limitations did not begin to run against McLeod here unless he had lost possession. In Neal v. Teat, 240 Miss. 35, 126 So.2d 124 (1961), we held that the ten year statute had run against grantors who sued to cancel a deed to a mineral interest on grounds of fraud. The reasoning in that case was that the grantee got title under the deed, since it was not void but only voidable, and he also got the constructive possession of the mineral interest. Hence complainant grantors had neither title nor possession and the Statute ran against them and barred their suit.

We consider however that the holding in Neal is not applicable here. Unlike the grantee in Neal, the grantee Thompson did not intend or claim to possess the one-fourth mineral interest in question. It would be illogical to reason that one has the constructive possession of a mineral interest even though he does not understand that he owns it, does not claim it, and does not intend to possess it. We think that the element of intent to possess is an integral part of the concept of constructive possession. Black’s Law Dictionary, Revised Fourth Edition, 1968, defines constructive possession as “possession not actual but assumed to exist, where one claims to hold by virtue of some title, without having the actual occupancy . . . .” (Emphasis added).

3 Am.Jur.2d “Adverse Possession” Section 30 (1962), under the general subject of constructive possession, states as a limitation on the doctrine of constructive possession under a title:

The presumption that where a person has a title and possession conformable to it he is presumed to possess according to the title and to the full extent of its limits, has been held not to apply to land erroneously included in the deed, where the Grantee did not possess or intend to possess such land.

Authority for this statement is the case of Agurs v. Holt, 232 La. 1026, 95 So.2d 644 (1957), in which the Court states:

But, where it is shown, as here, that the purchaser did not intend to buy or possess the property, as described in the deed, there is no basis for a conclusion that he has possessed conformably to the title, and, even if it is found that he possessed a part, the presumption that he possessed according to the title is rebutted by the fact that no such possession was intended. 95 So.2d at 649.

For a further example, many cases involving constructive rather than actual possession of narcotic drugs emphasize that there must be an intent to possess. In Rodella v. United States, 9 Cir., 286 F.2d 306 (1960), a narcotics case, the Court discusses actual and constructive possession and says:

Constructive possession- is that which exists without actual personal occupation of land or without actual personal present dominion over a chattel, but with an intent and capability to maintain control and dominion.

286 F.2d at 311.

These authorities, while not directly in point here, do support the conclusion that constructive possession requires not merely some title or right to possess, but also the intention to claim or possess.

Accordingly, where, as alleged in the bill of complaint here, a certain mineral interest was included in the deed by mutual mistake, and the grantee does not claim such interest nor intend to own or possess same, such grantee does not have constructive possession, and the Statute of Limitations in a suit for reformation will not begin to run against grantor until he has notice of some adverse claim thereto or his possession is disturbed in some manner. In the instant case it appears that this did not occur prior to 1971.

Both parties here have argued questions having to do with notice to appellees. This may well be the principal issue on the trial of this case, in connection with the affirmative defense that appellees are purchasers for value without notice. But we think this question should not be determined on demurrer. “The defense of bona fides is an affirmative one, and must be raised by answer, and not by demurrer unless all the facts necessary to establish it are alleged in the bill.” Griffith, Mississippi Chancery Practice, Second Edition, Section 301 (1950). Looking only at the bill of complaint here we cannot say that sufficient facts are alleged to establish that ap-pellees are purchasers for value without notice.

Accordingly, the action of the chancellor in sustaining the demurrers and dismissing the bill of complaint is reversed and this cause is remanded to the chancery court for further proceedings in accord with this opinion.

REVERSED AND REMANDED.

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

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


author: ROBERTSON, Presiding Justice,

text:
    Sylvester GASTON and Edna Jones Gaston, and Aggie Lee Gates, Individually and as Administratrix of the Estate of Willie Gaston, C.T.A. v. Bernice GASTON and Bernette Gaston.
    No. 50189.
    Supreme Court of Mississippi.
    April 19, 1978.
    As Modified On Denial of Rehearing May 24, 1978.

      Caldwell & Lewis, Ben M. Caldwell, Marks, Sullivan, Smith, Hunt & Vickery, Ralph E. Chapman, Clarksdale, for appellants.
    William Dean Stark, Clarksdale, for ap-pellees.
    Before ROBERTSON, P. J., and SUGG and WALKER, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

The Chancery Court of Quitman County sustained a motion for judgment notwithstanding the verdict, set aside the verdict of the jury finding that the last will and testament of Willie Gaston, deceased, was properly executed and witnessed, and entered judgment for Bernice and Bernette Gaston, his nieces, finding that Willie Gaston had died intestate, and that they inherited his property under the laws of descent and distribution.

The court also found that Edna Jones Gaston was not the common law wife of Willie Gaston and that Sylvester Gaston was their illegitimate son, and did not inherit from his father, Willie Gaston.

There were two principal issues:

Whether the original of the instrument styled “Last Will and Testament of Willie Gaston” was properly executed and witnessed and subsequently lost, so as to make the copy of the will (blank as to date and signatures) properly admitted to probate; and
Whether there was a valid common law marriage between Willie Gaston and Edna Jones Gaston and whether their son, Sylvester Gaston, was legitimate.

If there were a valid common law marriage, then the question would arise:

Whether Edna, by her conduct after separating from Willie in 1930, had estopped herself from inheriting any part of Willie’s estate.

A four-page copy of the will (blank as to date and signatures) was received as an exhibit. Mrs. Robbie Lee Gore testified that she typed the instrument styled “Last Will and Testament of Willie Gaston” in early December, 1966, while a secretary in the law offices of Denton and Gore. After the original was delivered to Willie, she does not remember him returning to the office to execute the will, nor does she remember signing as a witness. In fact, she does not remember Willie Gaston.

Mississippi Code Annotated section 91— 5-1 (Supp.1977), provides that, if the will is not a holographic will:

“[I]t shall be attested by two (2) or more credible witnesses in the presence of the testator or testatrix.”

Section 91-7-7 (1972) provides:

“The due execution of the will, whether heretofore or hereafter executed, must be proved by at least one of the subscribing witnesses, if alive and competent to testify. If none of the subscribing witnesses can be produced to prove the execution of the will, it may be established by proving the handwriting of a testator and of the subscribing witnesses to the will, or of some of them.” (Emphasis added).

No witness testified as a subscribing or attesting witness, nor did any witness testify that the will was signed by the testator in his or her presence. Furthermore, James McCain, who testified that he saw the names of James McKibben and Robbie Lee Gore on the original, did not testify that he saw the testator or any witness sign the will, nor did he testify that he was familiar with their handwriting and that the names on the will were in fact their genuine signatures. Thus there was neither direct nor secondary evidence that the alleged lost or destroyed will was ever signed and witnessed and executed according to law.

We are of the opinion that the chancellor was correct in setting aside the jury verdict (finding that the lost or destroyed will had been properly executed according to law) under the authority of the Estate of Willis et al. v. Willis et al., 207 So.2d 348 (Miss.1968). In affirming the trial court’s denial of probate of a lost typewritten will, this Court said:

“In short, there was no testimony that the signatures of Hillman and Latimer, as attesting witnesses, were genuine, or that someone saw these witnesses sign their names to the will. Although required by code section 498 [now § 91-7-7, Miss.Code Ann. (1972)], there was no evidence, direct or secondary, that the signatures of Hillman and Latimer were genuine.” 207 So.2d at 349.

The next issue is whether there was a valid common law marriage between Willie Gaston and Edna Jones Gaston. According to Edna, and her testimony was undisputed, at 14 years of age she was married to Willie Gaston on the front porch of her family’s home in January, 1925. There were quite a few people present at the ceremony, which was performed by a preacher to whom Willie paid $2.00. The preacher and all witnesses were dead at the time of the trial.

On May 26,1926, while living together in the same house as man and wife, Edna Jones Gaston gave birth to Sylvester Ga-ston. When Edna was 16 years of age, which would have been two years after their marriage, she was baptized under the name “Gaston”.

From 1925 to 1930, Willie and Edna lived on various plantations in the same house as man and wife, received a “furnish” as man and wife, attended church together, ball games and various other functions, acknowledged each other and publicly stated on many occasions that they were man and wife and the father and mother of Sylvester. They were recognized in the community as man and wife from 1925 until their separation in 1930.

Mrs. Sadie Boyle Wilson, Tobe Boykin, Leon Rice, Mrs. Martha Kurkendall, and Mrs. Elnora Wilie all testified that Willie and Edna lived together as husband and wife and that they knew them as man and wife.

Counsel for Edna Gaston and Sylvester Gaston closed his case with this statement:

“May it please the Court, we have at least fourteen more witnesses; they would be repetitious and corroborative, and for that reason, we will rest.”

In 1930 Willie ran Edna off with the statement “I’m going to divorce you.” However, no divorce decree was ever introduced into evidence. Edna went to Missouri soon after her separation from Willie and began to live with a man named James Givens. She lived with him for twenty-eight years until his death.

On April 6, 1931, Willie Gaston married Vera Patterson, and a certificate of marriage was recorded in the marriage records of Coahoma County, Mississippi. Willie obtained a divorce from Vera on November 19, 1935, in Coahoma County.

On November 29, 1935, Willie Gaston obtained a marriage license and subsequently married Carrie Mae Gates, with whom he lived until her death in April, 1968.

In Stutts et al. v. Estate of Stutts, 194 So.2d 229 (Miss.1967), this Court said:

“Common-law marriages were valid in this State until 1956, when they were abolished. Miss.Laws 1956, Ch. 239, being Miss.Code Ann. § 465.5 (Supp.1964). Ladnier v. Ladnier’s Estate, 235 Miss. 374, 109 So.2d 338 (1959), summarized the rules on common-law marriages, in a case where the asserted husband was deceased. In order to establish the existence of such a marriage, before the 1956 statute, it was necessary to show an agreement between the parties that they intended to be husband and wife, and that this agreement was followed by cohabitation. A claim of such marriage is regarded with suspicion and will be closely scrutinized; the burden is on one who asserts the claim, and all essential elements must be shown to exist. Further, when one of the parties is dead, the essential elements must be shown by clear, consistent, and convincing evidence.” 194 So.2d at 231. (Emphasis added).

We think that Edna met the burden of proof which was squarely placed on her. Since their common law marriage was established and proved, Sylvester Gaston, being born in wedlock, was the legitimate son of Willie and Edna Gaston. Sylvester continued to live with Willie until he was grown. He was reared and supported by Willie and openly acknowledged by Willie as his son. Edna tried to take Sylvester with her to Missouri, but Willie refused to let him go.

The chancery court, in its opinion, said:

“It appears to be evident that Sylvester Gaston was, in fact, the child of Edna and Willie Gaston.”

We are of the opinion, however, that, even though the common law marriage between Willie and Edna was established and proved, Edna, by her subsequent conduct of not bothering to get a divorce nor assure herself that Willie had gotten a divorce from her before taking up with Givens and living with him for 28 years, has estopped herself from inheriting from Willie. Walker v. Matthews, 191 Miss. 489, 3 So.2d 820 (1941).

Sylvester, having been born in wedlock and being the legitimate son of Willie and Edna Gaston, is entitled to inherit Willie Gaston’s entire estate, as his sole heir at law, Edna being estopped to claim any part of Willie’s estate.

The decree of the lower court setting aside the verdict of the jury and denying probate of the lost or destroyed will of Willie Gaston is affirmed; but that part of the decree adjudging Sylvester Gaston illegitimate and the collateral heirs, Bernice and Bernette Gaston, inheritors of Willie’s estate is reversed, and judgment is rendered here recognizing Sylvester Gaston as the sole heir at law of Willie Gaston, deceased, and, therefore, entitled to inherit his entire estate.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

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


author: SMITH, Presiding Justice,

text:
    John Peyton ALEXANDER, II v. STATE of Mississippi.
    No. 50035.
    Supreme Court of Mississippi.
    April 19, 1978.

      Jacobs, Griffith, Pearson, Eddins & Po-vall, Charles C. Jacobs, Jr., Cleveland, for appellant.
    A. F. Summer, Atty. Gen. by Karey A. Gilfoy, Asst. Atty. Gen. and Henry T. Win-gate, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before SMITH, ROBERTSON and LEE, JJ.
   SMITH, Presiding Justice,

for the Court:

John Peyton Alexander was indicted for murder. He was tried on that charge in the Circuit Court of the First Judicial District of Hinds County, convicted and sentenced to life imprisonment. From that conviction he has prosecuted this appeal.

The victim of the homicide was a Mrs. Robinson, a married woman, with whom Alexander had been involved in what is referred to as “an intimate affair.”

The facts relating to the shooting of Mrs. Robinson by Alexander on October 4, 1975 are not in dispute. Nor is there material dispute as to the background facts which preceded and led up to the homicide.

Alexander was the swimming coach at the Jackson Country Club. His parents had been club members for most of his life but had disposed of their membership in 1971 because of financial problems. Both Mrs. Robinson and her husband were members of the club. During the summer months Alexander began having an affair with Mrs. Robinson, a married woman 37 years of age, with whom his duties at the club pool brought him in contact. In the course of the affair there were gifts, visits by Alexander to the Robinson home, automobile rides and even a trip to Florida by Alexander and Mrs. Robinson.

At the end of summer Alexander returned to Vanderbilt University where he was a student. He was called frequently by Mrs. Robinson there. About September 28,1974 Mrs. Robinson’s husband learned of the affair and telephoned Alexander, telling him to stay away from his wife. This call by Mrs. Robinson’s husband to Alexander included threats, which Alexander considered dangerous to his life. As a result of Mrs. Robinson’s husband learning of the affair, she broke up with Alexander and would have nothing further to do with him. Alexander became depressed and visited a psychologist at Vanderbilt. Later, he dropped out of school. After visiting his sister and friends in New Orleans he returned to Jackson and began living at home with his mother. He was worried by the fact that his parents were having marital problems, although this was not a new experience for Alexander. Alexander’s father drank excessively at home and physically and verbally abused Alexander’s mother. Moreover, Alexander’s father was on the verge of bankruptcy although he had been regarded as wealthy and of high social standing.

After holding some odd jobs Alexander filed an application with the Jackson Country Club for the position of swimming coach, the same job he had previously held. His application was rejected when Mrs. Robinson and her husband circulated a petition to the members stating that Alexander was not competent. Alexander then attempted to secure a similar position at River Hills Club but was met again with rejection allegedly due to acts of Mrs. Robinson’s husband, who knew several of the River Hills Club Board Members. Alexander became angry at these actions on the part of the Robinsons’ and felt that he was not being treated fairly. He attempted to retaliate by xeroxing some of the love letters written to him by Mrs. Robinson and mailing the copies to several members of the Country Club. His purpose was to show that the petition circulated by the Robin-sons stating that he was incompetent to be swimming coach was not based on mere incompetency but upon the affair in which he had been involved with Mrs. Robinson.

Following the circulation of the copies of Mrs. Robinson’s letters by Alexander, her husband brought suit against Alexander demanding damages.

Thereafter Alexander obtained a coaching position at the YMCA for the summer of 1975. Alexander’s parents had been divorced, remarried, and were in the process of obtaining another divorce.

In September, 1975 Alexander purchased a .380 automatic pistol and ammunition. At this time he had a construction job at Magee but was still living at home with his mother. On the night of October 3, 1975, Alexander attended a birthday party given for a friend, Albert Lamar, at the Golden Dragon Restaurant in Jackson. Alexander left the party and went home. Unable to sleep, he returned to Lamar’s home about 11:00 p.m. He and several friends skateboarded in the street until the early morning hours.

The following morning, Saturday, October 4, 1975, Alexander had an engagement to play tennis with one James Anderson at Battlefield Park in Jackson. They played until around 11:15 in the morning and Alexander returned home at about noon.

There he told his mother that he wanted his checkbook so he could buy a new tennis racket. He left home, drove directly to the Parham Bridges Tennis Courts in Jackson, where Mrs. Robinson and one Betty Lewis were just finishing a tennis match. As the two women left the court and were walking past the bleachers, toward their car, Alexander walked rapidly up to Mrs. Robinson, drew his pistol from his pocket, and from a distance of three feet shot Mrs. Robinson .in the left side of the head. As she fell, Alexander stepped closer and fired seven more shots into her head and neck as she lay upon the ground.

He then went home and told his mother that he had shot Mrs. Robinson. She directed him to call the police which he did.

The defense offered at the trial was that the homicide was excusable because Alexander was insane and incapable of distinguishing between right and wrong and that he was not guilty by reason of insanity.

On appeal, a number of grounds for reversal are assigned and argued.

It is first contended that the trial court erred in declining to permit several lay persons to give an opinion on the issue of appellant’s sanity at the time of the shooting.

In the course of the presentation of appellant’s case in chief several lay persons were offered to testify that in their opinion appellant was incapable of knowing the difference between right and wrong at the time he shot Harriet Robinson by reason of insanity.

The first of these witnesses, one Herlihy, was asked the following question:

Do you have an opinion, based on your knowing John Alexander since you were both in the 9th grade, your conversations with him, and your observations of his demeanor, as to whether on October 4, 1975, when Harriet Robinson was shot, he knew the difference between right and wrong?

The State objected and the jury was retired. Out of the presence of the jury an examination of the witness was conducted and the court sustained the objection, ruling that the witness was not qualified to give an opinion as to Alexander’s sanity at the time he shot Mrs. Robinson.

On the basis of the examination of Her-lihy conducted out of the presence of the jury, it appears that the witness had talked with Alexander in the summer of 1975 and that Alexander had discussed the affair with Mrs. Robinson with the witness at that time. While the witness had seen Alexander the night before the shooting, his observation of him on that occasion extended no further than to note that Alexander had been “edgy” but, the witness said, this was not particularly unusual behavior for Alexander although he thought he was a little more edgy than usual.

In addition to Herlihy, several other lay witnesses were offered by appellant for the purpose of giving opinions that Alexander was insane and unable to distinguish between right and wrong at the time that he shot Mrs. Robinson. Each of these witnesses was examined out of the presence of the jury and the court declined to allow them to so testify. Summaries of their testimony as it bears upon the question follow:

MALLETTE: The witness saw Alexander two weeks before the killing and said that Alexander was depressed and had said that he contemplated suicide. He saw Alexander again in jail the day after the shooting and said that on that occasion Alexander seemed to have just realized that he had done something wrong.

BRICKELL: Alexander told this witness in 1975 about his affair with Mrs. Robinson and was upset about it. The last time the witness saw Alexander was in August, 1975.

PHILLIPS: Witness met Alexander in June, 1975, and was told by Alexander of his affair with Mrs. Robinson and Alexander seemed unable to get his mind on anything else. She saw Alexander two weeks before the shooting and he appeared uncertain and upset.

TAYLOR: Witness had known Alexander for six or seven years. In the summer of 1975 Alexander was “completely obsessed” with his affair with Mrs. Robinson. He told the witness that he had long contemplated suicide. The last time the witness saw Alexander was on October 2,1975. She also stated that she had had a long conversation with Alexander some ten days prior to the shooting. Witness neither related any statement nor described any behavior on the part of Alexander which had occurred on either occasion.

VANCE: He had known Alexander since 1959. Alexander was spoiled as a child and was afraid of his father. Witness talked with Alexander in the fall of 1974 and was told by Alexander of his affair with Mrs. Robinson. He also was told that Alexander had thoughts of suicide. The last time witness saw Alexander was on October 1,1975, at which time Alexander talked of his affair with Mrs. Robinson and said that Mrs. Robinson’s husband had hired someone to kill him. Alexander was “nervous and shaking.”

LAMAR : Witness had known Alexander for about four years. Alexander was upset about his affair with Mrs. Robinson and about losing his job at the Country Club. Alexander mentioned his thoughts of suicide. Witness said Alexander was afraid of Mr. Robinson, the victim’s husband. Although the witness saw Alexander at a party the night before the shooting, he gave no facts or circumstances as to statements or behavior on the part of Alexander on that occasion.

The rule allowing a lay witness to give an opinion as to the mental competency of another was dealt with by this Court in In re Estate of Prine, 208 So.2d 187, 190 (Miss.1968). In Prine this Court said:

This hypothetical question was asked of other laymen whose answers were to the same effect. These witnesses also admitted during their examinations that they could not tell anything about his mental state at a time when they did not see him. Of course, a layman could not reasonably know the condition of a testator’s mind when he did not see the testator. The question propounded was a question for the experts. Certainly it would take an expert to tell from the appearances and actions of a man, observed prior to his entry in the hospital and after his discharge from the hospital, whether the man was competent or incompetent on a certain date between entry and discharge. Several of the witnesses said the testator had lucid intervals. One who was not there could not know, and would not be in a position to know, whether a man who had lucid intervals was lucid or not at a particular time.
As a general rule, the opinion of a non-expert witness as to a person’s sanity or soundness of mind, if based on knowledge or observation, may be received; but the opinion may not extend to matters requiring expert knowledge. .
A non-expert witness cannot give his opinion regarding sanity based on an abstract hypothetical question. . . .
An opinion of a lay witness on the question of another’s insanity must be limited to the impression made at the time of observation. Ross v. State, 153 Tex.Cr.R. 312, 220 S.W.2d 137 (1949); State v. Douglas, 312 Mo. 373, 278 S.W. 1016 (1925); 23 C.J.S. Criminal Law § 867 at 422 (1961).
Non-expert witnesses cannot be allowed to project the opinion as to the mental condition of accused at a future time. Ross v. State, supra; 23 C.J.S., supra. See also Harvey v. State, Miss., 207 So.2d 108 (Feb. 19, 1968).

Appellant contends that the rule announced in Prine, a civil case, should not be extended to criminal cases. Except where constitutional questions are involved, such as the admissibility of evidence of the fruit of an unlawful search and the like, the rule as to admissibility of evidence is generally the same in criminal cases as in civil. Moreover, in support of the Prine rule, this Court cited two criminal cases: Ross v. State and State v. Douglas, supra.

In Douglas, supra, which was a prosecution for forgery, the Supreme court of Missouri stated:

Counsel for defendant were not satisfied with that, but wanted the witness to testify to what his present opinion was regarding the sanity or insanity of the defendant, two years after he had made such observations. A lay witness, in testifying to such matters, may give an opinion when based upon the facts which he has observed, after stating such facts as far as he can. It is the impression made upon his mind at the time that is important. An opinion conceived at a later time is not the impression received at the time, from facts immediately observed then, but from later and riper knowledge. To say that a lay witness may afterwards, on mature reflection, possibly with expert advice as to the matter, and an analysis of the facts as he has considered them from later experience, express an opinion, puts him in the class of an expert instead of nonexpert witnesses.

(312 Mo. at 399, 278 S.W. at 1024).

In Ross the Court of Criminal Appeals in Texas, held:

Nonexpert witnesses are confined to their opinions only at the time of their observations of the accused person and cannot be allowed to project their opinions as to the mental condition of such accused at a future time. .
A nonexpert insanity witness cannot be allowed to give his opinion on a question of insanity at a future date. To thus allow would place him in the category of an expert.

(153 Tex.Cr.R. at 327, 220 S.W.2d at 146).

In 23 C.J.S. Criminal Law § 867b (1961), the rule is stated thus:

The opinion of the witness on the question of insanity is properly limited to the impression made at the time of observation; nonexpert witnesses cannot be allowed to project their opinions as to the mental condition of accused at a future time.

The correct rule, therefore, is that a lay witness may express an opinion that another is insane only when a sufficient predicate has been laid to establish that: (1) the witness has had a reasonably sufficient opportunity to observe the subject and (2) has noted behavior on his part reasonably indicative of an unsound mind and upon which he bases an opinion that the subject was, at the time of his observation by the witness, of unsound mind. The witness may not make a prognosis or project into some future time an opinion as to the mental condition of the subject nor may he extend it to a date subsequent to the observation. He is limited, in expressing an opinion, to the time when he had the subject under his observation. Moreover, before being permitted to express an opinion, the witness must have articulated specific facts concerning observed behavior on the part of the subject sufficient to serve as a predicate for his opinion, and such observed facts must be of a character capable, of forming a reasonable basis for an opinion of insanity.

The testimony of the lay witnesses offered by appellant wholly fails to articulate facts noted in the behavior of Alexander indicating that he was laboring under a delusion of any kind or that his reaction to any of the conditions which confronted him was abnormal or was such as to indicate that he was insane or incapable of distinguishing between right and wrong. On the contrary, in the circumstances of the case, which are undisputed, his reactions can hardly be said to be other than what those of a normal person would have been under similar conditions. It was said that he was “preoccupied” with his affair with Mrs. Robinson; he was upset by his parents’ marital troubles; he talked of suicide but made no attempt to commit it; he was upset by the lawsuit brought against him by the victim’s husband; he had been spoiled as a child and was afraid of his father; he was afraid of Mrs. Robinson’s husband, whom he had wronged, and whom Alexander had further humiliated and insulted by distributing copies of love letters written by Robinson’s wife to him, and he was afraid, not unnaturally, that the husband might kill him; he was upset by the loss of his job as life guard, the job by means of which he had established his liaison with Mrs. Robinson. All of the things related by the witnesses were not imaginings or delusions but were facts, and in every case the reaction of Alexander was no more nor less than that of any normal human being who had behaved as Alexander had behaved and who had been found out. There is nothing in the testimony of these witnesses capable of forming a' reasonable basis for an opinion that Alexander was insane at the time he shot Mrs. Robin son. Moreover, although two of the witnesses had seen Alexander at a party the night before the shooting, they testified to no facts or circumstances relating to any statement or behavior on the part of Alexander on that occasion other than to say that Alexander had been “edgy” and that this was not unusual.

It is the observation by the lay witnesses of irrational or abnormal behavior on the part of a subject that justifies allowing him to give an opinion on the question of sanity. Laymen who comprise the jury are also capable, upon facts related by such a witness, of forming their own opinion as to the subject’s sanity, and the facts and circumstances related by the witness, in order to be sufficient to permit the giving of an opinion of insanity, must be such as are reasonably capable of supporting it. A lay witness, merely because he has known a person over a length of time, may not be allowed to testify that in his opinion such person is insane, where the witness had not observed any act or behavior on the part of the' subject reasonably capable of supporting that conclusion. The trial court correctly declined to allow these witnesses to give an opinion that Alexander was insane at the time he shot Mrs. Robinson, first because a sufficient predicate was not laid in their testimony and second, because their statements as to their observations of Alexander’s behavior dealt with conduct and demeanor which did not extend to the time Mrs. Robinson was shot. It should be noted also, that following the court’s refusal to allow the giving of an opinion by these witnesses that Alexander was insane at the time he shot Mrs. Robinson, the witnesses were not reoffered to testify as to his sanity at the times they had him under observation and had testified about.

They stated no facts capable of .affording cogent support for the theory that Alexander was insane. He may have harbored deep resentment and hatred against Mrs. Robinson for having broken off the affair with him, and Alexander may have been afraid of her husband and angry with him for warning him away from his wife and for having brought suit against him. But these things, rather than constituting evidence of insanity, traditionally, and judged by the history of the human race, more often are thought of as motives for murder.

The second contention of appellant relates to an alleged error committed by the trial court in admitting certain testimony of Dr. Baugh, Dr. Collum and Dr. Pollack, expert witnesses for the State, upon the question of Alexander’s sanity.

In the course of the trial, the court directed Dr. Pineda, an expert witness for appellant on the issue of insanity, to turn over to the District Attorney certain documents. Dr. Pineda went to his automobile during the noon recess and obtained his file which contained his information in regard to the case. Through inadvertence Dr. Pineda included some letters written by Alexander while in jail to his attorney and which had been given by the attorney to Dr. Pineda for his use in preparing to testify in the ease. Copies of these letters were made and given to the State’s psychiatrists for their use in preparing for the case.

Dr. Pineda duly testified as an expert witness for the defense and gave it as his opinion that Alexander had been of unsound mind to the extent that he had been incapable of distinguishing right from wrong at the time he killed Mrs. Robinson.

Cross-examined as to the basis for that opinion, Dr. Pineda stated:

A. In the case I am testifying I went to the sources I felt were adequate to give me — to form an impression.
Q. What were those sources?
A. The time I spent with the defendant, the conversations I had with his mother, the testimony from Clare Alexander, reading letters that were sent to defendant’s attorney, etc.

On direct examination, Dr. Baugh, an expert witness for the State, gave it as his opinion that appellant knew the difference between right and wrong at the time he shot Mrs. Robinson. On cross-examination it was developed that a part of the basis for his opinion had been one of the letters written by Alexander to his attorney. Appellant objected and asked that Dr. Baugh’s testimony be stricken on the ground that the letters were privileged as communications between attorney and client and that appellant had not consented to their use by the State. The trial court overruled the objection and denied the motion, stating his reasons at length.

Dr. Pollack, also an expert witness for the State, testified that he had read the letters and that they had been a basis for his opinion that Alexander had been legally sane at the time of the shooting. The witness also read from the letters on direct examination. Appellant again objected on the ground that they were privileged and the objection was overruled.

The final expert witness for the State was Dr. Collum. This witness testified that he had formed his opinion prior to reading the letters that Alexander had known the difference between right and wrong at the time he shot Mrs. Robinson. The hypothetical question addressed to him by the District Attorney stated, in part, “And based on your review and study of letters and communications of the defendant.” Dr. Collum responded by stating that in his opinion Alexander had been legally sane at the time of the homicide.

The State’s position is that the letters were not privileged but, even if they were, appellant waived the privilege by submitting them to Dr. Pineda for his use in preparing and giving his testimony that Alexander had been insane, using the letters, among other things, as the basis for the opinion.

The State relies upon City of Laurel v. Upton, 253 Miss. 380, 175 So.2d 621 (1965), a personal injury action. In that case, plaintiff placed on the stand in support of the claim a Dr. Holder, a medical expert. On cross-examination, Dr. Holder revealed that he had used some letters and reports of another doctor, Dr. Bass, who had examined the plaintiff, to arrive at the medical opinion to which he testified. Defendant then attempted to introduce the letters and reports referred to by Dr. Holder and the plaintiff objected to the introduction on the basis that they were privileged because of the physician-patient relationship. The trial court sustained the objection. On appeal, in reversing the decision of the lower court, this Court said:

In this case appellants were not aware that Dr. Holder was basing his opinion in part on reports and letters of Dr. Bass until it was discovered by cross-examination. Under these circumstances we are of the opinion that appellants had the right to cross-examine Dr. Holder relative to these reports and letters and to introduce them into evidence if they so desired. In every case where an expert witness is allowed to express an opinion such witness is subject to cross-examination as to the basis of his opinion. We see no valid reason why any different rule should prevail relative to a medical expert. We are not unmindful of the privileged communications statute, and do not hold that appellants have the right to put Dr. Bass on as a witness and have him testify over objection of appellee. We do hold that appellant had the right to cross-examine Dr. Holder relative to any matters which he used and considered in reaching his findings and to introduce such matters into evidence if they so desired. The trial court was in error in sustaining the objection to this testimony.

(175 So.2d at 625).

We have concluded that, even if the letters were originally privileged, under the circumstances of this case, the privilege was waived by appellant when the letters were given to Dr. Pineda for the express purpose of his use in preparing his testimony and in basing his testimony that Alexander was insane upon the letters. Under the circumstances the State’s expert witnesses were entitled to have and to use the information upon which the defense expert had based his opinion, and were entitled to testify as to their opinions, based in part, on the letters.

Appellant next argues that the conviction should be reversed because Alexander’s mother was not permitted to testify that he had told her that Dr. Blissard had told him that he should be committed to a mental institution for treatment. Obviously the proffered testimony was pure hearsay. The trial court properly declined to allow this testimony.

Appellant also contends that hypothetical questions propounded to the State’s psychiatrists were improper and prejudicial. However, there was no objection to the questions at trial.

Other matters assigned and argued as error, each of which the Court has carefully considered, are found to be without merit. From the whole record it appears that the case whs well and fairly tried and that no prejudicial error warranting reversal was committed. The conviction and sentence appealed from must, therefore, be affirmed.

AFFIRMED.

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


text:
    Sandra B. LEE (Chapin) v. Haskel M. LEE.
    No. 50322.
    Supreme Court of Mississippi.
    April 26, 1978.
    Rehearing Denied May 24, 1978.
    Reid & Hewitt, Floyd G. Hewitt, Jr., Biloxi, for appellant.
    Bailey & Sadler, J. Allen Sadler, Ocean Springs, for appellee.
    Before SUGG, WALKER and COFER, JJ., and LEON E. HANNAFORD, Commissioner.
   AFFIRMED.


author: PATTERSON, Chief Justice,

text:
    BELLEFONTE INSURANCE COMPANY v. James R. GRIFFIN.
    No. 50075.
    Supreme Court of Mississippi.
    April 26, 1978.
    Rehearing Denied May 24, 1978.

      Levingston, Jacks, Levingston & Land, Alfred A. Levingston, Cleveland, for appellant.
    Jacobs, Griffith & Povall, Charles C. Jacobs, Jr., Benjamin E. Griffith, Cleveland, for appellee.

      Before PATTERSON, BROOM and BOWLING, JJ.
   PATTERSON, Chief Justice,

for the Court.

This is an automobile insurance case in which the insurer, Bellefonte Insurance Company appeals from a judgment of the Circuit Court of the Second Judicial District of Bolivar County in favor of James R. Griffin, the insured.

Griffin purchased a used Peterbilt truck, financing $12,712.50 of the purchase price with International Harvester Credit Corporation (hereinafter IHCC) and insuring it with Bellefonte Insurance Company (hereinafter Bellefonte) against collision, which included vandalism. The truck was leased to Eagle Motor Lines (hereinafter Eagle) with the agreement that Griffin receive 65% of the gross revenue collected from its operation less the cost of the operating the vehicle. Eagle sent Griffin weekly checks of his share after deducting expenses.

On May 14, 1975, while under lease to Eagle, the truck was vandalized. Cummins Mid-South, Inc., in Memphis, Tennessee, ascertained that sand or sugar had been inserted into the fuel tank. Bellefonte was notified and an adjuster met Griffin at Cummins the following day when both requested Cummins to repair it. By May 29, 1975, the truck was ready, but, as Griffin had refused Bellefonte’s offer of $2,431.95 . on the $4,796.74 repair bill, it had not been paid and Cummins retained possession of the truck.

Bates Macgowan, a representative of Bel-lefonte, explained the company’s position in a letter dated June 24, 1975, to Griffin’s attorney. Bellefonte claimed depreciation on the repairs under its policy asserting that the average expectancy between overhauls of a large diesel truck was 300,000 miles and that Griffin’s vehicle had traveled approximately 147,862 miles since the last major overhaul. The first offer had been computed at 49.3% depreciation and the second offer for $2,878.05 which he tendered was computed at 40% depreciation.

Griffin maintained that the truck had received its latest overhaul by Ryder Truck Rental, Inc., the former owner, at approximately 36,248 miles previous to the vandalism. Ryder’s maintenance record on the vehicle substantiated this claim. However, Macgowan’s letter indicated that Griffin had prompted an employee of International Harvester to inform Macgowan that major service had been performed as Griffin maintained, but this individual when contacted would not verify the service. To Griffin’s knowledge Bellefonte never investigated this last overhaul.

The pertinent policy provision under which Bellefonte claimed depreciation stated the following:

3. Limit of Liability; Settlement Options; No Abandonment: The limit of the company’s liability for loss shall not exceed either (1) the actual cash value of the automobile, or if the loss is of a part thereof the actual cash value of such part, at time of loss or (2) what it would then cost to repair or replace the automobile or such part thereof with other of like kind and quality, with deduction for depreciation, or (3) the applicable limit of liability stated in the declarations. (Emphasis ours.)

Bellefonte’s last offer of approximately $3,800 was refused. Eventually, IHCC foreclosed on Griffin’s loan, paying the repair bill and selling the truck.

Griffin sued Bellefonte in the Circuit Court of the Second Judicial District of Bolivar County, demanding remuneration for lost profits, loss of the truck, punitive damages, and attorney’s fees. IHCC was joined as a necessary party and counterclaimed against Griffin for the deficiency after the sale including the sales commission and for reasonable attorney’s fees.

At a pretrial conference, the lower court determined that Bellefonte was not entitled to deduct depreciation, that no evidence in that regard would be permitted, and that plaintiff was not entitled to punitive damages or attorney’s fees. The cause went to trial and at its conclusion the lower court granted peremptory instructions for Griffin in the amount of the repair bill less the $50 deductible and for IHCC for its claim including reasonable attorney’s fees. The question of Griffin’s actual damages, excluding the sales commission and attorney’s fees, was presented to the jury which awarded $13,846.74. The lower court directed that the amount of repairs plus interest should be applied to IHCC against Griffin and later sustained a motion of Bel-lefonte for a new trial or in lieu thereof a remittitur which plaintiff accepted, leaving a judgment of $11,357.84.

Bellefonte appeals, assigning as error that the judgment was contrary to the law and overwhelming weight of the evidence in that the lower court erred in the following:

1. Failing to allow appellant to offer proof of depreciation in that the appellant was entitled to deduct depreciation from repairs,

2. Allowing damages to the appellee, and

3. Granting and denying certain jury instructions.

Griffin cross appeals that the lower court erred in not allowing him punitive damages and attorney’s fees against Bellefonte.

The appellant first contends that the lower court erred in failing to admit proof of depreciation on the repairs. It is well established that ambiguity and doubt in an insurance policy must be resolved in favor of the insured. McLaurin v. Old Southern Life Ins. Co., 334 So.2d 361 (Miss.1976); State Farm Mutual Auto. Ins. Co. v. Taylor, 233 So.2d 805 (Miss.1970); Home Owners Ins. Co. v. Keith’s Breeder Farms, Inc., 227 So.2d 293 (Miss.1969). This is so in order that the purpose of the policy will not be defeated. Aetna Life Ins. Co. v. Evins, 199 So.2d 238 (Miss.1967); American Hardware Mutual Ins. Co. v. Union Gas Co., 238 Miss. 289, 118 So.2d 334 (1960).

The policy provision under examination admits to interpretation contrary to what we think is the purpose of the policy. The particular phrase under scrutiny reads as follows:

. what it would then cost to repair or replace the automobile or such part thereof with other of like kind and quality, with deduction for depreciation . . .

This language seemingly allows the insurer to repair or replace an automobile or its damaged parts with an automobile or parts of equal value, which would entail consideration as to use and age and then to allow, additionally, deduction for depreciation. This would be a double deduction in favor of the insurer. Such construction would allow an insurer, for example, to replace an automobile with another of the same year, model and approximate condition and mileage and then claim depreciation. When an automobile is replaced with another of like kind and quality, then the replacement is already depreciated to the extent of the original vehicle. We think this language of the policy indeed admits to an unjust construction.

If we assume for the moment that the language is unambiguous, we are cited to no authority nor can we find any where the amount of depreciation has been calculated upon the mileage between overhauls.

Further, the record discloses that Belle-fonte’s original offer was based on depreciation not only of parts but also of labor. In its pleadings to the lower court appellant submitted that its last offer was based only on depreciation of parts and not of labor. Again, the language in the policy is ambiguous and does not specifically prohibit or allow depreciation on the cost of labor.

We think the language is not “so plain and unambiguous as to leave no room for construction” so as to make the rule of strict construction applicable. Gotcher Engineering and Mfg. Co. v. U. S. Fidelity & Guaranty Co., 193 So.2d 115 (Miss.1966). Rather, we have a situation where the intent of the policy by its very language is uncertain. We are of the opinion that its purpose was to provide the insured with an equivalent, in money, a vehicle, or parts.

The Mississippi cases cited by Griffin are distinguishable as they never considered an appreciable increase in market value after repairs under policies allowing deductions for depreciation but were concerned with occurrences where the vehicle after repairs most probably was worth less than before damages. See Motors Ins. Corp. v. Smith, 218 Miss. 268, 67 So.2d 294 (1958); Potomac Ins. Co. v. Wilkinson, 213 Miss. 520, 57 So.2d 158 (1952); and Boston Ins. Co. v. Wade, 203 Miss. 469, 35 So.2d 523 (1948).

Accordingly, we are of the opinion that the trial court was correct in disallowing proof of depreciation on repairs as the policy provision was ambiguous and must therefore be construed in favor of the insured.

The second assignment of error is that the trial court erred in allowing damages to appellee. Appellee brought suit upon a tort theory in that Bellefonte failed to investigate the alleged overhaul by Ryder and refused to pay the entire repair bill. We believe that Bellefonte was negligent in failing to investigate appellee’s claim of a more recent overhaul as the maintenance record introduced at trial clearly indicated that an overhaul had been recorded as being performed on September 6, 1974, by Ryder. Bellefonte offered no proof to rebut this claim of negligence although it used mileage since repair as the basis for its depreciation of repair costs. The record discloses that Griffin brought this to Mr. Macgowan’s attention but to no avail.

We are of the opinion that although the appellee is entitled to actual damages, the evidence does not support the amount of the jury verdict or the judgment after remittitur. It is doubtful that all of the expenses, though largely uncontradicted, were considered in determining the amount of monthly profits, if any, of Griffin. Further, damages were apparently allowed to December 18, 1975, whereas the declaration demanded compensation for losses to November 3, 1975, when the sale was consummated. The evidence, largely the statements of Eagle, simply does not support the award of actual damages.

Appellant’s final contention is that certain jury instructions were erroneously granted and others denied. After due consideration, we think the trial court did not err in determining the propriety of these instructions and therefore • conclude this contention is without merit.

Lastly, Griffin cross appeals, contending that punitive damages and attorney’s fees were appropriate remedies. It is settled that punitive damages are recoverable only where the breach is attended by some intentional wrong, insult, abuse or gross negligence which amounts to an independent tort. Standard Life Ins. Co. of Indiana v. Veal, 354 So.2d 239 (Miss.1977); Lincoln Nat’l. Life Ins. Co. v. Crews, 341 So.2d 1321 (Miss.1977); Progressive Casualty Ins. Co. v. Keys, 317 So.2d 396 (Miss.1975). We are of the opinion the negligence of Bellefonte in failing to investigative thoroughly Griffin’s claim of a more recent overhaul of the truck and in claiming depreciation were not such acts as to warrant punitive damages. This was particularly so as the situation was ongoing with offers of adjustment being made and complicated by Griffin’s frequent changes of attorneys which certainly were not inducements to speedy settlement. Moreover, Bellefonte’s argument that the repairs would have the effect of appreciating the truck’s value rather than depreciating it was reasonable and surely not illogical.

As to attorney’s fees, the rule in the absence of statute is that they are not recoverable unless the facts are of such gross or willful wrong as to justify the infliction of punitive damages. Cooper v. U. S. Fidelity & Guaranty Co., 186 Miss. 116, 188 So. 6 (1939); Yazoo & M.V.R. Co. v. Consumers’ Ice & Power Co., 109 Miss. 43, 67 So. 657 (1915). As there is no applicable statute and because we are of the opinion the trial court did not err in denying punitive damages, it follows that an award of attorney’s fees would not have been proper.

Therefore, we affirm the lower court in part and reverse and remand only as to damages.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED AS TO DAMAGES.

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


text:
    Mary F. THOMAS v. John L. KERR et al.
    No. 50246.
    Supreme Court of Mississippi.
    May 3, 1978.
    Mansour & Kilpatrick, Martin A. Kilpa-trick, Stephen L. Thomas, Greenville, for appellant.
    Lake, Tindall, Hunger & Thackston, E. Spivey Gault, Greenville, for appellees.
    Before ROBERTSON, P. J., and LEE and BOWLING, JJ.
   AFFIRMED.


text:
    Leander Shelton VAN LANDINGHAM, Jr. v. Mrs. Annie Laura VAN LANDINGHAM.
    No. 50249.
    Supreme Court of Mississippi.
    May 3, 1978.
    Hathorn & Hathorn, J. Hoy Hathorn, Louisville, for appellant.
    Robert H. Oswald, Pascagoula, for appel-lee.
    Before ROBERTSON, P. J., and LEE and BOWLING, JJ.
   AFFIRMED.


text:
    Leonard WALDEN v. Mrs. Ernie PRATHER and Ann Prather.
    No. 50269.
    Supreme Court of Mississippi.
    May 3, 1978.
    Ellis, Ellis & Bost, William M. Bost, Jr., Vicksburg, for appellant.
    Ed W. Jenkins, Booneville, for appellees.
    Before SMITH, P. J., and SUGG and BROOM, JJ.
   AFFIRMED.


text:
    C. B. WALLACE v. LaRoyce JONES.
    No. 50273.
    Supreme Court of Mississippi.
    May 3, 1978.
    Rehearing Denied May 24, 1978.
    Darden, Sumners, Carter & Trout, Lester F. Sumners, New Albany, for appellant.
    Price & Krohn, Robert G. Krohn, J. B. Mitchell, Corinth, for appellee.
    Before SMITH, P. J., and SUGG and BROOM, JJ.
   AFFIRMED.