author: BEATTY, Justice. TORBERT, Chief Justice

text:
    AFRICAN METHODIST EPISCOPAL CHURCH, a corporation, et al. v. ST. PAUL METHODIST CHURCH OF SELMONT, a corporation, et al.
    77-252.
    Supreme Court of Alabama.
    Sept. 22, 1978.

      Carolyn D. Gaines of Chestnut, Sanders & Sanders, Selma, for appellants.
    Harry W. Gamble of Gamble & Gamble, Selma, for appellees.
   BEATTY, Justice.

This is the second appeal by the African Methodist Episcopal Church in the United States of America (plaintiff) in this contest with the Saint Paul Methodist Church of Selmont over the ownership of church property. We affirm.

The essential facts appear in our earlier opinion at 295 Ala. 343, 329 So.2d 542 (1976). They involved the construction of two deeds under which two different grantors, one King and the Attorney General of the United States, conveyed their interests in real property to certain named persons “as trustees of St. Paul African Methodist Church, Selma, Alabama.” In that opinion we pointed out a difference between the granting clause and the habendum clause in each deed. The granting clause reads:

THIS INDENTURE, made by and between . . . party of the first part, and [fourteen named individuals], as Trustees of St. Paul African Methodist Episcopal Church, Selma, Alabama, parties of the second part;

while the habendum clause is:

TO HAVE AND TO HOLD, . . . unto the said parties of the second part, and successors in office, forever in trust, for the use of the members of the African Methodist Episcopal Church in the United States of America, according to the rule and discipline of said Church, which from time to time may be adopted and agreed upon by the ministers and preachers of said Church at their General Conference in the United States of America.

In the earlier case the trial court granted summary judgment in favor of the St. Paul Methodist Church of Selmont, a then newly formed church. The trial court reached that summary conclusion from a construction of the language contained in the two deeds and from an application of Tit. 10, §§ 126(1), (2), Alabama Code (Recomp.1958). This Court reversed that finding on the ground that those Code sections, while they might aid in determining the grantors’ intent, did not foreclose the inquiry. “As a general proposition,” we stated at 295 Ala. 346, 329 So.2d 544, “summary judgment, when issues of motive, intent, and other subjective feelings and reactions are material, is likely to be inappropriate. Moore’s Federal Practice § 56.17[41. — 2].”

Upon remand, the trial court conducted an evidentiary hearing on November 28, 1977, after which it issued an order including the following findings of fact and conclusions:

Before September 1, 1955, the lot involved in this action, upon which a church building had stood for many years, was contained in a large tract of land and owned by the Estate of Alice DeVane King, deceased. All of the property had been devised by will of the decedent equally to her cousin, Frederic D. King, and an alien German woman named Marie Smitter. The undivided one-half interest owned by the latter had been seized by the Alien Property Custodian of the U. S. Government during the last World War. By similar deeds, dated September 1, 1955, and October 15, 1955, respectively, the Attorney General of the United States and Frederic D. King, for a consideration of Ten Dollars ($10.00) each, conveyed their entire interest in the real estate here involved to certain named individuals ‘as trustees of St. Paul African Methodist Church, Selma, Alabama’, which was at that time an unincorporated church or association of that name. The two conveyances are copied in haec verba and attached hereto as ‘Exhibit A’ and ‘Exhibit B’.
When the aforesaid conveyances were made to the trustees of the local congregation known as St. Paul African Methodist Church, Selma, Alabama, the members of the local congregation had an ecclesiastical connection or affiliation with a larger body known as the African Methodist Episcopal Church in the United States of America, a Plaintiff in this case.
On June 12, 1969, the members of the aforesaid St. Paul African Methodist Episcopal Church, Selma, Alabama, which until that time had remained an unincorporated association, formed themselves into a corporation under Article 3 of Chapter 7 of Title 10 of the Code of Alabama 1940 (Recompiled 1958), and chose for the name of said corporation ‘St. Paul Methodist Church of Selmont’, which corporation is a Defendant in this case.
The Pláintiffs objected to the control and management by ^Defendants of the real estate described in the two deeds in question, their objections culminating in the filing of this action on July 29, 1969.
The real controversy in the case is the ownership of the real estate conveyed in the two deeds above mentioned. There were other matters averred in the complaint as amended, but the ownership of the real estate was the only issue considered by the parties on the trial, and the only one treated by the Court here.
CONCLUSIONS OF THE COURT
It appearing to the Court that the rights and claims of the parties in and to the real estate involved in this cause depend upon the interpretation and construction of two similar conveyances attached hereto as ‘Exhibit A’ and ‘Exhibit B’ made to certain individuals as Trustees of St. Paul African Methodist Episcopal Church, Selma, Alabama, which was, at the time said deeds were executed, an unincorporated association consisting of members of a local church or religious society, and that the members of said unincorporated association became incorporated on June 11, 1969, under Article 3 of Chapter 7, Title 10, Code of Alabama 1940 (Recompiled 1958), with its corporate name specified to be St. Paul Methodist Church of Selmont, a Defendant and Counter-Plaintiff in the present cause; and,
It further appearing to the Court from the words and language used in the aforesaid deeds, from existing statutes applicable thereto (Sec. 126(1) and 126(2), Title 10, Code of Alabama, 1940 (recompiled 1958)), and also from the testimony introduced at the trial of this cause, that the parties to the aforesaid deeds intended that the legal title to the real estate conveyed therein should vest in the trustees named as grantees therein free from any regulation and control of the Plaintiffs in this cause, insofar as the management and control of said real estate was concerned, and that upon the incorporation of the members of the aforesaid unincorporated association with its corporate name specified as St. Paul Methodist Church of Selmont, the legal title to said real estate vested in said last named corporation free from any regulation and control of the Plaintiffs in this cause insofar as the management and control of said real estate is concerned.
It is, therefore,

ORDERED AND ADJUDGED by the Court as follows:

1. That judgment be and the same is hereby entered and declared in favor of the Defendants (Counter-Plaintiffs) and against the Plaintiffs (Counter-Defendants) in this cause.
2. That the title to the real estate described in the deeds involved in this action, namely, deed dated September 1, 1955, made by the Attorney General of the United States of America, Washington, D. C., party of the First Part, to Oscar Durant, et al, as Trustees of St. Paul African Methodist Episcopal Church, Selma, Alabama, parties of the Second Part, and deed dated October 15, 1955, made by Frederic D. King and his wife, Eola F. King, as parties of the First Part, to Oscar Durant, et al. as Trustees of St. Paul African Methodist Episcopal Church, Selma, Alabama, as parties of the second part, which deeds are recorded in the Probate Office of Dallas County, Alabama, in Book 475 at Page 504 and in Book 475 at Page 507 respectively, vested upon the execution and delivery of said deeds in the trustees named in said deeds for the use and benefit of the members of St. Paul African Methodist Episcopal Church, Selma, Alabama, an unincorporated church or association, and that upon the incorporation of the members of said unincorporated church or association with the corporate name of St. Paul Methodist Church of Selmont on June 12, 1969, the legal title to said real estate vested absolutely and in fee simple in said corporation, the Defendant, St. Paul Methodist Church of Selmont, and that thereupon said corporation became and shall remain a distinct and independent church corporation, free from the regulation and control of the Plaintiffs or either of them or any other higher church body, denomination or other organization with which it was then associated or affiliated insofar as the management, control, disposition, or alienation of said real property is concerned.

In its appeal from this order the plaintiff contends that the trial court’s findings are contrary to the unambiguous language of the two deeds. Thus he maintains that the only interpretation which can be given to the language of the granting and "haben-dum clauses is that they described the grantees to be and thus the grantor intended the grantees to be, holding in trust for the African Methodist Episcopal Church in the United States of America.

Of course, were the language contained in these deeds crystal clear in their references to the grantees, there would be nothing to construe; the only option open to the court would have been to give force to those plain terms. Accord, Hall v. Long, 199 Ala. 97, 74 So. 56 (1917). But that is not the situation here. It is perfectly clear that these granting clauses refer to certain persons “ ‘as trustees of St. Paul African Methodist Episcopal Church, Selma, Alabama.’ ” On the other hand, the habendum clauses recite “unto the parties for the use of the members of the African Methodist Episcopal Church in the United States of America. . . . ” It is obvious that this language used in the respective clauses is not the same and that being the case, this language had to be interpreted, or construed, to determine the identities of the parties to which it referred.

On the point of the construction to be given this language, the plaintiff asserts that the language of the deeds clearly establishes that the persons named in the granting clause as trustees were to hold title for the A.M.E. Church in the United States of America. This interpretation, plaintiff maintains, is required by the language used in the habendum clause, i. e., “for the use of the members of the African Methodist Episcopal Church in the United States of America, according to the rule and discipline' of said Church. . . .” This results, it argues, because the A.M.E. Church Discipline required the trustees of the locally unincorporated St. Paul A.M.E. Church, upon incorporation, to transfer property held by them as trustees to St. .Paul A.M.E. Church, Selma, when it was incorporated. Moreover, the plaintiff points to the A.M.E. Discipline for the requirement that the habendum clauses in deeds to its churches contain the habendum clause we have quoted above. On that point we are referred to a copy of the 1968 Discipline of the A.M.E. Church which, though admitted into evidence as an exhibit, is not controlling on the requirements of that Discipline in 1955.

There is evidence establishing that the language of the habendum clause was taken from the then current A.M.E. Discipline, however. The lawyer who prepared both deeds testified that one of the two members of the congregation who came to see him furnished him the names of the trustees and also brought him a Book of Discipline and “pointed out a clause” to be in the deed. Whereupon he inserted that haben-dum clause in both deeds. He testified further, however, that “that clause” (the reference contained in the habendum clause) was not in the granting clause.

It is axiomatic, as the plaintiff maintains, that a deed is to be construed by considering the entire instrument in order to give effect to the grantor’s intent, and arbitrary rules of construction will not be resorted to when that intent can be gleaned from the entire instrument. Kettler v. Gandy, 270 Ala. 494, 119 So.2d 913 (1960); Hardee v. Hardee, 265 Ala. 669, 93 So.2d 127 (1957). As we have noted previously, however, because of the different language used in the granting and habendum clauses, we disagree with the plaintiff on the effect of that language. The plaintiff maintains that the plain meaning is that the named trustees held title for the national church. But the express language used in the granting clause furnishes a different inference, that those trustees held title for the local church. This difference rendered the language of the deeds as a whole ambiguous, and thus enabled the trial court to ascertain the intent of the grantors by considering the surrounding circumstances at the time the deeds were executed. Lietz v. Pfuehler, 283 Ala. 282, 215 So.2d 723 (1968); Brown v. Huckabaa, 264 Ala. 660, 89 So.2d 180 (1956).

Those surrounding circumstances included the fact that the local congregation, St. Paul A.M.E. Church, Selina, was an unincorporated church or association (it was not incorporated under Title 10, Alabama Code (Recomp.1958) until June 12, 1969). Additionally, the members of this local congregation affiliated ecclesiastically with the A.M.E. Church, U. S. More background was furnished by the three witnesses who testified: the then pastor of the local church, a former member, and the lawyer who prepared the deeds.

The former pastor testified to the connection with the national church, and that he obtained a lawyer to work with him to acquire the land; that he took the Discipline of the A.M.E. Church to that lawyer, referring him to the section on deeds, and that “to his knowledge” the deed was prepared in accord with the Discipline and his instructions. On cross-examination he stated that he didn’t contact the Attorney General, and did not know about the “King (the local grantor) deed,” but that the lawyer had contacted the Attorney General.

The former member testified that he had been a trustee of St. Paul A.M.E. Church in Selmont; that he had gone to see Mr. Gamble (the lawyer); that The Reverend Lowe, who accompanied him, “passed” the Discipline to Mr. Gamble, but the witness did not know what was said. He stated that the local church continued to send money to the Annual Conference and remained a part of the national church after the property was acquired.

The lawyer who prepared the deeds testified that King, the owner of an undivided one-half interest in certain real property (of which this one-acre tract was a part) employed him in 1955 to dispose of it; that examination of the title disclosed that the church, which had been there “for years and years,” did not have title to the land, although the local congregation had built and maintained the church. He had considerable contact with this grantor, and was instructed by the grantor to prepare a deed to give the local congregation the legal title to the church property, and also instructed to “take it up with the alien property custodian to see if they would likewise convey their undivided one-half interest as a deed of gift.” After obtaining that consent, he prepared the two deeds. He obtained the names of the trustees from Mr. Durant (the member who visited him with the pastor), and put in each deed an habendum clause verbatim from a Book of Discipline brought to him. On cross-examination he stated that “. . .in the Granting Clause I did not mention any trust or any conveyances to any trust in favor of any higher body or affiliated body.” He amplified the reason for this difference:

Q Why is it, Mr. Gamble, if the testator expressed to you, and I think you testified he did, and that you understood him to intend to give this property to the local folks, as opposed to the National Church, why wasn’t the deed simply drawn to do that directly? Why did you go the long way and mention the national body at all?
A Because that person came in — I suppose it was a pastor — Mr. Durant brought the names of the trustees of the local church. He asked they be put in the deed. I didn’t put it in the Granting Clause.
Q Had he requested it to be in the Granting Clause, you would have had some objection?
A I sure would. I imagine I. would, because I knew what my instructions were, (emphasis added)

The apparent conflict respecting the identities of the grantees as manifested by the terms of the granting and habendum clauses was, as we have stated, one which the surrounding circumstances, including the grantor’s intent, would resolve.

If there be apparent conflict between the granting and habendum clauses of deeds, the rule of construction is to harmonize, if possible, with the consistent and expressed intent of the parties; if this cannot be done, the first and granting clause will control. Lowery v. May, 213 Ala. 66, 71, 104 So. 5 (1925).

In resolving this conflict, the trial court had before it evidence upon which it could have reasonably found that the grantors’ intent was to convey this real property to the local congregation. The evidence shows that those were the instructions given to the lawyer-draftsman by the owner of one of the undivided interests, King, and consented to by the other, the Attorney General. The fact that at the time of the conveyance the local church was an unincorporated association is not significant in that connection; the point is that the grantors’ intent could be found not to have involved the national church body. As a matter of law, because the deeds granted the property to the trustees of a then unincorporated association, the trustees themselves and their successors held the legal title for the “beneficiary class,” the congregation. Street v. Pitts, 238 Ala. 531, 192 So. 258 (1939). Those individuals as trustees continued to hold the legal title in trust until the local church association became incorporated in 1969, at which time the incorporated local church succeeded to the benefits of that trust. Tit. 10, § 126(1), (2), Alabama Code (Recomp.1958) (now Code of 1975, § 10-4— 22).

The case was heard by the trial court ore tenus. That court found from the evidence that the intent of the parties to these conveyances was to convey this property to the “trustees named as grantees therein free from any regulation and control of the Plaintiffs. . . .” His findings and conclusions thereon are to be given the same weight as a jury verdict, and unless they are palpably wrong will not be disturbed. Goodall v. Ponderosa Estates, Inc., 337 So.2d 726 (Ala.1976); Lott v. Keith, 286 Ala. 431, 241 So.2d 104 (1970). Under this evidence we cannot conclude that those conclusions are palpably wrong.

Accordingly, the judgment of the trial court must be, and is, affirmed.

AFFIRMED.

BLOODWORTH, MADDOX, ALMON, SHORES and EMBRY, JJ., concur.

TORBERT, C. J., and FAULKNER and JONES, JJ., dissent.

TORBERT, Chief Justice

(dissenting):

I respectfully dissent. I do not agree with the majority that the deed was ambiguous.

This court in Kettler v. Gandy, 270 Ala. 494, 496-97, 119 So.2d 913, 915 (1960) stated:

The real inquiry in construing the terms of a deed is to ascertain the intention of the parties, especially that of the grantor, and if that intention can be ascertained from the entire instrument, including its several parts, resort to arbitrary rules of construction is not required. And it is the duty of the court under this rule of construction to reconcile the terms of the instrument, if that may reasonably be done, to avoid a re-pugnancy in its provisions or terms. Hardee v. Hardee, 265 Ala. 669, 93 So.2d 127; Henry v. White, 257 Ala. 549, 60 So.2d 149; Stratford v. Lattimer, 255 Ala. 201, 50 So.2d 420; Gamble v. Gamble, 200 Ala. 176, 75 So. 924; Dickson v. Van Hoose, 157 Ala. 459, 47 So. 718, 19 L.R.A.,N.S., 719.

From an examination of the entire instrument including a consideration of the granting and habendum clauses taken together, the grantor’s intent clearly is to create a trust “for the use of the members of the African Methodist Episcopal Church in the United States of America, according to the rule and discipline of the church.” The language in the granting clause merely identifies the trustees and the capacity in which they then served; it does not establish a trust for the benefit of the local church. The critical language is “and [fourteen named individuals], as trustees of St. Paul African Methodist Episcopal Church, Selma, Alabama, as parties of the second part . . . ” not as trustees for St. Paul African Methodist Episcopal Church. Thus, the granting clause does not provide for trust beneficiaries different than those named in the habendum clause.

Accordingly, the granting and habendum clauses can be reasonably reconciled to avoid a repugnancy, as is our duty to do if possible, and the intention of the grantor can be ascertained from the four corners of the instrument. I would hold that since there was no ambiguity and the intention of the grantor was to create a trust for the members of the national church, consideration of the surrounding circumstances was erroneous. Therefore, I would reverse and remand.

FAULKNER and JONES, JJ., concur.


source: Caselaw Access Project

author: JONES, Justice. ALMON, Justice

license: Public Domain

text:
    Floyd B. PARKER v. Marie M. HALL, as Administratrix of the Estate of Vivian Mae Water, Deceased.
    77-541.
    Supreme Court of Alabama.
    Sept. 22, 1978.
    Norborne C. Stone, Jr., Bay Minette, for appellant.
    T. M. Brantley, of Brantley & Vargo, Bay Minette, for appellee.
   JONES, Justice.

This case is an appeal from a decree of the Probate Court of Baldwin County denying an application to probate an instrument purporting to be the Last Will and Testament of Vivian Mae Waters.

Vivian Mae Waters died on December 3, 1977, while a resident and citizen of Baldwin County. On December 19, 1967, Mrs. Waters (then Miss Vivian Mae Parker) executed a Will, being unmarried at that time. On February 28, 1969, she married Mack Waters, who survived her. Mrs. Waters did not execute any other Will subsequent to her marriage.

On January 3, 1978, Floyd B. Parker, the person named as Executor in the Will of December 19, 1967, filed an application to probate that Will. The Probate Court denied Appellant’s application for probate, predicating its denial on that portion of § 43-1-8, Ala.Code 1975, which provides:

if after making of a will a woman marries, the marriage operates as a revocation of the will.

Both parties are in agreement that the only issue before this Court is the constitutionality of the quoted portion of § 43-1-8.

For the reasons stated hereinafter, we hold that the portion of this statute, which provides that a woman’s marriage revokes her Will, is unconstitutional in that it denies equal protection of the law. We reverse.

Appellant relies on Peddy v. Montgomery, 345 So.2d 631 (Ala.1977), a case in which this Court held that Tit. 34, § 73, Code of Alabama 1940, providing that a married woman lacked the power to alienate or mortgage her land without the consent of her husband, was unconstitutional on equal protection grounds. In Peddy, it was noted that the Court was not deciding whether all legislation which contained “a so-called ‘gender-based classification,’ violates the constitution, either of this state or of the United States.”

In order to determine the constitutionality of § 43-1-8, a brief review of the history of the effect of marriage on a previously executed will is necessary.

At common law, a man’s will was not revoked merely by his subsequent marriage, but, rather, upon the first issue’s birth by that union. The reason generally given for this rule is that a wife would not benefit by a revocation of the will. Common law did not allow a wife to take, either by descent or succession, from her husband if he died intestate. Furthermore, the interests of the wife were adequately protected by the common law rule of dower. 2, W. Bowe & D. Parker, Page on Wills, § 21.89 at 501 (3d ed. 1960).

In contrast, the common law provided that a woman’s marriage revoked all antenuptial wills, whether she survived her husband, and irrespective of birth of issue. 79 Am.Jur.2d, Wills, § 575 (1975). This revocation of a woman’s will by operation of law — sometimes referred to as “implied revocation” — was based upon ancient common law reasoning. Because revoking the will was equivalent to making a will, and, because a woman lacked the power to make a will during coverture, a will made by her prior to her marriage would be irrevocable during coverture unless her marriage operated as a revocation by operation of law. Francis v. Marsh, 54 W.Va. 545, 46 S.E. 573 (1904); Kelly v. Stevenson, 85 Minn. 247, 88 N.W. 739 (1902); and Roane v. Hollingshead, 76 Md. 369, 25 A. 307 (1892). See also Osgood v. Bliss, 141 Mass. 474, 6 N.E. 527 (1886) (Marriage divests a woman of power to revoke her will and, thus, destroys its ambulatory character).

With the enactment of the English Statute of Wills, the law was changed to provide that “every will made by a man or woman shall be revoked by his or her marriage.” (1 Viet. c. 26). (Emphasis added.) The rationale generally given for this statute, and statutes patterned after it, is that a marriage, whether by a man or woman, was such a change in circumstances that the statute presumed an intention to change or revoke the will on account of new moral duties and obligations accruing upon marriage.

It is not without importance to note here that the Alabama Constitution of 1868 provided for the first time:

The real and personal property of any female in this state, acquired before marriage, and all property, real and personal, to which she may afterwards be entitled by gift, grant, inheritance, or devise, shall be and remain the separate estate and property of such female, and shall not be liable for any debts, obligations and engagements of her husband, and may be devised or bequeathed by her, the same as if she were a femme sole. (Emphasis added.) Art. XIV, Section 6.

This provision can be found presently in the Alabama Constitution of 1901, Art. X, § 209, and in § 30 — 4-13, Ala.Code 1975, which specifically provides that a married woman may dispose of her separate property by last will and testament.

From all that appears, the only limitation imposed in this State on a female in the devise or bequest of her property, other than limitations which apply equally to males, is found in § 43-1-8, the statute here in question. While the general rule — that it is the inherent right of every sovereign state to regulate the alienation, devise or descent of real estate within its borders— has been accepted by this Court (Phillips v. Phillips, 213 Ala. 27, 104 So. 234 (1925)), there can be no doubt that the regulations placed on the alienation of property must pass Constitutional muster. Peddy v. Montgomery, supra. As to the particular statute in question, Parker v. Foreman, 252 Ala. 77, 39 So.2d 574, 9 A.L.R.2d 505 (1949), quoting from a California case, states:

“ ‘It is as useless to conjecture the motives that may have governed the legislature in singling out an unmarried woman as the only person whose will shall be affected by her subsequent marriage, as it is to conjecture why there should be a difference in the effect of a subsequent marriage upon a will executed by an unmarried man and upon one executed by an unmarried woman.’ ” Parker v. Foreman at 79-80, 39 So.2d at 577.

But even in Parker v. Foreman, supra, this Court pointed out that, while statutes do not depend upon reason for their force and vigor, the statute must not violate constitutional restrictions. The constitutionality of this statute was not considered by the Court in Parker v. Foreman, supra.

The historic reason for holding that marriage by a woman .^evokes her previously executed will is no longer valid. As noted above, Alabama law is clear that a married woman has both the capacity and the power to devise and bequeath her separate estate. Therefore, the theory that a woman’s will must be considered revoked at the time of her marriage or be held irrevocable for lack of capacity to make or revoke wills during her marriage is without logic. To say that a woman’s marriage is such a change in circumstances as to cause a woman’s earlier will to be invalid, without treating a male’s marriage as a similar change of circumstances, is likewise without logic or reason.

Admittedly, the mere statement that the statute in question is no longer backed by logic or reason is not sufficient to hold the statute unconstitutional. What is involved here, however, is a statute that clearly and impermissibly treats females differently from males; and, therefore, it cannot be sustained. Our conclusion is based upon the authority of Peddy v. Montgomery, supra.

In Peddy, Ms. Justice Shores wrote “. . . the issue is reduced to whether it [the statute preventing a woman from alienating or mortgaging her own property without her husband’s consent] is constitutionally permissible when its effect is to treat married women, in dealing with their separate property, different from all other adult persons.” The Statutory provision in the instant case is as violative of constitutional protection as the statutory provision brought into question in Peddy. Under § 43-1-8, only a woman’s will is invalidated by her marriage. In his dissent in Peddy, Mr. Justice Almon, joined by Mr. Justice Bloodworth, noted four types of cases which would discriminate based on sex, and, thus, be violative of equal protection. The fourth category are cases which discriminate for the purpose of preserving “old notions” as to relationships between men and women. Surely, the statute in question is one which merely preserves “old notions” of the law which are no longer supported by reason. Under the modern interpretation of equal protection provided by our own State Constitution and the United States Constitution, that portion of § 43-1-8 here under attack must be held invalid.

The invalidation of that portion of the statute which provides for the revocation of a woman’s will by her marriage does not mean a return to the common law rule which is of the same effect. Our State law is clear that a woman over the age of 19 and of sound mind, whether married or unmarried, has the capacity to make a devise of her realty or bequest of her personalty. This ease, therefore, is due to be reversed; and, upon remand, the Probate Court is instructed to allow Appellant’s application for probate of the Will of Vivian Mae Waters.

We are constrained to make the following concluding comment: Nothing contained in this opinion should be construed as abridging the legislative authority or prerogative to pronounce through legislative enactment the public policy of this State relative to the effect of marriage upon a previously executed will as long as the constitutional mandate of equal protection is not violated.

REVERSED AND REMANDED.'

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

BLOODWORTH and ALMON, JJ., dissent.

ALMON, Justice

(dissenting):

I respectfully dissent and continue to adhere to the view I expressed in Peddy v. Montgomery, Ala., 345 So.2d 631 and Orr v. Orr, Ala., 351 So.2d 906.

BLOODWORTH, J., concurs.

      . § 30-4-12, Ala.Code 1975.


author: EMBRY, Justice.

text:
    James R. MERRITT, Father of Andy S. Merritt v. Edwin L. BOOKER, Sheriff of Conecuh County, Alabama, et al.
    77-661.
    Supreme Court of Alabama.
    Sept. 22, 1978.
    James D. Wilson, III, Prichard, for appellant.
   EMBRY, Justice.

This appeal is by James R. Merritt from a judgment of the circuit court denying his petition for habeas corpus which sought the release of his son, Andy S. Merritt from custody of the Alabama Department of Mental Health.

The issue is whether the trial court erred in denying relief when the Department had never been made a party to the action by amendment although the return of respondent Edwin L. Booker, Sheriff of Conecuh County, showed he had, under order of the Probate Court of Conecuh County, transferred custody of Andy Merritt to that court and the return of respondent Frank T. Salter, Judge of Probate of Conecuh County, showed that he had transferred custody of Andy Merritt to the Alabama Department of Mental Health.

Merritt, when he learned that neither respondent had custody of Andy, did not amend to make the Department a party and pray that the writ issue to it, nor did he file another petition seeking relief against it.

The trial court heard the case ore tenus, after which the petition was denied and this appeal ensued.

The evidence tended to show that Andy Merritt was involuntarily committed to the Department of Mental Health based on a petition filed in the probate court by the Department of Pensions and Security. That petition alleged that Andy Merritt was retarded and had been physically and severely abused by his parents. The evidence also showed that Judge- Salter committed Andy Merritt to the Department of Mental Health which later transferred Merritt to a foster home.

It is evident from the record that Andy Merritt was not committed because he posed a “real and present threat of substantial harm to himself or to others”, as required by § 22-52-10, Code 1975, but rather because his mental condition made him susceptible to abuse by his father and stepmother. The petition for commitment filed by the Department of Pensions and Security failed to allege “a recent overt act committed by the person sought to be committed evidencing the said person’s mental illness and the threat of harm to himself or others” as required by § 22-52-1, Code 1975. Despite the failure to comply with the above code sections, Andy Merritt was committed under their provisions.

The proper procedure for cases involving mentally retarded individuals who are abused by their parents or guardian is set out in Section 22-52-55, Code 1975. It specifically provides for cases such as the one at bar. Although the procedure in that section was not followed in this case, it does not affect the outcome of this appeal since James Merritt’s petition failed to meet the minimum requirements necessary to cause the writ of habeas corpus to issue.

Section 15-21-1, et seq., Code 1975, governs the procedure for obtaining the writ of habeas corpus. Section 15-21-4 provides that application for the writ must be made by petition. It must state in substance:

“ * * * the name of the person on whose behalf the application is made, that he is imprisoned or restrained of his liberty in the county, the place of such imprisonment, if known, the name of the officer or person by whom he is so imprisoned and the cause or pretense of such imprisonment; * * * ” (emphasis added)

The function of the petition is to secure the issuance of the writ of habeas corpus. Payne v. Graham, 20 Ala.App. 439, 102 So. 729 (1925). The writ cannot issue to the officer or person having custody if such officer or person is not named or described in the petition. It is therefore essential that the petition specify the officer or person by whom the prisoner is restrained. See In re Calhoun, 47 Ohio St.2d 15, 350 N.E.2d 665 (1976); 39 Am.Jur.2d, Habeas Corpus, § 122, p. 266-67 (1968). This petitioner failed to do.

Petitioner did specify the officer who initially took his son into custody, Sheriff Booker. As required by § 15 — 21— 17, Code 1975, that officer filed a return stating to whom he had transferred custody of petitioner’s son. The probate judge likewise stated that he had transferred custody to the Department of Mental Health. At that time petitioner should have amended his petition to allege the Department of Mental Health had custody and demand that the writ of habeas corpus issue to it. Without the Department being made a party, the circuit court could not order it to release Andy Merritt. The court’s denial of the petition must, therefore, be affirmed.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.


author: ALMON, Justice.

text:
    Blanchard L. DRAUGHON v. GENERAL FINANCE CREDIT CORPORATION et al.
    SC 2592.
    Supreme Court of Alabama.
    Sept. 29, 1978.

      Arthur B. Briskman and Donald M. Briskman, Mobile, for appellant.
    William L. Howell, Mobile, for appellees.
   ALMON, Justice.

The plaintiff, Blanchard L. Draughon, appeals from a judgment in his favor in the sum of one hundred and twenty dollars. He assigns as error the trial court’s granting of the defendant’s motion for directed verdict with respect to counts three, four and five, and a portion of counts one and two of the plaintiff’s complaint. We affirm in part and reverse in part.

On June 9,1973, the plaintiff purchased a 1973 Ford pickup truck from Treadwell Ford, Inc., in Mobile, Alabama, and executed a security agreement in the amount of $3,573.50. Contemporaneous with its execution, the contract was assigned to defendant-appellee, G.F.C. Credit Corporation (hereinafter referred to as G.F.C.). The sum of $500.00 was payable on July 5, 1973, and thirty monthly payments of $102.45 were due on the fifteenth day of each month.

Under the terms of the contract, plaintiff agreed to keep the truck in his possession at the address listed on the contract and to pay a delinquency charge of five percent on each installment in default for more than ten days. The contract granted the seller a security interest in the truck and upon default, the seller had the right to take immediate possession.

The contract further provided that the buyer, upon repossession, would waive any claim or demand against the seller for trespass or damage resulting therefrom. The contract contained a nonmodification clause stating, in effect, that no statement or representation would be binding unless expressly contained in the contract. The contract also contained a clause stating, that a waiver by the seller of any default would not be deemed a waiver of any subsequent default.

The plaintiff was disabled and his primary source of income was his disability check which he received on or about the third of each month from the Social Security Administration. The plaintiff testified that prior to July 5,1973, the date on which the $500.00 down payment was due, he called defendant G.F.C. and told them he could not pay the $500.00 on time. According to the plaintiff, the person he talked to at G.F.C. said they would “set it up a few days.” The $500.00 payment was eventually paid on July 16, 1973.

The plaintiff further testified that upon receipt of the payment book from G.F.C., he contacted G.F.C. by phone. He advised them that he could not make the payments in accordance with the contract since his major source of income did not arrive until the third of each month following the due dates set out in the payment schedule. The plaintiff stated that he asked G.F.C. to change the due dates, but the person at G.F.C. stated that it was not necessary to change the contract or payment schedule, but that the plaintiff would be responsible for late charges.

The July 15, 1973 payment was paid bn July 30, 1973, and for the following twelve months, each payment was late. Some payments were paid more than a month after the due date. G.F.C., however, accepted each of these thirteen payments even though they were not made in accordance with the contract.

Employees of G.F.C. testified that beginning in late July, 1973 until August, 1974, numerous attempts were made to collect payments from the plaintiff. These persons testified that numerous letters were sent to the plaintiff notifying him that his payment was due. In answers to interrogatories, the plaintiff stated that he received these past due notices, but at trial he did not recall receiving them. Representatives from G.F.C. went to the plaintiff’s residence on numerous occasions to collect these past due payments.

In January or February, 1974, the plaintiff moved approximately one or two miles from the address specified on the contract without notifying G.F.C. The plaintiff testified that he sold his house and moved into a house owned by some friends, and that he did not want to change his mailing address until he became permanently settled. At least one letter was sent to the plaintiff at the address listed on the contract and was returned to G.F.C. marked “unclaimed,” and another certified letter from G.F.C. addressed to the plaintiff was not received by the plaintiff, notwithstanding the fact that the plaintiff’s son signed for it. The employees of G.F.C. eventually located the plaintiff at his new residence. Two employees of G.F.C. testified that the plaintiff’s wife told a representative of G.F.C. that she and her husband did not tell G.F.C. their phone number because they did not want to be harassed by creditor calls. G.F.C. learned of the phone number only after the truck was repossessed.

On May 15, 1974, a representative from G.F.C. went to the plaintiff’s residence, collected the April 15, 1974, payment, and advised the plaintiff’s wife that G.F.C. would no longer carry the account past due and that the plaintiff would have to keep his account up to date or pay off his account. Nevertheless, the June 15, 1974, payment was accepted by G.F.C. on July 15, 1974. On August 8, 1974, G.F.C. sent the plaintiff a letter demanding payment of the July 15, 1974, payment by August 12, 1974. This payment was made on August 12,1974. On August 21, 1974, G.F.C. sent a letter to the plaintiff. The letter was not introduced into evidence, but according to G.F.C.’s ledger card, it appears that the letter asked the plaintiff to call the office of G.F.C. to negotiate an extension on the August 15, 1974 payment. The plaintiff did not respond.

On August 30, 1974, G.F.C. authorized defendant Gulf Coast Adjusters and Recovery Bureau (hereinafter referred to as Gulf Coast) to repossess the plaintiff’s truck. G.F.C. agreed to hold Gulf Coast harmless as long as the repossession was peaceful and in accordance with law. The repossession was peaceful. On September 2, 1974, defendant Gulf Coast took possession of the truck and certain personal property therein from the premises of Ira Clark. The residence of Ira Clark was approximately twenty to twenty-five miles from the plaintiff’s home. Clark was a life long friend of the plaintiff and had, prior to repossession, borrowed the pickup truck from the plaintiff in exchange for loaning the plaintiff one of his vehicles.

The plaintiff went to the offices of defendant G.F.C. the day after repossession and offered the office manager the August 15, 1974, payment, and two additional payments to put the plaintiff ahead of schedule. Initially, G.F.C. accepted the plaintiff’s offer, but subsequently they requested an additional $150.00 as a repossession fee, which the plaintiff refused to pay. In late September or early October, 1974, the plaintiff went to the offices of Ford Motor Credit Company to discuss the status of his truck. On October 8, 1974, the Consumer Loan Manager of Ford Motor Credit Company called G.F.C. to inquire into the status of the plaintiff’s account with G.F.C. He told G.F.C. that he was considering helping the plaintiff redeem his truck. He asked for the payoff on the account and what it would take to redeem the truck. G.F.C. gave him a figure of $1,654.15. On October 9, 1974, the plaintiff presented a check for $1,654.15 to G.F.C., but this check was refused when the plaintiff refused to sign a form releasing G.F.C. from their obligation of selling the vehicle at either a public or private sale. G.F.C. would not allow the plaintiff to take this form to his attorney before he would consider signing it.

In a letter to the plaintiff dated November 1, 1974, G.F.C. told the plaintiff that he could redeem the truck by paying the net balance due under the contract along with the repossession fee of $146.00, or he could redeem by paying the contract balance and executing a form waiving the necessity of G.F.C.’s holding a private sale. The plaintiff never complied with either of these alternatives. G.F.C. contends the balance due owing by the plaintiff was the sum of $1,826.10, which the plaintiff never tendered.

The plaintiff filed suit against G.F.C. The complaint was amended to add Gulf Coast as a defendant. Counts one and two of the plaintiff’s complaint alleged a wrongful taking and conversion of the pickup truck and other personal property. Count three alleged a trespass and counts four and five alleged a conversion of the truck and the personal property therein, predicated upon G.F.C.’s refusal to allow the plaintiff to redeem the pickup truck.

Ira W. Clark filed a complaint against G.F.C. and Gulf Coast alleging trespass to land, conversion of personal property and wrongful taking of his personal property allegedly in the truck at the time of repossession. The two actions were consolidated. Gulf Coast filed a third-party complaint against G.F.C. in the consolidated actions, and G.F.C. subsequently filed a cross-claim against Gulf Coast asserting that repossession was not accompanied in a peaceful manner and that Gulf Coast exceeded the authority granted to it by G.F.C.

At the close of the plaintiff’s evidence, his motion to amend count four of the complaint was denied and the trial judge granted G.F.C.’s motion for directed verdict to counts four and five of complaint and denied the motion as to counts one, two and three and to all counts of the Clark action. Defendant Gulf Coast’s motion for directed verdict was denied.

At the close of all the evidence, G.F.C.’s motions for directed verdict were granted as to all counts in the Clark action; granted as to counts three, four and five of the plaintiff-Draughon action; and granted in part as to the pickup truck in counts one and two. The motion for directed verdict was denied as to the other personal property alleged to have been in the truck specified in counts one and two. The trial judge granted Gulf Coast’s motion for directed verdict as to counts one and two as to the vehicle, granted it as to count three, but denied it on all counts in the Clark action.

Thus, the only counts submitted to the jury as far as G.F.C. was concerned were counts one and two relating to the personal property alleged to have been in the truck when it was repossessed. The only counts submitted to the jury as far as Gulf Coast was concerned were counts one and two in the Draughon case relating to the personal property other than the truck and all counts of trespass and conversion in the Clark case.

The jury returned a one hundred and twenty dollar verdict in favor of the plaintiff and against G.F.C. and found for Gulf Coast in the Clark case. The plaintiff then filed this appeal.

The plaintiff’s first contention is that the court erred in granting the defendant’s motion for directed verdict to the plaintiff’s counts for conversion, wrongful repossession and trespass. The plaintiff claims that a jury question was presented as to whether G.F.C. was estopped from asserting its default rights under the contract without first advising the plaintiff that it would demand strict performance of the contract in the future. See Bank of Huntsville v. Witcher, 336 So.2d 1384 (Ala.Civ.App.1976).

Rule 50(e) of the Alabama Rules of Civil Procedure provides that motions for directed verdicts and judgment notwithstanding the verdict shall be decided in accordance with the scintilla evidence rule. This court has stated on numerous occasions that in civil cases, a question of fact must go to the jury, if the evidence, or any reasonable inference therefrom, furnishes a mere gleam, glimmer, spark, or a scintilla in support of the theory of the complaint. Western Ry. of Alabama v. Still, 352 So.2d 1092 (Ala.1977); Kilcrease v. Harris, 288 Ala. 245, 259 So.2d 797 (1972) and cases cited therein. Furthermore, where a directed verdict is requested, the entire evidence must be viewed in a light favorable to the party opposing the motion. It is only where the facts are such that reasonable men must draw the same conclusion from them that the question is considered as one of law for the court. When a reasonable inference may be drawn, which is adverse to the party requesting the motion, the motion should be refused. Alford v. City of Gadsden, 349 So.2d 1132 (Ala.1977).

The plaintiff contends that there was evidence presented showing that the defendant had acquiesced in the plaintiff’s practice of making loan payments late, and that there was a question of fact for the jury, as to whether there was an equitable estoppel. Alabama has recognized that where evidence of estoppel is susceptible of different reasonable inferences, the jury must determine whether the facts of the particular case constitute an estoppel. Imperial Group, Ltd. v. Lamar Corp., 347 So.2d 988 (Ala.1977); Humphrey v. Boschung, 287 Ala. 600, 253 So.2d 769 (1971).

The purpose of equitable estoppel is to promote equity and justice in an individual case by preventing a party from asserting rights under a general rule of law when his own conduct renders the assertion of such rights contrary to equity and good conscience. Mazer v. Jackson Ins. Agency, 340 So.2d 770 (Ala.1976); First National Bank of Opp v. Boles, 231 Ala. 473, 165 So. 586 (1936). Because the doctrine of estop-pel is for the protection of innocent persons, it is essential that the party claiming the benefit of estoppel does not predicate his claim on his own dereliction of duty or wrongful conduct.

Where a party seeks an equitable remedy, such as equitable estoppel, the party’s conduct must reflect the maxim of “clean hands,” for any unconscientious conduct arising out of the subject matter of the suit will bar their action. Anders v. Sandlin, 191 Ala. 158, 67 So. 684 (1914).

In this case, the plaintiff not only changed his residence without notifying the defendant, but he also concealed his phone number so as to avoid “creditors” calls. We think that this conduct bars the plaintiff’s assertion of estoppel as to counts one, two and three. In the absence of such an estop-pel, there is not a scintilla of evidence to support the theory of the complaint, for the repossession in this case is expressly sanctioned in § 7-9-503, Code 1975. The trial court did not err in granting defendant’s motion for a directed verdict as to the first three counts, concerning conversion, wrongful repossession, and trespass.

The next contention of error is the action of the trial court in directing a verdict for G.F.C. on the redemption count of the complaint. G.F.C. communicated to the plaintiff that he could redeem for $1,654.15. The plaintiff tendered this amount but G.F.C. would not accept the check unless the plaintiff signed a waiver form.

The plaintiff claims that a jury question was presented as to whether G.F.C. waived its rights to charge certain expenses under the Alabama Code, § 7 — 9—506 (1975). G.F.C. contends that any offer of redemption for less than the sum of charges allowed in § 7-9-506 must be stated in writing by the creditor.

In Rainey v. Ford Motor Credit Co., 294 Ala. 139, 313 So.2d 179 (1975), this court affirmed the trial court’s granting of summary judgment in favor of the assignee of a conditional sales contract in an action by the buyer for conversion. In Rainey, subsequent to repossession, the buyer received a notice advising him that the repossessed vehicle would be sold unless redeemed. The buyer called the secured creditor asking for a computation of the balance owed and the creditor agreed to send this computation to the buyer, but never did. Eventually, the truck was sold. This court held that the failure of the defendant to furnish the computation of a payoff balance upon a non-written request did not excuse tender. Rainey, supra, at 143, 313 So.2d at 183. The court based its holding on 7-9-208, Code (1975), which provides in part:

“Request for statement of account or list of collateral — (1) A debtor may sign a statement indicating what he believes to be the aggregate amount of unpaid indebtedness as of a specified date and may send it to the secured party with a request that the statement be approved or corrected and returned to the debtor. . ."

Rainey simply held that a secured creditor was not obligated under § 7-9-208 of the Alabama Code to give a statement of the balance due where the debtor made an oral rather than a written request for a statement of his account. That case did not hold that before a debtor can redeem he must make a written request for the balance due. We do not agree with the defendant’s contention that § 7-9-208 requires such a request for there to be an effective tender under all circumstances.

Section 7-9-506, Code 1975, reads as follows:

“Debtor’s right to redeem collateral. — At any time before the secured party has disposed of collateral or entered into a contract for its disposition under section 7-9-504 or before the obligation has been discharged under section 7-9-505(2) the debtor or any other secured party may unless otherwise agreed in writing after default redeem the collateral by tendering fulfillment of all obligations secured by the collateral as well as the expenses reasonably incurred by the secured party in retaking, holding and preparing the collateral for disposition, in arranging for the sale, and to the extent provided in the agreement and not prohibited by law, his reasonable attorneys’ fees and legal expenses.” (Emphasis added.)

Section 7-9-501(3)(d) of the Alabama Code provides that the debtor’s right to redeem may not be varied or waived prior to default. See Comment 4, § 7-9-501, Code 1975; Indianapolis Morris Plan Corp. v. Karlen, 28 N.Y.2d 30, 319 N.Y.S.2d 831, 268 N.E.2d 632 (1971); 69 Am.Jur.2d, Secured Transactions, § 645 (1973). The “unless otherwise agreed in writing after default” language in § 7-9-506, however, does permit the debtor after default, to waive or vary his right to redeem by agreement in writing. Id. Nowhere have we found any authority that this language in § 7-9-506 means that an agreement to pay an amount less than the sum of the items set out in § 7-9-506 must be in writing to constitute a valid redemption.

In the instant case, the plaintiff tendered a check for $1,654.15 after G.F.C. informed Ford Motor Credit Co. that this was the amount it would take to redeem the truck. This check was refused when the plaintiff refused to sign a form releasing G.F.C. from their obligation to sell the truck. This form was not introduced into evidence. G.F.C. later contended that the amount tendered was less than the sum of the obligations secured by the collateral and the repossession fee, and thus there was not a sufficient tender under § 7-9-506.

With respect to the plaintiff’s refusal to sign the form presented to him by G.F.C., we find no provision in the Uniform Commercial Code that requires a debtor to sign a form upon tender, releasing the secured party from the necessity of holding a private or public sale. Indeed we are at a loss to even speculate why G.F.C. desired a waiver of sale. When redemption is effected a sale is not called for. This waiver form is not part of the record and we decline comment upon what it might have included. We think that when the creditor advises the debtor, or a third party, of the amount necessary to redeem the collateral, this amount should be sufficient for redemption. The debtor does not have a responsibility to tender the entire amount where the creditor does not include certain items allowed under § 7-9-506 when he renders an account stated, nor does the creditor have a responsibility to sign a purported waiver form.

Under § 7-9-506, the debtor in order to redeem, has to tender “fulfillment of all obligations ... as well as the expenses reasonably incurred by the secured party in retaking, holding and preparing the collateral for disposition, in arranging for the sale . . .” The secured party is obviously in a superior position to determine the amount of “all obligations” and “expenses reasonably incurred”; therefore, where the secured party declares the amount due, the debtor, or a party acting on his behalf is entitled to rely on that declaration. The defendant relies on Rainey v. Ford Motor Credit Co., 294 Ala. 139, 313 So.2d 179 (1975) to support their contention that the plaintiff made an insufficient tender; however, in Rainey, the debtor failed to make any tender after receiving the notice of sale. In this case, the debtor tendered the amount declared by the secured party to be necessary for redemption, thus the Rainey principle is clearly inapplicable.

In this case, the debtor provided the defendant with all sums requested under § 7-9-506, but this sum was refused and possession of the vehicle was not given to the plaintiff. We hold that a jury question was presented as to whether the defendant G.P.C. waived its rights to collect certain expenses allowed under § 7-9-506. The trial court, therefore, erred in granting the defendant’s motion for directed verdict as to counts four and five of the complaint, which alleged a conversion predicated upon G.F.C.’s refusal to allow the plaintiff to redeem.

The plaintiff’s third contention is that the trial court erred in refusing to allow the plaintiff to amend count four of his complaint at the end of his evidence. This attempt to amend came immediately after the trial court directed a verdict in favor of G.P.C. relating to G.P.C.’s refusal to allow redemption. The trial court, in directing the verdict as to counts four and five stated that there was an improper attempt to redeem, and therefore, there could be no conversion count relating thereto. As stated above, a jury question was presented as to whether there was a proper attempt to redeem. This amendment should be allowed upon re-trial.

The plaintiff’s final contention is that the trial court erred in overruling the plaintiff’s objection to a letter offered into evidence that was written subsequent to the filing of the lawsuit and contained hearsay and self serving declarations. The letter was sent to the plaintiff from the defendant G.P.C. and sets forth the defendant’s position as to the transactions with respect to the redemption of the truck. The letter also contains statements made to the defendant by its attorney. The defendant contends that the portions of the letter that contained hearsay material and self-serving declarations were not objected to specifically. We have reviewed the letter and are of the opinion that portions of it are inadmissible. We are confident that upon re-trial the court will admit only the admissible portions.

The judgment is therefore affirmed in part, reversed in part and the cause is remanded.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur.


author: BEATTY, Justice.

text:
    Phillip DUFF, Jr. v. AMERICAN CAST IRON PIPE COMPANY.
    SC 2776.
    Supreme Court of Alabama.
    Sept. 29, 1978.

      Oscar W. Adams, Jr., Birmingham, for appellant.
    Robert F. Childs, Jr., Birmingham, for appellee.
   BEATTY, Justice.

This is an appeal by plaintiff, Phillip Duff, Jr. (Duff) from a judgment in favor of American Cast Iron Pipe Company (ACIPCO) denying employment reinstatement and back pay to plaintiff. We reverse and remand.

Duff was employed by ACIPCO in 1969. In 1972 he began to miss work due to psychological problems. In March of that year ACIPCO referred Duff to Dr. Cemil Cezayirili, a psychiatrist with the Frank Kay Clinic, pursuant to an (unwritten) agreement between ACIPCO and the clinic. Under that agreement any mentally disturbed employee who could not be treated by ACIPCO’s medical staff was sent to the clinic at ACIPCO’s expense. Duff was treated by Dr. Cezayirili who hospitalized him on two different occasions. After the first hospitalization in March, 1972 Duff remained under the care of Dr. Cezayirili as an outpatient. On May 23, 1973 Dr. Cezay-irili again found Duff to be ill. However, two days later on May 25, 1973 Duff was seen by an ACIPCO physician who, unaware of Dr. Cezayirili’s examination, found no reason why Duff could not return to work. However, Duff did not return to work, and on June 7, 1973 he was again placed in the hospital by Dr. Cezayirili.

On that same day Duff’s department superintendent, Mr. William G. Hairston, invoked ACIPCO’s Plant Rule 24 which resulted in the termination of Duff’s employment. Plant Rule 24 is violated by:

Absence for a period of 14 calendar days without acceptable excuse made known to immediate supervisor.

The minimum penalty for a violation of this rule is discharge.

In bringing this action for reinstatement and back pay Duff alleged that ACIPCO wrongfully discharged him under Rule 24. The trial court denied the requested relief upon its finding ore tenus :

That commencing on May 25, 1973, the Plaintiff was absent from his employment until a date subsequent to September 10, 1973 without having presented any excuse or justification for his absence during such period to his immediate supervisor. The Plaintiff was regularly discharged from his employment on June 7, 1973.
That under the circumstances presented, the Plaintiffs discharge by the Defendant on June 7, 1973 was not wrongful or contrary to Rule 24 as adopted and set forth in the Employee Handbook.

Duff appeals from this judgment.

Violation of Rule 24 is in its nature a contractual pre-condition to discharge in the ACIPCO-Employee Community, and it is the only such condition relied upon by ACIPCO in this case. Thus the issue before us is whether or not the trial court was correct in finding that Duff was in violation of Plant Rule 24 and therefore properly discharged.

The trial court found in effect that the 14-day period of Rule 24 began May 25 and this conclusion of fact based on testimony heard ore tenus is supported by evidence. Sterling Oil of Oklahoma, Inc. v. Pack, 291 Ala. 727, 287 So.2d 847 (1973); Renfroe v. Weaver, 285 Ala. 1, 228 So.2d 764 (1969). This would make June 7 the final day in which Duff could have reported his sickness in compliance with the rule. The evidence also shows, however, that on June 7 Duff was hospitalized in an almost catatonic state, hallucinating and mentally confused.

ACIPCO does not dispute that on June 7 Duff was incapable of- reporting but argues that notice to the supervisor is the important element, and since there was no report of the illness to the supervisor within the two-week period Duff fell within the rule. We do not agree. The evidence amply shows that Rule 24 had been leniently applied since its inception. At the trial ACIPCO’s Superintendent of the Mono-Case Department was asked on cross-examination:

Q —in administration of this Rule, I want to know whether or not if a person was physically and mentally incompetent to notify anybody and nobody knew anything about him, for instance he was out of the city, out of the state, would the Rule still apply?

He answered:

A Knowing me and knowing my Company, if somebody came after the fact with evidence that this man was absolutely — had no way of knowing, had no friends, no family, no nothing, that he could have gotten word to us, we would reconsider.

On cross-examination this testimony was further clarified:

Q Mr. Hairston, I believe you also said and in response to the hypothetical question I put to you that under the circumstances involved in that case, knowing the Company as you did, and after those facts came to their attention that the Company in all probability would reconsider the termination of that employee. Is that not what you said?
A Yes, sir. I said knowing my Company and my own attitude about this, I’m sure that we would reconsider.

The Personnel Director of ACIPCO for over forty years, when asked if he had heard of a situation where an employee was absent over fourteen days and mentally incompetent to do anything and then been discharged under Rule 24, replied: “I don’t recall one. I don’t recall one.”

There was further evidence that ACIPCO never questioned “who” gave the notice for Duff. For that matter ACIPCO argues that its leniency in applying the notice rule, which allows parents or anyone else to report in for an employee, negates Duff’s argument of inability to comply with Rule 24. .But that contention begs the issue. If Duff was mentally incapable of reporting in on the 7th day of June he certainly would have been unable to ask anyone else to call in for him. Nor can Duff be properly discharged under the requirements of Rule 24 for the failure of others to gratuitiously seek out the nature of his illness and report for him. The contract of employment in question was between ACIPCO and Duff, not ACIPCO and anyone else. We believe that Rule 24 necessarily contains an implied condition precedent, presupposing that the employee affected by it is mentally and/or physically capable of compliance. In this case the facts establish without dispute that Duff was mentally incapacitated and could not perform his responsibilities under the rule on the 14th day of the Rule 24 period. ACIPCO admits as much.

In American Chain & Cable Co., 48 LA (Labor Arbitration Reports) 1369, Arbitrator David Keefe found that an employer was not justified in discharging an employee who was absent without notice where a psychosis caused her to lose her ability to respond to ordinary responsibilities. The arbitrator said:

In every case, the employee is expected to and must comply with the rule for reporting the absence and going on sick-leave. The only obvious exclusion from this all-embracing responsibility would be when the patient is in coma, as from a serious accident, and has not the power to make or instigate such a report. It is rather difficult to conceive that a person, physically capable . . . could, from psychotic reasons, lose the ability to respond to ordinary responsibilities. Such, however, is the case — -and the actuality in this instance.

Because of this incapacity we hold discharge was improper on June 7th and therefore wrongful under law. Because an acceptable reason for absence was present, Plant Rule 24 was not violated and thus discharge under it was improper. Therefore the trial court’s judgment was incorrect as a matter of law. Messer v. Messer, 280 Ala. 395, 194 So.2d 552 (1967). Accordingly, that judgment must be reversed and remanded.

REVERSED AND REMANDED.

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


author: JONES, Justice.

text:
    Worthie C. KING and Marietta King v. CALVERT & MARSH COAL CO., INC., a corp., et al.
    77-253.
    Supreme Court of Alabama.
    Sept. 29, 1978.

      Jack Martin Bains, Oneonta, for appellants.
    Hugh A. Nash, Oneonta, for appellees.
   JONES, Justice.

This appeal is from an action seeking rescission of a coal lease and an accounting for coal already mined pursuant to the lease. We affirm in part, reverse in part (as to that portion of the decree below disallowing attorney’s fee), and remand.

This case was originally filed on January 12, 1977, in the Circuit Court of Blount County by the Appellants, Worthie C. King and Marietta King, against Appellee, Calvert & Marsh Coal Co., Inc. The action was based on a lease agreement executed between the parties on August 6,1974, and an amendment to the lease dated January 16, 1975.

Basically, the lease and the amendment gave the Coal Co. the right to mine coal on the Appellants’ land for three years in exchange for the Coal Co.’s agreement to pay a royalty of $2.50 per ton for coal mined and removed from the Appellants’ land. The agreement also provided that the Coal Co. would make an accounting on the tenth day of each month for all coal mined and removed from the Appellants’ premises during the preceding month and to pay, at that time, any royalties due. In addition to its agreement to pay a $2.50 per ton royalty for coal mined, the Coal Co. promised that, if a royalty in excess of $2.50 per ton was paid to adjoining property owners for coal mined on adjoining land, the Coal Co. would pay an amount equal to the royalties paid to the adjacent owners. Furthermore, the Coal Co. promised to pay attorney’s fees in the event of any future disagreement and “. . .if the court should rule that said coal company is in default and adjudicated against said coal company.”

At the time this suit was filed, the Coal Co. had paid to Appellants approximately $25,000, which amounts represented advance royalties as agreed on by the parties. The Coal Co. had also rendered several accounts to the Appellants, but these accounts had only been rendered when the coal was actually sold.

The trial Court held a preliminary hearing on February 8, 1977, after which it was ordered, pending final hearing, that the Coal Co. had fifteen days to weigh and determine the number of tons of Appellants’ coal which had been mined, but not sold. This coal was stockpiled on property adjoining Appellants’ land. The Coal Co. was further ordered to account to Appellants at the rate of $3.00 per ton for the amount of coal stockpiled.

In conformity with the preliminary order, the Coal Co. made an accounting to Appellants for 9,500.64 tons of coal that had been stockpiled on the neighboring property. The Coal Co. paid for this coal at the rate of $3.00 per ton, paying Appellants a total of $28,501.92 for this coal.

The trial Court scheduled an ore tenus hearing and testimony was taken in April, August and September of 1977. At the hearing conflicting testimony was given concerning the amount of coal mined and the amount of royalty due on each ton of coal.

The trial Court rendered a final decree on September 20, 1977, finding that there was proof that there was some coal on adjoining property on which a royalty of $3.00 per ton had been paid and that, under the lease agreement and the amendment of January, 1975, this was the amount of royalty that should be paid to the Appellants for their coal.

The trial Court also made findings that the Coal Co. had accounted to the Appellants for 18,570.72 tons of coal mined; that this constituted all of the coal mined from Appellants’ property; that the Coal Co. had paid Appellants at the rate of $3.00 per ton for the coal mined for a total payment of $55,711.97 and that this was the only amount Appellants were entitled to receive. Furthermore, the trial Court found that the Coal Co. had not defaulted on the agreement and, therefore, Appellants were not entitled to attorney’s fees under the agreement. The trial Court found that the question of whether Appellants could rescind was moot, as the lease had expired by its own terms except for the provisions concerning reclamation required to be done in compliance with the Alabama Surface Reclamation Act of 1969.

Appellants contend that the evidence showed that 40,000 tons of coal had been mined, and that they are entitled to $3.53 per ton which they allege is the amount that had been paid to adjacent property owners for their coal. Appellants further contend that the Coal Co. had breached its lease when they failed to give monthly accounts for coal when it was actually mined and removed from Appellants’ property and, therefore, Appellants should be able to recover attorney’s fees pursuant to the lease agreement.

Before reaching Appellants’ contentions, it should be noted that this was an ore tenus hearing and this Court has a long history of cases holding that, where a trial Court makes a decree after hearing witnesses ore tenus, every presumption will be indulged in favor of the trial Court and its findings will not be disturbed unless palpably wrong. Cowden v. Hughes, 353 So.2d 505 (Ala.1977).

We have carefully reviewed the record in this case and have found that, based on the testimony of Frank Hollis, there is credible evidence to support the trial Court’s finding as to the amount of coal mined from Appellants’ property.

Mr. Hollis, a registered surveyor and employee of the Coal Co., testified that, based on a survey he made of Appellants’ property and his own personal observations, 12.69 acres of coal had been mined from Appellants’ property and the average width of the coal seam was 13 inches. He further testified that Rosa Coal weighed approximately seventy-four pounds per cubic foot and his estimate was that approximately 18,775 tons of coal had been mined from Appellants’ property when calculated at the standard recoverability rate of 85%. This was compatible with the Coal Co.’s account that 18,570.72 tons of coal had been mined and this, with other evidence contained in the record, amply supports the trial Court in its finding that the Coal Co. had properly accounted for all coal mined.

Appellants also contend that, based on the January 16, 1975, amendment to the original lease agreement, they are entitled to a royalty of $3.53 per ton for the coal mined. The amendment, which is somewhat ambiguous, provides that the Coal Co. agreed that, if a royalty of over $2.50 per ton were paid for coal mined from adjacent property, then the Coal Co. would pay an amount equal to the royalty paid to adjacent property owners for their coal in lieu of the $2.50 per ton royalty agreed upon. Appellants introduced evidence of an agreement between Taylor & Son Coal Company and the First National Bank of Birmingham, who were trustees for property which adjoined Appellants’ land. This agreement provides for a $3.00 per ton royalty for all merchantable coal mined from the covered property. In addition, there is a very detailed provision providing for a percentage of gross proceeds from sales of coal that are blended with coal of a lower grade, mined from other sources. This contract also provides for a minimum guaranteed royalty of $265,000.

It is easy to understand the difficulty that a trial Judge encounters in making a finding of fact when faced with broad contract language providing for royalties to be paid on an agreement that may or may not come into existence at a future date, and which agreement, if it does come into existence, would be between third parties not before the court. Here, the trial Court was presented with such a third-party contract concerning the payment of coal royalties to an adjoining property owner, which contract was detailed in its terms for determining the amount of royalties due. Not every provision concerning royalties in this third-party agreement is applicable to the Appellants’ situation, thus compounding the trial Court’s task.

The agreement between Taylor & Son Coal Company basically provided for a royalty of $3.00 per ton for merchantable coal mined and removed from property adjoining the Appellants. We feel that the trial Judge correctly interpreted the agreement between the parties in the instant case and properly determined that $3.00 per ton was the agreed upon amount of royalty to be paid the adjacent property owner for merchantable coal, which was not blended with other coal. Therefore, we conclude that the trial Court’s finding that $3.00 per ton was the proper amount of royalty to be paid to the Appellants is supported by the evidence and is not clearly and palpably wrong. Additionally, the land owners do not contest the mootness of the rescission issue.

The most difficult question before the Court in the instant case is the issue whether Appellants are entitled to attorney’s fees pursuant to their contract agreement with the Coal Co. As a general rule, when a party to a contract has been adjudicated as being in default, provisions in a contract providing for the payment of reasonable attorney’s fees will be upheld. At first blush it would appear that the trial Court, in its final decree, absolved the Coal Co. of any legal obligation to pay attorney’s fees by its failure to adjudicate a default. But this overlooks the trial Court’s earlier interlocutory decree requiring the Coal Co. to make prompt accounting and payment for coal mined and removed from Appellants’ property as agreed upon in the contract. The “no default” holding of the final decree necessarily speaks to the faithful performance of the contract terms in compliance with the Court’s interlocutory order.

In Kennedy v. Sorsby, 209 Ala. 188, 95 So. 891 (1923), this Court stated:

“We fully recognize that provisions for attorneys’ fees in contracts of this character are intended for indemnity, and not intended to secure the payment of a fee for unnecessary services or for services rendered necessary by the sole or contributing wrong of the other party . and that such employment of an attorney must be in good faith and for the purposes provided by the contract.” (Emphasis added, cited cases omitted.)

The Court went on to hold in the Kennedy case:

“We are of the opinion that the employment of counsel by Mrs. Sorsby under the facts here presented was entirely in good faith, and rendered necessary for the protection of her interest and the enforcement of the provisions of her contract on account of repeated defaults of complainant, . . . .” (Emphasis added.)

Stated alternatively, the “good faith” test of Kennedy is a two-pronged test of reasonableness. The Court must decide: (1) Whether the party claiming the right to attorney’s fees, pursuant to a contract, acted reasonably in employing counsel; and, (2) Were the services, for which attorney’s fees are claimed, reasonable under the circumstances. These reasonableness findings, as a requisite to the “good faith” test, are rendered moot, of course, absent an adjudication of default by the party against whom attorney’s fees are sought.

In the instant case, it is inherent in the trial Court’s interlocutory order that the Coal Co. has not performed according to the agreed upon terms to make an accounting and royalty payment by the tenth day of the month for coal mined and removed from Appellants’ property in any preceding month. The Coal Co. contends that, as a matter of custom and usage in the coal trade, royalties were not paid until coal was actually sold and that the coal lease in this case should be construed accordingly. In German-American Insurance Co. v. Commercial Fire Insurance, 95 Ala. 469, 11 So. 117 (1891), the plaintiff insurance company attempted to show, against an Alabama insurer on its contract of reinsurance, that it was universal usage or custom of the business of insurance in the city of New York that a block of stores under the same management, containing the same goods, were considered as separate buildings or risks. (Emphasis in the original.)

The German-American Insurance Co. Court held that the burden was on the plaintiff to prove not only that the custom or usage was established in the trade at the time of the contract, but, also, that the defendant had knowledge of such usage and was therefore to be held to have contracted with reference to it. In that case, the Court found that there was no evidence that the Alabama defendant had such knowledge and that a presumption of knowledge does not arise from the generality of the custom in New York City.

In the present case, the Coal Co. seeks to construe an unambiguous provision, as to when accounting and payment are due, in accordance with what they allege is a custom in the coal mining industry. Appellants here are property owners, not members of the coal mining trade. There has been no showing that Appellants had actual knowledge of any such custom in the coal trade. Certainly, based on the holding of German-American Insurance Co., there can be no presumption of knowledge attributed to Appellants concerning custom or usage in a trade of which they are not members.

It is this Court’s opinion that, based on the foregoing, the Appellants are entitled to recover a reasonable attorney’s fee based on the amounts paid to them ($28,-501.92) pursuant to the trial Court’s interlocutory order.

On remand of this cause, we leave to the trial Court’s discretion whether further proceedings are necessary for the limited purpose of fixing a reasonable attorney’s fee.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

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

MADDOX, J., concurs in the result.


author: TORBERT, Chief Justice.

text:
    Kitty BALL f/k/a Kitty Wofford v. William Joseph VOGTNER et al. MISSISSIPPI VALLEY TITLE INSURANCE CO. v. William Joseph VOGTNER et al.
    77-353, 77-353X.
    Supreme Court of Alabama.
    Sept. 29, 1978.

      E. Graham Gibbons of Gibbons, Stokes & Clark, Mobile, for appellant, Kitty Ball f/k/a Kitty Wofford.
    Gary P. Alidor, Mobile, for appellees and cross-appellees, William Joseph Vogtner and Rebecca Vogtner.
    Michael J. Salmon, Gulf Shores, for ap-pellee and cross-appellant, Mississippi Valley Title Insurance Co. and appellee, Title Guaranty and Abstract Co.
    Edward B. McDermott of McDermott, Deas & Boone, Mobile, for appellees Martin Ramon Carrera and Barbara Jolene Carr-era.
    Ian F. Gaston, Mobile, for appellee, Cooper Realty Co., Inc.
   TORBERT, Chief Justice.

Appellant, Kitty Ball, filed suit against appellees, William and Rebecca Vogtner, to establish a judgment lien on certain real property in Mobile County. The Vogtners filed an answer and a third party claim against cross-appellant Mississippi Valley Title Insurance Company (hereinafter referred to as Mississippi Valley). The Vogtners denied the validity of the judgment lien and raised the defense that they were good faith purchasers for value without notice of appellant’s judgment, and the judgment recorded in the probate court was outside their chain of title. The third party claim averred that the Vogtners had purchased a title insurance policy from Mississippi Valley and, if they were liable to appellant, then Mississippi Valley was liable to them. Mississippi Valley filed an answer denying liability based upon a policy exclusion, and the Vogtners filed an amended third party complaint alleging timely notice of the claim and asserting an additional claim for failure to defend.

The appellant then, with leave of court, amended the complaint to join as parties defendant in the original action Cooper Realty Company, Martin Ramon and Barbara Jolene Carrera, and Mississippi Valley alleging against such defendants, and the Vogtners, a count for fraud and conspiracy. The trial court dismissed with prejudice the count for fraud as to all parties, but allowed appellant to amend the original action against the Vogtners as a suit to impress a lien against the property.

The case was tried on the issues of the superiority of the judgment lien and the title company’s duty to defend. The court entered its final decree holding that the Vogtners had neither actual nor constructive knowledge of the judgment against Mary Morgan; therefore, the judgment did not constitute a lien against the property. Furthermore, the trial court determined that Mississippi Valley had a duty to defend and awarded the Vogtners $1800 for attorney fees. After denial of her motion for new trial, appellant filed this appeal. Cross-appellant Mississippi Valley appeals that portion of the trial court’s order awarding the Vogtners attorney fees which was based on the trial court’s finding that Mississippi Valley had the duty to defend the action of appellant.

Appellant filed suit for damages for assault and battery on May 20, 1971 in the Circuit Court of Mobile County against Mary Morgan. Appellant recovered a judgment against Mary Morgan and recorded the judgment on May 17, 1972. During the interim between the filing of suit and judgment, Mary Morgan married B. B. Collins and subsequently acquired the property in question. Although appellant and her attorney knew of the marriage at the time of entry of judgment, the judgment was entered against Mary Morgan, not Mary Collins.

On December 15, 1971, the property in question consisting of a house and lot was conveyed to Mary C. Collins as grantee by Leon Gavin and Margaret Susan Young Helton, grantors. Mary Collins conveyed the property to Martin and Barbara Carr-era on October 10, 1973 by a deed reciting a valuable consideration including the assumption of an existing mortgage. However, Mary Collins remained in possession of the house and lot and made the installment payments on the mortgage in lieu of rent to the Carreras. Both deeds were recorded.

Subsequently, the Vogtners became interested in the property and contacted Cooper Realty Company which had the listing. A representative of the company took them to the house where Mrs. Collins showed them around. Mrs. Collins had placed the house with Cooper Realty. Believing Mrs. Collins to be the owner, the Vogtners submitted a written offer through the realtor naming Mrs. Collins as owner. This offer was rejected. However, a subsequent offer was accepted but was signed by the Carreras as ■owners. Upon the Vogtners’ inquiry concerning the signature of the Carreras, the agent of the realty company replied that there were some marital problems and they didn’t want the house mixed up in the divorce.

Later, Mrs. Collins contacted the Vogtners in an effort to rescind the transaction, so the Vogtners retained counsel, Mr. Walter Lee, to represent them in the purchase of the home. Mr. Lee came to the conclusion that the Carreras were “straw people,” and Mrs. Collins was the real owner of the property. Accordingly, he required a letter of attornment from Mrs. Collins and that the Vogtners’ check at closing be endorsed by the Carreras over to Mrs. Collins.

Attorney Lee, before commencement of his representation of the Vogtners, learned through social contacts with appellant that she might have a judgment against Mary Collins whom he knew at that time only as “Mary.” At the closing, he told the representative of Mississippi Valley, Mrs. Flinn, that there might be a judgment against Mary Collins, but he never communicated such to the Vogtners. Mrs. Flinn quickly checked the company’s in-house records and found no judgment against Mrs. Collins, and the transaction was closed.

Appellant first contends that the trial court improperly dismissed the fraud count against all defendants. To constitute fraud, there must be some misrepresentation of a material fact to a party who relies upon such misrepresentation to his detriment. See Ala.Code §§ 6-5-100 to 104 (1975); Ellis v. Zuck, 409 F.Supp. 1151 (N.D.Ala. 1976), aff’d, 546 F.2d 643 (5th Cir. 1977); Rudman v. Hooks, 252 Ala. 280, 40 So.2d 866 (1949). “It is fundamental to an action for fraud that the representee must have been deceived by and relied upon the representation as an inducement to his action or non-action.” Old Southern Life Insurance Co. v. McConnell, 52 Ala.App. 589, 595, 296 So.2d 183, 187 (1974). However, nowhere does appellant allege that any representations were made to her by any of the parties. Nor does she allege that she relied upon any representations of the parties. Although section 6-5-102 states that suppression of a material fact which a party is under an obligation to communicate constitutes fraud, appellant does not make any allegations which would give rise to such an obligation. Nothing appellant has pleaded supports an allegation of fraud; therefore, the fraud count was properly dismissed for failure to state a claim upon which relief can be granted.

Appellant next contends that the property should be subject to the judgment lien since the Vogtners had actual or constructive notice of the lien.

For a judgment to create a lien on the property of the defendant, a certificate must be filed in the office of the judge of probate of the county in which the property is situated which shows: (1) the style of the court which entered the judgment, (2) the amount and date thereof, (3) the amount of costs, (4) the names of the parties thereto, (5) the name of the plaintiff’s attorney, and (6) the address of each defendant or respondent, as shown in the court proceedings. Ala.Code §§ 6-9-210 to 211 (1975). To create a lien, the statutory requirements as to the contents of the certificate must be strictly observed. See, e. g., Duncan v. Autauga Banking & Trust Co., 223 Ala. 434, 136 So. 733 (1931).

Appellant properly filed a certificate; however, she listed the judgment debtor as Mary Morgan instead of Mary Collins. The certificate, as filed, does establish a valid lien between appellant and Mary Collins, but not as to the Vogtners since the name shown in the certificate is insufficient to impart constructive notice to third parties.

As between the judgment creditor and judgment debtor a judgment may afford a valid lien despite inaccuracies or omissions in the docket or index in respect of the names or descriptions of the parties. In order to make the lien of a judgment effective as against third persons, however, it is ordinarily necessary that the docket and index should disclose the names of both parties, plaintiff as well as defendant, and designate them with such a degree of accuracy as to charge persons searching such records with notice of the judgments or to put them on inquiry.

49 C.J.S. Judgments § 465, at 899 (1947).

Mary Collins both acquired and conveyed title to the property in her name as such. Nowhere in the Vogtners chain of title does the name Mary Morgan appear. The Vogtners possessed no facts sufficient to put them on inquiry or to enable them to discover the existence of the judgment lien against Mary Morgan. An instrument executed by a married woman in her name prior to marriage without mention of her married name imparts no notice. Huff v. Sweetser, 8 Cal.App. 689, 97 P. 705 (1908); 8 G. Thompson, Commentaries on the Modern Law of Real Property § 4300, at 275 (1963). In the absence of actual knowledge, the purchaser is charged with notice of that which appears on the face of all the instruments by which he takes title, but is not bound to inquire into collateral circumstances. See First National Bank v. Culberson, 342 So.2d 347 (Ala. 1977); Dewyer v. Dover, 222 Ala. 543, 133 So. 581 (1931); Wittmeir v. Leonard, 219 Ala. 314, 122 So. 330 (1929). A reasonable search of the records in the instant case would have revealed nothing of the judgment lien since the parties would be searching under the name Mary Collins, not Mary Morgan.

The Vogtners had no actual notice of the judgment lien. Their attorney did not inform them of the possibility of a judgment against Mrs. Collins. To impart constructive notice to the Vogtners, the certificate would have to be in their chain of title. See Union Oil Co. v. Colglazier, 360 So.2d 965 (Ala. 1978). Since it was not, the only way for the Vogtners to have any knowledge of the judgment is if the knowledge of their attorney, Mr. Lee, is imputed to them.

Our cases hold that for knowledge of the attorney to be imputed to the client, the knowledge must have come to the attorney while engaged in a service for his client after the attorney-client relationship began. See, e. g., Cooper & Sons Motor Co. v. Klepsig, 223 Ala. 2, 135 So. 430 (1930); Wiggins v. Stewart Bros., 215 Ala. 9, 109 So. 101 (1926); Marshall v. Lister, 195 Ala. 591, 71 So. 411 (1916). “Information to an agent is not notice to the principal when given to the agent upon a casual conversation at a time when hé is not engaged in business for his principal and no act or transaction of the agency is then pending.” Sullivan v. Alabama Power Co., 246 Ala. 262, 270, 20 So.2d 224, 230 (1944). Mr. Lee acquired his knowledge of the possibility of a judgment during a “casual conversation” with social acquaintances approximately two years before his representation of the Vogtners; therefore, any knowledge he may have possessed is not imputed to the Vogtners. Since the Vogtners had neither actual nor constructive notice of the judgment lien, they acquired the property free of the lien.

Cross-appellant Mississippi Valley contends that it had no duty to defend the action against the Vogtners since a policy exclusion exempts the judgment lien from coverage. Therefore, awarding the Vogtners attorney fees was improper.

The policy provided that “[t]he company, at its own cost and without undue delay, shall provide for the defense of the insured in all litigations . . . founded upon defect, lien or encumbrance insured against by this policy.” The policy expressly excluded from coverage: “[D]efects, liens, encumbrances, adverse claims against the title as insured or other matters known to the Insured either at the date of this policy or at the date such Insured acquired an estate or interest insured by this policy and not shown by the public records, unless disclosure thereof in writing by the Insured shall have been made to the company prior to the date of the policy . . .” Public records are defined in the policy as “those records which impart constructive notice of matters relating to said land.”

The certificate in this case did not impart constructive notice of the lien because it contained the judgment debtor’s maiden name only, and accordingly, was outside the Vogtners chain of title. The name Mary Morgan was insufficient to .alert anyone interested in the property as to the existence of the lien. Therefore, the lien was not “shown by public records” and would be excluded from coverage if the Vogtners had knowledge of it and failed to notify the company in writing. However, since the Vogtners had no knowledge, either actual or constructive, of the judgment lien, the lien was not within those defects excluded by the policy and Mississippi Valley was obligated to defend.

For the abovementioned reasons, the order of the trial court is due to be affirmed.

AFFIRMED.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.