text:
    Wilbert BERRY et al., Plaintiffs and Appellees, v. Grover CAPTAIN et al., Defendants and Appellants.
    No. 6544.
    Court of Appeal of Louisiana, Third Circuit.
    June 28, 1978.

      Scotty G. Rozas, Lake Charles, for third party defendant-appellant.
    John E. Demoruelle, Kinder, Errol D. Deshotels, Oberlin, for plaintiff-appellee.
    Before CULPEPPER, FORET and CUTRER, JJ.
   CULPEPPER, Judge.

The plaintiffs, Wilbert Berry and his wife, Loris Berry, filed this suit to quiet their tax title under LSA-R.S. 47:2228. The defendant is Grover Captain, record owner of the property at the time of its assessment for taxes for the year 1970. Captain filed an answer, stating that although he owned the property in 1970, he no longer owns it. Russell Jackson filed an intervention, contending that he was the owner of the property at the time this suit was filed on September 8,1976, having purchased the same from Securities Investment Company on May 29, 1971. Jackson filed a third party demand against Securities, based on their warranty of title to him. Securities answered the third party demand, alleging that it acquired the property from William S. Buchert, Trustee in Bankruptcy of Grover Captain, by deed dated March 9, 1971 and recorded in the conveyance records of Allen Parish on March 18, 1971. Securities alleged that Jackson’s title is good and that plaintiffs’ tax title is invalid, because Jackson has been in possession of the property since May of 1971, thereby preventing the running of the five years’ peremptory period for attacking tax sales, and because the tax sale is invalid for the reason that no notice of the delinquent taxes for the year 1970 or the tax sale was given to Securities Investment Company, the record owner at the time of the tax sale on June 2, 1971.

The district judge held that the five-year peremptive period within which tax sales can be attacked had run, and that plaintiffs’ tax title is good. In the third party demand, the judge awarded Jackson damages totaling $6,930 against Securities Investment Company for breach of warranty. Securities Investment Company appealed. Russell Jackson did not appeal or answer the appeal.

The substantial issues are: (1) Was the five-year peremptive period interrupted or suspended by the corporeal possession of Russell Jackson? (2) Was the tax sale defective?

The facts were stipulated by agreement of the parties. The essential facts are that prior to November 27, 1970 Grover Captain was record owner of the property in question, a house and lot in Oberlin. On that date, Grover Captain was adjudged bankrupt, and William S. Buchert was named trustee of his estate. Mr. Buchert did not record notice of the bankruptcy in the public records of Allen Parish.

Securities Investment Company held a mortgage on the property, filed August 8, 1966. Through foreclosure proceedings conducted with the trustee in bankruptcy, Securities became owner of the property by an instrument dated March 9, 1971 and recorded in Allen Parish on March 18,1971. Securities sold the property to Russell Jackson by a deed dated May 29, 1971 and recorded in Allen Parish on June 18, 1971. Russell Jackson actually resided on and corporeally possessed the property from June 19, 1971 to the date this suit was filed on September 8, 1976.

Since the property taxes assessed to Grover Captain for the calendar year 1970 were not paid, the property was advertised and sold at tax sale to the plaintiff, Wilbert Berry. This sale took place on June 2,1971, and was recorded on June 10, 1971.

No notice of the delinquency of the 1970 taxes or of the tax sale was given by the Allen Parish Tax Collector or other parties to either William Buchert, Securities Investment or Russell Jackson.

The first issue is whether the trial judge was correct in finding the five-year constitutional peremption prevents attack on the tax sale. LSA-Const.1921, Article 10, Section 11 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.”

In addition to the exception to the five-year peremptive period contained in the above quoted portion of the Constitution of 1921, i. e., proof of payment of taxes, jurisprudence has established two other exceptions: (1) where the tax debtor remains in continuous corporeal possession of the property, and (2) where there was no assessment of the property. Gulotta v. Cutshaw, 283 So.2d 482 (S.Ct.1973) and Verret v. Norwood, 311 So.2d 86 (3rd Cir. 1975).

In the trial court and in his brief filed in the Court of Appeal, plaintiff argued that the corporeal possession required to prevent the running of the five-year peremptive period must be by the tax debtor himself, in this case Grover Captain, and that possession by a successor in title to the tax debtor, in this case Russell Jackson, is not sufficient. However, during oral argument in this court, counsel for the plaintiff conceded jurisprudence has established the rule that possession by a successor in title to the original tax debtor is sufficient to prevent the running of the five-year peremptive period. This is clearly correct. See Kivlen v. Horvath, 163 La. 901, 113 So. 140 (1927). In the present case, Russell Jackson is the successor in title to the original tax debtor, Grover Captain, and Russell Jackson has admittedly been in corporeal possession of the property since June 19, 1971. Therefore, the five-year peremptive period has not run and the tax sale is subject to attack for defects.

The next question is whether the tax sale was defective. The record shows that when the tax rolls for the year 1970 were filed on some date prior to January 2, 1971, Grover Captain was the record owner of the property in question. However, by the date of the tax sale on June 2, 1971, Securities Investment Company was the record owner. There is no stipulation or proof as to whether Grover Captain received a notice of the delinquent taxes. However, it is stipulated that neither the trustee in bankruptcy, Mr. Buchert, nor Securities Investment Company, nor Russell Jackson received any notice of the delinquent taxes or of the tax sale.

Plaintiffs argue that notice must be sent only to the record owner at the time of the assessment. Although there is no stipulation or proof as to whether Grover Captain received notice, plaintiffs contend that defendants had the burden of proving such lack of notice as a defect in the sale and failed to do so.

Defendants argue that where the record owner at the time of the assessment is not the same as the owner at the time of the tax sale, there must be notice to the record owner at the time of the sale. We find the established jurisprudence supports defendants’ position. The delinquent tax debtor to whom notice must be given under LSA-La.Const. of 1921, Article 10, Section 11, is the record owner at the time of the advertisement and sale of the property.

In Kivlen v. Horvath, 163 La. 901, 113 So. 140 (1927), our Supreme Court held:

“That the Louisiana Avenue Realty Company was the owner of the property conveyed by the tax sale at the time of the sale, and was then the owner of record, does not admit of dispute. The owner of record is entitled to notice of delinquency and intention to sell, to be given in the manner prescribed by law, before a valid tax sale of his property can be made, whether the property be assessed in the name of the owner or in the name of another. Such owner is the delinquent tax debtor, within the meaning of the constitutional provision requiring the giving of notice to the delinquent before making the sale. Article 233 of Constitutions of 1898 and 1913; Concordia v. Ber tron, 46 La.Ann. 358, 15 So.2d 60; Adolph v. Richardson, 52 La.Ann. 1159, 27 So. 665; Arnold v. Sauer, 143 La. 188, 78 So. 442; Adsit v. Park, 144 La. 934, 81 So. 430.”

In Esso Standard Oil Company v. Jordan, 231 La. 594, 92 So.2d 377 (1957) the Court held:

“It has long been the recognized jurisprudence of this state that the delinquent tax debtor to whom notice of delinquency must be given is the last record owner, the only one entitled thereto. Griffing v. Taft, 151 La. 442, 91 So. 832; Kivlen v. Horvath, 163 La. 901, 113 So. 140; Spears v. Spears, supra.”

In Di Giovanni v. Cortinas, 216 La. 687, 44 So.2d 818 (1950) the Court stated:

“In the case of Martin v. Serice, 200 La. 556, 8 So.2d 538, this court again stated that the notice of the tax delinquency must be served on the owner of record at the time of the advertisement and sale of the property.”

Applying this rule to the present case, the record owner at the time of the advertisement and tax sale was Securities Investment Company, and it did not receive no-ticé. Therefore, the tax sale is null and void.

For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that there be judgment herein in favor of the third party defendant and intervenor, Securities Investment Company, and against the plaintiffs, Wilbert Berry and Loris Berry, dismissing plaintiffs’ suit at their costs. It is further ordered, adjudged and decreed that there be judgment herein in favor of Securities Investment Company and against the plaintiffs, Wilbert Berry and Loris Berry, declaring null and void and erasing from the public records of Allen Parish, Louisiana that certain tax sale to Wilbert Berry and Loris Berry dated June 2, 1971 and recorded on June 10, 1971 in Conveyance Book 176, page 440 of the records of Allen Parish, Louisiana conveying property described as: Lot 11 of Block A of the Clarkston Addition to the town of Oberlin, Allen Parish, Louisiana, together with all buildings and improvements thereon. It is further ordered, adjudged and decreed that there be judgment herein in favor of the third party defendant, Securities Investment Company, and against the third party plaintiff, Russell Jackson, rejecting the third party demand. All costs in the trial court, as well as the costs of this appeal, are assessed against the plaintiffs.

REVERSED AND RENDERED.


source: Caselaw Access Project

author: GUIDRY, Judge.

license: Public Domain

text:
    DENTAL ARTS, INC., Plaintiff-Respondent-Appellee, v. COLLECTOR OF REVENUE, Defendant-Petitioner-Appellant.
    No. 6547.
    Court of Appeal of Louisiana, Third Circuit.
    June 28, 1978.

      William Steven Mannear, Baton Rouge, for defendant-appellant.
    Fred A. Book, Jr. and Ronnie Bertrand, Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   GUIDRY, Judge.

On December 28, 1976, the Secretary of the Department of Revenue and Taxation for the State of Louisiana (Department) made an assessment against Dental Arts, Inc. for an occupational license tax allegedly due for taxable periods from 1973 through 1976 together with penalties and interest. An appeal was taken by Dental Arts to the Louisiana Board of Tax Appeals which vacated and set aside the assessment. The Department has taken this appeal from a judgment of the Fourteenth Judicial District Court for the Parish of Calcasieu affirming the decision of the Louisiana Board of Tax Appeals.

Dental Arts is engaged in the business of manufacturing dental plates and bridges in accordance with orders submitted by dentists. These dentures are made to the specifications required for each particular individual. The dentist pays Dental Arts a fee for the materials and labor involved and in turn charges the patient for the dentures. The patient is always charged more than the “manufactured price.” In order to obtain a proper fit, the dentist is sometimes required to “touch up” the finished product.

The Department’s assessment was made pursuant to LSA-R.S. 47:341 et seq. and specifically LSA-R.S. 47:353 which imposes an occupational license tax on every business that sells merchandise at the retail level.

Dental Arts contends that it is exempted from payment of the tax under the provisions of LSA-R.S. 47:396 E which reads:

“Manufacturers shall be exempted from any provisions of this chapter, provided that manufacturers who sell their manufactured articles at retail shall be subject to the payment of a license tax on such retail sales as fixed by this chapter.”

The Department takes the position that Dental Arts is engaged in making retail sales of its manufactured articles and thus may not avail itself of this exemption. Thus, the sole issue on this appeal is whether the transactions between Dental Arts and the various dentists constitute retail sales.

The term “retail sale” is not specifically defined by our occupational license tax statute. However, in American Creosote Works v. Collector Of Revenue, 101 So.2d 245 (La.App.Orl.1958), the court referred to other statutes dealing with the same subject matter and concluded:

“‘From these laws in pari materia we must formulate the definition that a “retail sale” is any sale by one regularly engaged in the business of selling to customers who buy for their consumption or use, and not for resale to others.’ ”

It is the Department’s contention that the various dentists do not purchase the dental bridges and plates for resale but instead consume these articles in the completion of contracts for dental services with their patients. American Creosote Works v. Collector of Revenue, supra.

In the above cited case, it was held that a manufacturer of creosoted lumber and other timber products who sold these items in accordance with purchasers’ specifications to building and construction contractors was subject to an occupational license tax as a retail dealer. See also State v. J. Watts Kearny & Sons, 181 La. 554, 160 So. 77 (La.1935). We distinguish the cited cases as being factually inapposite. In the instant case, the dentists do not substantially alter these manufactured articles prior to their reaching the ultimate consumer, nor do they incorporate same into their own work product. The dentist is only required to expend minimal effort in fitting these dentures to the patient. We conclude that the dentists do not consume these products, but instead purchase them for the purpose of resale to their patients. Accordingly, we are of the opinion that the sales from Dental Arts to the various dentists do not fall within the definition of retail sales.

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

AFFIRMED.


author: CULPEPPER, Judge.

text:
    Robert R. RACHAL, Plaintiff and Appellant, v. FIREMAN’S FUND INSURANCE COMPANY, Defendant and Appellee.
    No. 6550.
    Court of Appeal of Louisiana, Third Circuit.
    June 28, 1978.
    Boatner & Luke, John A. Boatner, Jr., Bunkie, for plaintiff and appellant.
    Lewis & Lewis, James T. Guglielmo, Opelousas, for defendant and appellee.
    Before CULPEPPER, FORET and CUTRER, JJ.
   CULPEPPER, Judge.

Plaintiff seeks workmen’s compensation benefits for total and permanent disability. The accident occurred on October 4, 1975 while plaintiff was employed by Robert L. McCoy as the driver of an 18-wheel truck loaded with rice. He was on top of the truck, pulling a tarpaulin over the rice, when he lost his balance and fell, landing on his feet. The os calcis (heel bone) of his right foot was fractured into the sub-talar joint (lower part of the ankle). The defendant, who carried workmen’s compensation insurance on McCoy, paid benefits for total disability from October 4, 1975 to April 9, 1976, and then made payments for partial disability to January 2, 1977.

The district judge held that under the 1975 amendment to the Workmen’s Compensation Act, as construed in the case of LeBlanc v. Commercial Union Assurance Company, 349 So.2d 1283 (1st Cir. 1977), the plaintiff is not entitled to benefits because he returned to work, driving the same kind of truck, in March of 1976, and he has been continuously driving since that time and earning wages equal to or more than those which he was earning at the time of the accident. From a judgment dismissing his suit, plaintiff appealed.

The factual issue is whether plaintiff, after he returned to work, was able to do so without experiencing “substantial pain” within the meaning of Phillips v. Dresser Engineering Company, 351 So.2d 304 (3rd Cir. 1977) and Rachal v. Highlands Insurance Company, et al., 355 So.2d 1355 (3rd Cir. 1978). We ultimately conclude plaintiff did not experience “substantial pain” after he returned to work, so these cases do not apply.

The original treating orthopedist, Dr. Cayer, died, and plaintiff’s treatment was taken over by Dr. John T. Weiss, an orthopedist in Alexandria. Dr. Weiss saw plaintiff first on February 6,1976, at which time he had Dr. Cayer’s records. These records showed that after an initial period of about four days in the hospital and the application of a long leg cast followed by a short walking cast, the fracture healed in good position. Dr. Cayer released to plaintiff to return to work on a trial basis on January 5, 1976.

Dr. Weiss’ examination on February 6, 1976 revealed that the bone was healed in good position. He recommended that plaintiff return to work with a lace-up boot. Dr. Weiss saw plaintiff subsequently on March 5,1976, on May 7,1976, on July 9, 1976 and last saw him on August 24,1977. On these occasions plaintiff complained that his heel was tender and that after driving his truck for a long period of time with his foot on the accelerator, his heel and ankle would become painful. Nevertheless, Dr. Weiss recommended that plaintiff continue to work because use of the foot and ankle would help recovery. At the time Dr. Weiss last saw plaintiff, on August 24,1977, the doctor stated he found the following: “He was working. He was getting a little soreness at his right heel. He had mild sub-talar discomfort or passive motion. The ankle motion itself, which is the joint above, appeared quite normal. Forefoot motion was normal. There was some sensitivity around the sub-talar joint medially and laterally on deep palpation.” The doctor also found no arthritic changes resulting from the fracture.

On the occasion of his last examination, Dr. Weiss estimated plaintiff had about a 20% loss of the use of the foot and a 15% loss of the use of his leg. It was Dr. Weiss’ opinion that the condition would improve, and that plaintiff would not need a fusion of the sub-talar joint to relieve the pain. Dr. Weiss testified that a fusion would leave the joint stiff, and that the pain being experienced by plaintiff was not sufficient to recommend a fusion. This physician summarized by stating: “I think he is going to have varying degrees of some discomfort, but I don’t think that the discomfort is going to be sufficient to prevent him from driving his truck.”

The other expert medical witness was Dr. Fred C. Webre, an orthopedist in Lafayette. This physician examined plaintiff on August 15, 1977 at the request of the defendant insurer. His findings were substantially the same as those by Dr. Weiss, except that Dr. Webre was more specific in his opinion that plaintiff did not suffer “substantial pain” while driving his truck. Dr. Webre was of the opinion that plaintiff could drive his truck and that he could even assist in the loading and unloading without disabling pain.

Plaintiff testified that he could drive his truck on “short hauls” without too much discomfort, but that on long hauls, where he had to keep his foot on the accelerator for extended periods of time, his foot became very sore. Plaintiff also said he could not climb on the truck or assist in carrying bags of rice or soybeans or watermelons, or such weight-bearing activities involved in unloading the truck. . He also said he could not jump down from the truck on his tender heel.

Plaintiff’s employer, Mr. McCoy, testified that plaintiff could drive the truck on short hauls, but that on the long hauls requiring four to eight hours of driving, plaintiff complained that his foot would become very painful. McCoy also corroborated plaintiff’s testimony that he could not do the heavy lifting required in unloading.

The evidence shows that at the time of the accident plaintiff was earning a guaranteed wage of $100 per week plus a commission. After he returned to work following the accident, his guaranteed weekly wage was increased to $120 a week and he normally earned $200 to $300 a week. He is earning more now than he was at the time of the accident.

As stated above, the district judge based his decision on LeBlanc v. Commercial Union Assurance Company, 349 So.2d 1283 (1st Cir. 1977), writ denied by the Supreme Court, 351 So.2d 174, in which the First Circuit Court of Appeal applied literally the provisions of the 1975 Amendment to LSA.-R.S. 23:1221(2) that an employee is not entitled to workmen’s compensation benefits where he has returned to work and the wages which he “actually earns” are greater than those which he was earning at the time of the accident. At the time the district judge decided this case LeBlanc was the most recent appellate opinion on the issue, and the district judge was clearly correct in applying it.

Subsequently, a panel of the Third Circuit in Phillips v. Dresser Engineering Company, 351 So.2d 304 (3rd Cir. 1977), writ denied by the Supreme Court, 353 So.2d 1048, refused to apply literally the “wages actually earned” provision of the 1975 Amendment. The majority held it was not the intent of the legislature “to require an injured workman who has never fully recovered from his injury, to go out and find employment and to work in substantial pain.” (Emphasis supplied)

In a later case, Rachal v. Highlands Insurance Company, et al., 355 So.2d 1355 (3rd Cir. 1978), the majority followed Phillips. A concurring opinion expressed difficulty reconciling the Supreme Court’s denial of writs in both LeBlanc and Phillips, and suggested the Supreme Court grant a writ to clarify the law on the issue. Nevertheless, the Supreme Court denied a writ on May 22, 1978, with three justices voting to grant the writ.

In the very recent ease of Lott v. Brennan’s House of Printing, Inc., et al., 359 So.2d 746 (4th Cir. 1978), the court cited the LeBlanc case and also Kilbourne v. Armstrong, 351 So.2d 802 (1st Cir. 1977), indicating that the Court of Appeal, Fourth Circuit also construes literally the “wages actually earned” provision of the 1975 Amendment.

In the present case, it is not necessary to express an opinion as to which is correct, the LeBlanc case from the First Circuit or the Phillips and Rachal cases from the Third Circuit. Even under Phillips and Rachal, the evidence in the present case does not show that plaintiff experienced “substantial pain” after he returned to work. Neither of the two highly qualified expert medical witnesses stated that plaintiff experienced “substantial pain” while working. On the contrary, these experts were of the view that plaintiff should work and use his foot, and that he probably would improve. The plaintiff and his employer, Mr. McCoy, testified that plaintiff could drive the truck on “short hauls” without too much difficulty. They said that it was only on the long hauls, which Mr. McCoy described as those requiring from four to eight hours of driving, that plaintiff experienced much pain.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.

FORET, J., concurs in the result reached by the majority.


text:
    Franklin VIDRINE, Sr., Plaintiff-Appellant, v. Vories MOREIN, Defendant-Appellee.
    No. 6574.
    Court of Appeal of Louisiana, Third Circuit.
    June 28, 1978.
    Fruge & Vidrine, Richard W. Vidrine, Ville Platte, for plaintiff-appellant.
    Preston N. Aucoin, Ville Platte, for defendant-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   GUIDRY, Judge.

The sole issue presented on this appeal is whether plaintiff is entitled to cancellation of a lease. The facts are undisputed and are set forth as follows:

The parties entered into a lease agreement dated September 22, 1969 whereby plaintiff leased to defendant a certain parcel of land located in the Town of Ville Platte. The lease is for a primary term of 10 years. The terms of the lease obligate the lessee (defendant) to construct a service station on the described property at his expense, and specifies:

“During the ten year period, LESSEE shall operate a service station or sublet the premises for the operation of a service station.”

According to the terms of the léase agreement lessee is to pay no rent, but is required to pay to the lessor the sum of one cent per gallon for all gasoline sold over and above 5,000 gallons per month during the ten year period. After the expiration of the ten year primary term, the lessor agrees to use the lessee’s oil and gas products for an additional five year period. At the expiration of the primary term, the building to be constructed on the property is to become the property of the lessor, however, the pumps, tanks, grease racks and equipment used by the lessee are to remain the property of the lessee.

Defendant sublet the premises immediately after the building was completed. Thereafter, between September, 1969, and February 14, 1977 (the date of the filing of the instant suit), there were eight different operators of the service station. When one operator would leave, defendant would immediately search through both newspaper advertisements and individual contact for a new operator. There were intervals when the service station would be closed while defendant was searching for a new operator. During the period of time from September 1969 to January 1975, the station was closed from one month to two months during these intervals. During this period plaintiff did not complain of the closure of the station.

Ray Bourque operated the station until the last day of November, 1976. The station remained closed during December, 1976, January, 1977 and until February 18, 1977 when a new operator, Scotty Perrodin, was found who opened the station. Perro-din was still operating the station at the time of trial.

In January 1977, plaintiff contacted defendant seeking a release of the property for breach of the terms of the lease. Defendant'refused to release the property and suit was filed on February 14, 1977.

The trial court refused to cancel the lease, finding that defendant made a reasonable effort to operate the service station and thus had complied with the terms of the contract. Plaintiff has appealed. We affirm.

The record shows that at the time of trial, defendant had expended over $30,-000.00 in the construction of the building and other appurtenances on the leased premises. Checks, representing the amounts due plaintiff from gasoline sales, were sent by defendant to plaintiff at the end of each month. There is nothing in the record to indicate that these payments were not promptly made. Defendant continued this practice after suit was filed. Plaintiff is in possession of the checks but has not cashed them. The record further reflects that defendant loaned several of the operators money for the operation of the station. Some of this money had not been repaid.

We conclude that the periods of time in which the station was closed were not unreasonable under the circumstances, especially considering the fact that defendant made every reasonable effort following the loss of an operator to secure a replacement for him. Although the terms of the lease, supra, provide that during the primary term the lessee shall operate a service station or sublet the premises for the operation of same, the lease does not specify that the operation of the station is to be continuous and without interruption of any kind.

We also note that plaintiff did not complain when the station was previously closed at intervals during the period from 1969 to 1975 as a result of an operator quitting. This had the effect of creating a custom between the parties whereby defendant was allowed a reasonable time in which to secure a replacement operator. Plaintiff, by his prior acquiescence, led defendant to believe that he was complying with his obligations under the terms of the lease. Under these circumstances, plaintiff is now estopped from using this alleged breach as a basis for a suit for cancellation of the lease. See Lee Lumber Company, LTD. v. Internationa] Paper Company, 345 So.2d 212 (La.App. 3rd Cir. 1977, writ refused).

It is well settled that the right to dissolve a lease is subject to judicial control according to the circumstances. Housing Authority of the City of Lake Charles v. Minor, 355 So.2d 271 (La.App. 3rd Cir. 1977, cert. denied). In the cited case, we stated:

. . our courts, on the basis of equity, are vested with discretion under some circumstances to decline to grant a lessor cancellation of a lease although such right appears to be otherwise available to him.”

For the above and foregoing reasons, the judgment of the district court dismissing plaintiff’s suit with prejudice is affirmed at plaintiff’s cost.

AFFIRMED.


text:
    Terry V. BILLS, Jr., Plaintiff and Appellee, v. Hillward J. FRUGE, Defendant and Appellant.
    No. 6586.
    Court of Appeal of Louisiana, Third Circuit.
    June 28, 1978.
    DeVillier and Ardoin, Kenneth Pitre, Eunice, for defendant and appellant.
    Sandoz, Sandoz & Schiff, Lawrence B. Sandoz, Jr., Opelousas, for plaintiff and ap-pellee.

      Before CULPEPPER, FORET and CUTRER, JJ.
   CULPEPPER, Judge.

Plaintiff, Terry V. Bills, Jr., seeks a declaratory judgment decreeing him the owner of an oil, gas and mineral lease on the undivided interest owned by defendant, Hillward J. Fruge, in a tract of land in St. Landry Parish. Defendant denies the existence of such a lease. Veil David DeVillier intervenes claiming that he owns a mineral lease on Fruge’s interest. The trial judge found that Mr. Bills owns a valid mineral lease on the interest in question. Mr. De-Villier’s intervention was dismissed. Both defendant and intervenor appealed.

The substantial issues on appeal are: (1) Must a mineral lease be in writing? (2) Even though Fruge did not sign the lease instrument mailed to him, does the bank draft endorsed by Fruge and paid by Bills constitute a lease?

In June of 1975, plaintiff Bills secured a written mineral lease from the father and co-heirs of Hillward J. Fruge covering their interests in 60.29 acres in St. Landry Parish. Bills mailed a counterpart of that lease on June 17, 1975 to Hillward J. Fruge in Atlanta, Georgia, where Fruge was incarcerated in the Federal Penitentiary. With the counterpart lease was a draft dated June 17, 1975 and payable to the order of Hill-ward J. Fruge in the sum of $364.31 drawn on the First National Bank of Lafayette, Louisiana. The following was typed on the face of the draft:

“Bonus Consideration for undivided interest in oil, gas and mineral lease covering 60.29 acres, more or less, situated in Sections 49 and 59, T6S-R1E, St. Landry Parish, La. Middle Savoy Area.”

A letter included with the draft and lease instructed Mr. Fruge to sign the lease, have it notarized and then return it to the attorney representing the other lessors. Mr. Fruge was also told he could deposit the draft.

The draft was endorsed by Fruge as follows: “Hillward Fruge — Pay to the order of Mrs. W. S. Ramsey”. It was presented for payment at the First National Bank of Lafayette, Louisiana. When contacted, Mr. Bills asked that the draft be returned to the Atlanta Bank for Mrs. Ramsey’s endorsement.

The draft was presented for payment the second time on September 26, 1975. At that time, Mr. Bills noticed the lease was not attached. He called the Atlanta Bank to see if the lease had been left there and was told that it had not. Bills wrote Fruge informing him that he had instructed his bank to make payment on the draft, and enclosed a second counterpart lease which he asked Fruge to execute, since the first lease was evidently lost in the mail. Bills never did receive a lease on the 60.29-acre tract signed by Fruge.

On October 29, 1975, Bills filed in the Conveyance Records of St. Landry Parish a copy of the draft, the unsigned lease and an affidavit setting forth the above facts.

On January 20, 1977, Mr. Veil David DeVillier obtained from defendant Fruge a mineral lease on Fruge’s undivided interest in the 60.29 acres mentioned earlier. This was filed on February 2, 1977.

Plaintiff filed this suit for a declaratory judgment on June 28, 1976. The court appointed a curator ad hoc to represent the defendant, Hillward J. Fruge. Depositions were taken of defendant Fruge and of Mr. Gilbert J. Fortier, Jr., a handwriting expert from New Orleans. A trial on the merits took place on October 27, 1977. All testi'mony introduced by plaintiff was objected to by defendant and by the intervenor as being in violation of the “parol evidence rule.” Defendant and intervenor called no witnesses but filed and introduced a certified copy of the mineral lease between Hill-ward Fruge and Veil David DeVillier affecting the 60.29-acre tract.

The trial judge found that Mr. Fruge had “cashed the draft, but didn’t sign the lease.” The court held that “where the draft and lease form were presented with a transparently clear ‘offer’, when the draft was knowingly cashed, the offer was ‘accepted’.” Thus, the court held that Mr. Fruge fraudulently withheld his signature from the lease, but that the lease exists. The court also found the recordation by Mr. Bills was sufficient notice to put any third party on notice, and, for that reason, the Bills’ lease primed the DeVillier lease.

The first issue is whether a mineral lease must be in writing. The jurisprudence in the last few years before the enactment of the Mineral Code held that mineral leases require the same written testimonial proof as transfers of immovable property, and that the parol evidence rule applies to them. Ingolia v. Lobrano, 244 La. 241, 152 So.2d 7 (1963); Hayes v. Muller, 245 La. 356, 158 So.2d 191 (1963). In the latter case, the Supreme Court based its opinion on LSA-R.S. 9:1105, which states that mineral leases are real rights and incorporeal immovables which may be asserted, protected, and defended in the same manner as may be the ownership or possession of other immovable property, and that the holders of such rights shall have the benefit of all laws relating to the owners of real rights in immovable property or real estate. This statute, now repealed, was replaced by LSA-R.S. 31:16 and 31:18 in the Mineral Code. See Yiannopoulos, Louisiana Civil Law Treatise, Volume 2, Property, 1978 Pocket Part, page 90, Footnote 156. Authors of doctrine written after adoption of the Mineral Code agree that mineral leases must be in writing. McCollam, Mineral Law Primer, 50 Tulane Law Review 732 at 789; Arceneaux, Parol Evidence, 35 La.Law Review 864 at 766. We hold that mineral leases must be in writing and are subject to the parol evidence rule.

The next issue we face is whether there is merit to plaintiff’s contention that the draft alone, when signed by Mr. Fruge, constituted a valid written mineral lease. The essential elements for a contract of lease, as well as a contract of sale, are the thing, the price, and the consent. LSA-Civil Code Article 2670.

We find the draft lacks at least the essential element of consent. The fact that Mr. Fruge signed the draft and cashed it does not mean he consented to lease his interest to Mr. Bills. If Fruge had intended to consent to a lease, he could have signed and returned any of the several written leases mailed to him by Bills. The trial judge held Fruge fraudulently endorsed the draft without signing the lease, thus, in effect, holding Fruge did not intend to lease.

Furthermore, Bills himself did not intend that the draft constitute the lease contract. Plaintiff repeatedly refers to the multi-page form sent to Mr. Fruge and the other lessors as the “lease”. We find the draft was never intended by Fruge or by Bills to constitute a written mineral lease.

Having concluded there was no mineral lease from Fruge to Bills, we do not reach the issue of whether recordation by Bills of the draft and an unsigned lease form constituted notice to third parties of an existing lease.

For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that there be judgment herein in favor of the defendant, Hillward J. Fruge, and the in-tervenor, Veil David DeVillier, and against the plaintiff, Terry V. Bills, Jr., rejecting plaintiff’s demand that he be declared the owner of an oil, gas and mineral lease on the undivided interest of defendant, Hill-ward J. Fruge, in the following described property under or by virtue of the instruments recorded by Bills on October 29,1975 as Act No. 592964 in Conveyance Book B-20 at page 369 of the records of St. Landry Parish, Louisiana:

“60.29 acres, more or less, situated in Sections 49 and 59, Township-6-South, Range-l-East and being bounded now or formerly, as follows: On the North by Cedric Fruge and Amy Y. Phillips, et al; on the South and Southwest by Cedric Fruge and Francis Ledoux; on the East by Inez S. Bertrand.”

All costs in the trial court and the costs of this appeal are assessed against the plaintiff, Terry V. Bills, Jr.

REVERSED AND RENDERED.

FORET, J., concurs in the result.


text:
    Eddie LEGE et al., Plaintiffs-Appellants, v. VERMILION PARISH SCHOOL BOARD, Defendant-Appellee.
    No. 6690.
    Court of Appeal of Louisiana, Third Circuit.
    June 28, 1978.
    Mouton, Roy, Carmouche, Bivens & Hill by H. Purvis Carmouche, Lafayette, for plaintiff-appellant.
    Foley, Judell, Beck, Bewley & Martin by Lonnie L. Bewley and Carl G. Schleuter, New Orleans, for plaintiff-appellee.
    Broussard, Broussard & Moresi by Paul G. Moresi, Jr., Abbeville, for defendant-ap-pellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   GUIDRY, Judge.

This suit is one by qualified electors and taxpayers of Vermilion Parish contesting the' validity of an election held pursuant to call by the defendant, which election approved the assumption by the Parish of Vermilion of certain indebtedness of school districts within the Parish; the issuance of bonds in the sum of $19,330,000.00 for a proposed capital improvement program for the schools; and, a proposition by an individual school district to incur debt and issue bonds. Plaintiffs seek to have the election declared invalid and the incurring of any debt or the issuance of any bonds pursuant thereto enjoined. Plaintiffs’ suit was dismissed upon a plea of peremption and an exception of no right of action, the trial court concluding that plaintiffs’ suit was untimely under the provisions of Article 6, Section 35(A) of the Louisiana Constitution of 1974. Plaintiffs appealed.

The following facts are not disputed. The election was held on December 10, 1977. The results of the election were officially promulgated by publication on December 22, 1977. On February 10, 1978, fifty days following official promulgation, the instant suit was filed, via ordinaria, seeking annulment of the election, a copy of the petition being domiciliarily served on the defendant, through its president, on February 11, 1978. On February 24, 1978, sixty-four days following official promulgation, plaintiffs filed a pleading styled “SUPPLEMENTAL AND AMENDING PETITION” wherein is indicated that the matter previously filed is converted to an action under ‘Part 14. (sic) Chapter 32 of Title 13 of Louisiana Revised Statutes entitled “Suits to Determine Validity of Governmental Bonds’ and in order to do so, to title this procedure ‘Motion for Judgment’ ”. The pleading so filed contains essentially the same factual allegations as are contained in the original petition and concludes with essentially the same prayer for relief except that, in addition, plaintiffs make all taxpayers, property owners and citizens of Vermilion Parish, including nonresidents owning property subject to taxation, parties defendant and prays for service by publication pursuant to the provisions of LSA-R.S. 13:5125 together with an order fixing a date, time and place for a hearing; and, that the issuance of any bonds or debt assumption be enjoined. Annexed to this pleading is an order dated February 27,1978 which requires service by publication pursuant to the cited provision and fixed a hearing on the “Motion for Judgment” for the 20th day of March, 1978. Personal service of this pleading was had on a member of the defendant board pursuant to the provisions of LSA-R.S. 13:5125 on March 2, 1978. Following the filing of this supplemental pleading and on March 9, 1978, defendant filed its plea of peremption and peremptory exception which, as aforesaid, were sustained resulting in the dismissal of plaintiffs’ suit.

The sole issue on appeal is whether plaintiffs’ suit was timely filed. We agree with the trial court that it was not and affirm.

Article 6, Section 35(A) of the Louisiana Constitution of 1974 reads as follows:

“Section 35. (A) Contesting Election; Time Limit. For sixty days after promulgation of the result of an election held to incur or assume debt, issue bonds, or levy a tax, any person in interest may contest the legality of the election, the bond issue provided for, or the tax authorized, for any cause. After that time no one shall have any cause or right of action to contest the regularity, formality, or legality of the election, tax provisions, or bond authorization, for any cause whatsoever. If the validity of any election, tax, debt assumption, or bond issue authorized or provided for is not raised within the sixty days, the authority to incur or assume debt, levy the tax, or issue the bonds, the legality thereof, and the taxes and other revenues necessary to pay the same shall be conclusively presumed to be valid, and no court shall have authority to inquire into such matters.”

LSA-R.S. 39:513 (Act 18 1st Ex.Sess.1975) contains provisions almost identical with the constitutional provision above quoted.

The cited constitutional and statutory provisions establish a peremptive period, as opposed to a prescriptive period, during which suits to contest the legality and validity of bond and tax elections shall be brought. In Andrieux v. East Baton Rouge Parish School Board et al. (La.1969) our Supreme Court, in speaking to the effect of a similar provision contained in the 1921 Louisiana Constitution, stated:

“ . . the constitutional and statutory peremptive period operates as a complete extinguishment of the right to attack bond and tax elections.”

It is clear that under the cited constitutional and statutory provisions, as consistently interpreted by our Supreme Court, unless the initial pleading filed herein by plaintiffs was sufficient to put at issue the validity of the election of December 10, 1977 and the bonds proposed to be issued thereunder or unless the filing of the amended pleading be considered as relating back to the date of the filing of the original pleading, plaintiffs’ right to question the validity of the election and issuance of bonds etc. has been extinguished.

DID THE INITIAL PLEADING FILED HEREIN BY PLAINTIFFS PUT AT ISSUE THE VALIDITY OF THE ELECTION OF DECEMBER 10, 1977 AND THE ASSUMPTION OF DEBT AND BONDS PROPOSED TO BE ISSUED THEREUNDER?

Act 385 of 1972, enacted Part 16 of Chapter 32 of Title 13 of Louisiana’s Revised Statutes entitled “Suits to Determine Validity of Governmental Bonds”. The express legislative intent of that enactment is set forth in Section 5122 which reads as follows:

All suits, actions and proceedings of whatever nature affecting the validity of bonds of any governmental unit, or the interest thereon, or the sale thereof, or the election, if any, authorizing the issuance of said bonds shall be brought only in accordance with the provisions of this Title. These provisions shall supersede all other acts and statutes on the subject and be controlling in all such cases notwithstanding the provisions of any other law or charter to the contrary; provided, however, nothing herein contained shall affect, change, alter or modify in any way any peremptive or prescriptive period for the contesting of bonds of governmental units- or elections authorizing their issuance, established pursuant to the constitution and statutes of this state which shall continue to govern the time within which actions covered thereby may be filed. It is hereby declared that it is the intention of the legislature in enacting this law to provide a uniform, expeditious and equitable procedure with due regard for the public fisc and rights of persons in interest for the judicial determination of the validity of bonds and related proceedings where material and substantial questions with regard thereto are involved or a judicial determination of issues relating to bonds is necessary to insure the marketability of bonds in investment channels. It is not the intention of the legislature to require or to encourage the validation of all bonds by the judiciary.
Acts 1972, No. 385, § 1, eff. July 26, 1972.

The exclusive procedure which, under this act, shall be followed by one wishing to contest or enjoin the issuance of bonds by a governmental unit and which governs disposition of such proceeding is set forth in Sections 5125 and 5126, which state:

Sec. 5125:
Any person, corporation or association-desiring to contest or enjoin the issuance of any such bonds or action taken providing for a new or different source of payment for outstanding bonds shall proceed by motion for judgment brought in the court having jurisdiction as provided in R.S. 13:5123. Upon the filing of any such motion for judgment, the court shall enter an order requiring the publication of the motion in some newspaper published in or having general circulation in such governmental unit two times within a period of fifteen consecutive calendar days from the date of the issuance of the order specifying the dates for publication thereof, with the first publication as hereinabove provided to be not later than eight days from and after the date of the issuance of the order, and at the same time fix a time and place for hearing the proceeding, which time and place shall be published with the motion for judgment. The date fixed for the hearing shall be at least ten days, but not more than thirteen days, after the second publication of such motion for judgment. In addition to such publication, the plaintiff must secure personal service on at least one member of the governing body of the governmental unit whose actions or proceedings are sought to be contested or enjoined.
Acts 1972, No. 385, § 1, eff. July 26, 1972. Amended by Acts 1975, No. 230, § 1, eff. July 16, 1975.
Sec. 5126:
Any party defendant may answer such motion for judgment within seven days after the second publication thereof but not thereafter. Any property owner, taxpayer, citizen, or other person in interest may become a party to said proceedings by pleading to the motion within seven days after the second publication thereof, or thereafter by intervention upon leave of court. In the event no answers or pleadings are filed by any person with respect to the motion or judgment within the time set forth in the preceding sentences of this Section, the plaintiff may file a motion requesting the court to consider and pass upon questions certified therein in rendering its judgment. At the time and place designated in the order for hearing, the judge shall proceed to hear and determine all questions of law and fact in said cause and may make such orders as to the proceedings and such adjournments as will enable him properly to try and determine the same and to render a final judgment therein with the least possible delay. To the extent possible and practicable under the circumstances, judgment shall be rendered within ten days after the hearing is concluded.
Acts 1972, No. 385, § 1, eff. July 26, 1972. Amended by Acts 1975, No. 230, § 1, eff. July 16, 1975.

It is obvious that the initial pleading filed by plaintiffs within the peremptive period, a petition via ordinaria, was not filed in accordance with the provisions of LSA-R.S. 13:5121 et seq., and does not comply with the procedural requirements therein set forth. The proceeding is not a “motion for judgment”; upon filing of the pleading no order was sought nor granted requiring publication of the pleading; the initial pleading was not published; no order was sought nor granted fixing a time and place for hearing the proceeding; and, most important, personal service of the initial pleading on at least one member of the defendant board was not made at any time during the 60 day period immediately following official promulgation of the election as is specifically required by the provisions of LSA-R.S. 13:5125.

The procedure set forth in the cited statute is radically different from any procedure via ordinaria and is, by the very explicit terms of the statute, made exclusive, all other acts and statutes on the subject being superseded. This being considered, it is axiomatic that plaintiffs’ initial pleading filed within the peremptive period allowed by La. Constitution Article 6 Section 35(A) failed to state a right or cause of action insofar as it purported to place at issue the validity of the election of December 10, 1977 and/or the proposals thereunder and must be considered of no effect. Our conclusion that the proceedings filed during the peremptive period are null, void and of no effect is made clear when one considers that there was no citation or service of the pleading filed pursuant to the express requirements of the statute. Section 5125 expressly requires service by publication of the motion for judgment and in addition “the plaintiff must secure personal service on at least one member of the governing body of the governmental unit whose actions or proceedings are sought to be contested or enjoined”. The record reflects that the original pleading was neither published nor was personal service thereof made on any member of the defendant board. Under these circumstances the proceedings are absolutely null. LSA-C.C.P. Articles 1201 and 1231.

DID THE FILING OF THE AMENDED PLEADING RELATE BACK TO THE DATE OF THE FILING OF THE ORIGINAL PETITION?

In the alternative, plaintiffs contend that their supplemental pleading, admittedly filed after accrual of the 60 day peremp-tive period, which complies with the substance and procedural requirements of LSA-R.S. 13:5121 et seq., relates back to the time of the filing of the original pleading with the effect being that the present suit should be considered to have been brought within the 60 day period. In support of their contention plaintiffs cite LSA-C.C.P. Article 1153, which states:

“When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the filing of the original pleading.”

We acknowledge the ingeniousness of this argument but conclude that it is without merit. In disposing of this alternative contention the learned trial judge stated, and we quote approvingly:

“Plaintiffs contend that the original petition interrupted the sixty day period.
The case of Andreux v. East Baton Rouge Parish School Board, 227 So.2d 370 held that Article 14, Section 14(n) of the Constitution of 1921 (the counterpart of Article 6, Section 35(A) of the 1974 Constitution), above quoted, established a peremptive period and not a prescriptive period.
The Supreme Court in the Succession of Pizzillo, 55 So.2d 782 stated:
‘The difference between prescription and peremption is that the former simply bars the remedy whereas, in the latter, time is made of the essence of the right granted and a lapse of the statutory period operates as a complete extinguishment of the right. . Peremption admits of no interruption or suspension ; performance of the required act must be accomplished within the specified time or else the right of action no longer exists.’ (Emphasis added)
It is well settled in Louisiana Jurisprudence that a peremptive period can not be interrupted. As Professor Dainow, L.S.U. Law School, pointed out in the Louisiana Law Review, ‘There can be no — repeat, no — interference with the running of time; there can be no interruption by suit or acknowledgment, nor suspension for minority or other reasons.’
It is thus apparent that the first suit filed by the plaintiffs under the wrong statute, without naming all of the necessary parties defendant, without the necessary court order and the required two publications in the newspaper is invalid.
The second suit was not filed timely under the provisions of the Louisiana Constitution and can not be considered. The exception filed by the defendant must therefore be sustained . . . ”

We amplify the trial court’s excellent reasons in connection with the above simply to observe that the initial pleading being completely without effect, insofar as it purported to state a right or cause of action placing at issue the validity of the election of December 10, 1977 and the proposals thereunder, there was simply nothing to relate back to and the cited article is therefore inapplicable. In disposing of a similar issue, in a different but analogous factual situation, our brethren of the Fourth Circuit in Succession of Roux v. Guidry, 182 So.2d 109 (La.App. 4th Cir. 1966), writ refused 248 La. 1106, 184 So.2d 27, stated:

“Plaintiffs cite LSA-C.C.P. articles 1151 and 1153, dealing with the amending of petitions, and a number of cases in support of his position that their amended petition should relate back to the date of the original petition and thus save the action from extinction. Most of these deal with prescription and are inapplicable in view of our opinion that the one year time limitation involved here is one of peremption. The Code of Procedure articles referred to are, we believe, predicated on the assumption that the plaintiff is in Court (which, as we have seen, is not the situation in the ease before us), and that both the original and the amending supplemental petitions assert one and the same right or cause of action.”

For the above and foregoing reasons the judgment of the trial court dismissing plaintiffs’ suit is affirmed. All costs on appeal are assessed to appellants.

AFFIRMED.

      . LSA-R.S. 13:5121 defines “Governmental unit” as, among others, “parish and municipal school boards and districts . .


author: COFER, Justice,

text:
    O. J. STANTON AND COMPANY, INC. and Fidelity and Deposit Company of Maryland v. Robert L. DENNIS and Jerry C. Watkins, d/b/a D and W Construction Company.
    No. 50406.
    Supreme Court of Mississippi.
    May 24, 1978.
    Rehearing Denied July 26, 1978.

      Young, Scanlon & Sessums, Brad Ses-sums, Jackson, for appellant.
    Thomas, Price, Alston, Jones & Davis, Thomas W. Tardy, III, Jackson, for appel-lee.
    Before PATTERSON, WALKER and COFER, JJ.
   COFER, Justice,

for the Court:

O. J. Stanton and Company, Incorporated (Stanton) and Fidelity and Deposit Company of Maryland, surety on Stanton’s bond as contractor to perform certain work on Interstate Highway 55 in Holmes County, were sued by D & W Construction Company, Incorporated (D & W), subcontractor under Stanton for certain concrete work on the project. D & W’s suit is based on breach of contract by Stanton. The suit was filed in the Chancery Court of the First Judicial District of Hinds County. From an adverse decision, Stanton has taken this appeal, assigning the following errors:

1. The court erred in not allowing as a set-off against sums due the appellees, amounts expended by the appellant, Stanton, over and above sums earned by the appellees on the Vicksburg National Military Park and Warren County projects.

2. The court erred in refusing to admit evidence of sums expended by the appellant Stanton on behalf of Empire Building Enterprises, Inc., on the Vicksburg National Military Park and Warren Gounty projects, and in not allowing the amount so expended over and above sums earned as a set-off against sums found to be due the appellees.

3. The court erred in awarding the ap-pellees judgment against Stanton in the amount of $8,727.06, as the sale price of a tractor in dispute and rental charges for a substitute tractor.

4.The court erred in awarding the ap-pellees judgment against the appellants for prejudgment interest and for attorney’s fees.

In its bill of complaint D & W claimed breach of the subcontract by Stanton in failing to have concrete at the site where and as needed by D & W, causing unproductive delay by D & W and its employees, resulting in labor payments in the amount of $7,148.12, and that it had been further damaged by Stanton’s taking a tractor from D & W and selling it under circumstances hereinafter to be noticed, and then charging D & W an amount as rent for a replacement tractor in the amount of $1,027.06, and asked damage therefor in the total amount of $11,027.06.

D & W prayed accounting which it asserted Stanton had failed to render, and money decree for balance determined thereby to be due to D & W plus interest, attorney fees, and costs.

Stanton filed cross bill praying recovery for sums paid by it for D & W as presently to be noted herein.

On July 31, 1969, Stanton, having obtained contracts with the State of Mississippi for work to be performed on Highway 61 by-pass (by-pass) and with the United States Government for work in the Vicksburg National Military Park (park) both projects in Warren County, subcontracted to Empire Building Enterprises, Incorporated, (Empire) a part of the work to be performed on those two projects. Empire defaulted in its performance of the subcontracts, leaving its work uncompleted and owing to Stanton amounts which Stanton had paid on its behalf.

Thereafter, on October 18, 1969, D & W entered into contracts with Stanton by which it undertook to complete the by-pass and Park work left in default by Empire and on the same day entered into the contract with Stanton, the basis of this suit.

Stanton claims that D & W by its contracts assumed liability for the amounts left owing by Empire in the amounts of $2,487.04 on the park contract, and $594.27 on the by-pass contract. In addition, thereto, Stanton claims D & W owed it $7,877.34 on the park project and $1,740.28 on the by-pass project, allegedly amounts paid out by Stanton for labor and materials at the instance and by understanding between D & W and Stanton.

Stanton, during this time, also had contracts for work in Marion and Sharkey counties, in the performance of which it was behind to a disturbing degree. In conference with D & W, D & W agreed to transfer some or all of its employees from the park, by-pass and Holmes County work to Marion and Sharkey counties to assist Stanton to become current in those two contracts.

There is conflict in the testimony as to a part of the conversation that resulted in this cooperation by D & W. D & W contends that J. H. Stanton, for Stanton, gave D & W to understand that if it moved its employees to the Marion and Sharkey jobs, it would come out of the by-pass and park contracts “with money in its pockets.” Stanton testified that he only expected that would- be the result. D & W claims this contradicted testimony amounts to a novation of its Warren County contracts, and based on that novation, it owed nothing to Stanton thereon.

We do not find in this conflicting testimony a novation of the subcontracts relieving D & W of deficit balances in their performance, nor do we find in the record any basis for conclusion that D & W assumed Empire’s debt to Stanton. Whatever may have been their conversations leading to the execution of the two contracts for the Warren County work, the fact that these verbal negotiations were merged into the written contracts is a legal principle so ancient and well-known as to require the citation of no authority.

There is no issue as to D & W’s loss on the Warren County contracts. Stanton paid out, on D & W’s orders, sums of money in excess of the amount D & W was to receive from these contracts. The able chancellor concluded -that all amounts Stanton paid over and above D & W’s contract price for the performance of these contracts were paid by Stanton as a volunteer and no amount was allowed by her therefor. In her opinion, she relied upon McLean v. Love, 172 Miss. 168, 157 So. 361 (1934), and McDaniel Brothers Construction Co. v. Burk-Hallman Co., 253 Miss. 417, 175 So.2d 603 (1965). These cases are not decisive of the voluntariness vel non of the payments here involved.

Each of the three subcontracts here involved has a paragraph reading as follows:

6. ADVANCES;
Contractor may, but shall not be required to, advance sums to Subcontractor for the purpose of financing the work and may offset such against any subcontract earnings including final retainage without the consent of and free of any claim of unauthorized prepayment by any Surety and such shall not release the Surety in whole or in part. Contractor may, but shall not be required to, supply Subcontractor with labor, materials, equipment and supplies and other items acceptable to Subcontractor in the performance of the work and recover the value or price thereof against Subcontractor and the Subcontractor’s Surety, if any, without being required to offset the same or any part thereof, against the earnings of the Subcontractor.

This covenant renders, invalid the position that the deficit balance of D & W to Stanton resulted from payments by Stanton as a volunteer. In addition to this, there is proof from D & W that the method employed by the parties was that understood between them.

As an aid to D & W’s performance of this subcontract with Stanton, Stanton procured from Carter Equipment Company, Incorporated, a tractor on a lease-purchase agreement, which Stanton placed in D & W’s possession, on a lease-purchase basis, as to which Stanton and D & W entered into written agreement a pertinent part of which says:

Upon the satisfactory completion and acceptance of all subcontract work by D and W Construction Company on the above mentioned highway projects, then D and W Construction Company shall have the right to exercise the purchase option which O. J. Stanton and Company, Inc. has with Carter Equipment Company, Inc. for said equipment upon the approval of Carter Equipment Company, Inc.

Toward the conclusion of its highway contracts, Stanton determined to sell at public auction all of its road machinery. In advance of the sale, it took possession of the tractor so held under the lease-purchase agreements, cleaned and painted it, and included it in the equipment sold in the auction. While there is no proof affirmatively showing D & W agreed to this course of action, the record is silent as to any objection by D & W and as to any actions taken by it to prevent its inclusion in the sale.

It is to be noted that D & W’s option to buy the tractor was made contingent on (1) its satisfactory completion and acceptance of the subcontract work it had undertaken and the record shows that at the sale, this condition had not been met, and (2) the purchase would have to depend upon Carter Equipment Company’s approval, which was nowhere in the record shown to have been obtained.

At the time of the auction sale of the tractor there remained owing to Carter Equipment Company, Incorporated, the balance of $2,347.32 on the lease-purchase agreement, which Stanton paid, and which it has not undertaken to recover in this suit. The auction sale brought a gross of $7,700 against which Stanton claims deductions of $350 as the uncontradicted reasonable cost of cleaning and painting the tractor and $385, the auctioneer’s five percent commission on the sale, leaving a net (not considering at all the balance paid to Carter) of $6,965.

The chancellor awarded to D & W recovery on this transaction of $7,700, the entire gross auction sale price on the tractor.

The Holmes County subcontract project not being then completed, Stanton arranged with Carter Equipment Company for the use of another tractor for a total rental of $1,027.06; which rent it charged against D & W’s account. The chancellor charged this rental against Stanton, and we agree with this conclusion, but we are of the opinion under the circumstances, here involved, that Stanton should have only been charged with $6,965, the net amount realized on the public sale of the tractor.

The chancellor found nothing should be recovered for idle time of employees claimed by D & W and we agree that this decision is correct.

Turning to the Holmes County project, Stanton transferred an amount of the balance owing to D & W as a credit on D & W’s debt to it, leaving a gross balance due D & W of $7,270.50.

Stanton had a clause in its contract with D & W whereby it would furnish concrete to the amount of 105 percent of the theoretical requirements of the job, and whereby all it furnished above that amount would be charged against D & W at $14.50 per yard. A computation of the actual volume of concrete required shows it to have been within 105 percent of the “theoretical” volume, and therefore, Stanton is entitled to no credit therefor.

The performance bond of Stanton calls for payment by Stanton of all expense and attorney fees incurred in the enforcement of the contract. This bond, put in suit by D & W, covered only the Holmes County project contract, and the chancellor limited allowance thereof to the solicitor’s service in the Holmes County recovery which she awarded to D & W. We are convinced that the work of the attorneys was enormous and that this work was long and arduous. The setting of fees, where the trier of fact has that authority, is a duty peculiarly within the judge’s purview. Here the chancellor found D & W entitled to recover $8,673.01 attributable to the Holmes project. The attorneys proved services running to almost $10,000. She allowed fees to D & W in the amount of $4,336, which she regarded as reasonable. While we might have allowed a smaller amount, we cannot say that she with her peculiar familiarity with the issues, their intricacy, the work of the attorneys, etc., fixed the compensation in such an amount that we should disturb it.

Summarizing our views to this point, we hold that D & W is entitled to an amount of $7,270.50 balance on the Holmes County project, $6,965.00 on the tractor transaction and $1,027.06 charged by Stanton as tractor rent. Stanton is entitled to credit against these amounts of $7,877.34 remaining unpaid of the park project advances and $1,740.28 remaining unpaid of the by-pass advances.

The credits to D & W are a total of $15,262.56 and to Stanton $9,617.62 leaving a net balance of $5,644.94 to D & W. To this is to be added the attorney fee of $4,336.

Stated differently, we find the status of the parties’ accounts to be as follows:

DUE TO D & W:
Holmes County Project $ 7,270.50
Tractor 6,965.00
Rent on Tractor 1,027.06
$15,262.56
DUE TO STANTON:
Park Project $ 7,877.34
By-pass project 1,740.28
$ 9,617.62
TO D & W $15,262.56
TO STANTON 9,617.62
NET TO D & W $ 5,644.94
PLUS attorneys fee 4,336.00
TOTAL TO D & W $ 9,980.94

On the amount of $8,673.01, which the chancellor found owing on the Holmes County project, she decreed interest at six percent per annum from May 2, 1972, until the date of the decree. There was legitimate dispute between the parties as to the amount due D & W, the amount was unliq-uidated, and the sum to be paid had finally to be computed and stated by this Court. We conclude that it was error to allow any amount as interest prior to decree.

The net amount of the recovery, $5,644.94, is derived from gross amounts of $7,270.50 attributable to the Holmes County project wherein there is the surety company bond, and $7,992.06 from the tractor transaction. It is equitable to attribute one-half the net recovery or $2,822.47 to the Holmes County project. Therefore, joint and several judgment for that amount, plus attorneys’ fee of $4,336, fixed by the chancellor against both defendants will be awarded to D & W and judgment for $2,822.47 will be awarded individually against Stanton to D & W.

The chancellor’s taxation of costs will not be disturbed.

AFFIRMED IN PART AND REVERSED IN PART AND RENDERED.

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


text:
    Hank Leonard WILLIAMS, a minor by his mother, Betty Williams v. SOUTHEASTERN HATCHERIES OF MISSISSIPPI, INC., Morton Broiler Farms, Inc. and Macie H. Myers.
    No. 50375.
    Supreme Court of Mississippi.
    May 31, 1978.
    Rehearing Denied July 26, 1978.
    Barnett, Montgomery, McClintock & Cunningham, Ross R. Barnett, E. H. Cunningham, Jr., G. William Palmer, Jackson, Thomas D. Lee, Dannye Hunter, William C. Thompson, Forest, for appellant.
    O. B. Triplett, Jr., Forest, Pat Donald, Morton, Daniel, Coker, Horton, Bell & Dukes, John M. Roach, B. Stevens Hazard, Jackson, for appellee.

      Before SMITH, P. J., and WALKER and GOFER, JJ.
   AFFIRMED.


author: LEE, Justice,

text:
    Ronnie Gene KNIGHT v. STATE of Mississippi.
    No. 50476.
    Supreme Court of Mississippi.
    May 31, 1978.
    Rehearing Denied July 26, 1978.

      Upshaw, Schissel, Dorizas & Ladner, James E. Upshaw, Greenwood, for appellant.
    A. F. Summer, Atty. Gen., by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, LEE and BOWLING, JJ.
   LEE, Justice,

for the Court:

Ronnie Gene Knight was indicted and tried in the Circuit Court of Leflore County for the crime of rape. The jury was unable to agree on a verdict in the first trial, and the court declared a mistrial. He was tried again March 22, 1977, the jury returned a verdict of guilty and he was sentenced to serve a term of twenty-five (25) years in the custody of the Mississippi Department of Corrections, from which sentence and judgment he appeals.

The prosecutrix testified that on March 26, 1976, about 9:30 p. m. she was working as a cashier at the Jitney Jr. store in Greenwood when appellant, whom she did not know, entered the store and asked for some Cocoa. She turned around to find the item, appellant grabbed her from behind, placed a knife to her neck, and forced her to leave the store, get in his automobile and accompany him to a place several miles from the city. Still threatening her with the knife, he forced her to disrobe, then he undressed and raped her. Appellant drove back to Greenwood, let her out of the automobile on a public street, and went to his home.

Prosecutrix took down appellant’s tag number when she left the automobile, and immediately notified the police. She was distraught and her clothes were disarranged. The officers lifted fingerprints off a can of Cocoa found in the store which matched the known prints of appellant. Spermatozoa were found on the underclothes of the prosecutrix, fibers on the clothing of appellant matched fibers taken from the clothing of the prosecutrix. Appellant did not testify.

I.

Appellant contends that the trial court erred (a) in permitting Dr. Bell to testify as an expert in the areas of psychomotor seizures and neurology, (b) in permitting Dr. Bell to testify that, in his opinion, appellant was not having a psychomotor seizure on the night of the alleged crime, and (c) in permitting Dr. Bell to testify concerning the opinions of an examination and tests performed by other persons who did not testify.

II.

Appellant further contends that the trial court erred in refusing to set aside the verdict of the jury as being against the overwhelming weight of the evidence on the issue of appellant’s sanity.

Appellant was twenty-four (24) years of age at the time of the alleged crime. The prosecutrix was forty-eight (48) years of age, married, with two (2) children. Appellant finished high school at seventeen (17) years of age, served in the National Guard, and entered the University of Arkansas as a pre-law student. In June, 1972, he was involved in a motorcycle wreck which resulted in severe brain damage. He had epileptic-type seizures several times a day and received treatment in various hospitals, including Mayo Clinic, Rochester, Minnesota. In 1976, he shot himself in the jaw with a 30-30 caliber rifle, was hospitalized at the Delta Medical Clinic in Intensive Care for approximately thirty (30) days, subsequently, was transferred to the Psychiatric Ward in Little Rock, Arkansas, and was also hospitalized at the Baptist Medical Center.

Appellant was sent to Mississippi State Hospital at Whitfield on April 14, 1976 (after the assault incident) where he was examined and treated by Dr. Charles E. Bell, and others, for a period of thirty (30) days. Dr. Bell is Director of Men’s Psychiatric Service at the Mississippi State Hospital and has been a member of the staff for fifteen (15) years. He holds membership in the American Medical Association, Mississippi Medical Association, the Central Medical Association, the American Psychiatric Association and the Mississippi Psychiatric Association. He served his internship in the field of neurology, had six (6) months training in the neurological clinic at the University of Louisville, Kentucky, and has had experience at the Mississippi State Hospital where he was in charge of the epileptic ward with forty (40) men during a period of five (5) years. Dr. Bell testified that he is capable of diagnosing psychomotor seizures and neurological problems and has had training in the treatment of psycho-motor seizures. He is able to diagnose such problems and is capable of telling whether or not a person has brain damage or suffers from psychomotor seizures. He performed a neurological examination on appellant and concluded that he was suffering from psychomotor seizures and was without psychosis. Appellant related to Dr. Bell the following history:

“He had had trouble with his nerves and he had seizures since shortly after a motor cycle accident some time ago; that he had gotten into trouble just prior to his admission and was charged with rape. He stated that he had been to the hospital to visit a cousin, that he had stopped at the store to get a book and had drank a coke and had taken a lady from the store at knife point, had driven her to the country and had had sex relations with her. She promised not to tell if he would take her back to town and this he did after which he went home and went to bed.”

Dr. Bell testified that, in his opinion, appellant was not suffering from a psycho-motor seizure during the time the crime was being committed for the reason that, if he had been suffering from same, he would not have been able to recall the events and would not have been able to tell him in detail what had happened. Dr. Bell was of the further opinion that appellant knew right from wrong at the time of the incident and was aware of what he was doing.

In order for a physician to qualify as an expert it may be shown that he possesses peculiar knowledge respecting the subject matter. The record overwhelmingly discloses that Dr. Bell possessed the medical background, practical experience and ability to testify in the field of neurology, and the court correctly permitted him to testify as an expert in that field. Grinnell v. State, 230 So.2d 555 (Miss.1970); Floyd v. State, 166 Miss. 15, 148 So. 226 (1933).

Having qualified as an expert, it was proper to permit Dr. Bell to testify that, in his opinion, appellant was not having a psychomotor seizure at the time of the crime, particularly so, since he gave reasons upon which he based his opinion. The opinion was not based on tests and examinations prepared .by other persons at Mississippi State Hospital, but was based upon his knowledge of the neurological problem from which appellant suffered, and his knowledge of symptoms of psychomotor attacks. Further, on cross-examination, appellant’s counsel asked Dr. Bell what Dr. Lancaster (physician at Mississippi State Hospital) gave appellant and then interrogated Dr. Bell with reference to his consultation with Dr. Lancaster.

Appellant called Dr. Orlando J. Andy, a neurosurgeon, to testify on his behalf. Dr. Andy first saw appellant on June 7, 1976, diagnosed his condition as major motor seizures, recommended surgery, and performed an operation which lasted approximately six (6) hours. The surgery was successful and appellant has not been afflicted with the seizures since the operation. Dr. Andy testified that, in his opinion, appellant was undergoing a seizure at the time of the alleged crime and was not responsible for the act. However, on cross-examination, he stated that, if appellant recalled the facts and circumstances of the incident, then, in his opinion, appellant did know what he was doing and was responsible for his actions.

On the conflicting evidence, whether or not appellant was sane at the time of the incident, whether or not he realized his actions and knew right from wrong, were for the jury to determine. Herron v. State, 287 So.2d 759 (Miss.1974); Shannon v. State, 321 So.2d 1 (Miss.1975).

In Smith v. State, 245 So.2d 583 (Miss.1971), the Court said:

“Appellant’s contention that the evidence was insufficient to support the verdict has been made and has been rejected by this Court on each of the two former appeals. The thrust of appellant’s argument on this point is that the jury was bound to accept the expert opinions of the two psychiatrists who testified for him upon the issue of insanity. The opinions of these experts were, of course, competent and relevant to the issue. However, uncontradicted evidence before the jury acquainted the jurors with the conduct of the appellant before, at the time of, and subsequent to the homicide. In the context of appellant’s relationship with the woman he killed, and in the light of evidence of his having been cast off by her in favor of another man, the evidence was more than ample to support a finding by the jury that appellant’s act was motivated by jealousy and affronted vanity. These have been classic motives for murder since the dawn of recorded history and bring the case within a well known pattern of human behavior. But neither has been considered as excusing or justifying homicide. Appellant’s preparations for the homicide show clearly a premeditated and reasoned design. In carrying it out, particularly the bringing of the pistol into the restaurant concealed in the bag after waiting for the restaurant to clear, his remarks and conduct before and at the-time of the shooting, reflect an understanding of the wrongful or illegal character of his act. This is strongly supported by the fact that he subsequently sought out the officers and surrendered himself to them. His emotional state and expressions of remorse also support the view that he knew the nature and consequences of his act and knew that it was wrong. It was the prerogative of the jury, and it was its duty, to consider all of this evidence. The jury was not deprived of the right to use common sense or of applying the lessons of human experience in resolving the question of whether the appellant had or had not appreciated the nature and consequences of his act and had or had not known that it was wrong. The expert opinions of the psychiatrists were not conclusive upon that issue.” 245 So.2d at 585.

Assigned Errors I and II are without merit.

III.-IV.

Appellant contends that (1) the trial court erred in refusing to grant a new trial on the ground that the evidence did not show defendant forcibly raped the prosecutrix without her consent and that (2) the trial court erred in failing to grant appellant’s requested Instruction No. 8.

The prosecutrix testified that appellant abducted her from the store building and committed the crime against her by placing her in fear for her safety (knife against her neck). In Fields v. State, 293 So.2d 430 (Miss.1974), this Court held that physical resistance on the part of the victim is not necessary where the proof shows beyond reasonable doubt that she surrendered because of fear arising from a reasonable apprehension of great bodily harm. See also Rush v. State, 301 So.2d 297 (Miss.1974). The testimony of the prosecutrix about the use of a deadly weapon against her and fear for her safety is undisputed.

The requested Instruction No. 8, refused by the court, stated to the jury that, if it believe the prosecutrix consented to sexual intercourse with appellant and that she was not forced into the act, then appellant should be acquitted. There was no evidence to support the instruction, and the court properly refused same. Consequently, there is no merit in assigned Errors III and IV.

V.

The appellant next contends that the trial court erred in refusing to grant a new trial on the ground that the State failed to prove venue.

The prosecutrix was asked the following questions:

“Q. What county did this happen in?
A. Leflore.
Q. What state?
A. Mississippi.”

On cross-examination, the prosecutrix steadfastly testified that the crime occurred in Leflore County, that the scene of the crime was approximately six (6) miles from Greenwood and that she could see the lights of Greenwood. The proof was sufficient to establish venue under the holdings of Turner v. State, 220 So.2d 295 (Miss.1969) and Presley v. State, 217 Miss. 112, 63 So.2d 551 (1953).

VI.

Appellant contends that the trial court erred in permitting the prosecution to propound a hypothetical question to Dr. Andy.

The hypothetical question asked Dr. Andy related to the statements made by appellant to Dr. Bell. Dr. Andy answered to the effect that, if appellant recalled the facts which Dr. Bell testified appellant told him, then, in Dr. Andy’s opinion, appellant was not having a seizure at the time of the act. The question was proper. Further, no specific objection was stated by appellant at the time the question was asked and any objection was thereby waived. Norman v. State, 302 So.2d 254 (Miss.1974); Stringer v. State, 279 So.2d 156 (Miss.1973).

VII.-VIII.

Appellant contends that (1) the trial court erred in not permitting the defense to question Mrs. Knight concerning appellant’s ability to recall his actions on the night of the alleged crime, and (2) the trial court erred in not permitting Officer Stevens to testify to the conduct of an accused rapist.

The court informed Mrs. Knight (mother of appellant) that she could testify to what she observed appellant do and whether she thought it was usual or unusual. She was not asked the question of whether appellant could recall events surrounding the abduction and rape of the prosecutrix. Appellant did not state into the record what he expected to prove by Mrs. Knight, nor was a proffer of her testimony made. Thus, this assignment is without merit. Brown v. State, 338 So.2d 1008 (Miss.1976).

Officer Stevens was called by appellant as an expert in normal and abnormal conduct of rapists generally. The court refused to permit him to testify as such. This was not an abuse of discretion, and no error was committed in declining to accept Stevens as an expert in that field. Grinnell v. State, supra.

IX.

The appellant lastly contends that the trial court erred in granting the State’s instructions.

Appellant argues that the State’s instructions were not furnished his counsel twenty-four (24) hours in advance of trial as required by Rule 14, Uniform Rules of the Circuit Courts of Mississippi. However, the State submitted the exact instructions used on the first trial, and appellant’s counsel was informed by the District Attorney on the first day of the trial that the State would use those instructions. There is no merit in this assignment. Newell v. State, 308 So.2d 68 (Miss.1975).

There being no reversible errors in the trial of the case, the judgment of the trial court is affirmed.

AFFIRMED.

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


author: BROOM, Justice,

text:
    Robert C. STOVALL, Jr. v. Richard M. STOVALL.
    No. 50283.
    Supreme Court of Mississippi.
    May 31, 1978.
    Rehearing Denied July 26, 1978.
    Harvey & Rector, Thomas C. Harvey, Jr., Robert C. Stovall, Jr., Columbus, for appellant.
    Holcomb, Dunbar, Connell, Merkel, Tolli-son & Khayat, Grady F. Tollison, Jr., Oxford, for appellee.
    Before SMITH, SUGG and BROOM, JJ.
   BROOM, Justice,

for the Court:

Apportionment of estate taxes between personalty and realty was sought in this will ease appealed from the Chancery Court of the Second Judicial District of Chickasaw County. Robert C. Stovall, Sr. executed his holographic will on April 28, 1962, and died September 18, 1970. His will devised most of his realty to his son, Richard, and most of his personalty to Robert, Jr., his other son. Robert appeals from the lower court’s decree providing that personal property should be first exhausted in payment of estate taxes before charging such expenses to the realty of the estate. We affirm.

Stovall’s estate was valued at some $2,387,854, and after payment of over $900,-000 estate taxes the total value of the estate devised to the two siblings was $1,472,-722. Before paying taxes, Robert, Jr.’s share (mostly personalty) of the estate was valued at $1,043,076, but after paying taxes of $497,832 his net share of the estate was of the approximate value of $545,000 or 37% above taxes. Richard’s share (mostly realty) of the estate taken under the will was valued at $1,344,778, and after paying $417,300 of the estate tax burden, his share remaining was of the approximate value of $927,500, or 63% above taxes. The disparity of their proportionate net shares of the estate resulted largely from the fact that under the law of Mississippi personalty is chargeable with taxes before reaching realty. Consequently, Robert, Jr., appellant, sought to have the lower court “construe the will and find that the will should be interpreted and construed, under all the circumstances, to manifest an intent that the estate tax burden should be apportioned among the properties inherited by the two brothers, Robert and Richard, according to the values of the properties” on the estate tax return as finally agreed upon. In his action Robert, Jr. unsuccessfully offered extrinsic evidence to explain the intent of the testator, though no ambiguity appears in the will.

The ultimate burden of estate taxes in this state in the absence of a manifestation of the testator’s intent is not chargeable to the land until personalty in the estate has been exhausted. This was in effect what we held in Estate of Torian v. First Nat’l Bank of Memphis, 321 So.2d 287 (Miss.1975), which decision the lower court in the case sub judice relied upon.

Mississippi has no apportionment statute, but has two statutes negating any apportionment of estate taxes. We have repeatedly construed these statutes as directing the order and manner for the payment of estate taxes. First, such taxes are paid from general bequests of personalty, then specific bequests, and then, if necessary, land. The statutes are Mississippi Code Ann. § 91-7-91 and § 91-7-191 (1972), which provide:

The goods, chattels, personal estate, dios-es in action, and money of the deceased, or which may have accrued to his estate after his death from the sale of property, real, personal, or otherwise, and the rent of lands accruing during the year of his death, whether he died testate or intestate, shall be assets and shall stand chargeable with all the just debts, funeral expenses of the deceased, and the expenses of settling the estate. The lands of the testator or intestate shall also stand chargeable for the debts and such expenses over and above what the personal estate may be sufficient to pay, and may be subjected thereto in the manner hereinafter directed. . . . (Miss.Code Ann. § 91-7-91 (Supp.1977)).
When an executor or administrator shall discover that the personal property will not be sufficient to pay the debts and expenses, he may file a petition in the chancery court for the sale of the land of the deceased, or so much of it as may be necessary, and exhibit to the court a true account of the personal estate and debts due from the deceased, and the expenses and a description of the land to be sold. (Miss.Code Ann. § 91-7-191 (1972)).

Gidden v. Gidden, 176 Miss. 98, 167 So. 785 (1936), holds that unless a testator’s will provides otherwise, personalty goes to his personal representatives for payment of debts and legacies, but realty goes to devi-sees and heirs free of debts until the personalty is exhausted. Although other states have enacted apportionment laws, Mississippi has not done so and, as a result, real estate remains in a position paramount to that of personalty. Personalty is primarily liable for the debts of the decedent, but realty is only secondarily liable.

Here, the testator was a prominent attorney, and no doubt was aware that his devise to Robert, Jr. (largely personalty) would bear a larger burden of estate taxes than his devise to Richard. We hold that the lower court correctly construed Mississippi Code Annotated §§ 91-7-91 and 91-7-191, supra, and held that the estate taxes of the Estate of Robert C. Stovall, Sr. must be paid first from the personal property not specifically devised by the will, and secondly from other personalty of the estate, and thirdly, if necessary, from the real estate. Reading the will discloses no specific direction concerning the payment of debts other than the executors were directed to pay “my just debts.” If the testator, an attorney, had wanted to allocate the estate tax burden in any way other than that specifically directed by statute interpreted by case law, he would certainly have said so, but didn’t. Under these circumstances, payment of estate taxes must be thusly: first, exhaust personalty before looking to real estate.

Here the will of Robert Stovall, Sr. was not ambiguous and, adhering to the better rule, the lower court refused to admit extrinsic evidence to interpret the will in such a manner as to read into it an intent that taxes be allocated other than as by our established law. Seal v. Seal, 312 So.2d 19 (Miss.1975). No language in the will was other than “clear, definite and unambiguous” and, therefore, no court should give to such a will any meaning other than its clear import. Seal v. Seal, supra.

As far back as 1905, we have held that: “The will of the testator is the supreme law. That being silent, or not showing a contrary desire, the statute will control.” Gordon v. James, 86 Miss. 719, 754, 39 So. 18, 25 (1905). The expressed intent of the testator is the guiding star rather than “what he wished” or may have wished. Ferguson v. Morgan, 220 Miss. 266, 70 So.2d 866 (1954). Accordingly, Robert Stovall, Sr. did not from within the four corners of his will direct that the estate taxes would be charged to his realty proportionately to the charge against his personalty; therefore, the cited statutes are controlling.

As said in Welch v. Welch, 147 Miss. 728, 113 So. 197 (1927):

The courts cannot, by parol testimony, make a will which the testator did not make.
(147 Miss. at 736, 113 So. at 199).

There is no ambiguity in the will drafted by an attorney for himself wherein he was very specific regarding his devises and bequests. Exclusion of extrinsic evidence under the circumstances presented by this record was in accord with applicable legal principles, and therefore the decree appealed from must be upheld.

AFFIRMED.

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

WALKER, J., takes no part.


text:
    James Lee TOLBERT, Jr. v. Monroeby Tolbert HELMS.
    No. 50323.
    Supreme Court of Mississippi.
    June 14, 1978.
    Rehearing Denied July 26, 1978.
    James Lee Tolbert, Jr., pro se.
    S. H. Long, Tupelo, for appellee.
    Before PATTERSON, C. J., and LEE and BOWLING, JJ.
   Affirmed.


text:
    ALABAMA GREAT SOUTHERN RAILROAD COMPANY et al. v. James E. JARRELL.
    No. 50418.
    Supreme Court of Mississippi.
    June 14, 1978.
    Rehearing Denied July 26, 1978.
    Roberts & Easterling, M. M. Roberts, Hattiesburg, for appellants.
    Smith, Smith, Tate & Stuart, David R. Smith, E. C. Stuart, Jr., Poplarville, for appellee.
    Before ROBERTSON, P. J., and SUGG and BROOM, JJ.
   Affirmed.


author: W. W. BROWN,

text:
    UNITED STATES FIDELITY AND GUARANTY COMPANY v. Elise G. STRANGE et al.
    No. 50016.
    Supreme Court of Mississippi.
    June 14, 1978.
    Megehee, Brown & Williams, Raymond L. Brown, Pascagoula, for appellant.
    Cumbest & Cumbest, John L. Hunter, Pascagoula, B. L. Riddick, Joseph L. McCoy, Jackson, for appellees.
    Before PATTERSON, C. J., BROOM and BOWLING, JJ., and BROWN, Commissioner.
   W. W. BROWN,

Commissioner for the Court:

On May 22,1975, a judgment was entered in the Circuit Court of Jackson County, Mississippi in the case of Elise G. Strange, et al. v. Gary Krebs for the principal sum of one hundred thousand dollars. As a result of said judgment and on September 15, 1975, a writ of garnishment issued to United States Fidelity and Guaranty Company for principal, interest and costs. Answer to the garnishment was timely filed and issue was joined and the matter came for trial before the judge sitting as judge and jury on May 13, 1976, being a day of the regular April, 1976 Term of the Circuit Court of Jackson County, Mississippi. On May 28, 1976, an order was entered taking the matter under consideration for a decision in vacation.

The terms of the Circuit Court of Jackson County, Mississippi were then as provided by the General Laws, 1974, ch. 305 as follows:

On the second Monday of April and on the first Monday of October, eight (8) weeks, at which terms a grand jury shall be empanelled; and on the second Monday of January and the second Monday of July, eight (8) weeks each, at which terms' no grand jury shall be drawn or empan-elled except by order of the judge.

No further action on the matter was taken by the court until August 31,1976, when an order was entered overruling garnishee’s motion to dismiss the garnishment. Then without further order the matter was set down for further hearing in vacation for September 9, 1976 over the objections of the garnishee. After further hearing the court on September 10, 1976, and still in vacation, entered a final judgment of one hundred thousand dollars principal together with interest and costs from May 22, 1975.

Since the trial judge made no finding of fact or conclusions of law in this matter, many assignments of error were raised by the parties. But this Court will only consider the matter as to whether or not the judgment entered on September 10, 1976 is valid.

Mississippi Code Annotated, Section 11-7-133 (1972) provides:

A judge of any circuit court may deliver opinions and render, make and sign judgments in vacation, as in term time, in cases taken under advisement by him at a term of the court. By consent of the parties, or of their attorneys of record, he may try cases in vacation, as in term time, and make and enter judgments therein in vacation. All judgments and all orders which a judge of any such court may render or make in vacation, shall be signed by him and thereupon be entered and recorded on the minute book of the court in which the case or matter is pending, and shall have the same force and effect as if made, entered and recorded in term time. Appeals may be had and taken therefrom when so entered and recorded, and bills of exception may be taken and signed in such cases when so tried in vacation, as in other cases, in like manner as is provided by law when cases are tried in term time.

This Court, interpreting the above statute as early as 1923 in the case of Union Motor Car Co. v. Cartledge, 133 Miss. 318, 97 So. 801 (1923), stated the following:

We think that the statute permitting the judges to take causes under advisement to be decided and judgments rendered in vacation means that period of time elapsing between the term of court at which the order is entered and the beginning of the next term, and, if the cause is not decided and judgment rendered during that period, that the cause becomes tria-ble at the next regular term of court, and should be docketed and disposed of during that term of court; that, if not so disposed of at such term of court, the cause continues on the docket as a pending cause, triable only at succeeding terms of court, unless another order is entered by consent of counsel or parties submitting it to be decided again in vacation . . . It is not contemplated, we think, that the cause can continue from term to term and be decided at any time when the court is not in session, and that the parties are not required to be continually looking for orders after the expiration of the first vacation period. In other words, when a term begins succeeding the order taking the cause under advisement the cause is restored to the circuit court docket for disposition in term time, or for such further order as the judge by consent of the parties may make in the cause.

This reasoning was followed as late as 1963 in the case of Hyde Construction Co. v. Highway Materials Co., 248 Miss. 564, 159 So.2d 170, where it is stated:

This Court has held by a long line of cases, that courts and judges, acting in vacation, have only statutory authority to act, and if they act in vacation, without authority, their action is void.

See also authorities cited therein.

We are therefore of the opinion that the authority of the order entered May 28,1976, ended with the commencement of the intervening July, 1976 Term of the Circuit Court of Jackson County, Mississippi, and that the final judgment on the garnishment entered on September 10, 1976, in vacation, is null and void and unauthorized by any statutory law.

Therefore, the judgment against the garnishee is reversed and set aside and this cause remanded for a hearing on the merits of the case.

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.