author: BOYER, Judge. RAWLS, Chief Judge

text:
    Charlie KELSEY, Appellant, v. STATE of Florida, Appellee.
    No. V-313.
    District Court of Appeal of Florida, First District.
    Jan. 21, 1975.

      Louis O. Frost, Jr., Public Defender, and James O. Brecher, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for ap-pellee.
   BOYER, Judge.

Appellant, defendant in the trial court, was charged by information with breaking and entering of a dwelling house with the intent to commit a felony therein, and, in a second count, with grand larceny. A jury of his peers found him guilty on both counts. The trial court sentenced defendant to eight years on Count I and three years on Count II, said sentences to run consecutively. Several points are presented on this appeal.

First, appellant urges that the trial court erred in imposing two consecutive sentences on the two counts of the information, thereby violating the “single transaction rule”, citing this Court’s opinion in McHaney v. State, Fla.App.lst 1974, 295 So.2d 355. As stated in that case, the key element of breaking and entering with intent to commit a felony is the intent. It matters not whether the culprit actually commits a felony after the breaking and entering. If he broke and entered with the requisite intent, all of which is a matter of proof, then the crime was committed. The “transaction” is concluded. Grand larceny is quite another matter. That crime may be committed after one has broken and entered or it may be accomplished without a prior breaking and entering. The two are separate transactions and are separate crimes. Each can be committed in the absence of the other. They are not therefore “the same criminal transaction”. Being separate crimes and separate transactions, sentences on each, following convictions on both offenses, are permissible. The record in the case sub judice reveals sufficient evidence to sustain the jury’s conviction of defendant for the crime of breaking and entering of a dwelling house with the intent to commit a felony therein and sufficient evidence to sustain their verdict of guilty on the offense of committing the crime of grand larceny. The foregoing expresses the convictions and opinion of the writer hereof and is in accordance with Steele v. Mayo, Sup.Ct.Fla.1954, 72 So.2d 386 and Estevez v. State, Fla.App.3rd 1974, 290 So.2d 138. However, the above views are in direct conflict with Davis v. State, Fla.App.2nd 1973, 277 So.2d 300 and Edmond v. State, Fla.App.2d 1973, 280 So.2d 449 as well as McHaney v. State, supra. Inasmuch as the facts sub judice are not reasonably distinguishable from those in Mc-Haney v. State, supra, the writer of this opinion in the interest of stare decisis concurs with the latter opinion of this court unless and until the Supreme Court holds to the contrary. Therefore, it is apparent that in keeping with McHaney we must reverse with instructions that appellant’s sentence for grand larceny be vacated.

Appellant next urges that the trial court erred in refusing to instruct the jury on penalties as required by Rule 3.390(a) RCrP. That rule provides as follows:

“The presiding judge shall charge the jury only upon the law of the case at the conclusion of argument of counsel, and must include in said charge the penalty fixed by law for the offense for which the accused is then on trial.”

Although the wording of the rule, adopted by the Supreme Court, is clearly mandatory (no stronger word than “must” is available in the English language) nevertheless that Court has held that the rule does not mean what it says and that it is merely directory. (Johnson v. State, Sup.Ct.Fla.1974, 308 So.2d 38; opinion filed December 11, 1974.) It follows therefore that the refusal of the trial court to follow the rule was not error.

We find the other points raised by appellant to be without merit.

The sentence of three years on Count II of the information (grand larceny) is hereby vacated and set aside: In all other respects the judgment and sentence appealed are affirmed.

Reversed in part and affirmed in part.

RAWLS, C. J., specially concurring.

McCORD, J., concurs in judgment.

RAWLS, Chief Judge

(specially concurring).

I am in full accord with this Court’s decision in McHaney v. State, 295 So.2d 355 (1 Fla.App. 1974), and thus do not concur in the reservations expressed by Judge Boyer as to the opinion of this Court in that case. I do concur, however, in the remainder of the opinion and the judgment entered.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Morris EASON, Appellant, v. The STATE of Florida, Appellee.
    No. 74-1767.
    District Court of Appeal of Florida, Third District.
    July 22, 1975.
    Rehearing Denied Sept. 18, 1975.

      Phillip A. Hubbart, Public Defender, and Mark King Leban, Asst. Public Defender, for appellant.
    Robert L. Shevm, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., PEARSON, J., and DREW, E. HARRIS (Ret.), Associate Judge.
   PER CURIAM.

The appellant, Morris Eason, was arrested by a police officer who searched him incident to the arrest and found heroin. Eason moved to suppress the evidence on the ground that the arrest was without probable cause and that, therefore, the search was illegal. The trial judge denied the motion. Eason then entered a plea of nolo contendere, was found guilty and placed upon two years probation.

The evidence before the trial court was sufficient to support a holding that the police officer had reasonable grounds to believe that a felony had been committed by Eason. The evidence showed that the informant, who had assisted the police on many prior cases, stated to the police that he had personally seen the defendant in possession of drugs which defendant had hidden in his pants. The informant gave the officer a description of Eason’s person and apparel and stated where he could be located. The police proceeded to the area, located the person fitting the description in front o'f a pool hall and approached him shortly thereafter. Upon seeing the police officer, Eason started walking quickly to the rear of the pool hall. It was then that the arrest was made and the search carried out revealing the heroin. Upon due consideration of the record, it is our view that these circumstances meet the requirements of Florida law. See Rodriguez v. State, Fla.App.1966, 189 So.2d 656 and see Fla. Stat. § 901.15(3), State v. Outten, Fla.1968, 206 So.2d 392 and the rule stated in Salas v. State, Fla.App.1971, 246 So.2d 621, 622.

Affirmed.


text:
    Pasha Robert EVANS, Appellant, v. The STATE of Florida, Appellee.
    No. 74-1613.
    District Court of Appeal of Florida, Third District.
    July 29, 1975.
    Rehearing Denied Sept. 18, 1975.
    Phillip A. Hubbart, Public Defender, and Lee Weissenborn, Special Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for ap-pellee.

      Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

The appellant was defendant in an information charging robbery, assault and displaying a firearm while committing a felony. After the denial of his motion to suppress identification made at the scene of the crime, the defendant entered a plea of nolo contendere. He was found guilty and sentenced. This appeal was brought to test the ruling of the trial court. We find that the trial court’s refusal to quash the evidence was proper under the rule set forth in Robinson v. State, Fla.App.1970, 237 So.2d 268; Reliford v. State, Fla.App.1970, 241 So.2d 871 and Daniels v. State, Fla.App. 1972, 262 So.2d 725.

Affirmed.


text:
    Leon TALAN, Appellant, v. Awilda E. TALAN, Appellee.
    Nos. 74-987, 74-1241.
    District Court of Appeal of Florida, Third District.
    July 29, 1975.
    Rehearing Denied Sept. 18, 1975.
    Horton, Perse & Ginsberg, Miami, for appellant.
    Fine, Jacobson, Block & Semet, Miami, for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

We have consolidated two appeals by a former husband, one from the final judgment and the other from an order allowing an attorney’s fee to the former wife, in a dissolution of marriage proceeding. The main thrust of both appeals is that the trial judge misconstrued an item of evidence so that he found an erroneous net worth of the appellant and, thereby allowed excessive amounts as lump sum alimony and as attorney’s fees. The finding as to net worth questioned here is as follows :

“5. The Husband has previously signed financial statements declaring his net worth to be between $150,000.00 and $200,000, and the Court finds from these statements and the other evidence presented, that the Respondent-Husband has a net worth in excess of $150,000.-00.”

Our review of the record in the light of the arguments presented convinces us that this finding is amply supported in the record and that it cannot be said that it rests upon an erroneous interpretation of one item of evidence. The awards made and the form in which they were made are well within the discretion allowed to a trial judge in such cases. See Wolper v. Wolper, Fla.App. 1969, 225 So.2d 579.

We have considered the other points presented in the briefs and find that none of them presented reversible error.

Affirmed.


text:
    A. J. HOUSE & SONS, INC., et al., Appellants, v. Louis SMITH, as Administrator of the Estate of Norman Louis Smith, Deceased, Appellee.
    No. 75-391.
    District Court of Appeal of Florida, Third District.
    July 8, 1975.
    Carey, Dwyer, Austin, Cole & Selwood and Steven R. Berger, Miami, for appellants.
    Marlow, Mitzel, Ortmayer & Shoft, B. Wayne Olivie, Welsh & Carroll, Horton, Perse & Ginsberg, Jack Taffer, Virgin, Whittle & Slatko, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

The parties to this cause having stipulated that the judgment rendered in favor of Louis Smith, as Administrator of the Estate of Norman Louis Smith, deceased, dated December 24, 1974, should be reversed upon the authority of Martin v. United Security Services, Inc., Ala.1975, (opinion filed April 23, 1975), it is thereupon

Ordered and adjudged that this final judgment, dated December 24, 1974, be and the same is hereby reversed and this cause is remanded to the trial court for further proceedings not inconsistent herewith.


text:
    Jessie THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 74-1659.
    District Court of Appeal of Florida, Third District.
    July 22, 1975.
    Rehearing Denied Sept. 18, 1975.

      Phillip A. Hubbart, Public Defender, and Roy S. Wood, Jr., Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda C. Hertz, Asst. Atty. Gen., for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This is an appeal by defendant who was informed against for assault with intent to commit rape and robbery; was tried by jury and found not guilty of robbery, but guilty of assault with intent to commit rape; and was sentenced to 15 years imprisonment.

Defendant urges as error the refusal to permit defense counsel to impeach the testimony of the victim with a prior inconsistent statement concerning the defendant’s state of mind.

At trial, defense counsel asked the victim whether she believed the person who attacked her was attempting to rape her. The victim replied in the affirmative. Defense counsel then attempted to impeach the witness by use of a prior statement, wherein she answered in the affirmative to the following question: “You don’t know if he wanted to rape you or not?” The prosecution objected as the question called for a conclusion by the witness as to what was in the defendant’s mind. The trial judge sustained the objection.

It is well established that the opinion of a witness on a fact in issue is not admissible where the jury is as well qualified as the witness to form an opinion on the subject, and nonexpert witnesses ordinarily are required to confine their testimony to facts and are not permitted to give their opinions and conclusions. See 13 Fla.Jur. Evidence § 305 (1957) and cases cited therein. When the facts are within the ordinary experience of the jurors, conclusions to be drawn therefrom are to be left to the jurors. McGough v. State, Fla.1974, 302 So.2d 751.

Defendant was on trial for assault with intent to commit rape and the witness was being queried about her opinion regarding an ultimate fact in issue which properly is for the jury’s determination. Thus, we conclude the trial judge was correct in sustaining the complained of objection. Cf. Hodge v. State, 26 Fla. 11, 7 So. 593 (1890). Hence, this point of appellant must fail.

Defendant also argued that the trial court erred in sentencing him to a term of imprisonment greater than that permitted by law.

Defendant reasons that since he was convicted of an assault with intent to commit a life felony, he has committed a felony of the third degree as a life felony should be construed as “any other felony” under the language of § 784.06, Fla.Stat., F.S.A. We must reject this contention. The courts will not ascribe to the legislature an intent to create an absurd or harsh consequence, so an interpretation avoiding absurdity always is preferred. City of St. Petersburg v. Siebold, et al., Fla.1950, 48 So.2d 291.

Those crimes classified as “life felonies” are considered to be not as heinous as capital felonies, but more criminal in nature than felonies of the first degree. See Chapter 72-724, § 1 Laws of Florida (1972). It simply defies all logic to hold that the penalty for an assault with intent to commit a life felony should be less severe than the penalty for an assault with . intent to commit a felony of the first degree. Such an interpretation results in absurdity. Therefore, we conclude the trial judge correctly sentenced the appellant to 15 years imprisonment, the maximum penalty for a felony of the second degree.

We also examined appellant’s remaining points on appeal and determined that appellant has failed to demonstrate reversible error.

Accordingly, the judgment and sentence appealed are affirmed.

Affirmed.

      .“794.01 Rape and forcible carnal knowledge; penalty.—
      “(1) Whoever of the age of seventeen years or older unlawfully ravishes or carnally knows a child under the age of eleven, is guilty of a capital felony, punishable as provided in § 775.082.
      “(2) Whoever ravishes or carnally knows a person of the age of eleven years or more, by force and against his or her will, or unlawfully and carnally knows and abuses a child under the age of eleven years, shall be guilty of a life felony, punishable as provided in § 775.082.
      “(3) It shall not be necessary to prove the actual emission of seed, but the crime shall be deemed complete upon proof of penetration only.”

      . “784.06 Assault with intent to commit felony
      “Whoever commits an assault on another, with intent to commit any capital felony or felony of the first degree shall be guilty of a felony of the second degree, punishable as provided in § 775.082, § 775.083, or § 775.084. An assault with intent to commit any other felony constitutes a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084. Amended by Laws 1971, e. 71-136, § 734, eff. Jan. 1, 1972.” [Emphasis Supplied]

      . “775.082 Penalties for felonies and misdemeanors
      * * * * a;
      “(c) Por a felony of the second degree, by a term of imprisonment in the state prison not exceeding fifteen (15) years; . . .”


text:
    Patricia A. HARRINGTON, Appellant, v. John R. HARRINGTON, Appellee.
    No. X-519.
    District Court of Appeal of Florida, First District.
    Aug. 29, 1975.
    James E. Clayton, Clayton, Duncan, Johnston, Clayton, Quincey, Ireland & Fel-der, Gainesville, for appellant.
    William N. Avera, Chandler, O’Neal, Avera, Gray, Lang & Stripling, Gaines-ville, for appellee.
   PER CURIAM.

Affirmed. Appellant’s motion for attorney’s fees is denied.

RAWLS, Acting C. J., McCORD, J., and SMITH, SAMUEL S., Associate Judge, concur.


text:
    Gertrude S. ZULLO, Appellant, v. Joseph ZULLO, Appellee.
    No. 74-1584.
    District Court of Appeal of Florida, Third District.
    July 29, 1975.
    Rehearing Denied Sept. 15, 1975.
    Albert George Siegel, Miami Beach, for appellant.
    Abramson, Scremin, Mendigutia & Lib-man, Miami, for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

This is an appeal by Gertrude S. Zullo, the former wife of Joseph Zullo, from a final judgment which found that the plaintiff, Joseph Zullo, was entitled to certain monies which represented one-half the payments on a mortgage in their joint names. We have not been furnished with a record of the evidence before the trial judge and appellant states that she accepts the findings of fact contained in the judgment. One of these findings of fact together with the conclusions of law is as follows:

“7. In this action Mr. Zullo alleges that he is the owner of an undivided one-half interest in the purchase money mortgage and note, and the Court concludes under the facts in this case, he is.
“The ‘Release’ and Quit-Claim Deed were executed by Mr. Zullo as a property settlement agreement in contemplation of a divorce to be obtained at that time-in 1963; the divorce, however, was not obtained at that time and the parties reconciled. The ‘Release’ and Quit-Claim Deed, therefore, are invalid and Mr. Zullo remained a joint owner of the property and, therefore, is entitled to a one-half interest in the note and mortgage.”

We hold that the court’s conclusion of law upon the facts stated is supported by the law stated in Weeks v. Weeks, 1940, 143 Fla. 686, 197 So. 393, 395.

Affirmed.


author: DOWNEY, Judge.

text:
    Julius W. JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 74-472.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 1975.
    Richard L. Jorandby, Public Defender, Kenneth J. Scherer, Chief, Appellate Div., and Richard Lubin, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert B. Breisblatt, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Once again we have for review the failure of the trial court in reinstructing the jury on the degrees of homicide to include excusable and justifiable homicide.

Appellant was charged with second degree murder. The trial court properly instructed the jury on the various degrees of unlawful homicide and on excusable and justifiable homicide. After deliberating for some time the jury requested the court furnish them with “a description of the degrees in writing that we could look at.” The court thereupon asked if they wanted him to reinstruct them on excusable and justifiable homicide, to which the foreman answered “no, sir.” The court then rein-structed the jury as they had requested and the jury retired. Counsel for the appellant immediately objected to the court’s failure to reinstruct on excusable and justifiable homicide and requested the court to do so and to re-read the entire instruction. In denying that request the trial judge stated:

“ . . . I specifically asked if they wanted to know more about the attempt and they said they did not want to know them; they did not want to know about what homicide is; they did not want to know what justifiable or excusable homicide is or any attempted and, therefore, I did exactly what they asked for and I made it within that limit and told them exactly what it was and no more.”

The appellee relies upon Hysler v. State, 85 Fla. 153, 95 So. 573 (1923), to support the trial court’s action, but we feel that reliance is misplaced. Hysler held that when the jury requests that certain portions of the court’s charge be re-read to them it is not necessary that the court re-read the entire charge to the jury. That rule was reaffirmed by the Supreme Court in Hedges v. State, Fla.1965, 172 So.2d 824. But in reaffirming the rule the Hedges court pointed out: “However, the repeated charge should be complete on the subject involved.” 172 So.2d at 826. That opinion makes it crystal clear that failure to rein-struct on excusable and justifiable homicide leaves the jury with an incomplete and potentially misleading instruction. Numerous convictions of late have been reversed for failure to follow that rule.

As usual every new case seems to have a “new wrinkle” and this one is no exception. Sub judice the trial judge asked the jury if they wanted to be rein-structed on excusable and justifiable homicide and they declined. Which seems to bring us to the question: can the trial court reinstruct the jury inadequately on a subject because the jury indicates an interest in only some limited phase of the subject in question ? We think not. The entire subject of jury instructions is difficult at best. Some seriously question their efficacy in any event. Be that as it may, the jury is hardly in a position to discern many of the fine distinctions involved in the law to be applied without guidance from the court. Thus, great care must be exercised in giving jury instructions so the jury may obtain the whole picture of a particular subject. Therefore, in instructing and in reinstructing on manslaughter, it is essential to instruct on excusable and justifiable homicide to enable the jury to understand the definition of manslaughter. Hedges v. State, supra; Halfrich v. State, 122 Fla. 375, 165 So. 285 (1936).

It is distasteful to us to fault a trial judge for doing precisely what the jury requested of him, but under the law as it exists we see no other alternative. It is of no little significance that the appellant’s defense in the trial court was that the homicide was either excusable or justifiable.

Since a new trial of this case is required we deem it advisable to mention several of appellant’s other points on appeal.

Appellant assigns as error the failure of the trial court to exclude the taped telephone call made by appellant to the police station to report that he had killed his wife. But this was a noncustodial conversation expressly excluded from the Miranda rule by the Miranda case itself:

“The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess a crime, or a person who calls the police to offer a confession or any other statement he desires to make.” Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694, 726 (1966).

Combining appellant’s other two points for the sake of brevity, suffice it to say that neither demonstrates error.

Reversed and remanded for a new trial.

OWEN and MAGER, JJ., concur.


text:
    Maxwell DAUER and Reva B. Dauer, his wife, Appellants, v. GENERAL HEALTH SERVICES, INC., Appellee.
    No. 74-1571.
    District Court of Appeal of Florida, Third District.
    July 22, 1975.
    Lapidus & Hollander, Miami, for appellants.

      Podhurst, Orseck & Parks, Rossman & Baumberger, Miami, for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

Appellants, defendants in the trial court, appeal an adverse final judgment awarding plaintiff its escrow deposit of $25,000.

In June 1971, plaintiff General Health Services, Inc., appellee herein, entered into a written contract with the appellants, Maxwell and Reva Dauer, to purchase from them certain land for the purpose of constructing a 172 bed hospital. Pursuant thereto, plaintiff deposited $25,000 which was to be held in escrow in the First National Bank of Hialeah. This purchase and sale agreement was amended on July 2, 1971 to provide, inter alia:

* * * * *
“2. That within 30 days from date hereof the Sellers will furnish Purchaser with preliminary plans and specifications and a soil test. The same shall be subject to Purchaser’s approval. Said preliminary plans and specifications shall be in sufficient detail to enable Purchaser to:
“(a) Obtain a commitment from an institutional lender for a construction loan satisfactory to Purchaser;
“(b) To enable Purchaser within a reasonable degree of accuracy to estimate the cost of construction of the hospital; and
“(c) To obtain tentative approval of all governmental agencies having jurisdiction in the premises.”
He ‡ % ‡ 4s

At meetings held on July 19 and 20, Maxwell Dauer presented two color renditions and some drawings entitled Scheme A and Scheme B to Doctor Brotman, an officer of plaintiff corporation, and to Herbert Chanen, plaintiff’s general contractor. Plaintiff-appellee found these drawings insufficient in detail to enable it to estimate the cost of construction or to obtain a commitment from an institutional lender for a construction loan. The 30 day period having elapsed and no additional plans having been submitted, plaintiff demanded return of its deposit which was refused. Thereupon, plaintiff instituted the instant action to obtain its $25,000 deposit. Defendants answered and filed a counterclaim alleging plaintiff defaulted on the contract by failing and refusing to close the transaction. After the conclusion of a non-jury trial, the trial judge determined that defendants had breached the condition precedent (set out hereinabove) and were in default and plaintiff was not in default. The judge then entered final judgment awarding plaintiff its escrow deposit of $25,000. This appeal follows.

Defendants contend on appeal that the trial court erred in finding and holding that they breached the July 2, 1971 contract by failing to perform a material condition thereunder. We cannot agree.

It is elementary that there must be at least a substantial performance of conditions precedent in order to authorize a recovery as for performance of a contract. Cohen v. Rothman, Fla.App.1961, 127 So.2d 143.

First, it is undisputed that defendants did not provide the soil tests as required.

Second, there is an overabundance of evidenice in the record to support the conclusion that the drawings furnished Dr. Brotman and Herbert Chanen merely were schematic drawings and did not contain the necessary information to estimate the cost of construction or to obtain a commitment from an institutional lender for a construction loan. Thus, we find that defendants did not perform substantially the condition precedent.

We also reject the argument of appellants that had plaintiff chosen either Scheme A or B they could have prepared the contractually mandated plans and specifications and, therefore, they are excused from the breach of the condition precedent because defendants created their own obstacle to performance which they could have removed or avoided. See Metropolitan Dade County v. Babcock Company, Fla.App.1973, 287 So.2d 139; Maritime Construction Company v. Benda, Fla.App.1972, 262 So.2d 20.

Accordingly, the judgment appealed is affirmed.

Affirmed.


author: BOYER, Chief Judge.

text:
    Paul A. ANDERSON, Appellant, v. Virginia S. ANDERSON, Appellee.
    No. X-117.
    District Court of Appeal of Florida, First District.
    July 30, 1975.
    Barry L. Zisser and Christopher C. Clo-ney, of Zisser & Robison, Jacksonville, for appellant.
    Jack W. Shaw, Jr., and Robert C. Gobel-man, of Mathews, Osborne, Ehrlich, Mc-Natt, Gobelman & Cobb, Jacksonville, for appellee.
   BOYER, Chief Judge.

Appellant, husband in a dissolution of marriage proceeding, here appeals the lower court’s denial of his petition for modification of the final judgment of dissolution of marriage and denial of his motion for rehearing. The appellee has filed a timely motion for attorney’s fees incident to this appeal.

The controlling question in a modification proceeding is whether there has in fact been an actual change in the circumstances of the parties since the entry of the final judgment sought to be modified; not whether there may be a change in circumstances at some future date. (See F.S. 61.14(1)) Anticipated future changes in the circumstances of a party are not sufficient to justify a modification. (See Fleischer v. Fleischer, 1942, 149 Fla. 621, 6 So.2d 836)

Our examination of the record reveals that the learned trial judge was eminently correct in finding that the changes in circumstances urged by appellant were anticipatory and not actual. We therefore affirm. However, our affirmance is without prejudice to a proper petition in the trial court on some future date should the actual circumstances be so changed as to warrant same.

Appellee’s motion for attorney’s fees is denied.

Affirmed.

McCORD and MILLS, IT., concur.


text:
    AETNA INSURANCE COMPANY, Appellant, v. SUPERIOR DAIRIES, INC., Appellee.
    No. X-45.
    District Court of Appeal of Florida, First District.
    July 30, 1975.
    John E. Houser, Jacksonville, for appellant.
    Luke G. Galant, of Dawson, Galant, Maddox, Sulik & Nichols, Jacksonville, for appellee.
   PER CURIAM.

We have carefully considered the briefs and record in this cause and find from the evidence presented that the trial court correctly construed the insurance contract in relation thereto.

Affirmed.

RAWLS, Acting C. J., and McCORD and MILLS, JJ., concur.


author: MILLS, Judge.

text:
    Johnny CANNON, Appellant, v. STATE of Florida, Appellee.
    No. W-8.
    District Court of Appeal of Florida, First District.
    Aug. 7, 1975.

      Richard W. Ervin, III, Public Defender; and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   MILLS, Judge.

Appellant-defendant seeks reversal of his conviction, entered pursuant to a plea of guilty, for possession of heroin, and a two-year sentence thereon. The sole ground for reversal is that the trial court erred in accepting defendant’s plea of guilty without determining that there was a factual basis for the plea as required by Rule of Criminal Procedure 3.170(j).

Violation of a procedural rule does not call for reversal of a conviction unless the record discloses that noncompliance resulted in prejudice to the defendant. Richardson v. State, 246 So.2d 771 (Fla.1971).

A defendant has the burden of proving prejudice or manifest injustice. Defendant here does not contend nor does the record show that he was prejudiced or manifest injustice resulted.

The record presented to us clearly reflects :

1. defendant voluntarily entered the plea;
2. defendant understood the consequences ;
3.pursuant to plea bargaining, the trial court agreed to and did impose a two-year sentence though the maximum penalty was five years.

Affirmed on authority of Williams v. State, 316 So.2d 267 (Fla.1975).

BOYER, C. J., and McCORD, J., concur.


text:
    John O. ULBRICH, Appellant, v. Siegrid I. ULBRICH, Appellee.
    No. 74-1658.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 1975.

      James W. Geiger, of Devitt, Geiger, O’Neal & Booth, P.A., Fort Lauderdale, for appellant.
    Michael G. Widoff, P.A., Fort Lauder-dale, for appellee.
   DOWNEY, Judge.

The husband appeals from the monetary provisions of a final judgment of dissolution and the wife cross appeals from the award of attorney’s fees.

Based upon this record the appellant has failed to demonstrate error except as to that portion of the judgment which provided that all periodic payments of alimony or child support shall be a charge against the husband’s estate.

It has long been recognized in Florida that absent the consent of the party to be charged, the trial court is without authority to make periodic alimony payments a charge against his estate. Aldrich v. Aldrich, Fla.1964, 163 So.2d 276. However, in First National Bank of St. Petersburg v. Ford, Fla.1973, 283 So.2d 342, it appears the Supreme Court proposed to create an exception to the foregoing rule, the effect of which is that the trial court does have authority to make alimony provisions survive the death of the payor when there are factors present in the case which require that result in order to do equity and justice between the parties. The Third District Court of Appeal in Rouse v. Rouse, Fla.App.1975, 313 So.2d 458, opinion filed May 27, 1975, seems to have so interpreted the Ford case. However, in Bunn v. Bunn, Fla.App.1975, 311 So.2d 387, this court after a detailed analysis of the Ford opinion concluded that the references to a modification of the Aldrich rule were obi-ter dictum and not binding precedent and thus declined to follow that apparent holding. While it appears to the writer that the Supreme Court intended the Ford opinion to constitute a modification of the Aid-rich rule, whether dictum or not, this court has already taken a contrary position. Therefore, consistency requires that we adhere to the position set forth in Bunn.

Accordingly, upon remand the trial court is directed to delete from the final judgment the provision making all periodic payments contained therein a charge against the appellant’s estate.

We find no error in the requirement that child support continue until the child reaches 18 years of age or finishes high school, whichever is later. However, on remand, we think the provision should be amended to provide that said obligation does not extend beyond the child’s 21st birthday (absent of course mental or physical deficiencies rendering him unable to support himself) in accordance with Finn v. Finn, Fla.1975, 312 So.2d 726, and Briggs v. Briggs, Fla.App.1975, 312 So.2d 762.

Affirmed in part and reversed in part and remanded with directions.

WALDEN, C. J., and CROSS, J., concur.


author: STOKES, ROBERT, Associate Judge.

text:
    Roy Junior YATES, Appellant, v. STATE of Florida, Appellee.
    No. V-194.
    District Court of Appeal of Florida, First District.
    June 30, 1975.
    Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   STOKES, ROBERT, Associate Judge.

Appellant was convicted of breaking and entering with intent to commit a misdemeanor and posssession of a firearm by a convicted felon.

It is urged that the trial court erred in failing to provide counsel for the appellant and the deprivation resulted in a confession being unlawfully admitted into evidence against the appellant.

Appellant states that he requested counsel at his first appearance hearing some seventy two (72) hours after arrest, but one was not appointed until approximately sixty eight (68) days after his arrest.

Examination of the record clearly reflects that the appellant was taken before a magistrate prior to giving a statement. The motion to suppress filed in the lower court was not predicated on the absence of proper warning, or the delay and denial of counsel, but that the statement was in exchange for a promise that appellant would be placed in a cell with his younger brother whom he was worried about. This was refuted by the officers whom apparently the trial judge chose to believe, thereby finding the statements being made freely and voluntarily. In the case of Baker v. State, 225 So.2d 327 (Fla.1969), the Supreme Court rejected a claim similar to the case at bar citing to this Court’s opinion in Lee v. State, 173 So.2d 520 (Fla.App. 1st, 1965), saying:

“The record does not disclose why appellant did not elect to request an attorney until more than a month after his arrest. On the other hand, the record does clearly show that the trial court appointed an attorney for appellant immediately upon its becoming aware of his indigen-cy and desire for counsel on January 30, 1967. Appellant’s counsel, once appointed, filed several pre-trial motions, including motions testing the sufficiency of the indictment. Further, he represented appellant at the preliminary hearing at which time witnesses were presented for both the prosecution and the defense. After this hearing, he entered a ‘not guilty’ plea on behalf of his client. Appellant’s counsel continued this able representation throughout the trial. Since appellant neither contends that he was denied the opportunity of exercising his right to seek the assistance of appointed counsel, nor attempts to demonstrate any recognizable form of prejudice to his cause by the lapse in time between arrest and representation, we must hold that his assertion that he was deprived of his right to counsel is wholly without merit. See Lee v. State, 173 So.2d 520, 525 (1st D.C.A. 1965)”

It is the opinion of this Court that the sixty eight (68) day delay in securing counsel does not automatically render illegal the confession given sixty four (64) days earlier in the absence of a showing that the sixty four (64) days produced the statement.

In view of the fact the confession is the only alleged prejudice resulting from the delay or denial of counsel, this Court feels compelled to affirm the conviction.

It is also contended by the appellant that the trial court erred in imposing separate sentences for facts arising out of the same transaction. This court has previously held in Still v. State, 296 So.2d 67 (Fla. App. 1st, 1974) that separate consecutive sentences could be entered on conviction for robbery and assault with intent to commit a felony, to-wit: robbery, because the “assault charge was a different phase or facet of the robbery charge. ...”

From an examination of the record it is clear that the appellant was a felon in possession of a firearm prior to ever committing the burglary, and was also in possession subsequent to leaving the scene of the burglary, and continued in that capacity until he was taken in custody. Based on this fact, it is clearly two (2) divisable criminal acts which permitted the imposition of separate sentences for each offense.

Accordingly, the order, judgment and sentence appealed herein are affirmed.

BOYER, Acting C. J., and JOHNSON, J., concur.


text:
    John RIM, Appellant, v. STATE of Florida, Appellee.
    No. V-115.
    District Court of Appeal of Florida, First District.
    Aug. 29, 1975.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Affirmed. See Weeks v. State, Fla.App. (1st), 316 So.2d 71, opinion filed August 1, 1975.

RAWLS, Acting C. J., and McCORD and SMITH, JJ., concur.


text:
    Barbara B. WILKISON, Appellant, v. Earl E. WILKISON, Appellee.
    No. V-229.
    District Court of Appeal of Florida, First District.
    June 30, 1975.
    Harry Mitchell, Tallahassee, for appellant.
    Robert M. Ervin of Ervin, Varn, Jacobs & Odom, Tallahassee, for appellee.
   STOKES, ROBERT, Associate Judge.

This is an appeal from an Order modifying final judgment of divorce by vacating all alimony payments that had been held in abeyance or suspended under previous orders, reducing future alimony payments by $250.00 per month, terminating child support for Earl Wilkison, Jr., and denying attorney’s fees. It is the contention of appellant that the chancellor abused his discretion and acted in disregard of established principals of law in rendering the order appealed.

From the record it appears that appellant and appellee were divorced on January 14, 1970, at which time it was agreed and ordered that appellee would pay $600 per month child support ($150 for each of four children) ; $900 per month alimony until such time as appellee had sold their home and paid appellant $59,600 of the proceeds at which time the alimony would increase to $1,200 per month; and college educational expenses of the children. Appellee had a heart attack in May of 1971 and the court lowered the alimony payments to $600 per month for a year beginning September 5, 1971. On December 27, 1972, the court entered an order allowing appel-lee to continue the $600 per month payment. On September 18, 1973, the lower court entered an order which allowed ap-pellee to pay $600 per month and stated that the order of December 27, 1972, could not be held retroactive as to the three months between September 1972 and December 1972. None of these orders relieved appellee of his obligations under the original judgment.

On February 5, 1974, the lower court entered an order modifying the final judgment and entered an order which held that alimony payments held in abeyance under previous orders of the court are vacated; that appellee was to pay $950 per month alimony beginning in February 1974; and that child support payments for Earl Wilk-ison, Jr. be terminated.

It would serve no useful purpose for this Court to try to analyze all the various facets of evidence gone into by the parties. To do so would, in the long run, amount to nothing more or less than second guessing the able trial Judge, which we do not choose to do. The evidence clearly reflects the material change in appellee’s financial and physical condition, justifying a modification of the agreement entered into. However, it appears from the record that the court on September 7, 1971, after hearing testimony and evidence reduced alimony payments by $300 per month for a period of one year, with this reduction ending with the August 1972 payment, with the obvious intent that the alimony payments would automatically be increased to the original amount which appellee failed to pay. Approximately three (3) months later on November 13, 1972, appellee filed an application for a decrease in alimony payments. We agree with appellant that no testimony or evidence was presented or heard by the Court on the issue at that time, and that no new pleadings were filed.

The chancellor was without jurisdiction to summarily modify the alimony which would have automatically returned to the original amount where no further pleadings had been filed directed to the modification. The appellant would therefore be entitled to three (3) months of alimony at the original amount prior to the application on November 13, 1972.

It is our conclusion, and we so hold that the evidence in this case amply supports the portion of the modification order appealed herein with the exception of the three (3) months period of time, and in this respect the order appealed is reversed and the cause remanded with directions that the amended order be entered consistent with the holding and views herein expressed.

BOYER, Acting C. J., and JOHNSON, J., concur.


author: OWEN, Judge. MAGER, Judge

text:
    Frederick N. MITCHELL, Appellant, v. STATE of Florida, Appellee,
    No. 74-646.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 1975.
    Rehearing Denied Sept. 18, 1975.

      Richard L. Jorandby, Public Defender, and Martin H. Colin, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Stephen R. Koons, Asst. Atty. Gen., West Palm Beach, for appellee.
   OWEN, Judge.

Appellant was convicted of breaking and entering a dwelling house with intent to commit a misdemeanor therein, to wit: petit larceny, contrary of Fla.Stat. § 810.05 (1973). The information charged that the dwelling house was the property of James Caris. The allegation of ownership in a prosecution for breaking and entering is material and must be proved as laid. Smith v. State, 96 Fla. 30, 117 So. 377 (1928); Stewart v. State, 122 So.2d 34 (2nd DCA Fla.1960). The only evidence which the State offered relative to this material allegation was the testimony of one Jeffrey Caris (who was in the dwelling at the time appellant committed the offense) to the effect that he lived in the house with his parents, brother, and sister, and that he lived there all of his life, seventeen years. This evidence is simply insufficient to prove the material allegation of ownership in James Caris, whose name was never mentioned and whose relationship, if any, to Jeffrey Caris was not shown by the record. It was error to deny appellant’s motion for judgment of acquittal at the close of the State’s case.

The judgment is reversed and the cause remanded with instructions to discharge appellant.

WALDEN, C. J., concurs.

MAGER, J., dissents, with opinion.

MAGER, Judge

(dissenting) :

I must respectfully dissent because it is my opinion the evidence was sufficient to satisfy the ownership requirement necessary to support a conviction for breaking and entering.

The issue presented does not concern itself with either a failure of the information to allege ownership or a variance between the ownership alleged and subsequently proven. Instead, the issue is the sufficiency of the proof of ownership tested by applicable judicial standards.

The information alleged that the dwelling house in question was the property of James Caris. The testimony presented at trial was that of Jeffrey Caris who testified that he was present at the time of the alleged breaking and entering incident and observed the defendant on the premises at that time. The said Jeffrey Caris further testified that he had lived at the dwelling house in question all his life (a period of seventeen years) with his parents, brother and sister.

For some inexplicable and mystifying reason, the state chose not to present testimony from James Caris (the person named in the information as owner) in order to establish ownership of the dwelling in question, but instead sought to establish this element through the testimony of Jeffrey Caris. Even with this laxity on the part of the state, the allegations and proof of ownership were sufficient enough: (1) to establish that the dwelling was not that of the accused, (2) to protect the accused against a second prosecution for the same crime, (3) to avoid misleading or embarrassing the accused in the preparation of his defense. Hunt v. State, Fla.App.1967, 200 So.2d 212.

Moreover, it cannot be said at the time of consideration of defendant’s motions for judgment of acquittal that the evidence was not legally sufficient to prove ownership or that there was no evidence from which a jury could have resolved the issue of ownership adversely to defendant. 32 Fla.Jur., Trial, sections 92-100. See also Williams v. State, Fla.App.1975, 309 So.2d 630; Clark v. State, Fla.App.1974, 293 So.2d 768.

Measured by the standards set forth in Hunt v. State, supra, the defendant’s motions for judgment of acquittal based upon insufficient evidence to support the allegation of ownership were properly denied. I would affirm.


text:
    Pat PROCACCI and Sterling Fifty-Six, Inc., Appellants, v. Hy SOLOMON, Appellee.
    No. 74-1670.
    District Court of Appeal of Florida, Fourth District.
    July 25, 1975.
    Rehearing Denied Sept. 18, 1975.
    Gary S. Brooks of Williams, Salomon, Kanner & Damian, Miami, for appellants.
    David L. Kline of Abrams, Anton, Robbins, Resnick & Schneider, Hallandale, for appellee.
   PER CURIAM.

Appellants seek review of an adverse final judgment in an action in which they alleged that the appellee had breached certain fiduciary duties owed them.

The instant action was instituted by the appellants (hereinafter called plaintiffs) claiming the appellee (hereinafter called defendant), while president and a member of the board of directors of Sterling Fifty-Six, Inc., breached a fiduciary duty owed to the plaintiffs in a transaction involving a default on a promissory note by that corporation, a subsequent foreclosure action and judicial sale because of said default and the purchase of the collateral which secured the promissory note by the defendant from the Sterling National Bank of Davie (hereinafter called Bank), after a certificaté of sale was issued to said Bank.

The collateral for the debt, which was in the principal amount of Sixty-five Thousand Dollars ($65,000.00), was a mortgage on real property owned by such corporation and an assignment of certain rights it had to collect these monies from the recreational facilities of a condominium development known as Sterling Fifty-Six. All of the stockholders of the corporation, including the plaintiff, Pat Procacci, and the defendant, Hy Solomon, and their wives, personally guaranteed the payment of the note.

The plaintiff-corporation failed to make the first payment on the note which was due October 3, 1970, and the note went into default. Subsequently, on March 2, 1971, the Bank brought suit to foreclose the mortgage which secured the promissory note. In February of 1971, the defendant became president of that corporation.

On July 6, 1971, the Bank obtained a final judgment of foreclosure and on August 16, 1971, the collateral was purchased at a judicial sale by the Bank, and a certificate of sale was issued to the Bank on that date. Thereafter, this sale was confirmed by the Circuit Court and this decision was per curiam affirmed by this Court in Sterling Fifty-Six, Inc. et al. v. Sterling National Bank of Davie, 278 So.2d 638 (4th DCA Fla.1973), “without prejudice to any claim that Procacci may have against Solomon arising out of the corporate capacity of the parties involved.” 278 So.2d at 639.

On September 28, 1971, the Bank sold and assigned all of its rights obtained in the foreclosure action to the defendant, for value, with the defendant pledging certain .of his individual assets not encumbered by the original mortgage to the Bank and paying in full the debt owed the Bank due by virtue of the .final judgment of foreclosure.

The case proceeded to a non-jury trial and after hearing all the testimony, the trial judge found as follows:

“1. HY SOLOMON acted properly in his capacity as officer and director of STERLING FIFTY-SIX, INC. at all times pertinent hereto.

“2. The Plaintiff failed to prove any breach of a fiduciary duty by the Defendant, HY SOLOMON.

“3. HY SOLOMON acted properly prior to and subsequent to the foreclosure action on the subject real property.

“4. All interested persons had full notice of the foreclosure proceedings and PAT PROCACCI had full notice and knowledge of said foreclosure proceedings by direct notice to his attorney of record.

“5. HY SOLOMON acted properly in purchasing the interest of the Sterling National Bank of Davie of all of its rights obtained in the subject foreclosure, after a Certificate of Sale was issued to said Bank.

“6. HY SOLOMON is not liable to the Plaintiffs.”

Based on these findings, the trial judge entered judgment in favor of the defendant, Hy Solomon, and further found that the defendant shall go hence without day, and that the plaintiffs herein shall take nothing from the defendant. The plaintiffs appealed therefrom. We affirm.

After a review of the record on appeal, we conclude that there was competent substantial evidence to support the findings of the trial judge, who sat as the trier of the facts as well as the law and, therefore, we will not disturb these findings on appeal. See 2 Fla.Jur., Appeals, § 346 (1963) and cases cited therein.

Accordingly, the judgment herein appealed is

Affirmed.

OWEN and MAGER, JJ., and DIA-MANTIS, GEORGE N., Associate Judge, concur.


author: OWEN, Judge.

text:
    M. J. WATERMAN a/k/a Mark Jay Waterman a/k/a James Waterman, Appellant, v. STATE of Florida, Appellee.
    No. 74-883.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 1975.
    Gerald Kogan, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Frank B. Kessler, Asst. Atty. Gen., West Palm Beach, for appellee.
   OWEN, Judge.

Appellant-Waterman was guilty of grand larceny but because of prosecutorial ineptness his conviction must be set aside.

Appellant was president of Tri-County Mortgage Company which was 'engaged in the business of servicing mortgages. In May, 1969, Mrs. Dora Pierson advanced the sum of $6,000.00 to Tri-County Mortgage Company which in turn delivered that sum to Mr. and Mrs. Pasquale Prignaro as a loan, evidenced by a note and secured by a mortgage on the Prignaro property. Mrs. Pierson was named as mortgagee but the monthly installments were paid to TriCounty which in turn remitted monthly to Mrs. Pierson. Up until June 1, 1972 Mrs. Pierson received from Tri-County an installment payment each month, but when the June 1, 1972 installment was two weeks delinquent inquiry of appellant was made. It developed that not only had Prignaro paid each installment as due, but also on a number of occasions had paid an additional installment, so that by May, 1972, the loan had been repaid in full. Appellant’s explanation to Mrs. Pierson as to why she would not be receiving any more payments on the Prignaro mortgage was relatively simple: the note and mortgage had been paid in full by Prignaro and appellant had used the unremitted amount for the support of his family.

The State elected to charge appellant with grand larceny under the provisions of Fla.Stat. § 811.021(1) (a) (1969) in the following language:

“M. J. Waterman ... on the first day of June A. D. 1972, in the County and State aforesaid, did then and there unlawfully take from the possession of the true owner or another person personal property, to wit: Proceeds of mortgage deed and note, the property of Dora Pierson, said personal property being then and there of the value of One Hundred Dollars ($100.00) or more, good and lawful money of the United States of America, in that the said Defendant did then and there obtain such property from possession of the true owner thereof by fraudulent representation, and with the intent to permanently deprive the said Dora Pierson of her property, or the use and benefit thereof, contrary to F.S. 811.021(1) (a).” (e. s.)

Subsequently, under court order to furnish a statement’ of particulars, the State alleged that the fraudulent representation made by defendant was:

“. . . that Dora Pierson would receive all monies and/or proceeds due from mortgage deed and note dated May 5, 1969 until full amount of mortgage note was paid to Dora Pierson.”

We cannot surmise why the State, with knowledge of the above facts which would clearly support a charge of grand larceny under several of the alternative provisions of Fla.Stat. § 811.021 (1969), elected to restrict itself by allegations of the information and statement of particulars to a charge which the evidence would not support. Nonetheless, the record shows that the only representation made by appellant to Dora Pierson (as set out in the statement of particulars) occurred in May, 1969. Such representation, false and fraudulent though it was, did not pertain to a past or existing fact, but was actually a promise to do something in the future, and thus it will not support the conviction for a fraudulent or false representation or pretense within the meaning of Fla.Stat. § 811.021 (1969). Youngker v. State, 215 So.2d 318 (4th DCA Fla.1968).

It is our opinion that the court erred in denying appellant’s motion for judgment of acquittal at the close of all of the evidence. The judgment is reversed and the cause remanded with directions that appellant be discharged.

Reversed and remanded.

WALDEN, C. J., and DOWNEY, J., concur.

      . Recently we have seen an increasing number of cases before this court in which a conviction has been reversed because the appellant, while obviously guilty of a crime, had not been proven guilty of the crime charged due to ineptness in prosecution. See, e. g., Burmam v. State, 316 So.2d 300, 4th DCA Fla., opinion filed July 18, 1975; Stark v. State, 316 So.2d 586, 4th DCA Fla., opinion filed July 18, 1975 ; Mitchell v. State, 317 So.2d 465, 4th DCA Fla., 1975. Despite the tremendous increase in case load, prosecutors must constantly strive to exert that degree of professional skill and diligence in the preparation of charges and the presentation of evidence in support thereof worthy of the position.

      . Our disposition of the case makes it unnecessary for us to consider appellant’s second point on appeal relating to the defense of statute of limitations.


author: RAWLS, Judge. BOYER, Chief Judge

text:
    B. F. BOULWARE and Audrey Boulware, Appellants, v. Irene D. MAYFIELD et al., Appellees.
    No. W-34.
    District Court of Appeal of Florida, First District.
    Aug. 27, 1975.

      Anderson E. Hatfield, III, Gainesville, for appellants.
    John H. Haswell, of Chandler, O’Neal, Avera, Gray, Lang & Stripling, Gaines-ville, for appellees.
   RAWLS, Judge.

Appellants, B. F. Boulware and Audrey Boulware, filed suit to cancel a mortgage alleging in Count I of their Complaint that it had been fully satisfied. By Count II of their Complaint, the Boulwares alleged that appellee, Irene D. Mayfield, by execution of a warranty deed to them, breached her covenant against encumbrances and demanded damages (attorney’s fees and costs) against her for prosecution of this action to cancel the “outstanding mortgage”. The trial court entered a judgment in favor of appellants as to the allegations in Count I and cancelled the mortgage of record, and in favor of appellee Mayfield denying any damages for an alleged breach of covenant against encumbrances.

The point on appeal which is dispositive of this casue is:

“Whether the trial court erred as a matter of law in ruling that a mortgage, unsatisfied of public record, even though paid, is not an encumbrance within the covenant against encumbrances in a Florida statutory warranty deed.”

Appellants’ cause of action arose solely out of the statutory warranty deed executed to them by Mrs. Mayfield. Florida Statute 689.03 provides, inter alia:

“ . . . a conveyance executed substantially in the foregoing form shall be held to be a warranty deed with full common law covenants and shall just as effectively bind the grantor, and his heirs, as if said covenants were specifically set out therein.”

It is elementary that one of the common law covenants is the covenant against encumbrances. Rawle, in quoting 2 Greenleafs Evidence, § 242, defines an encumbrance as “ ‘eVery right to or interest in the land, which may subsist in third persons, to the diminution of the value of the land, but consistent with the passing of the fee by the conveyance.’ ” Tiffany describes the covenant against encumbrances as one for indemnity only and the covenant as.being broken when there is an outstanding encumbrance. Of interest is Tiffany’s discussion of a breach of the common law covenant of warranty or that for quiet enjoyment where he states: “The existence of an invalid and unenforceable claim is not a breach, even though it constitutes a cloud on title.”

The nexus of appellants’ complaint is that the common law covenant against encumbrances warrants to the purchaser a record title even though such record encumbrance is invalid and unenforceable. Although this is apparently a question of first impression in this jurisdiction, we conclude that the answer is a positive NO.

The authorities are unanimous that a breach of the common law covenant against encumbrances occurs “ . . .if an encumbrance on the land then exists.” Appellants cite the following statement from Gore, supra, in support of their position :

“An encumbrance within the covenant against encumbrances is every right to or interest in land, which may subsist in a third party, to the diminution of the value of the land, but consistent with the passing of the fee by the conveyance.”

The fallacy of appellants’ position is that they have not proved a “right” or “interest” in land which may subsist in a third party; but to the contrary, they have proved that a third party does not have an encumbrance against their land. Having proved that no encumbrance existed, appellants had no cause of action for breach of an encumbrance. Record titles were unknown in common law. In short, appellants’ complaint is lodged because of a cloud on the record title, not that the grantor has breached her common law covenant against encumbrances. The distinction between an encumbrance and a cloud on a title for property has been delineated for many years. To be a cloud upon a record title, the claim may be invalid, while only lawful or valid claims violate the covenants as to encumbrances.

The judgment appealed is affirmed.

McCORD, J., concurs.

BOYER, C. J., concurs specially.

BOYER, Chief Judge

(concurring specially).

While recognizing that the law is as stated in the majority opinion, I think' it important to emphasize what the decision in this case does not involve. To do so we must first consider what it does involve. The decision does involve the old common law covenant against encumbrances. As noted in the majority opinion, the common law covenant against encumbrances is only breached where the encumbrance is valid and enforceable. An invalid claim, even though it is upon the record, is not an “encumbrance” for purposes of the covenant against encumbrances. (See Thompson on Property, Sections 3183, 3187 and American Law of Property, Volume III, Section 12.128) Inasmuch as a paid mortgage that is unsatisfied of public record' comes within the category of invalid and unenforceable claims, such a mortgage can not be said to constitute a breach of the covenant against encumbrances. (See 5 A.L.R. 1084 and 20 Am.Jur.2d, “Covenants, Conditions, etc.”, Section 85)

However, an entirely different situation would be created should the issue be whether the seller of real property has breached an agreement to provide the buyer with an abstract of title showing good and marketable (merchantable) title. Such an agreement is breached when the abstract fails to show “a good and marketable record title as distinguished from one that might be good in point of fact but dependent in material respect upon matters in pais to support its validity.” (Alexander v. Cleveland, Sup.Ct.Fla.1955, 79 So.2d 852, 854; see also Allen v. Bowman, Sup.Ct. Fla.1943, 152 Fla. 325, 10 So.2d 905) Thus, had this case involved a suit for specific performance by the seller in which the buyer asserted as a defense that the buyer had failed to show good and marketable title, or had the buyer initiated a suit for breach of contract to convey marketable title, an entirely different result would have been likely. However, as this case only involved an alleged breach against the covenant against encumbrances, the decision of the lower court must be affirmed.

      . The instant deed is in the statutory form.

      . Van Ness v. Royal Phosphate Co., 60 Fla. 284, 53 So. 381 (1910); and Coral Calles v. Payne, 94 F.2d 593 (4th Cir. 1938). Also see 7 Miami Law Quarterly 378-384 (1952).

      . Rawle on Covenants for Title 94-95 (4th ed. 1873).

      . 4 Tiffany Real Property § 1018, at 303 (3rd ed. 1975).

      .Id. § 1013. See also R. J. Dinnebeil, Inc. v. Braun, 127 N.J.L. 455, 23 A.2d 286 (1942).

      . Gore v. General Properties Corp., 149 Fla. 690, 6 So.2d 837 (1942), citing 7 Thompson on Real Property 212 (Permanent ed. -).

      . Not in issue is a claim for breach of contract to convey marketable title, nor breach of contract for the existence of “clouds on title”.

      . Palmeri v. Allen, 30 Conn.Sup. 56, 299 A.2d 552 (1972).


text:
    Kenneth Lee FORD, Appellant, v. STATE of Florida, Appellee.
    No. W-177.
    District Court of Appeal of Florida, First District.
    Aug. 12, 1975.

      Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael M. Corin, Asst. Atty. Gen., for appel-lee.
   MILLS, Judge.

Appellant-defendant was charged with two counts of robbery. Pursuant to plea bargaining, he pled nolo contendere to one count, and the other count was dismissed. He was sentenced to a term of ten years. The sole issue is whether the trial court erred when it accepted defendant’s plea without advising him of his right against self-incrimination; of his right to a jury trial; and of his right to confront his accusers.

At the arraignment, the following occurred :

1. The defendant was informed of the charges against him.
2. He stated that he had not been threatened, intimidated or forced to plead nolo contendere.
3. He advised that he was voluntarily pleading nolo contendere.
4. He informed the court that he had a tenth grade education.
5. He admitted that he was the driver of the car at the time of the robbery, and his attorney stated that he was a principal to the charge.
6. He stated that he was satisfied with the advice and services of his attorney.
7. He was informed that he could receive a maximum sentence of life.
8. He stated that he had been promised nothing more than a presentence investigation.
9. The court then inquired if defendant still wished to plead nolo contendere, and defendant responded that he did.

When viewed in its totality, the record of the arraignment justifies the acceptance of the nolo contendere plea. Defendant’s attorney had counseled with him on his plea, and the plea was tendered in order to procure the dismissal of the second robbery count. The record before us reveals that the nolo contendere plea was intelligently and voluntarily entered, and that the defendant was aware of the consequences. In fact, defendant makes no argument that his plea was not intelligently and voluntarily made. He only complains that the trial court failed to advise him of each and every right he had, step by step, which is not required where a record, like the one before us, shows that what occurred was a part of his trial strategy. Kelly v. State, 254 So.2d 22 (Fla.App.1971); Sumner v. State, 289 So.2d 434 (Fla.App.1974); Mower v. State, 308 So.2d 586 (Fla.App.1975).

In addition, the defendant does’ not contend that he has Been prejudiced, nor does the record show prejudice. Williams v. State, 316 So.2d 267 (Fla.1975).

Affirmed.

BOYER, C. J., and McCORD, J., concur.


text:
    A. J. DAVIS, a/k/a Andrew J. Davis, and Gwendolyn F. Davis, Appellants, v. FAT MAN’S BAR-B-QUE OF TALLAHASSEE, INC., a Florida Corporation, Appellee.
    No. W-238.
    District Court of Appeal of Florida, First District.
    July 30, 1975.
    Rehearing Denied Sept. 11, 1975.
   PER CURIAM.

Affirmed.


text:
    Michael A. JONES, Appellant, v. STATE of Florida, Appellee.
    No. 74-1650.
    District Court of Appeal of Florida, Fourth District.
    Aug. 11, 1975.
   Cause transferred to Supreme Court.


text:
    Robert Macy NUSHAWG, Appellant, v. Mary C. NUSHAWG, Appellee.
    No. 75-301.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 1975.
   Appeál from Circuit Court, Broward County; Stuart LaMotte, Judge.

Appeal dismissed.


text:
    Elijah BROWN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 74-935.
    District Court of Appeal of Florida, Fourth District.
    Aug. 21, 1975.
   Appeal from Circuit Court, Brevard County; David U. Strawn, Judge.

Appeal dismissed.


text:
    Jeffrey Lee ELLER, Appellant, v. Candice Ann NEAL, Appellee.
    No. 75-1310.
    District Court of Appeal of Florida, Fourth District.
    Aug. 21, 1975.
   Appeal from Circuit Court, Broward County; Stephen Rich Booher, Judge.

Appeal dismissed.


text:
    FLORIDA AUDUBON SOCIETY, INC., et al., Petitioners, v. CENTRAL AND SOUTHERN FLOOD CONTROL DISTRICT and Florida Keys Aqueduct Authority, Respondents.
    No. 74-1497.
    District Court of Appeal of Florida, Fourth District.
    Aug. 21, 1975.
   Appeal dismissed.


text:
    GENERAL INSURANCE AGENCY OF BOCA RATON, INC., a corporation, and Walter T. Colquitt, President, Appellants, v. S. AVERY and Kathleen D. Avery, his wife, Appellees.
    No. 74-1543.
    District Court of Appeal of Florida, Fourth District.
    Aug. 21, 1975.
   Appeal from Circuit Court, Palm Beach County; Hugh MacMillan, Judge.

Appeal dismissed.


text:
    William W. HENDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 75-1237.
    District Court of Appeal of Florida, Fourth District.
    Aug. 21, 1975.
   Appeal from Circuit Court, Palm Beach County; Robert Hewitt, Judge.

Appeal dismissed.


text:
    Franklin P. JACOBS, Appellant, v. Edward J. STACK, As Sheriff in and for Broward County, Florida, Appellee.
    No. 74-728.
    District Court of Appeal of Florida, Fourth District.
    Aug. 21, 1975.
   Appeal from Circuit Court, Broward County; John H. Moore, Jr., Judge.

Appeal dismissed.


text:
    Marvin MIKE, Appellant, v. STATE of Florida, Appellee.
    No. 74-1626.
    District Court of Appeal of Florida, Fourth District.
    Aug. 21, 1975.
   Appeal from Circuit Court, Martin County; C. Pfeiffer Trowbridge, Judge.

Appeal dismissed.


text:
    Samuel MILLER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. Y-58.
    District Court of Appeal of Florida, First District.
    Aug. 21, 1975.
   PER CURIAM.

Affirmed.


text:
    STATE of Florida, Relator, v. Honorable Robert S. HEWITT, Judge of the Circuit Court of the Fifteenth Judicial Circuit of Florida in and for Palm Beach County, Criminal Division, Respondent.
    No. 75-1125.
    District Court of Appeal of Florida, Fourth District.
    Aug. 21, 1975.
   Appeal dismissed.


text:
    Frankie Lee STOKES, Appellant, v. STATE of Florida, Appellee.
    No. X-332.
    District Court of Appeal of Florida, First District.
    Aug. 21, 1975.
   PER CURIAM.

Affirmed.


text:
    Carolyn L. TARDIFF and Raymond L. Tardiff, her husband, Appellants, v. ALBERTO-CULVER COMPANY, a foreign corporation, and Gray Drug Stores, Inc., an Ohio Corporation, Appellees.
    No. 75-1303.
    District Court of Appeal of Florida, Fourth District.
    Aug. 21, 1975.
   Appeal from Circuit Court, Palm Beach County; Vaughn J. Rudnick, Judge.

Appeal dismissed.


text:
    Eugene R. CUNEO, Appellant, v. STATE of Florida, Appellee.
    No. 75-81.
    District Court of Appeal of Florida, Second District.
    Aug. 22, 1975.
    Rehearing Denied Sept. 10, 1975.
   Appeal dismissed.


text:
    Calvin LAW, Appellant, v. STATE of Florida, Appellee.
    No. 74-441.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 1975.
   PER CURIAM.

Affirmed.


text:
    Hilton LUMPKIN, Appellant, v. STATE of Florida, Appellee.
    No. 74-420.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 1975.
   PER CURIAM.

Affirmed.


text:
    John Willie RAWLINS, Appellant, v. STATE of Florida, Appellee. Alvin Henry HESTER, Appellant, v. STATE of Florida, Appellee.
    Nos. 74-942, 74-943.
    District Court of Appeal of Florida, Second District.
    Aug. 22, 1975.
   PER CURIAM.

Affirmed.


text:
    Herbert Francis ROSSELL, Appellant, v. STATE of Florida, Appellee.
    No. 74-496.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 1975.
   PER CURIAM.

Affirmed.


text:
    SEARS, ROEBUCK & COMPANY, a foreign corporation, Appellant, v. Dustin RUFFINO, a minor, etc., et al., Appellees. Dustin RUFFINO, a minor, etc., et al., Appellants, v. Dave JOHNSON and State Farm Fire & Casualty Company et al., Appellees.
    Nos. 74-1672, 74-1684.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 1975.
   PER CURIAM.

Appeals dismissed.


text:
    Cleo SPEAR et al., Appellants, v. Charles H. GEIGER et al., Appellees.
    No. 75-238.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    STATE of Florida ex rel Rommie Lee LOUDD, Appellant, v. Mel COLMAN, Sheriff of Orange County, Appellee.
    No. 75-1407.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 1975.
   Ordered upon the Petitioner’s August 7, 1975 Petition for Writ of Habeas Corpus —Excessive Bail, the August 7, 1975 Rule to Show Cause, the August 15, 1975 Response and August 18, 1975 Supplemental Response to Rule to Show Cause, and the August 19, 1975 Motion for Final Disposition; the Petitioner’s prayer in his August 7, 1975 Petition requesting “reasonable Bail to guarantee his appearance for Trial” is granted and the trial Court is hereby directed to reduce the Petitioners’ bond pending appeal to Two Hundred and Twenty-Five Thousand ($225,000.00) and 00/100 Dollars.


text:
    Dianne F. VOGT, Appellant, v. John C. VOGT, Jr., Appellee.
    No. 75-346.
    District Court of Appeal of Florida, Second District.
    Aug. 22, 1975.
   Appeal dismissed.


text:
    Larry BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 74-1346.
    District Court of Appeal of Florida, Fourth District.
    Aug. 25, 1975.
   Appeal from Circuit Court, Palm Beach County; Russell H. McIntosh, Judge.

Appeal dismissed.


text:
    GRABBER SOUTHEAST, INC., a Florida Corporation, Appellant, v. TRAVELERS INDEMNITY COMPANY, a Florida Corporation, et al., Appellees.
    No. 75-766.
    District Court of Appeal of Florida, Fourth District.
    Aug. 25, 1975.
   Appeal from Circuit Court, Broward County; Stuart LaMotte, Judge.

Appeal dismissed.


text:
    Benjamin F. HANES, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 74-844.
    District Court of Appeal of Florida, Fourth District.
    Aug. 25, 1975.
   Appeal from Circuit Court, Seminole County; Volie A. Williams, Jr., Judge.

Appeal dismissed.


text:
    Scottie HICKSON, Appellant, v. STATE of Florida, Appellee.
    No. 75-846.
    District Court of Appeal of Florida, Fourth District.
    Aug. 25, 1975.
   Appeal from Circuit Court, Palm Beach County; James R. Stewart Jr., Judge.

Appeal dismissed.


text:
    John Frank HUNTER, Appellant, v. STATE of Florida, Appellee.
    No. 74-1149.
    District Court of Appeal of Florida, Fourth District.
    Aug. 25, 1975.
   Appeal- from Circuit Court, Martin County; C. Pfeiffer Trowbridge, Judge.

Appeal dismissed.


text:
    Allen H. JACOBSON, Appellant, v. FORD MOTOR COMPANY et al., Appellees.
    No. 75-1234.
    District Court of Appeal of Florida, Third District.
    Aug. 25, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Bobby JONES, Appellant, v. STATE of Florida, Appellee.
    No. X-515.
    District Court of Appeal of Florida, First District.
    Aug. 25, 1975.
   PER CURIAM.

Affirmed.


text:
    Stephen Kenneth MACKEY, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1141.
    District Court of Appeal of Florida, Third District.
    Aug. 25, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    David MONTGOMERY, Appellant, v. STATE of Florida, Appellee.
    No. V-50.
    District Court of Appeal of Florida, First District.
    Aug. 25, 1975.
   PER CURIAM.

Affirmed.


text:
    The ROBINO-LADD COMPANY, Appellant, v. LAWRENCE-IRWIN CHARTERED ARCHITECTS, a Florida professional association, Appellee.
    No. 75-1433.
    District Court of Appeal of Florida, Fourth District.
    Aug. 25, 1975.
   Appeal from Circuit Court, Palm Beach County; Lewis Kapner, Judge.

Appeal dismissed.


text:
    Veronica SHEARIN, Appellant, v. Ernest CITRON et al., Appellees.
    No. 75-1328.
    District Court of Appeal of Florida, Fourth District.
    Aug. 25, 1975.
   Appeal from Circuit Court, Broward County; George Richardson, Judge.

Appeal dismissed.


text:
    Betty Lee BUSH, a widow, etc., Appellant, v. THERMAL ENGINEERING COMPANY, INC., a corporation, et al., Appellees.
    Nos. W-233, W-448.
    District Court of Appeal of Florida, First District.
    Aug. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    IRECO CHEMICALS, INC., and Ireco Blasting, Inc., Appellants, v. Paul E. TOPPINO, Appellee.
    No. 75-1134.
    District Court of Appeal of Florida, Third District.
    Aug. 26, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Ralph L. RUTH, Jr., et al., Appellants, v. EMERALD HARBOR FLOTILLA, INC., a Florida Corporation, et al., Appellees.
    No. 74-1533.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 1975.
   PER CURIAM.

Affirmed.


author: BLOODWORTH, Justice.

text:
    Suzanne D. INGRAM and Kay D. Foster, as Administrators, etc., et al. v. Annie Lou Dailey Hicks HORN.
    SC 1163.
    Supreme Court of Alabama.
    July 31, 1975.
    Rehearing Denied Aug. 21, 1975.
    J. Garrison Thompson, Selma, for appellants.
    James M. White, Centreville, for appel-lee.
   BLOODWORTH, Justice.

Appellee brought suit against Suzanne D. Ingram and Kay D. Foster, individually, and in their administrative capacity, seeking to have a deed declared null and void. The Circuit Court of Bibb County, sitting without a jury, rendered a final judgment which set aside the deed in question and vested title in appellee. Appeal was then perfected to this Court by the ad-ministratrix and heirs of the deceased grantee.

On October 21, 1971, appellee executed a deed conveying to her brother, Harold Dailey, the fee simple title in and to a 260-acre tract of land, reserving in herself a life estate.

In her complaint appellee avers that she signed the deed under the mistaken belief that it conveyed title to a city lot in Centre-ville, Alabama. This belief, she avers, arose out of her reliance on the fraud and misrepresentations of her brother, Harold Dailey, the grantee and Sheriff of Bibb County, who, she avers, brought the deed to her home, informed her that it conveyed title to her lot in Centreville, and assured her that she need not read the deed since she already knew its contents. In reliance on her brother’s alleged misrepresentations, appellee avers that she signed the deed without reading it, without knowledge of its actual contents, and without the intention of conveying title to the 260-acre tract. It is alleged that appellee did not learn of the actual contents of this deed until after the death of her brother. Shortly thereafter, on May 30, 1974, appel-lee brought suit against his administratrix, who also are his heirs, praying for a cancellation of the deed.

At trial, three theories were advanced upon which appellee asserted her right to the requested relief: (1) that there was a total failure of consideration for the execution of the deed; (2) that she signed the deed without knowledge of its contents and without the intention of conveying the land described therein; and (3) that the execution of the deed was procured through the fraud and misrepresentations of Harold Dailey.

The trial judge rendered judgment for appellee. He found, inter alia, that a deed is invalid without a “meeting of the minds,” that the deed was not read by, or to, appellee, that she did not know she was conveying the land, and that she did not intend to convey the property described therein. On this appeal, appellants challenge not only the court’s conclusions of law hut also the sufficiency of the evidence to support the decree.

As to the first of appellee’s theories, we agree with appellants that a deed may represent a gratuitous conveyance of realty, and that even a “total failure of consideration” such as that alleged by ap-pellee is insufficient grounds for the cancellation of an otherwise valid deed. As this Court has pointed out, “A deed is valid and operative as between the parties and their privies, whether founded on a consideration or not.” Porter v. Roberson, 263 Ala. 294, 296, 82 So.2d 244, 245 (1955).

As the second of the theories upon which appellee sought the cancellation of the deed, it is alleged that appellee executed the instrument without knowledge of its contents and without the intention to convey.

When a grantor fails to read a deed (having the ability to read and understand it) and this results in his execution of an instrument which conveys realty, although he subsequently avers he did not intend to convey, the grantor’s mistake will be attributed to his own negligence and the deed will be upheld so long as his signature was not induced by fraud or misrepresentation. Colburn v. Mid-State Homes, Inc., 289 Ala. 255, 266 So.2d 865 (1972).

Accordingly, if the deed in this case is to be set aside because of appellee’s lack of intention to convey the property described therein, appellee must prove that she acted under the influence of fraud or misrepresentation. This Court has held that “The degree of proof required to rescind or Cancel a conveyance because of fraudulent misrepresentation is more than a mere probability of the truth of the charge of fraud.” Hodges v. Beardsley, 269 Ala. 280, 282, 112 So.2d 482, 483-84 (1959).

In cases where the grantor seeks to set aside a deed on the ground that a fraudulent misrepresentation induced him to sign the deed without knowledge of its contents, this Court has required that the fraud must be clearly and satisifactorily proven. Cross v. Maxwell, 263 Ala. 509, 83 So.2d 211 (1955); Hodges v. Beardsley, supra.

“If the proof is uncertain in any material respect, it will be held insufficient, though the court may feel that a great wrong has been done; the court cannot grant the relief by reason of uncertainty.” Wooddy v. Matthews, 194 Ala. 390, 69 So. 607 (1915).

After carefully reviewing the record below, we find that the appellee has not met this burden of proof on the issue of fraud. Appellee was the sole witness to the alleged misrepresentations made by the deceased grantee. Whether testimony regarding alleged fraudulent statements made by the deceased grantee may be rendered incompetent by operation of the Dead Man’s Statute (Title 7, section 433, Alabama Code (Recomp. 1958), we need not decide because no evidence was offered to substantiate the charges of alleged fraud and misrepresentations. Thus, appellee’s alleged lack of intent to convey is an insufficient basis for the cancellation of the deed.

The third theory advanced by ap-pellee upon which the cancellation of the deed is sought is that the execution of the deed was procured through the fraud and misrepresentations of the deceased grantee. Here again, we reiterate that appellee’s right to relief is contingent upon clear and convincing proof of the alleged fraud and misrepresentation, authorities supra. Moreover,' this Court is committed to the proposition that an acknowledgment to a deed is entitled to great weight and can be impeached only when the evidence is clear and convincing. Porter v. Roberson, supra. The record of trial in the instant case does not contain any evidence of such fraud or misrepresentation, nor did the trial court make any finding of fact with respect thereto.

The undisputed evidence is that Sheriff Dailey came to appellee’s home with his secretary, a notary public, who took appel-lees’ acknowledgment to the deed. The instrument was not read to appellee. The secretary testified she did not read the deed nor was she told what it was until they were returning to the office when Sheriff Dailey told her it was a deed to appellee’s place. Over appellant’s objection, appellee was allowed to testify that she did not know what the deed was when she signed it and that she did not intend to convey the 260-acre tract to the deceased. There was no evidence that any false representation was made by Sheriff Dailey at the time, of the deed’s execution.

In the absence of proof entitling appellee to the relief sought, we must reverse and remand the judgment of the circuit court.

Reversed and remanded.

HEFLIN, C. J., and FAULKNER, AL-MON and EMBRY, JJ„ concur.


author: ALMON, justice.

text:
    Evelyn L. KIMBRELL et al. v. William Archie ALLRED.
    SC 760.
    Supreme Court of Alabama.
    Aug. 21, 1975.

      Hogan, Smith & Alspaugh, and John F. Kizer, Jr., Birmingham, for appellants.
    Jack Martin Bains, Oneonta, for appel-lee.
   ALMON, justice.

This action was brought by William Archie Allred, appellee, against Evelyn L. Kimbrell et al., appellant, to have a disputed land line established. The trial court, after taking evidence ore tenus, ruled in favor of appellee.

In brief appellant cites only one case, Prestwood v. Hunt, 285 Ala. 525, 234 So.2d 545, for the proposition that merely grazing cattle on land from time to time does not constitute adverse possession. For a better understanding of this cause we refer to the court’s final decree from which we quote in pertinent part:

“. . . The Court finds that the Plaintiff [Appellee] insisted that the property line between the parties was a fence that follows the old ‘big branch’, and the Defendant [Appellant] insisted that the property line was a fence recently erected that follows the new ‘big branch’, the Court finds that the old original ‘big branch’ was the boundary line between the property of the Plaintiff [Appellee] and the Defendant [Appellant] as far back as 1890 and referred to in the deeds of the previous owners of both property; That as early as the 1920’s a fence was placed on the property between the present property of the Plaintiff and Defendant, and that Plaintiff and his predecessors have maintained said fence, recognized said fence as the boundary line; and that said fence has run along the old ‘big branch’ for over 40 years and has been used to keep animals in the same, and that the Plaintiff and his predecessors have been in the open, notorious, continuous and adverse possession of the property up to the old original ‘big branch’ during all of these years ....
The Court further finds that the true boundary and property line between the parties hereto is the fence that follows the old original ‘big branch’ which still stands on the property at the present time and has been on the same for over 40 years.”

Mr. Clyde Gilliland, appellant’s predecessor in title, testified that he acquired the property with the understanding' that the old big branch was the true property line. Furthermore, a copy of an abstract showed that as far back as 1890 deeds to the property in question referred to the big branch as the boundary line.

Appellant claims the property line to be a ditch or branch of more recent vintage which was constructed by the W.P.A. during the Depression and further claims that appellee’s evidence of adverse possession is insufficient citing Prestwood v. Hunt, supra. Prestwood involved property described as “mountain or wild land.” There were no improvements on the property and the court found no evidence of anyone attempting to inhabit the property. In this case, as early as the 1920’s a fence was placed on the old big branch line and has been used to contain cattle. We consider Prestwood inept authority for this case and further we are of the opinion there was ample evidence to support the trial court’s ruling.

Affirmed.

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

       This case was originally assigned to another Justice formerly on this Court and reassigned to the writer.


author: WRIGHT, Presiding Judge.

text:
    Bonnie Joan H. HUBBARD v. Earnie HUBBARD, Jr.
    Civ. 483.
    Court of Civil Appeals of Alabama.
    May 7, 1975.
    Rehearing Denied June 11, 1975.
    Rosen, Wright, Harwood & Albright, Tuscaloosa, for appellant.
    Zeanah, Donald, Lee & Williams, Tuscaloosa, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from a decree of divorce and child custody.

Plaintiff-wife filed suit seeking divorce on grounds of incompatibility, custody of minor girl child age four years, division of property and support. Defendant filed counter-suit for divorce on ground of adultery, custody of child and award of property. After hearing ore tenus the trial court awarded a divorce to the husband on the ground of adultery; granted custody of the child to the husband, with visitation rights to the wife, directed sale of the home and division of the proceeds after payment of mortgage and costs. From the decree, plaintiff and cross-defendant appeals. We reverse.

A summary of the evidence is as follows: Parties were married in July, 1964, and lived together until February, 1974. Plaintiff was age 17 at the time of the marriage. One child, a girl, was horn of the marriage. She is four years of age. Both parties were employed during the marriage, except the plaintiff stopped working prior to the birth of the child and for some two years thereafter. The parties contributed jointly to the purchase of a home and to family expenses. The husband worked long hours and much overtime on the night shift. The marriage was beset by disagreements. Defendant was the dominant party, determining who their friends and associates would be. He often accused plaintiff of affairs with other men, including old beaus of high school days and was of a jealous and suspicious nature. In spite of such accusations and disagreements the parties continued together.

In May of 1973, defendant suffered some industrial accident, the nature of which is not shown. The evidence tends to indicate that subsequent to the accident, defendant became withdrawn and tense. Disagreements came more often and tension built in the home. After one such argument, divorce was discussed. The family minister was called to the house for consultation. Defendant states that plaintiff' stated to the minister that she had committed adultery. Plaintiff denies such statement. The minister did not recall such statement and stated that he did not get the impression from the consultation that plaintiff had been unfaithful though defendant may have accused her of such conduct.

After the minister’s visit, the parties subsequently went together to consult counsel about divorce, custody and division of property. Separation occurred on January 29, 1974, and plaintiff, with the child, moved to the home of her mother.

Some two years prior to the separation, a Robbins family moved a few doors from the Hubbards. They became friendly, visiting in one another’s homes and going out together socially. The Robbins separated at about the same time as the Hubbards. After the separation, plaintiff and Mr. Robbins met at the bank. During a conversation, it was discussed that each was looking for an apartment but that plaintiff could not afford one at’the time. Robbins later called plaintiff, telling her that he had found an apartment. He told her he was expecting to apply for a transfer from his job to one in another city. He suggested that plaintiff could take his apartment after he was transferred. He asked her if she would have the utilities placed in her name so that his wife would not be able to locate his new apartment. In exchange plaintiff could move into the apartment after he left without having to put up deposits. He would give her the money for the deposits.

After some thought, plaintiff agreed to such arrangement. The bills subsequently were sent to her at the address of her mother. She forwarded them to Robbins who paid them. On two other subsequent occasions, Robbins requested the loan of a skillet, two pieces of Corning Ware and a percolator from plaintiff. Plaintiff, accompanied by her mother carried the skillet and Corning Ware to Robbins’ apartment. Plaintiff later carried the percolator to Robbins late one afternoon, staying only about 5 minutes. It was shown that Robbins and plaintiff met in a store on one other occasion when plaintiff’s mother was present, and at a fishing lake when the Ichild was present.

In early March, 1974, plaintiff returned to the home seeking a reconciliation. While she was in a highly emotional state, defendant stated that she confessed numerous occasions of infidelity with Robbins. These occasions were stated to have occurred in motels, the back seat of automobiles, in the woods and other places. Defendant stated plaintiff confessed to other infidelities with men over a period of seven years. Plaintiff denied such confessions or that any infidelity had ever occurred. Defendant further stated that plaintiff attempted to find a gun to shoot herself with and attempted to take a handful- of pills.' Plaintiff also denied this took place.

The reconciliation lasted one night and plaintiff returned to her mother’s. This suit was filed shortly thereafter.

The only other testimony concerning adultery was given by Mrs. Robbins. She was permitted to state that Robbins had confessed to her infidelities with plaintiff. Robbins denied such confessions and infidelities.

All witnesses, including defendant, stated that plaintiff was an excellent mother and cared for her child. She had always had the primary job of disciplining the child. The child loved her very much. Plaintiff’s fellow employees and former employer stated she had always been morally proper and circumspect when at work. The men with whom she had been accused of being sexually intimate appeared and denied such conduct.

With this summary of the evidence, we must state that we consider there is insufficient legal evidence to support the finding of the trial court that plaintiff has committed adultery or that she is unfit to have custody of her four-year-old daughter.

This court has always followed the principle that it is our duty to affirm the decree of the trial court who heard and saw the witnesses as they testified, when such decree is fairly supported by credible evidence. Dunlavy v. Dunlavy, 283 Ala. 303, 216 So.2d 281. In this case we do not find the decree to be fairly supported by credible evidence.

The proof to support the charge of adultery must be such as to create more than a suspicion. It must be sufficiently strong to lead the guarded discretion of a reasonable and just mind to the conclusion of adultery as a necessary inference. Hendrix v. Hendrix, 250 Ala. 309, 34 So.2d 214. White v. White, 278 Ala. 682, 180 So.2d 277.

The testimony of defendant that plaintiff confessed to him numerous occasions of infidelity is vehemently denied by plaintiff. She not only denies making such confession but denies the truth of the matters contained therein. Testimony of confessions of adultery is insufficient to warrant á decree of divorce on such ground. Such confession is only admissible in corroboration of other evidence tending to establish the offense. Hendrix v. Hendrix, Supra.

What evidence is there tending to establish the offense of adultery other than the confession? Plaintiff agreed to arrange for utilities to be placed in her name for an apartment rented by Robbins. She loaned Robbins two dishes, a skillet and a percolator. She visited the apartment twice, once with her mother and once alone when she remained only five minutes. She ran into Robbins in public places either with her mother or her child. She separated from her husband at the approximate time that Robbins separated from his wife. She attempted reconciliation at approximately the time Robbins returned to his home for a few days. Defendant thought plaintiff had a key to Robbins’ apartment but did not know for sure. Mrs. Robbins saw a baby’s high chair in the apartment which she identified as belonging to plaintiff.

In rebuttal to such evidence, plaintiff gave a reasonable explanation for placing the utilities in her name. Her mother stated that plaintiff was at her home every night after work and had not been out at night. Plaintiff’s high chair had been at the mother’s home at all times. Robbins stated the high chair had been left at the apartment by a former tenant when he moved in. During the time when plaintiff and Robbins were charged with being regularly intimate, friends of defendant had been watching and following plaintiff and Mrs. Robbins was watching the apartment of Robbins and Robbins was working long hours seven days a week. The only stated time they were observed together was the occasion at a store when plaintiff’s mother was present and when plaintiff had apparently dropped off the percolator at Robbins’ apartment.

The testimony of Mrs. Robbins that Robbins had confessed to sexual intimacies with plaintiff was strictly hearsay which was denied by Robbins. Mrs. Robbins stated such confessions were made to her while she was separated from Robbins though she was having sexual relations with him twice weekly and a divorce suit was pending. Robbins denied both the • confession and the sexual relations with Mrs. Robbins. Defendant and Mrs. Robbins were in contact with one another and having conversations about their respective spouses and marital problems during such times.

As we consider the evidence, there is presented nothing more than suspicion and mere speculation in support of acts of adultery. Such evidence is insufficient to support the very serious charge of adultery and stamp plaintiff publicly and permanently of record with the title of adultress.

We further find the evidence insufficient to remove a girl child of the tender age of four years from the custody of a •mother who, by all the evidence, has loved, cherished, worked and provided for her child, and taken it regularly to church during its entire life.

The courts follow a compelling presumption that a female child of tender years will be best cared for by its mother unless she is shown to be unfit. Brown v. Jenks, 247 Ala. 596, 25 So.2d 439; Mc-Gregor v. McGregor, 257 Ala. 232, 58 So.2d 457. Even a finding of commission of adultery is not a bar to the award of custody but only a consideration bearing on the question of fitness. Harrison v. Harrison, 279 Ala. 675, 189 So.2d 471; Gould v. Gould, 55 Ala.App. 379, 316 So.2d 210, 1975.

We cannot agree with the correctness of the finding of the trial court from the evidence in this case “that the physical, moral and emotional well-being of the minor child . . . can be best served by placing the custody thereof in the respondent.” We find the evidence to be to the contrary and the decree of the court not supported by the evidence and palpably wrong.

It is our decision that the decree of the court below granting defendant a divorce on the ground of adultery and granting custody of the child, Connie Elissa, to defendant is not supported by sufficient evidence and the same is set aside and reversed.

Reversed and remanded.

BRADLEY and HOLMES, JJ„ concur.


author: EMBRY, Justice.

text:
    In re Bonnie Joan H. HUBBARD v. Earnie HUBBARD, Jr. Ex parte Earnie HUBBARD, Jr.
    SC 1352.
    Supreme Court of Alabama.
    Aug. 21, 1975.
    Wayne L. Williams, of Zeanah, Donald, Lee & Williams, Tuscaloosa, for petitioner.
    None for respondent.
   EMBRY, Justice.

Petition of Earnie Hubbard, Jr., for writ of certiorari to review, revise the opinion and reverse the holding of the Court of Civil Appeals in Hubbard v. Hubbard, 55 Ala.App. 521, 317 So.2d 489 (1975).

We deny the writ without expression relative to the merits of the controversy as there will be a new trial below on remand by the Court of Civil Appeals. By this action we are not to be understood as lending approval to each statement found in the opinion of that appellate court. It reached the correct result.

Writ denied.

HEFLIN, C. J., and BLOOD WORTH, FAULKNER and ALMON, JJ., concur.