text:
    ENVIRO-MANAGEMENT, INC. v. MARK OIL, INC.
    No. 49159.
    Supreme Court of Mississippi.
    Feb. 9, 1977.
    Zachary & Gillespie, Francis T. Zachary, Hattiesburg, for appellant.
    Levi, Denham & Russell, P.A., Earl L. Denham, Pascagoula, for appellee.
   Appeal from Circuit Court, Harrison County; Leslie B. Grant, Judge.

Before INZER, P. J., SUGG and LEE, JJ., and HOWARD R. PIGFORD, Commissioner.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    CONSTRUCTION MANAGEMENT, INC. v. T. L. JAMES & COMPANY, INC.
    No. 49140.
    Supreme Court of Mississippi.
    Feb. 9, 1977.
   Appeal from Circuit Court, Adams County; Lenox L. Forman, Judge.

Binder, Lucas & Lohrmann, Jerome L. Lohrmann, Jackson, for appellant.

Aultman, Pope, Aultman & Tyner, Jon Mark Weathers, Hattiesburg, for appellee.

Before INZER, P. J., and SUGG and LEE, JJ.

AFFIRMED.


text:
    Bragston L. MILEY v. Mrs. Marsha T. Miley USRY.
    No. 49141.
    Supreme Court of Mississippi.
    Feb. 9, 1977.
    Crawley & Ford, David E. Crawley, Jr., Michael H. Steele, Kosciusko, for appellant.
    Thomas L. Booker, Jr., Philadelphia, for appellee.
   Appeal from Chancery Court, Neshoba County; Edward C. Prisock, Chancellor.

Before INZER, P. J., and SUGG and LEE, JJ.

AFFIRMED.


text:
    Jack M. McLARTY et al. v. The RESERVOIR JAYCEES, INC.
    No. 49188.
    Supreme Court of Mississippi.
    Feb. 9, 1977.
    McLaurin, Nicols & Kelly, Alfred G. Ni-cols, Jr., Brandon, for appellants.
    McKinley & Zebert, Thomas L. Zebert, Pearl, for appellee.
   Appeal from Chancery Court, Rankin County; Osborn Guyton Idom, Chancellor.

Before INZER, P. J., and SMITH and WALKER, JJ.

AFFIRMED.


text:
    Booker T. DAVIS v. STATE of Mississippi.
    No. 49508.
    Supreme Court of Mississippi.
    Feb. 9, 1977.
    Jeffrey A. Levingston, Cleveland, John W. Land, Rosedale, for appellant.
    A. F. Summer, Atty. Gen., by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Bolivar County; J. C. Feduccia, Judge.

Before INZER, P. J., and SUGG and LEE, JJ.

AFFIRMED.


text:
    In re VALIDATION OF $2,625,000 NESHOBA COUNTY STATE AID ROAD BONDS. Laurel G. WEIR and Lamar G. Salter v. NESHOBA COUNTY, Mississippi.
    No. 49727.
    Supreme Court of Mississippi.
    Feb. 9, 1977.
    Laurel G. Weir, Philadelphia, Kellis Madison, Jackson, for appellant.
    Watkins, Pyle, Ludlam, Winter & Stennis, John Hampton Stennis, Randall B. Wall, Jackson, J. Max Kilpatrick, Philadelphia, for appellee.
   Appeal from Chancery Court, Neshoba County; John C. Love, Jr., Chancellor.

Before GILLESPIE, C. J., and SMITH and WALKER, JJ.

AFFIRMED.


text:
    Ronald Wayne KROHN v. Rebecca Lee Krohn FAYARD.
    No. 49107.
    Supreme Court of Mississippi.
    Feb. 9, 1977.
    Hawkins & Henry, W. Eugene Henry, Biloxi, for appellant.
    Kelly McKoin, Biloxi, for appellee.
   Appeal from Chancery Court, Harrison County; John S. Morris, Chancellor.

Before PATTERSON, P. J., ROBERTSON and BROOM, JJ., and KERMIT R. COFER, Commissioner.

AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

GILLESPIE, C. J., INZER, P. J., and SMITH, SUGG, WALKER and LEE, JJ., concur.


text:
    Jimmy P. WISE v. STATE of Mississippi.
    No. 49412.
    Supreme Court of Mississippi.
    Feb. 9, 1977.
    Thomas D. Berry, Jr., James Sideris, Gulfport, for appellant.
    A. F. Summer, Atty. Gen. by Catherine Walker, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Harrison County; Leslie B. Grant, Judge.

Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.

AFFIRMED.

GILLESPIE, C. J., INZER, P. J., and SMITH, SUGG, WALKER and LEE, JJ., concur.


author: SUGG, J.,

text:
    Carl PEARSON v. STATE of Mississippi.
    Misc. No. 741.
    Supreme Court of Mississippi.
    Feb. 9, 1977.
    Carl Pearson, pro se.
    A. F. Summer, Atty. Gen., by Timmie Hancock, Asst. Atty. Gen., Jackson, for ap-pellee.
   SUGG, J.,

for the Court.

PETITION DENIED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, WALKER, BROOM and LEE, JJ., concur.


text:
    Arnold F. GWIN v. Mary Elizabeth GWIN. Mary Elizabeth GWIN v. Arnold F. GWIN.
    Nos. 49114, 49115.
    Supreme Court of Mississippi.
    Feb. 9, 1977.
    Lott, Sanders & Gwin, Hardy Lott, Greenwood, for Mr. Gwin.
    Holcomb, Dunbar, Connell, Merkel & Tol-lison, Robert C. Khayat, Grady F. Tollison, Jr., Oxford, for Mrs. Gwin.
   Appeal from Chancery Court, Leflore County; E. G. Cortright (Case # 49,114) J. D. Thames (Case # 49, 115), Chancellors.

Before GILLESPIE, C. J., and SMITH and WALKER, JJ.

■ Case # 49,114: AFFIRMED IN PART AND REVERSED IN PART.

Case # 49,115: AFFIRMED.

PATTERSON and INZER, P. JJ., and ROBERTSON, SUGG, BROOM and LEE, JJ., concur.


author: SUGG, Justice,

text:
    M. W. WALTON and D. P. Langston, d/b/a New Hebron Woodyard, et al. v. Dependents of Lloyd McLENDON, Deceased.
    No. 49149.
    Supreme Court of Mississippi.
    Feb. 9, 1977.

      Daniel, Coker, Horton, Bell & Dukes, Joel W. Howell, III, Jackson, for appellant.
    Jack A. Travis, Jackson, for appellee.
    Before INZER, SUGG and LEE, JJ.
   SUGG, Justice,

for the Court.

Lloyd McLendon died as a result of accidental injuries received on May 9, 1974 while in the course of employment with New Hebron Woodyard. The administrative judge, the Workmen’s Compensation Commission and the Circuit Court of Lawrence County held that the widow was entitled to death benefits.

The principal question on appeal is whether a widow must obtain an award for separate maintenance in a court of this state within three years of the couple’s separation where she has obtained a judgment in another state within three years of the separation awarding her separate maintenance or alimony.

The case was presented on a stipulation of facts which show that Pauline T. McLen-don and Lloyd McLendon were married in Marion County on July 27, 1946. They moved to New Jersey in 1950 and resided there continuously until they separated in 1958. Both parties resided in New Jersey until after Mrs. McLendon filed a suit for support for herself and her four children. Mrs. McLendon has been a resident of New Jersey since 1950 and all of their children were born in New Jersey. On January 22, 1960 she filed a complaint for support and maintenance against Lloyd McLendon and on February 9, 1960 McLendon was found guilty of desertion, neglect, and refusing to provide adequate support for his family. He was sentenced to the penitentiary for one year. The sentence was suspended for a period of five years upon condition that he be committed to the care and custody of the probation officer of Essex County, New Jersey with direction to the probation department to apportion his earnings for the support and maintenance of his family. The order provided that upon expiration of his probation, McLendon was to continue to pay support through the probation department. On April 7, 1960 a bench warrant for the arrest of McLendon was issued but was not served because he was not found in the State of New Jersey. No divorce proceedings were ever filed by Mrs. McLendon and she received irregular payments of $25 from Lloyd McLendon until about a year and a half before his death.

Appellants argue that Pauline McLendon is not a widow as defined by Mississippi Workmen’s Compensation Act. Mississippi Code Annotated section 71-3-3(n) (1972) defines a widow for purposes of the act as follows:

(n) The term “widow” includes the decedent’s legal wife, living with him or dependent for support upon him at the time of his death or living apart for justifiable cause or by reason of. his desertion at such time, provided, however, such separation had not existed for more than three (3) years without an award for separate maintenance or alimony or the filing of a suit for separate maintenance or alimony in the proper court in this state. The term “widow” shall likewise include one not a legal wife but who had entered into a ceremonial marriage with the decedent at least one (1) year prior to his death and who, on the date of the decedent’s death, stood in the relationship of a wife, provided there was no living legal spouse who had protected her rights for support by affirmative action as herein-above required. The term “widow” or “widower” as contemplated in this chapter shall not apply to any person who has, since his or her separation from decedent, entered into a ceremonial marriage or lived in open adultery with another.

Mrs. McLendon received a decree for support and maintenance in 1960 in New Jersey but has not filed a suit in Mississippi for separate maintenance or alimony. Appellants contend that Mrs. McLendon should have filed another suit in Mississippi within three years of the separation, and failing in this, she is not a widow under the terms of the above statute.

Appellants argue in support of this contention that the words “in the proper court of this state” refer not only to a suit filed for separate maintenance or alimony on which a judgment has not been entered awarding the wife separate maintenance or alimony, but also to suits where a judgment has been entered awarding the wife separate maintenance or alimony. We are of the opinion that the requisites of the statute entitling a widow to benefits under the act in cases where she had been separated from the decedent for more than three years were framed in the disjunctive to cover two separate and distinct factual situations as follows:

1. Where an award for separate maintenance or alimony has been made within three years of the separation of the parties, or

2. Where no award for separate maintenance or alimony has been made, but a suit filed in the proper court of this state for separate maintenance or alimony within three years of the separation of the parties.

We see no reason to require a widow to file a second suit in Mississippi for separate maintenance or alimony when she has a judgment in a court of another state awarding her separate maintenance or alimony. The only purpose a second suit could accomplish would be to ratify the award made in the first suit. This would lead to a proliferation of suits with resultant additional expenses to all the parties.

In this case the widow had been awarded separate maintenance and collected periodic payments based on this award. In our opinion this satisfies the statute. The requirement that a suit be filed, “in the proper court in this state” has no application to a widow who has a judgment awarding her separate maintenance or alimony even though the judgment was rendered in another state.

The facts of this case afford another reason to support our conclusion that her suit in New Jersey is sufficient to qualify her for widow’s benefits because, when the suit was filed, both Mrs. McLendon and her husband were residents of New Jersey. No other state could have had jurisdiction of a suit by her for separate maintenance or alimony at that time.

Mrs. McLendon cross-appealed and contends that she is entitled to a 10% penalty on the award of compensation under Mississippi Code Annotated section 71-3— 37(5) (1972). We agree that the 10% penalty should be assessed and remand the case to the Workmen’s Compensation Commission for assessment of the penalty on any installments which were not paid within fourteen days after due date.

AFFIRMED ON DIRECT APPEAL, REVERSED ON CROSS-APPEAL, AND REMANDED TO THE WORKMEN’S COMPENSATION COMMISSION.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, WALKER, BROOM and LEE, JJ., concur.


text:
    Larry JONES v. STATE of Mississippi.
    No. 49494.
    Supreme Court of Mississippi.
    Feb. 9 1977.
    Charles E. Morris, Jr., Kelly McKoin, Biloxi, for appellant.
    A. F. Summer, Atty. Gen. by Ben H. Walley, Asst. Atty. Gen., Jackson, for ap-pellee.
    Before INZER, SUGG and LEE, JJ.
   SUGG, Justice,

for the Court:

Larry Jones was convicted of capital murder and sentenced to death by the Circuit Court of the Second Judicial District of Harrison County. We reverse for retrial in accordance with our opinion in Jackson v. State, 337 So.2d 1242 (Miss.1976). However, other contentions of defendant are discussed because the case is to be tried again.

Defendant contends that the lower court erred by admitting into evidence state’s exhibit No. 7 which was a large map of downtown Biloxi, including the area around the store where the murder occurred. The basis of this contention is that red and black arrows were drawn on the map which tend to indicate the path of the defendant from an automobile parked several blocks away from the scene of the crime. The testimony established that the defendant, along with J. D. Reddix and Willie Reddix, drove into a parking area adjacent to Jackson Street and the defendant and Willie Reddix exited the car and walked in a westerly direction. Defendant and Willie Reddix returned to the car in about fifteen minutes. This is a circumstantial evidence case and there is no direct testimony showing the route that defendant followed from the car to the scene of the crime and his return route to the car. We held in Hall v. Boykin, 207 So.2d 645 (Miss.1968), that error was committed in admitting a drawing made by a highway patrolman with arrows depicting the position of two vehicles before and after a collision because the patrolman did not witness the accident. We stated that the accident report which contained the drawing was no more than a conclusion of the patrolman. In accord with Hall is Carruth v. Griffis, 220 Miss. 541, 71 So.2d 478 (1954), where we held that it was error for the trial court to admit a map drawn by an officer indicating the path two automobiles were traveling immediately before and after an accident when the officer was not present at the accident and did not witness the paths of the ears before the accident.

The general rule concerning markings on exhibits appears in 29 Am.Jur.2d Evidence § 784 at 854 (1967):

Properly verified or authenticated maps, plats, diagrams, casts, drawings, photographs, and X-ray pictures are not rendered inadmissible in evidence because of marks, memoranda, legends, or other extraneous matter thereon, where the individual who made the marks or writings, or another witness familiar with the facts, explains them or testifies as to their correctness. When objectionable marks or writings are excluded, expunged, or erased, the instrument becomes properly admissible. But it is clear that where the person who made the marks or notations did so, not from his own personal knowledge, but from what he heard from others, or if the one who made the marks or notations is not produced as a witness, the map, diagram, or drawing containing such marks or notations is inadmissible in evidence.

It was error to admit a map with the red and black arrows. The map may be admitted on retrial if the arrows are eliminated.

Defendant also contends that it was error to admit certain exhibits in evidence which had been used in the trial of Willie Reddix who was convicted and sentenced to death one week earlier. Under the facts in this case the error complained of did not constitute reversible error, but on retrial the markings indicating that the exhibits had been used in another trial should be deleted before the exhibits are offered as evidence.

Defendant also argues that the lower court erred by refusing to admit in evidence a statement he gave police. The crime with which defendant was charged was committed on December 2, 1974. On December 9, 1974 defendant made a statement to the police concerning the events surrounding the crime. His statement was wholly exculpatory and was not used in whole or in part by the state in its case. His statement was a self-serving declaration and was inadmissible under Cone v. State, 271 So.2d 453 (Miss.1973). In support of his argument on this assignment of error defendant relies on Sanders v. State, 237 Miss. 772, 115 So.2d 145 (1959). In Sanders we held:

The pertinent rule is stated in 2 Wharton’s Criminal Evidence (12th Ed., 1955) Sec. 361: ‘In the proof of confessions, the whole of what the accused said on the subject at the time of making the confession should be taken together. The prosecution is entitled to show the whole statement, or if any part is omitted, the accused is entitled to supply it. It is also well settled that if a confession is made under such circumstances as to authorize its admission in evidence, the accused is entitled to have the entire conversation including any exculpatory or self-serving declarations connected therewith, also admitted. However, it is for the jury to say what weight shall be given to the several parts of the statement, as they may believe that part which charges the prisoner and reject that which tends to exculpate him.’ (237 Miss, at 776, 116 So.2d at 146-7). (Emphasis supplied).
Where the State introduces a part only, the accused is entitled to prove the remainder or any part thereof which is explanatory of, or connected with, the part offered by the State. 22 C.J.S. Criminal Law § 820; Bishop v. State, 1910, 96 Miss. 846, 52 So. 21; Coon v. State, 1849, 13 Smedes & M. 246, 250; McCann v. State, 1850, 13 Smedes & M. 471, 498-499; Jones v. State, 1954, 222 Miss. 387, 395, 76 So.2d 201. Hence it was error for the trial court to overrule appellant’s motion for production of the tape recording, and for that error the conviction must be reversed. Of course a recorded statement may contain considerable material which is not relevant or material on the issue of the confession or, as here, of insanity. The trial judge has ample power in his sound discretion to limit the introduction into evidence of those portions of the recording which are relevant and material. (237 Miss. 776-777, 115 So.2d at 147). (Emphasis supplied).

The defendant is not entitled to protection under Sanders because the state made no effort to introduce the statement in question and did not offer any evidence that defendant had made any statement or admission. It is the general rule, almost unanimously followed, that where the state introduces evidence of statements made by the defendant immediately after a crime, defendant is entitled to bring out the whole of his statement. In the absence of the state using the evidence in the record, the defendant cannot introduce any part on his behalf. Collins v. State, 148 Miss. 250, 114 So. 480 (1927); Davis v. State, 230 Miss. 183, 92 So.2d 359 (1957).

Defendant complains that a “hanging jury” was empaneled to try his case. There is insufficient evidence in the record to show that the jury was not properly selected in accordance with the principles enunciated by the United States Supreme Court. On retrial, if defendant is tried on a capital charge, the trial court will follow Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). See also Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969); and Mathis v. New Jersey, 403 U.S. 946, 91 S.Ct. 2277, 29 L.Ed.2d 855 (1971).

REVERSED AND REMANDED FOR A NEW TRIAL.

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


author: GILLESPIE, Chief Justice, SUGG, Justice,

text:
    Laura Mae RIAS, guardian ad litem v. Jody HENDERSON.
    No. 48914.
    Supreme Court of Mississippi.
    Feb. 9, 1977.

      Barry H. Powell, Jackson, for appellant.
    V. Douglas Gunter, Jackson, for appellee.
    Before GILLESPIE, ROBERTSON and LEE, JJ.
   GILLESPIE, Chief Justice,

for the Court:

This is an appeal from a judgment in a paternity suit rendered in the County Court of Hinds County. After trial on the merits, the jury returned a verdict finding Jody Henderson the father of four minor children. An order of filiation and child support was entered by the court below, but the guardian ad litem of the four minor children has appealed that portion of the order restricting their right to child support from their father only until each reaches the age of sixteen years.

The children attack the constitutionality of Mississippi Code Annotated section 93-9-29(2) (1972), which provides for child support for illegitimate children from their father only until such children reach the age of sixteen. The right of legitimate children to support and education is not limited to children under sixteen years of age. The Chancery Court’s jurisdiction in this State over legitimate minors in divorce and separate maintenance suits is unrestricted.

The question: Does section 93-9-29(2) violate the equal protection clause of the Fourteenth Amendment, because no such limitation is placed on the right of legitimate children?

It is interesting to note that the act under consideration in section 93-9-7 provides in part: “The father of a child which is or may be born out of lawful matrimony is liable to the same extent as the father of a child born of lawful matrimony . . . ” In section 93-9-29, in contradiction of section 93-9-7, the statute limits the illegiti-mates’ right to support and education to children under sixteen years of age.

In determining whether a statute is violative of the equal protection clause, the United States Supreme Court has traditionally employed two standards of review. (1) In the general field of social and economic legislation, the Court has developed a low standard of review, commonly known as the rational basis test. Under this test a statute is presumed to be constitutional and will not be set aside as long as it is aimed at a permissible legislative purpose and as long as it is based on some rational justification to achieve the purpose intended. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Williamson v. Lee Optical, 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563, (1955). (2) Where, however, legislation seeks to make certain classifications, most notably on the basis of race, these classifications are immediately suspect. The presumption of validity disappears and applying rigid scrutiny, the state is placed under a heavy burden to show a compelling state interest in justifying the classification. Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010, (1967). Strict scrutiny review has also been applied when a statute infringes upon a fundamental right, e. g. Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) (right to vote); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (right to travel).

The practical effect of this two-tier evaluation policy as applied by the United States Supreme Court has been a “hands-off” attitude by the courts regarding legislation which does not affect a suspect class or fundamental right in some manner. However, those statutes which do have been invalidated. Since so few decisions have deviated from these general observations, e. g. Morey v. Doud, 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed.2d 1485 (1957) (economic regulation-rational basis test), overruled by City of New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976); Korematsu v. U. S., 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944) (classification based on race — compelling state interest test), the essential inquiry in equal protection cases has revolved around the determination of whether the legislation affects a suspect class or fundamental right.

Recently the United States Supreme Court has taken a new approach. The Court appears to be developing a hybrid standard of review. See Rehnquist’s dissent in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 181, 92 S.Ct. 1400, 1409, 31 L.Ed.2d 768, 782 (1972). The development of this new standard for review has been particularly apparent in the Court’s evaluation of statutes and regulations that give rights to legitimate children but deny or modify those rights to illegitimates. The Court stopped short of holding that illegiti-mates are to be treated as a suspect class, but has evaluated statutes dealing with ille-gitimates under a higher standard of review than that called for under the rational basis test. The Court, in Weber, supra, gave this test:

What legitimate state interest does the classification promote? What fundamental personal rights might the classification endanger? 406 U.S. at 173, 92 S.Ct. at 1405, 31 L.Ed.2d at 777.

In Weber, the United States Supreme Court held that illegitimate dependent children may not be excluded from sharing equally with dependent legitimate children in the recovery of workmen’s compensation benefits from the death of their parent. The Court stated:

The status of illegitimacy has expressed through the ages society’s condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual — as well as an unjust— way of deterring the parent. Courts are powerless to prevent the social opprobrium suffered by these hapless children, but the Equal Protection Clause does enable us to strike down discriminatory laws relating to status of birth where — as in this case — the classification is justified by no legitimate state interest, compelling or otherwise. 406 U.S. at 175-176, 92 S.Ct. at 1406-07, 31 L.Ed.2d at 779.

In reaching this decision the Court relied upon two earlier decisions: Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968), and Glona v. American Guaranty & Liability Ins. Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968). In Levy, the Court held that a state statute barring an illegitimate child from recovering for the wrongful death of its mother when such recoveries by legitimate children were authorized was invalid as a denial of equal protection. In Glona, the Supreme Court held that because there was “no possible rational basis” for assuming illegitimacy would be promoted if the mother is allowed to recover in a wrongful death action of her illegitimate child, a statute prohibiting such action was unconstitutional as a violation of equal protection.

In Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973), the United States Supreme Court was confronted with a factual situation similar to the instant case. Texas provided a judicially enforceable right of support for legitimate children. However, illegitimate children had no such right of support from their father. The Court, citing Levy and Weber, stated:

Under these decisions, a State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally. We therefore hold that once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers theré is no constitutionally sufficient- justification for denying such an essential right to a child simply because its natural father has not married its mother. For a State to do so is “illogical and unjust.” [Weber v. Aetna Casualty & Surety Co., supra, at 175, 92 S.Ct. at 1406, 31 L.Ed.2d 768], We recognize the lurking problems with respect to proof of paternity. Those problems are not to be lightly brushed aside, but neither can they be made into an impenetrable barrier that works to shield otherwise invidious discrimination. (Cites omitted). 409 U.S. at 538, 93 S.Ct. at 875, 35 L.Ed.2d at 60.

The right to support that a legitimate child has in this State from his father is not limited to the age of sixteen. Indeed in Pass v. Pass, 238 Miss. 449, 118 So.2d 769 (1960), this Court held that a worthy child was entitled to a college education if the father was able to afford it. In Pass, the Court recognized the value of a college education by stating:

But we are living today in an age of keen competition, and if the children of today who are to be the citizens of tomorrow are to take their rightful place in a complex order of society and government, and discharge the duties of citizenship as well as meet with success the responsibilities developing upon them in their relations with their fellow man, the church, the state and nation, it must be recognized that their parents owe them the duty to the extent of their financial capacity to provide for them the training and education which will be of such benefit to them in the discharge of the responsibilities of citizenship. It is a duty which the parent not only owes to his child, but to the state as well, since the stability of our government must depend upon a well-equipped, a well-trained, and well-educated citizenship. 238 Miss, at 458, 118 So.2d at 773.

The right to a college education under appropriate circumstances is a substantial benefit which is denied illegitimate children under the statute in question.

-Applying the foregoing authorities to this case, we find no constitutionally legitimate reason for limiting the right of support to illegitimates to the age of sixteen. Perhaps the legislature had a rational basis in enacting this legislation based on the recognition that our jury system is not infallible, but such justification has been held by the United States Supreme Court in Gomez, supra, to be insufficient.

It should be noted that while the present standard of review as applied by the United States Supreme Court in the area of illegitimacy is somewhat less than clear, See Rehnquist’s dissent in Jimenez v. Weinberger, 417 U.S. 628, 638, 94 S.Ct. 2496, 2502, 41 L.Ed.2d 363, 371 (1974); Rehnquist’s dissent in Weber, supra, the Supreme Court has held in Labine v. Vinson, 401 U.S. 532, 536, 91 S.Ct. 1017, 1019, 28 L.Ed.2d 288, 292 (1971), that its decision in “Levy [et al] did not say and cannot be fairly read to say that a State can never treat an illegitimate child differently from legitimate offspring.”

In Labine, the Supreme Court held that a state’s intestate statutory scheme which denied an acknowledged illegitimate child from sharing equally in the father’s estate with legitimate heirs was not a denial of equal protection. The Court, in Labine, declined to review the case under the traditional standards of review or under its new standard of review, but stated in a footnote:

Even if we were to apply the “rational basis” test to the Louisiana intestate succession statute, that statute clearly has a rational basis in view of Louisiana’s interest in promoting family life and of directing the disposition of property left within the State. 401 U.S. at 536, n.6, 91 S.Ct. at 1019, n.6, 28 L.Ed.2d at 292, n.6.

The Court, in Weber, more fully explained its decision in Labine, by stating:

That decision [Labine] reflected, in major part, the traditional deference to a State’s prerogative to regulate the disposition at death of property within its borders. [Cites omitted]. The Court has long afforded broad scope to state discretion in this area. [The State has a] . substantial state interest in providing for “the stability of . land titles and in the prompt and definitive determination of the valid ownership of property left by descendants,” . . . . [cites omitted]. 409 U.S. at 170, 92 S.Ct. at 1404, 31 L.Ed.2d at 776.

Mississippi has a profound and constitutionally sound reason for classifying legitimates differently from illegitimates in the laws of descent and distribution of property of a person who dies intestate. Some of these reasons are mentioned in Labine and Weber. Our decision in the present case does not weaken the authority of this State to provide for exclusion of illegitimates from inheriting property from intestate natural fathers.

The judgment appealed from is reversed in part in that it is modified so as to eliminate the restrictive clause “until each child reaches the age of sixteen years.”

REVERSED IN PART AND RENDERED.

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

SUGG, J., INZER, P. J., and BROOM, J., dissent.

SUGG, Justice,

dissenting:

Although Mississippi Code Annotated section 93-9-29 (1972) limits the liability of a father of an illegitimate for support and education until the child is sixteen years old as distinguished from the liability of a father for the support and education of his legitimate children until they are twenty-one years old, the difference of five years does not, in my opinion, violate the equal protection clause of the United States Constitution.

The equal protection clause states a complex and difficult principle. Certain classifications are “inherently suspect” which means that any reliance upon them in differentiating legal rights requires very strong affirmative justification. Assuming that this case involves a classification that is inherently suspect, the right of an illegitimate to support by his father for five years less than the right of a legitimate to support by his father, is affirmatively justified. There are differences in the social rights of a father of an illegitimate arising by virtue of their relationship which are recognized in our society, and also a difference in the legal rights of a father of an illegitimate as contrasted to the social and legal rights of the father of a legitimate child. The legislature was justified in considering these differences in limiting the time of an illegitimate’s right to support and education from his father. Some of the differences are:

1. A father and his illegitimate child are not usually residents of the same household resulting in the father having no custody and control over an illegitimate. There is ordinarily very little, if any, social relation between the two.
2. Unless the father of an illegitimate files a petition to legitimate his illegitimate child under Mississippi Code Annotated section 93-17-1 (1972), he has no right to bring an action for the custody and control of the child.
3. The mother of an illegitimate has the right to custody as against the father. Aycock v. Hampton, 84 Miss. 204, 36 So. 245, 65 L.R.A. 689, 105 American State Reports 424 (1904).
4. Under our wrongful death statute, the father may not bring an action based on the death of an illegitimate. Mississippi Code Annotated section 11 — 7—13 (1972).
5. The father of a legitimate child has the right to the earnings of his minor child. We have never held this right applies to the earnings of illegitimate children.
6. An illegitimate may bring an action to establish paternity and for support from its father. Mississippi Code Annotated section 93-9-9 (1972). Legitimates may not bring an action against their father for support.

These differences between the rights of a father of illegitimate and legitimate children constitute affirmative justification for the difference in treatment accorded il-legitimates under the statute in question. I am of the opinion that the legislature did, and had the right to, take into consideration these differences and was therefore justified in cutting off the right of support of an illegitimate by his father at the age of sixteen.

The legislature also had the right to consider the possibility that, despite all safeguards surrounding a paternity hearing, a man adjudged to be the father of an illegitimate may not, in fact, be the father.

Our case does not fall under the condemnation of Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973), involving the laws of Texas which require the father of legitimate children to support his children but deny illegitimates the right of support from their father. Our legislature has faced this question and has provided for support of illegitimates. The limitation contained in our statute is justified by real differences that exist in the relationship between a father of legitimate children and illegitimate children.

It should be noted that our statutes provide for legitimation of offspring and for inheritance by illegitimates. Mississippi Code Annotated section 93-17 — 1 and 91 — 1— 15 (1972). This case does not involve a child who has been legitimized but is a judgment in a paternity suit declaring Jody Henderson to be the father of four illegitimates and ordering him to support them. They were not made legitimate by virtue of the judgment rendered. I therefore dissent.

INZER, P. J., and BROOM, J., join in this opinion.


text:
    Jimmie ROBERSON et al. v. Mary Eden BUTTS et al.
    No. 49186.
    Supreme Court of Mississippi.
    Feb. 16, 1977.
    Laurel G. Weir, Philadelphia, for appellants.
    Clayton Lewis, Clayton Taylor Lewis, Philadelphia, for appellees.
   Appeal from Chancery Court, Neshoba County; John C. Love, Jr., Chancellor.

Before PATTERSON, P. J., ROBERTSON and BROOM, JJ., and ERNEST KELLNER, Commissioner.

AFFIRMED.


text:
    Lucille GERON v. STATE of Mississippi.
    No. 49556.
    Supreme Court of Mississippi.
    Feb. 16, 1977.
    Constance Iona Slaughter, Forest, for appellant.
    A. F. Summer, Atty. Gen. by Catherine Walker, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Chancery Court, Scott County; Osborn Guyton Idom, Chancellor.

Before GILLESPIE, C. J., SMITH and WALKER, JJ., and FRED P. WRIGHT, Commissioner.

AFFIRMED.


text:
    Glorhea Diane EDWARDS, etc. v. Ruth P. WARREN, Executrix, etc.
    No. 49165.
    Supreme Court of Mississippi.
    Feb. 16, 1977.
    Lawyer & Hudson, Joseph P. Hudson, Gulfport, for appellant.
    Floyd & Floyd, Jason H. Floyd, Gulfport, for appellee.
   Appeal from Chancery Court, Harrison County; Frank W. Alexander, Chancellor.

Before SMITH, ROBERTSON and WALKER, JJ., and FRED P. WRIGHT, C.

AFFIRMED.


text:
    MISSISSIPPI STATE HIGHWAY COMMISSION v. William B. MACKIE.
    No. 49201.
    Supreme Court of Mississippi.
    Feb. 16, 1977.
    William G. Kemp, Holly Springs, for appellant.
    Farese, Farese & Farese, John B. Farese, Ashland, for appellee.
   Appeal from Circuit Court, Marshall County; W. W. Brown, Judge.

Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.

AFFIRMED.


text:
    Charles W. HOLT et ux. v. Thomas A. NOLAN et al.
    No. 49157.
    Supreme Court of Mississippi.
    Feb. 16, 1977.
    Holmes, Dukes & Welborn, Travis & Travis, K. Kearney Travis, Jr., Hattiesburg, for appellants.
    Zachary, Gillespie & Wise, Ingram & Matthews, Jolly W. Matthews, III, Hatties-burg, for appellees.
   Appeal from Circuit Court, Forrest County; George B. Grubbs, Special Judge.

Before INZER, P. J., and SUGG and LEE, JJ.

AFFIRMED.

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


text:
    L. Robert THOMAS, d/b/a Thomas Sales & Engineering Company v. Mrs. Melita FULLER, Executrix of Estate of T. C. Fuller.
    No. 49155.
    Supreme Court of Mississippi.
    Feb. 16, 1977.
    Rehearing Denied March 9, 1977.
    Watkins, Pyle, Ludlam, Winter & Stennis, Walker W. Jones, III, Jackson, for appellant.
    Pack, Ratcliff & Thaxton, Kalford C. Ratcliff, Laurel, for appellee.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

Before INZER, P. J., and SUGG and LEE, JJ.

AFFIRMED.

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


text:
    Theophus Terry BROWN and Charles Miller v. STATE of Mississippi.
    No. 49491.
    Supreme Court of Mississippi.
    Feb. 16, 1977.
    Rehearing Denied March 9, 1977.
    Clyde Ratcliff, McComb, for appellants.
    A. F. Summer, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Pike County; Joe N. Pigott, Judge.

Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.

AFFIRMED.

GILLESPIE, C. J., INZER, P. J., and SMITH, SUGG, WALKER and LEE, JJ., concur.


author: SMITH, Justice.

text:
    Andrew Lee HENDERSON v. STATE of Mississippi.
    No. 49471.
    Supreme Court of Mississippi.
    Feb. 16, 1977.

      Luckett, Luckett, Luckett & Thompson, W. 0. Luckett, Jr., Clarksdale, for appellant.
    A. F. Summer, Atty. Gen. by John C. Ellis, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before GILLESPIE, SMITH and WALKER, JJ.
   SMITH, Justice.

Andrew Lee Henderson was convicted in the Circuit Court of Coahoma County of capital murder under section 97-3-19(2)(e), Mississippi Code Annotated (Supp. 1976) and sentenced to death. Among several matters assigned as error the constitutionality of the death penalty statute is challenged. This question was dealt with in Jackson v. State, 337 So.2d 1242 (Miss.1976) and in keeping with the Court’s conclusions in that decision this case must be reversed and remanded for a new trial.

Of the other matters assigned and argued as having constituted reversible error only one merits comment.

The writing signed by Henderson purporting to constitute his confession of guilt was offered by the State and received in evidence over Henderson’s objection that the State had failed to establish its volun-tariness in the manner required in Agee v. State, 185 So.2d 671 (Miss.1966) and its progeny.

While it is considered unnecessary to repeat what this Court has said explicitly in its former decisions on the subject, we commend to the prosecuting authorities that they reread and follow them upon retrial of this case, if the confession is again to be offered. In addition to Agee, the following cases are pertinent: Rogers v. State, 338 So.2d 1005 (Miss.1976); Curry v. State, 328 So.2d 328 (Miss.1976); Jordan v. State, 320 So.2d 376 (Miss.1975); McNeil v. State, 308 So.2d 236 (Miss.1975).

In his brief and in oral argument Henderson’s counsel specifically designate Patrolman Sims and Polygraph Operator Edwards as officials who should have been offered by the State to rebut Henderson’s assertion that they were present or participated in threats and menaces directed toward him for the purpose of inducing him to confess. We hold that, in the light of Henderson’s testimony, they should have been offered or a cogent reason produced for the inability of the State to offer them. The procedure set out in the cases cited above should be followed.

REVERSED AND REMANDED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.


author: HEFLIN, Chief Justice.

text:
    Earnest KIKER et al. v. NATIONAL STRUCTURES, INC.
    SC 1869.
    Supreme Court of Alabama.
    Jan. 7, 1977.
    Rehearing Denied March 11, 1977.
    Richard Dominick and Carleton P. Ket-cham, Jr., Birmingham, for appellants.
    Donald L. Newsom, Birmingham, for ap-pellee.
   HEFLIN, Chief Justice.

In November 1973, National Structures, Inc., filed a complaint against Earnest Kiker (appellant), Durwood Rivers, and K. L. Shackleford individually and doing business as United Services Enterprises. The complaint alleged breach of contract by failure of the defendants to pay $5,937.50 for each of eight modular homes delivered to the defendants for a total of $47,500. Charles L. Howard, Jr., as “attorney for defendants,” filed a motion to dismiss the complaint in April 1974, and after the motion was overruled he filed an answer and demand for jury trial on December 2, 1974. The next day, Charles M. Thompson, as attorney for Kiker, filed a motion to quash service, which was granted. Thompson, as Kiker’s counsel, later filed an answer, on January 13, 1975 but was allowed to withdraw as attorney for Kiker on November 18, 1975. Kiker then sought the services of Charles Howard, who was then the attorney of record for the other two defendants. It should be noted that Kiker intimates that he had no choice in allowing Howard to represent him because Thompson withdrew as his attorney less than three weeks before trial date. He also contends that he was unaware of the individual defenses that he alone possessed.

A consent judgment was entered on December 5,1975, and was approved by attorney Howard as counsel for all three defendants. The consent judgment was in the amount of $45,000 plus costs and also provided:

(1) “Execution” on the judgment was stayed until April 1, 1976;

(2) Balance due on the judgment would be reduced to $5,000 if $25,000 was paid before April 1, 1976;

(3) The judgment would be deemed satisfied if the remaining $5,000 was paid by June 15, 1976.

After the consent judgment of December 5,1975 was entered, National Structures, on January 12, 1976, recorded the judgment in Blount, Jefferson, and Shelby counties. Kiker alleges that between December 5, 1975 and April 1, 1976 he executed several contracts to sell real property in order to raise money to satisfy the judgment but because of the lien created by the recording of the judgment he was unable to close any sales. National Structures alleges that the judgments were recorded to prevent Kiker from divesting himself of property before satisfying the judgment. After April 1, 1976, National Structures garnished Kiker and further executed on the $45,000 judgment.

On March 21, 1976, Kiker, having retained new counsel, filed what was titled a Motion to Set Aside Judgment, contending that National Structures materially breached the terms of the consent judgment by filing the judgment in the probate office of three counties. National Structures then filed a motion to strike, arguing that the motion was not filed within the time required by Rule 59(e) ARCP. After a hearing, the motion to strike was granted on April 12, 1976. Kiker then filed a notice of appeal from the December 5, 1975 consent judgment and from the court’s ruling on his Motion to Set Aside Judgment. National Structures filed a motion to dismiss the appeal on June 30, 1976.

Kiker submits that the primary issue on this appeal is whether or not the recor-dation of the consent judgment by National Structures in Blount, Jefferson, and Shelby counties on January 12, 1976 constituted an “execution.” It is Kiker’s argument that these recordings of the judgment amounted to execution and as such violated the provisions of the consent judgment that execution would be stayed until April 1, 1976. Kiker contends that the act of recordation effectively strips a judgment debtor of ownership of all property subject to the lien created by the recording in the same manner as would an execution on the same property.

Title 7, Section 585, Alabama Code 1940 (Recompiled 1958) contains the following language:

“Every judgment or decree, a certificate of which has been filed as provided in the preceding section, shall be a lien in the county where filed, on all property of the defendant, which is subject to levy and sale under execution * *

The above-quoted language indicates that there is a clear distinction between recordation and execution. While execution and recordation both create liens the steps of levy and sale are not involved in recordation while they are in execution. While proper execution could have brought into being a lien, levy and sale, recordation would have only established a lien.

The lien of execution cannot antedate issuance and delivery of the execution to the officer. Booth v. Bates, 215 Ala. 632, 112 So. 209 (1927). However, the lien created by recordation can antedate the issuance and delivery of the execution to the officer.

In this case, since there were three counties involved it could have been possible to have had execution in one county and recor-dation of judgment in two counties or various other alternatives.

It is Kiker’s contention that the creation of the lien under Title 7, § 585 is the first and most crucial step in the execution process and hence is equivalent to execution. This argument cannot be sustained.

Recording a judgment is not the same as execution on a judgment. The filing of the judgment under Title 7, § 585 only creates a lien in favor of the judgment creditor and although this filing can preserve assets for the creditor, in the event an execution later occurs, filing has no other interlocking aspects with execution on the judgment.

In answer to National Structure’s argument in the trial court that his Motion to Set Aside Judgment was not filed within 30 days of the consent judgment, as required by Rule 59(e) ARCP, Kiker contends that the motion was governed by Rule 60(b)(5) ARCP, and was thus not time barred. Kiker goes on to argue that his motion was tantamount to an independent action which in effect sought relief based on National Structures’ breach of the terms of the consent judgment.

Because this court holds that recordation of a judgment is not equivalent to execution on a judgment, the basis for Kiker’s motion, that National Structures breached the conditions of the consent judgment, is without merit and it is therefore unnecessary to address the question of whether Kiker’s motion is governed by Rule 59 or Rule 60, ARCP.

Accordingly, this case is due to be affirmed.

AFFIRMED.

BLOODWORTH, JONES, ALMON and EMBRY, JJ., concur.


author: BLOODWORTH, Justice.

text:
    C. M. JORDAN, Sr., and Hattie M. Jordan v. C. V. TINNIN and Doris L. Tinnin.
    SC 1908.
    Supreme Court of Alabama.
    Feb. 4, 1977.

      Robert J. Hooton for Hooton & Hooton, Roanoke, for appellants.
    0. Stanley Thornton for Dixon, Wooten, Boyett, McCrary & Thornton, Talladega, for appellees.
   BLOODWORTH, Justice.

Plaintiffs Jordan appeal from a judgment for defendants Tinnin in a statutory action in the nature of ejectment.

The property in dispute is 16.75 acres located in the northeast portion of the SW Vi of the SE Vi of Section 36, Township 20, Range 9, in Clay County. It is bounded on the north and the east respectively by the north and east lines of the forty and is bounded on the south by Wesobulga Creek and on the west by a branch running into the creek. The question is, who has the legal title thereto? The trial court held for defendants. We reverse and remand.

In 1967, Ada Farrow conveyed to C. M. Jordan, Sr., and his wife Hattie, plaintiffs, the following described lands:

“17 acres more or less described as follows to-wit:
Beginning at the Northwest corner of land of H. Farrow deceased Estate on the North line of the NW Vi of the SE Vi of Section 6 Township 20 Range 9; thence West along the north line of said forty to the Northeast corner of land of grantee Hattie M. Jordan; thence South along the line of lands of grantees C. M. Jordan Sr. and wife Hattie M. Jordan to Weso-bulga Creek in the North portion of the SW Vi of the SE Vi of said Section 36 Township 20 Range 9; thence in an easterly direction along the north line of said Wesobulga Creek to the West line of land of H. Farrow deceased Estate; thence North into and continuing along the line of said Estate of H. Farrow; deceased land into said NW Vi of the SE Vi of said Section 6 Township 20 Range 9; to a corner of the lands of said Estate of Hunter Farrow deceased; thence West 20 yards more or less to another corner in lands of the Estate of H. Farrow deceased thence north to the North line of said NW Vi of the SE Vi of Section 6 Township 20 Range 9 at the starting point; all in the NW Vi of the SE Vi and a small part on the South line in the SW Vi of the SE Vi all in Section 6 Township 20 Range 9; and being bounded as follows to-wit: On the North by the North line the NW Vi of SE Vi of of [sic] Section 6 Township 20 Range 9 and by lands of the Kimberly-Clark Newsprint Company which is on the north side of this land on the West by lands of C. M. Jordan Sr. and wife Hattie M. Jordan and on the South by Wesobulga Creek and on the East by lands of the Estate of H. Farrow deceased; situated in Clay County Alabama.” [Emphasis supplied.]

A year later in 1968, Ada Farrow conveyed to Tava Horn the following described lands: 30 acres on the east side of the SW Vi of the SE Vi, Section 36, Township 20, Range 9. The deed specifically excluded property described by language almost identical to that used to describe the property covered by the deed to the Jordans.

In 1973, by mesne conveyances, title to the property conveyed by Ada Farrow to Tava Horn passed to C. V. Tinnin and his wife Doris, defendants. Their deed and the intermediate deeds contained the same exclusion which the deed to Tava Horn contained.

Subsequent to the execution of the deed to the Jordans in 1967, they went into possession of the property in dispute. They bushhogged the property and on two or three occasions cut timber on the land, at least once while Ada Farrow was still living.

After the execution of the deed to the Tinnins in 1973, the Tinnins ousted plaintiffs by erecting a fence along the north line of the disputed property. The Jordans then quit cutting timber on the property.

In 1974, the Jordans brought suit to recover possession of the property in question and to recover damages for the Tinnins’ detention of the property.

The trial court found that the description in the deed to the Jordans contained patent ambiguities and failed to identify and circumscribe the land so as to enable the court to determine its location. The court mentioned, in particular, evidence relating to the location of Wesobulga Creek as confirming the existence of ambiguities. The court further found that the deed to the Tinnins conveyed title to the disputed property. The court awarded “right, title, and possession” of the disputed lands to the Tinnins. The Jordans appeal.

(No issue has been made, on this appeal, as to the propriety of the judgment’s awarding title to defendants in such an action as this, particularly, in view of the lack of any counterclaim. Therefore, we pretermit any discussion thereof.)

In an action in the nature of ejectment brought under Tit. 7, § 938, Code of Alabama 1940, a plaintiff may recover possession of lands by showing legal title from a grantor in possession, from a common source, or by an unbroken chain of title from the government. Atlas Subsidiaries of Florida, Inc. v. Kornegay, 288 Ala. 599, 602, 264 So.2d 158 (1972). Both the Jordans and the Tinnins claim title to the disputed • property from a common source, Ada Farrow.

Therefore, the issue before the trial court was whether the Jordans had legal title to the disputed property by virtue of the deed from Ada Farrow. The trial court held, in effect, that the deed under which the Jor-dans claimed title was void for uncertainty in its description of the property which it purported to convey.

It is clear from the evidence that there were errors or ambiguities in the description in the deed to the Jordans. The issue before this Court is whether the evidence supports the holding of the trial court that the errors or ambiguities made it impossible for the trial court to determine the location of the property which the grantor Ada Farrow intended to convey to the Jor-dans.

On this appeal, the Tinnins do not attempt to support the trial court’s finding that evidence relating to the location of Wesobulga Creek confirmed the existence of ambiguities. They do argue that the trial court’s judgment is supported by the following errors or ambiguities in the Jor-dans’ deed:

(1) the description sometimes locates the property in Section 6 and once in Section 36;
(2) the description states that the deed conveys “17 acres more or less,” while the land which the Jordans claim under the deed is about 30 acres, (The land in dispute (16.75 acres) is only part of that which the Jordans claim under the deed.);
(3) the “Northwest corner of land of H. Farrow deceased Estate” is uncertain: and,
(4) the “West line of land of H. Farrow deceased Estate” is uncertain.

What the trial court meant by its statement that the evidence relating to the location of Wesobulga Creek confirmed the existence of patent ambiguities in the deed is not at all clear. There was conflicting testimony concerning the exact location of Wesobulga Creek, but the evidence was undisputed that Wesobulga Creek runs east and west through the SW Vi of the SE Vi of Section 36, Township 20, Range 9. That is all that is relevant to the issues in this case. The problem here is not determining the exact location of the creek. Furthermore, even the trial court found the location of the creek certain enough to use in describing the land which it awarded to the Tin-nins. We find no basis in this respect for the trial court’s holding that the deed was void for uncertainty.

The only error or ambiguity which is apparent on the face of the deed is the confusion between Section 6 and Section 36. It is clear that the property described could not be in both Section 6 and Section 36. Although a patent ambiguity cannot be made certain by parol proof of the intention of the parties, the court may consider the circumstances surrounding the parties to enable it to determine what property the deed was intended to convey. Reynolds v. Lawrence, 147 Ala. 216, 219, 40 So. 576 (1906).

The evidence is undisputed that the description could relate only to land in Section 36. In particular, neither the Jordans nor the H. Farrow Estate, whose lands are said to border that described in the deed, owned any land in Section 6. Furthermore, the evidence indicates that Ada Farrow owned no land in Section 6. But if “6” is read “36,” the description corresponds to the actual situation in Section 36 at the time the deed was executed. Even Mr. Tinnin admitted on cross-examination that “Section 6” should have been “Section 36.” For these reasons, we find no ground for concluding that the deed was void for uncertainty on this basis.

Likewise, the discrepancy between the number of acres stated in the description and the number of acres claimed by the Jordans in accordance with their survey is no basis for declaring the deed void for uncertainty. For, as this Court has previously held,

“. . . where a conveyance of land contains a definite description by subdivisions, or metes and bounds, or both, the addition of a statement of the number of acres, more or less, is merely cumulative matter of description and in construing the deed as written, the particular description controls.”

Bankhead v. Jackson, 257 Ala. 131, 134, 57 So.2d 609 (1952).

The Tinnins’ contention that the “Northwest corner” and the “West line” of the land of the H. Farrow Estate are uncertain is not supported by the evidence.

It is clear from the description in the Jordans’ deed that the “Northwest corner” of the H. Farrow Estate was located on the north line of the NW Vi of the SE Vi of Section 36. A survey by Chester Smith showed the “Northwest corner” to be located on that forty line 429.92 feet west of the NE corner of the forty. Mr. Smith testified that he found an iron pin at that point. His testimony is undisputed. He further testified that he selected the points for conducting his survey after an investigation of records in the courthouse and the tax office.

Mr. Smith’s survey located the “West line” of the H. Farrow Estate on the east line of the SW Vi of the SE Vi of Section 36. There was no evidence in conflict with his location of the line. In fact, even the Tin-nins’ attorney at one point in the trial treated the term “West line of ... H. Farrow . . . Estate” as synonymous with “the 40 line.”

There is, however, a problem with that part of the description which states, “[Tjhence West 20 yards more or less to another corner in lands of the Estate of H. Farrow . . . .” It is undisputed that there is no corner at the point so described and that the call in the description should read 429.92 feet to reach the corner intended. Mr. Smith’s survey located the corner at that point. Voyan Farrow, H. Farrow’s son, testified that the corner was marked at that point by an iron pipe and two or three rocks. The description in the deed was inconsistent but the inconsistency is corrected by the call’s reference to an established corner. Where there are inconsistent recitals in a deed, the more certain description will control. See 26 C.J.S. Deeds § 100m. A call for an established corner thus prevails over a call for a distance. Consequently, this error provided no basis for declaring the deed void for uncertainty.

On examining the record, we find that the errors and ambiguities discussed above should not have prevented the trial court from determining the location of the land described but rather that the description, with these errors and ambiguities resolved, should have enabled the trial court to locate the property described. Consequently, we hold that the deed was not void for uncertainty.

Furthermore, we find that the description in the deed to the Jordans included the disputed property. Consequently, the exclusion in the Tinnins’ deed excluded the disputed property.

As we have already shown, the beginning point of the description was definitely located by the undisputed testimony of Mr. Smith, the surveyor. The north line of the property was definite in the description, since it was located by its description on a government survey line.

The west line of the land was described as “. . . the line of lands of grantees C. M. Jordan Sr. and wife Hattie M. Jordan . . . .” In other words, the western boundary was the eastern boundary of land already owned by the Jordans.

“Where land or, a call for a description is given by reference to abutting land or monuments the description is good if the abutting lines can be accurately determined. . . . ”

6 Thompson on Real Property § 3032 (1962).

The undisputed evidence showed that the east boundary of the Jordans’ property for part of the distance to Wesobulga Creek was that shown by a 1956 deed by which E. B. Farrow and his wife Ada conveyed to the Jordans a narrow strip of land laying on the east side of Berry Hill Branch. The uncon-tradicted testimony of Mr. Jordan showed further that for the remainder of the distance to the creek the boundary was the branch itself. The Tinnins do not argue that this boundary is uncertain.

We note at this point, for the purpose of showing that the description in the deed to the Jordans circumscribed the disputed land, that the western boundary of the disputed property is a branch running into Wesobulga Creek and that the evidence showed that that branch is the Berry Hill Branch.

The southern boundary of the property described in the deed to the Jordans was given as Wesobulga Creek. The creek is the southern boundary of the disputed property. As noted above, the trial court found the location of the creek definite enough to use in its description of the property awarded to the Tinnins. Likewise, it should suffice for the Jordans.

We have already shown that the west line of the H. Farrow Estate, which formed one eastern boundary of the land described in the Jordans’ deed, was definitely located on the east line of the SW Vi of the SE Vi of Section 36. That line is the eastern boundary of the disputed property.

That line ran north into the NW Vi of the SE Vi to a corner of the lands of the H. Farrow Estate. Mr. Smith’s survey located that corner on the forty line, which is the north boundary of the disputed property.

From that corner, the description reads “West 20 yards more or less to another corner in lands of the Estate of H. Farrow.” We have already discussed the problem raised by this description and have shown that it was resolved by undisputed evidence.

From that córner, the description reads north to the point of beginning.

Thus, from our study of the record, we find that the trial court’s judgment was not supported by the evidence and that the great weight of the evidence supported the Jordans’ claim of record title.

REVERSED AND REMANDED.

TORBERT, C. J., and JONES, ALMON and EMBRY, JJ., concur.


author: EMBRY, Justice.

text:
    Robert T. JOHNSTON et al. v. Blacksher WHITE-SPUNNER et al.
    SC 1999.
    Supreme Court of Alabama.
    Feb. 4, 1977.
    Rehearing Denied March 4, 1977.

      Augusta E. Wilson and William Roberts Wilson, Mobile, for appellants.
    Ross Diamond, Jr., Diamond, Lattoff & Gardner, Mobile, for appellees.
   EMBRY, Justice.

In an action to resolve a boundary line dispute between owners of contiguous lots in a subdivision of the N VV of SE Vt, Sec. 29, Twp. 4 S, Rg. 2 W, Mobile County, Alabama, the trial court found there was excess acreage in Section 29 but only apportioned an aliquot portion to the lots in the subdivision owned by the litigants, and other lot owners in that subdivision who were not parties to the action. Although there are other issues raised by this appeal, this is the controlling one. The trial court was in error, therefore we reverse and remand.

Plaintiffs, Blacksher White-Spunner, J. F. Pate, Jr., and Ross M. Diamond, Jr., filed a statutory non-jury action under Tit. 47, § 3 of the Code to establish and define a boundary line between their Blocks (lots) 3 and 14 of Shoub’s Second Addition to Mobile Heights and Block (lot) 2 owned by defendants Robert T. and Verlene Johnston.

The complaint alleged existence of a dispute over the correct location of the boundary between the lots of plaintiffs and that of defendants; that a survey made by one Rester, 18 June 1974, revised 29 May 1975, showed the true boundary between the lots; that an existing roadway was 75 feet off its center line, and the Johnstons were encroaching upon plaintiffs’ property.

The relief requested was: establishment and definition of the boundary line according to the Rester survey; removal of a dirt driveway and signs on property claimed by plaintiffs and to order the Johnstons to cease, and desist from, using any of the property claimed by White-Spunner, et al.

Answer of the Johnstons denied the boundary was as located by the Rester survey and claimed portions of lots 3 and 14 by adverse possession.

The case was tried without a jury, after which, in an amended decree, the trial court held: the true boundary line is shown by the Rester survey of 18 June 1974, revised 29 May 1975; the Johnstons’ driveway encroaches upon Blocks (lots) 2 [sic] and 14 of White-Spunner, et al; there is excess acreage in Section 29, properly allocated as set out in plaintiffs’ exhibits 5 and 6 attached to, and incorporated in, the decree by reference; the true and correct location of Satsuma Avenue (Johnston Lane) is as set out in the Rester survey; that Rester should place, in conformity with his revised survey, permanent “judicial landmarks” at points marking the NE corner of Block (lot) 3, NW corner of Block (lot) 2, SE corner of Block (lot) 3, SW corner of Block (lot) 2 and the SE corner of Block (lot) 14, and the John-stons should cease and desist from using the White-Spunner, et al, property in any fashion.

The Johnstons appeal from the amended final decree, urging error: in denial of their claim as to location of the boundary; relocation of Johnston Lane (Satsuma Ave.); in denial of their claim to portions of Blocks (lots) 3 and 14 by adverse possession, and improper apportionment of excess acreage and absence of indispensable parties.

The parcels of land involved in this dispute are part of Shoub’s Second Addition to Mobile Heights, an eighty acre tract consisting of the N VSs of SE Vi of Sec. 29, Twp. 4 S, Rg. 2 W, Mobile County. The subdivision is comprised of 16 Blocks (lots) of approximately 5 acres each. Blacksher White-Spunner, J. F. Pate, Jr., and Ross Diamond, Jr., own Blocks (lots) 3 and 14. Robert and Verlene Johnston own Block (lot) 2. Eight lots each are located on either side of Johnston Lane, previously known as Satsuma Avenue.

The plat of Shoub’s Second Addition to Mobile Heights, recorded in the Probate Office of Mobile County in 1914, at page 93, Deed Book 156, shows the subdivision, as dedicated at that time, with lot dimensions of 330 feet by 640 feet and Satsuma Avenue (now Johnston Lane) to be a street 40 feet in width. It appears as follows:

The Rester survey allocates a portion of the excess acreage in Section 29 to the subdivision and enlarges the lots from a minimum width of 333.16 feet to a maximum of 333.56 feet; from a minimum length of 651.43 feet to a maximum of 659.44 feet. In contrast to Shoub’s Second Addition plat, those lots and the street in the subdivision, by Rester’s reallocation, appear as shown here:

The trial court made a part of its decree a sketch (not to scale) of the prorated enlargement of Section 29:

It is apparent, from the above, the size of the parcels of each owner of every parcel in each quarter-quarter of the section has been affected to some extent.

As noted, the Rester survey was made a part of the amended final decree by reference. Also, in the decree, the trial court made an express declaration that it was not intended to adjudicate the rights of persons not parties to the proceedings. By adopting the Rester survey and the prorated enlargement of Section 29 the decree affects the lands in that Section: by apportionment and determining the correct location of Johnston Lane. Thus it, in fact, affects lands and rights of persons not parties to the proceeding.

A. Apportionment

The subdivision, embracing the lots of the parties to this action, consists of 16 lots; they contain excess acreage which, by the decree, was apportioned on a prorated basis to each of them. This results in an increase in the width and length of each (333.16' min. to 333.56' max. and 651.43' min. to 659.44' max.; width and length respectively). It is obvious that in order to achieve this result, the established boundary lines of every lot must be moved. If excess acreage is to be properly apportioned it must be allocated among all the lots in the subdivision. Adams v. Wilson, 137 Ala. 632, 34 So. 831 (1903). The trial court erred, however, when it made the apportionment without having jurisdiction over the owners of, or those having an interest in, the remaining lots in the subdivision; assuming, without deciding, that apportionment was proper in this case. This is in accord with the generally accepted rule. Nitterauer v. Pulley, 401 Ill. 494, 82 N.E.2d 643 (1948); 11 C.J.S. Boundaries § 124, p. 739.

Express declaration in the decree of no intention to adjudicate the rights of those not parties to the action will not cure this error. The Rule 54, ARCP, provision for final judgment as to less than all the parties, or claims, in certain actions is not here applicable. The rights of less than all having an interest in each lot cannot be adjudicated because to do so involves matters in rem. In an action where the final decree affects title, ownership, or interest in real property each possessor of title, ownership or interest must be made a party to the action. Davis v. Burnette, 11 ABR 541 (December 30,1976); Dews v. Peterson, 283 Ala. 650, 219 So.2d 903 (1969); Snodgrass v. Snodgrass, 212 Ala. 74, 101 So. 837 (1924); Rule 19, ARCP. Rendering final judgment without jurisdiction over those indispensable parties renders that judgment void.

The problem presented because of lack of parties is not contained within the other boundaries of the subdivision. The subdivision comprises the N V2 of SE Vi of Sect. 29, the ordinary regular dimensions of which are 1320' x 2640'. The excess increased the east boundary to 1358.88', the west to 1342.-86 feet, the north to 2668.5 feet, and the south to 2665.24 feet. This results in moving boundaries of the N V2 of SE Vi, encroaching upon property to the North, to the South and to the West. Without knowing, we assume the East line could not be moved further east because the right-of-way of the paved public road took the excess to the East when the easement was obtained for its construction. The owners of that property to the North, to the South, and to the West, upon which the newly established boundary lines impinge, are proper and indispensable parties to this action and must be joined if the decree is not to be void. This is for the same reasons, upon the same authority cited, requiring joinder of all property owners in the subdivision.

There remains for discussion all remaining property in Section 29, affected by including in the decree the surveyor’s sketch of the prorated enlargement of the entire Section. Ordinarily, a regular Section measures 5280' by 5280'; the decree here increases the North Section line to 5350.59', the South to 5324.17', the East to 5435.51', and the West to 5307.43'. The concomitant enlargement of each and every quarter-quarter in Section 29, and movement or displacement of pertinent boundary lines, also requires joinder of every owner of all affected property in that Section. In addition, the movement of Section lines of Section 29 to accommodate the enlargement causes encroachment upon property in Sections: 20 to the North; 19 to the Northwest; 32 to the South; 30 to the West, and 31 to the Southwest. We cannot know, from the record, what effect, if any, results to the West boundary lines of Sections 21, 28, and 33; we can only speculate about the West boundary of N V2 of SW V4 of Section 28.

B. Location of Johnston Lane

(Satsuma Ave.)

The evidence about the existence and location of Johnston Lane is confusing and somewhat deceptive. It, described as Satsuma Avenue, appears on the 1914 recorded plat as a 40 foot right-of-way, 20 feet to the North and to the South of, and extending along the East-West center line of the subdivision. It was never physically located there. Instead, the County of Mobile, the City of Mobile’s predecessor in title to it, constructed a dirt road beginning on the eastern edge of the subdivision, a short distance to the North of the northern boundary of platted Satsuma Avenue, and running approximately 600 feet in a northwesterly direction at an angle to the right-of-way as shown on surveys of the tract. The right-of-way of Satsuma Avenue shown on the 1914 plat, and on the Rester Survey as Johnston Lane, serves as the southern boundary line of lots 9-16 and as the northern one of lots 1-8. By its final decree, the trial court correctly determined that Johnston Lane, as it actually exists on the ground, is not in its correct location; rather it found the correct location of the road to be as shown on Rester’s survey, which is 75 feet from the existing roadway. Also, Rester’s survey places Johnston Lane in a different location than did the original 1914 survey, necessarily, since Rester took into account outsized Section 29.

The 1914 plat places the North line of Johnston Lane 640 feet south of the original ■ North line of the N V2 of SE Vi of Section 29 (the subdivision), and places the South line of Johnston Lane 640 feet to the North of the original South line of N V2 and SE. Vi of Section 29. The Rester survey places the North line of Johnston Lane fro.m a minimum of 651.43 feet to a maximum of 659.44 feet to the South of the newly established North line of the subdivision, and places the southern line of the street from a minimum of 651.43 feet to a maximum of 659.44 feet to the north of the newly established southern line of the subdivision. In the 1914 survey, the street is 265Ó feet in length, East to West. The Rester survey extends the distance along the North line of it to 2666.90' and that of the South line of it to 2666.81'. In both, the street remains 40 feet in width.

The record does not tell us the precise nature of the title or interest the City of Mobile holds to Johnston Lane. Some of the rights, title, and interests of abutting lot owners in, and to, streets dedicated to public use; and some of the rights, title, powers and obligations of municipalities as to their streets are discussed and defined in: McCraney v. City of Leeds, 239 Ala. 143, 194 So. 151 (1940); Thetford v. Town of Cloverdale, 217 Ala. 241, 115 So. 165 (1927); City of Montgomery v. Orpheum Taxi Co., 203 Ala. 103, 82 So. 117 (1919). A city has extensive power to control and regulate the use of its streets as the above authorities show. The City of Mobile has no less interest in the outcome of an action involving the true location of Johnston Lane than any of the property owners in the subdivision.

If, as the record indicates, the City is exercising authority over a strip of land not actually dedicated to use as a public street, then any decree that finds to that effect, expressly or by implication, is void if the City is not a party to this action. In any event, the interest of the City is of such a nature that the court decree ‘relocating’ the road directly affects that interest and the trial court must have jurisdiction over the City before proceeding to adjudicate any issues affecting such interest.

Since the threshold questions here involve jurisdiction over parties, it is not necessary to decide the merits of the issue of adverse possession raised by defendants. The evidence was heard ore tenus and the site visited by the trial court. Our review of the evidence discloses no palpable error sufficient to reverse on that issue. Barnett v. Millis, 286 Ala. 681, 246 So.2d 78 (1971). However, other errors in the decree require reversal.

REVERSED AND REMANDED.

BLOODWORTH, JONES and BEATTY, JJ., and CATES, J. (sitting at the designation of the Chief Justice), concur.


text:
    CITY OF HUEYTOWN, a Municipal Corporation v. JIFFY CHEK COMPANY OF ALABAMA, a corporation.
    SC 1808.
    Supreme Court of Alabama.
    Feb. 18, 1977.
    James H. Weaver, Jr., Birmingham, for appellant.
    James R. Shaw, Birmingham, for appel-lee.
   EMBRY, Justice.

The issue is whether the City of Hueytown denied Jiffy Chek Corporation equal protection of the laws when Tit. 29, § 73, Code of Ala., governing the licensing of stores for the sale of beer, table wines and other kinds of alcoholic beverages si-tused within certain distances of certain institutions, was applied to deny a license. We agree with the trial court that the statute was unconstitutionally applied and accordingly affirm its judgment ordering the City to issue Jiffy Chek a business license for the sale of table wine.

Jiffy Chek Corporation, plaintiff below, is a merchant doing business in the City of Hueytown, selling grocery and sundry items, and holds a State Alcoholic Beverage Control Board license for the sale of table wines. Jiffy Chek filed application with the City for a privilege business license for the sale of table wine which was denied by the City Council. Petition for writ of mandamus was filed in circuit court. Following trial, without a jury, the court found Jiffy Chek entitled to a table wine license at the location set out in its application, and ordered the City to issue the license. Motion for new trial on behalf of the City was denied. The City appeals.

We are concerned here with the application of Tit. 29, § 73, Code. It prohibits locating stores which would sell table wines (and other kinds of alcoholic beverages) within one mile of schools, and eleemosynary institutions. The 1940 version of the Code provided an exception to its application for cities of greater than 50,000 population. The 1971 amendment added an exception for counties of greater than 500,000 population, and created special application for cities of more than 20,000 and less than 30,000 situated in counties of 500,000 or more. We take judicial notice that the population of Hueytown is 7,095. Value Oil Company v. City of Northport, 284 Ala. 103, 222 So.2d 358 (1969). Code of Ala., Population Tables, Appendix, Vol. 14B. The store for which Jiffy Chek seeks a license is located within one mile of a school in Huey-town.

The evidence was heard ore tenus and the judgment entered included findings of fact: four businesses operating in Hueytown, including Jiffy Chek, have been issued table wine licenses by the Alabama Alcoholic Beverage Control Board; all four are locat-éd within one mile of an eleemosynary institution; three of these businesses also have been issued table wine licenses by the City : of Hueytown. Jiffy Chek was denied such a license and the only reason given by the • City for denying one to Jiffy Chek was that Tit. 29, § 73, is unconstitutional. The trial court concluded that Jiffy Chek is proper and suitable to be issued a table wine license; that Jiffy Chek is within the same class of establishments as those licensed for the' sale of table wines; refusal to issue Jiffy Chek such a license amounts to denial of equal protection of the laws; the City of Hueytown is estopped from claiming the right to refuse Jiffy Chek a license under Tit. 29, § 73, Code, and there is no need to determine the constitutionality of Tit. 29, § 73.

The evidence is not in dispute and the City claims no error in the trial court’s findings. The sole issue presented by the City on appeal is the constitutionality of Tit. 29, § 73, Code. We conclude, as did the trial court, there is no need to decide this issue.

The uncontradicted evidence shows Jiffy Chek is situated no differently than the other merchants who were issued table wine licenses by the City. In respect to Tit. 29, § 73, all these merchants are located in the prohibited area, yet only Jiffy Chek has been denied a license. We agree with the trial court that Jiffy Chek has been denied equal protection of the laws.

Sections 1, 6, and 22 of the Alabama Constitution combine to guarantee equal protection of the laws. The essence of the theory of equal protection of the laws is that all similarly situated be treated alike. An individual cannot be subjected to aribtrary exercise of governmental powers. Vernon v. State, 245 Ala. 633, 18 So.2d 388 (1944). The City does not state its reasons for denying Jiffy Chek a license, other than the claimed unconstitutionality of § 73, nor does it attempt to point out how Jiffy Chek is so distinguishable from the licensed merchants as to justify refusing it a license. It stands undisputed that Jiffy Chek is in the same class as the others. Denial of a table wine license to it under the circumstances amounts to arbitrary, capricious discrimination. The statute was unconstitutionally applied also as to be an unequal application of the laws to the prejudice of Jiffy Chek. Refusal to grant equal treatment in conferring certain rights, here a table wine license, amounts to denial of equal protection of the laws and the City is estopped from claiming to the contrary on the basis of the facial unconstitutionality of § 73, therefore, estopped to refuse Jiffy Chek a license.

For the reasons assigned, the judgment of the trial court is hereby affirmed.

AFFIRMED.

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


author: FAULKNER, Justice.

text:
    Ed OSBORN, Executor, etc., et al. v. EMPIRE LIFE INS. CO. OF AMERICA et al.
    SC 1602.
    Supreme Court of Alabama.
    Feb. 11, 1977.

      S. P. Keith, Jr., Birmingham, for appellants.
    James W. Webb and Edwin K. Livingston, Montgomery, for Charles Payne, Commissioner of Insurance.
    Drayton Nabers, Jr., Birmingham, for Protective Life Ins. Co.
    Thomas B. Hill, Jr., Montgomery, for Union Bank & Trust Co.
   FAULKNER, Justice.

This is an appeal from a decree of the Circuit Court of Jefferson County, holding that no trust existed and ordering the transfer of stocks. We affirm.

During 1953, 1954 and 1955, National Union Life Insurance Company, a predecessor of Empire Life Insurance Company of America, issued to certain policyholders a special participation plan (SPP) policy wherein a portion of the premiums paid to the company by the SPP policyholders during the second through the fifth policy years were set aside in a fund to provide for payment at the end of the twentieth year. Pursuant to the provisions of the policy and a resolution later adopted by National Union, the funds were invested in certain stocks which were put into a special account with First National Bank of Montgomery and in 1962 transferred to Union Bank & Trust Co. The dividend was to be measured by the market value of all stocks in the fund.

In 1972 John G. Bookout as Commissioner of Insurance for the State of Alabama instituted a receivership proceeding in the Circuit Court of Jefferson County against Empire. The trial court placed Empire in receivership, appointed the Commissioner as receiver and authorized the Commissioner to solicit offers from other insurance companies to reinsure Empire. In June, 1974, the court granted the receiver’s petition to liquidate and reinsure the business of Empire into Protective Life Insurance Company.

In July Ed Osborn and Harold Jack Hughes as executors of the estate of C. 0. Osborn, with S. P. Keith, III, Robert B. Keith, S. P. Keith, Jr., and Mark Edward Osborn, as SPP policyholders, filed suit in the Circuit Court of Jefferson County against Empire, Bookout as receiver, Protective and Union Bank, seeking an injunction against the transfer to Protective, pursuant to the Treaty of Assumption and Bulk Reinsurance between Protective and the Receiver, of the stocks owned by Empire in the SPP policy fund and a declaration that the stocks were held in trust for the policyholders.

On May 21, 1975, the trial court found that no trust existed and that the stocks were due to be transferred to Protective pursuant to the treaty. The policyholders appealed on November 17.

Protective and the receiver filed a motion to dismiss the appeal on the ground that facts transpiring since the order of the court below on which the appeal is based render the appeal moot. Since the order the receiver has transferred, by the treaty, to Protective certain assets, including the stocks in the fund. Protective and the receiver argue that none of the policyholders has standing because each is deemed to have accepted reinsurance and, thus, to have agreed that the dividends shall be paid in accordance with the terms of the treaty.

The questions we must answer are whether the policyholders have standing to appeal and, if they do, whether the evidence supported the lower court’s finding that no trust existed.

I

The policyholders have standing to appeal and the appeal is not moot. After the trial Protective sent the policyholders an assumption certificate which expressly provided that each policyholder had the right to accept reinsurance or reject it and file a claim against the receiver as a creditor. However, the certificate provided that each policyholder would be deemed to have accepted the certificate unless express rejection thereof was made within sixty days of the mailing. None of the SPP policyholders expressly rejected the certificate within the sixty days.

The question of mootness as to an appeal arises when a justiciable controversy no longer exists, such as when the appellants accept and retain benefits in the amount adjudged to be due them. See Bradford v. Bush, 10 Ala. 274 (1846); Smith v. Ala. Dry Dock & Shipbuilding Co., 293 Ala. 644, 309 So.2d 424 (1975). That is not the case here. There does exist a real controversy between the policyholders and the appellees as to whether a trust fund was established. Once a court has jurisdiction in a case, a party cannot unilaterally extinguish the other party’s right to appeal. The policyholders cannot be deemed to have accepted reinsurance and waived their right to appeal in this case. Therefore, the policyholders still have standing to challenge the transfer of the SPP proceeds. The motion to dismiss is denied.

II

The evidence fully supported the lower court’s finding that no trust was established. In the Findings of Fact, Conclusions of Law and Final Judgment, the trial court stated the following:

“Neither the policy, nor the resolution, nor the agreements with the two banks created a trust. There is absolutely no evidence which was presented to the Court which indicates that at the time the policy was issued National Union intended to create a trust or the policyholders were advised that the trust was being created for their benefit.

There is no trust unless an intention to create one is manifested. Restatement (Second) of Trusts § 23(1959). The question of whether the intention has been manifested is a question of fact to be determined by the trier of facts in light of the evidence. The burden of proof is on the party seeking to establish the existence of the trust and that burden is to present clear and definite evidence, without reasonable doubt as to the existence of the trust. Ra-field v. Johnson, 294 Ala. 235, 314 So.2d 695 (1975).

The SPP policy simply provided that an amount from the premiums for the first five years be set aside for the payment of a dividend at the end of twenty years. The resolution merely stated the policy of the Board of Directors with respect to the contingency fund and the intention of National Union to create only a contractual obligation with policyholders who pay all their premiums and survive for twenty years, without reserving to them a beneficial interest in the fund. The agreement between National Union and First National Bank did not manifest any intention to create a trust fund but did show an intention to create a contractual obligation. The bank was an agent, not a trustee. Likewise the agreement between National Union and Union Bank was custodial and did not indicate a trust relationship. Thus, the policyholders failed to meet the clear and definite evidence burden.

Where the court has heard the evidence ore tenus, “every presumption will be indulged in favor of the trial court, and its finding and decree will not be disturbed unless plainly wrong.” Smith v. Gill, 293 Ala. 736, 310 So.2d 214 (1975); Rafield v. Johnson, supra; Rule 52 of A.R.C.P. The findings of the lower court were not clearly erroneous and therefore must stand.

Ill

The policyholders further contend that some of their exhibits establishing the existence of a trust were improperly ruled inadmissible as evidence. The trial court did not commit reversible error in ruling that some of the policyholders’ exhibits were inadmissible because a proper predicate was not laid. Since neither the sender nor the receiver of the exhibits refused admission was present in court to lay the proper predicate and since the signatures of the alleged senders were not authenticated, the exhibits were inadmissible. See Carson v. Employers Cas. Co., 51 Ala.App. 90, 282 So.2d 913, cert. denied, 291 Ala. 510, 282 So.2d 923 (1973); Am. Standard Life Ins. Co. v. Tolliver, 25 Ala.App. 363, 146 So. 625 (1933). The court did in fact admit numerous exhibits offered by the policyholders where the policyholders stated that they were the recipients of the proffered exhibits or of identical copies and that they were familiar with the signatures of the alleged senders and could identify the signatures as authentic.

The court properly sustained the objection to the policyholders’ attempt to offer into evidence oral statements made in 1953 in conversations between one of the policyholders and the President and Board of Directors of National Union, as the statements were hearsay and inadmissible parol evidence as to the intention of the parties .to create a trust or contingency fund.

The trial court did not commit reversible error by admitting into evidence, at Protective’s request, the two bank custodial agreements, as they were relevant and material to the issue of whether the proceeds were in a trust or contingency fund. The trial court also correctly admitted into evidence the Treaty of Assumption and Bulk Reinsurance, as bearing on the issue of whether a trust was intended.

The lower court’s evidential rulings were correct.

AFFIRMED.

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