text:
    STATE of Louisiana, Appellee, in the Interest of, Ronald L. GIVENS, Appellant.
    No. 6114.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 1977.
    Rehearing Denied Oct. 11, 1977.
    L. H. Olivier, Lafayette, for defendant-appellant.
    Frances M. Gilfoil, Asst. Dist. Atty., Lafayette, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   CULPEPPER, Judge.

Ronnie Givens was brought before The Juvenile Court for the Parish of Lafayette on a petition alleging he is a delinquent. He was charged with having committed simple criminal damage to property as defined in LSA-R.S. 14:56. After a hearing, the judge found Ronnie did commit the acts of vandalism complained of and declared him a delinquent child. The court sentenced him to the custody of the Department of Corrections for an indefinite period. This sentence was suspended upon the primary condition that Ronnie Givens admit himself and actively participate in Adolescent Unit # 28 at the Central Louisiana State Hospital located in Pineville, Louisiana. From this judgment, Ronnie Givens now appeals.

The substantial issue on appeal is whether the evidence at the hearing was sufficient to prove beyond a reasonable doubt that Ronnie committed the offense.

This matter began on November 27, 1976 with the vandalism of Acadiana High School which is located in Lafayette Parish. Extensive damage was done to the interior of the building. The crime was reported by the local news media and discussed by the students returning to the school after Thanksgiving vacation.

Another crime must also be mentioned at this point as it plays a part in the case at hand. This second crime was the firebombing of the home of Mr. John D. Thompson of Lafayette Parish, Louisiana, in the early morning hours of November 29, 1976. On December 1, Ronnie confessed to the firebombing, and he was charged with the offense and placed in the Lafayette Juvenile Detention Home on the same day. He remained there until his hearing in February of 1977 on the school vandalism charge.

It was in late December, while Ronnie was in the detention home, that he told a fellow inmate, Kenneth Hasha, that he was the one who perpetrated the acts of vandalism at Acadiana High School. Hasha reported Ronnie’s admission to juvenile officers, who investigated the matter further. They subsequently filed the present petition in Juvenile Court on January 7, 1977, asking that Ronnie be adjudged a delinquent child on the basis of his committing criminal damage to property. At the Juvenile Court hearing, Ronnie admitted making the confession to Kenneth Hasha, but he said it was not true. He testified he meant only to impress Kenneth Hasha, who he thought would keep a confidence and whom he would never see again after their brief stay at The Home.

At the hearing, the evidence presented by the State consisted of testimony by Kenneth Hasha, several juvenile officers, and the principal of Acadiana High School. Kenneth Hasha testified to the detailed confessions Ronnie Givens had made to him on December 28 and on several days thereafter. Hasha said Givens told him about breaking in the school and about the damage done to clocks and trophy cases, to lights and ceilings, and to the assistant principal’s office door.

The juvenile officers testified that their investigation resulted in no evidence or any factual information, other than Kenneth Hasha’s statements, which would directly connect Givens to the vandalism of the high school. Each time these officers questioned Ronnie Givens about the Acadiana incident, he denied having committed the vandalism and denied knowing anything about it other than what he had read in the newspapers and heard from friends and family.

Mr. Dave Cavalier, who had been the assistant principal at Acadiana High School while appellant was a student there, recalled several minor discipline problems involving the appellant. These did not, however, involve damage to property, and at no time did Ronnie Givens ever utter a threat toward the school or Mr. Cavalier.

Evidence presented by the appellant consisted of the testimony of his family, and a friend. The appellant’s friend testified that Ronnie Givens was present when the brother of this witness related the damage he saw at the school as he returned to classes after Thanksgiving vacation. This defense witness also knew Kenneth Hasha and told of one incident the previous summer when Hasha had driven up in a fancy car which he claimed to have stolen. Ronnie Givens was present at this encounter.

The appellant’s sister was a student at Acadiana High School in November of 1976. She testified that she told the entire family all about the damage she saw at the school as well as damage which she heard about from other students.

Ronnie’s parents testified that Ronnie was at home in bed the morning of November 27, 1976 and had been there since 9:30 the preceding evening. They told of special precautions to keep the car keys away from Ronnie because of his attempt earlier that month to run away from home. No one heard either of the family cars started that night. The high school was 4 to 5 miles from their home and neither believed the appellant had ever walked the distance to the school. Neither of them believed that Ronnie had left their home the night or morning that the vandalism of Acadiana High School took place.

Appellant took the stand in his own defense. He admitted making the confession to Kenneth Hasha, but he insisted that it was not true. He claimed he told Hasha this only to impress him after listening to Hasha brag about his exploits. Hasha continued asking him about the Acadiana vandalism for several days until the appellant was finally charged with the crime. Givens never admitted to anyone but Hasha that he was the perpetrator of the school vandalism. He denied to others anything to do with the crime, and claimed to have been at home in bed from 9:30 Friday evening until noon on Saturday, November 27. He said he had no knowledge of the crime other than what he read in the newspaper or heard from his family and friends.

After receiving the evidence of both parties, the trial judge found the evidence proved beyond a reasonable doubt that Ronnie Givens did commit the offense charged against him. We quote from the trial court’s reasons for judgment:

“As I appreciate the evidence, in this particular ease, there has been proven that vandalism, that is, the offense did in fact take place.
“There has been shown to The Court’s satisfaction, by the evidence, that there was a locational possibility that the offense was committed by the accused juvenile.
“It has been shown that the accused juvenile voluntarily admitted to a fellow inmate in a detention facility, that he had committed the offense.
“The question of the moral character of the recipient of such confidence, I do not really consider at this point to be crucial, as to whether the admission was in fact made; inasmuch as the juvenile himself admitted that he did in fact tell Hasha, that he had committed the offense. This is substantiated by Mr. Givens’, the father of the juvenile, testimony, that Ronnie had admitted that he had told Hasha. “I appreciate the evidence adduced in Court to be to the effect that the mother and father of the juvenile locked the car with the key, resulting in a locked steering mechanism, and that accordingly, it was their view that the steering mechanism and the vehicle itself, could not have been utilized by Ronnie in apparently the cutting of donuts, or transportation from his home to the school.
“I do appreciate the evidence at this point to be that it is possible that Ronnie could have gotten up and slipped out; and had, in fact, done so on other occasions, without their knowledge.
“The apparent degree of detail, and the statements made by the juvenile, Ronnie Givens; the circumstances of his then recanting on the admission, insofar as his denying that he did the damage, to the Police Officers, with his remarks under the question of The Court, that in effect that of course he would not admit to them.
“I am driven to the conclusion that under the state of evidence and the demeanor and the testimony of the witnesses in this courtroom, that I cannot believe and am not convinced by the juvenile’s recantation, and his explanation, for his admission.
“The Court realizes, as the agents of the law enforcement authority have indicated, that there is no independent evidence, directly linking this specific juvenile with proof that he committed the offense. However, The Court believes that the proof of the offense has been established; taken in conjunction with what apparently is unquestionably the voluntary statements by the juvenile to a friend, under conditions of confidence, is sufficient to satisfy the obligation of the State, to prove his guilt beyond a reasonable doubt.
“As much as The Court would like to conjure up a doubt, a fanciful doubt, for the benefit of obviously concerned and dedicated parents, after observing the demeanor of the juvenile, I simply cannot do it.
“I believe that when he told Hasha that he did it, he was speaking the truth. I believe that beyond a reasonable doubt, that he did do it. I therefore found him as having committed the offense, and guilty of having done so.”

Counsel for appellant argues that a review of the record should convince this court that there was insufficient evidence introduced to prove beyond a reasonable doubt that Ronnie Givens committed the crime charged.

Our jurisdiction to hear this appeal is based on Louisiana Constitution of 1974, Article 5, Section 10(A). The scope of our review, as set out in Article 5, Section 10(B), extends to law and facts.

The State has the burden of proving beyond a reasonable doubt that Ronnie Givens did commit the crime as charged. This means that the State’s proof of each and every element of the crime must meet the same standard in this juvenile case as in the criminal trial of an adult.

Essentially, the appellant argues that the trial judge’s evaluation of the credibility of the various witnesses is in error. We find great difficulty in justifying a reevaluation of the credibility of these witnesses. Before the appellate courts were given the authority to hear appeals from juvenile courts, this was a responsibility of the Supreme Court. The same scope of review applicable today also applied in 1948 when the Supreme Court decided State v. Le-Blanc, 213 La. 404, 34 So.2d 905. We quote from the Court’s opinion in that case:

“[6] Under the provisions of Article VII, Section 96, of our Constitution, all appeals from the Juvenile Court of the Parish of Orleans lie on questions of law and fact to this court. Pursuant to this mandate of the Constitution, it is necessary for us to consider the facts in the instant case, always bearing in mind the general principle of law that the accused is presumed to be innocent until his guilt has been established by competent evidence beyond a reasonable doubt.
“In determining whether the guilt of a defendant in any case which is appealable to us from the juvenile court has been established, we have only the record as made up in the lower court and are deprived of the benefit of seeing the witnesses and observing their conduct and demeanor while testifying either for the State or for the defense, and of observing the manner in which they give their testimony. The trial judge sees, hears, and observes all this, and therefore is in a better position to determine the credibility of the witnesses and the weight to be given their testimony—all of which is denied us on appeal.
“For these reasons, when the oral testimony is conflicting, we must give weight to the trial judge’s findings on questions of fact and to his determination of the credibility of the witnesses and the weight to be given their testimony.”

The same restraint must prevail today when the appellate court reviews the decision of a juvenile judge.

Based on the trial judge’s reasonable evaluation of credibility, which he, as the trier of fact, had the right and the duty to make, we find the evidence sufficient to prove beyond a reasonable doubt that Ronnie Givens committed the offense.

For the reasons assigned, we affirm the decision of the trial court.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    W. J. "Bill" PRATHER and Bitiminous Casualty Corp. v. Martin CARTER.
    No. 49621.
    Supreme Court of Mississippi.
    Sept. 21, 1977.
    Daniel, Coker, Horton, Bell & Dukes, Jackson H. Abies, III, Jackson, for appellant.
    Wells & Blalock, Calvin B. Wells, Natchez, for appellee.
    Before SMITH, P. J., and BROOM and LEE, JJ.
   AFFIRMED.


text:
    Mississippi STATE HIGHWAY COMMISSION v. James L. BOUNDS.
    No. 49631.
    Supreme Court of Mississippi.
    Sept. 28, 1977.
    Bourdeaux & Jones, Thomas R. Jones, Meridian, for appellant.
    Self, Bailey & Jordan, Robert W. Bailey, Meridian, for appellee.
    Before SMITH, P. J., and BROOM and LEE, JJ.
   REVERSED AND RENDERED.

PATTERSON, C. J., INZER, P. J., and ROBERTSON, SUGG, WALKER and BOWLING, JJ., concur.


text:
    Harry Daniel CHISHOLM v. Elvia Annette CHISHOLM.
    No. 49946.
    Supreme Court of Mississippi.
    Sept. 28, 1977.
    Johnston & Adams, Jerry T. Johnston, Brandon, for appellant.
    David W. Dreher, Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

INZER and SMITH, P. JJ., and ROBERTSON, BROOM, LEE and BOWLING, JJ., concur.


text:
    Billy Merrill BRUNT, d/b/a Mr. Bond v. COMMISSIONER OF INSURANCE of the State of Mississippi.
    No. 50036.
    Supreme Court of Mississippi.
    Sept. 28, 1977.
    Caldwell, Lee, Richardson & Vance, L. Joe Lee, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by J. B. Gar-retty, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   AFFIRMED.

INZER and SMITH, P. JJ., ROBERTSON, BROOM and LEE, JJ., concur.

BOWLING, J., took no part.


text:
    Sandra Cochran BARLOW v. Joseph Eugene COCHRAN.
    No. 49930.
    Supreme Court of Mississippi.
    Sept. 28, 1977.
    C. R. McRae, Pascagoula, for appellant.
    M. Glenn Barlow, Pascagoula, for appel-lee.
    Before SMITH, P. J., and BROOM and LEE, JJ.
   AFFIRMED.


text:
    Melanie MOSES v. STATE of Mississippi.
    No. 50089.
    Supreme Court of Mississippi.
    Sept. 28, 1977.
    Bullard & Gee, Robert W. Gee, Vicksburg, for appellant.
    A. F. Summer, Atty. Gen. by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   AFFIRMED.


text:
    CITY MOBILE HOMES, INC. v. UNIFIRST FEDERAL SAVINGS AND LOAN ASSOCIATION and Walter Michael Burge et ux.
    No. 50117.
    Supreme Court of Mississippi.
    Sept. 28, 1977.

      J. B. Van Slyke, Jr., Hattiesburg, for appellant.
    Brunini, Grantham, Grower & Hewes, George P. Hewes, III, W. David Watkins, Jackson, M. M. Roberts, Roberts & Easter-ling, Hattiesburg, William E. Andrews, Jr., Kent F. Hudson, Michael R. Eubanks, Pur-vis, for appellees.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   AFFIRMED.


text:
    Mary Ann Ellis McKAY v. Eugene Claris McKAY.
    No. 49646.
    Supreme Court of Mississippi.
    Oct. 5, 1977.
    Hurlbert & O’Barr, Clyde Hurlbert, Biloxi, for appellant.
    Sekul, Hornsby & Wallace, Thomas L. Wallace, Biloxi, for appellee.
    Before INZER, P. J., ROBERTSON and BOWLING, JJ., and JAMES E. BOST, C.
   AFFIRMED.


text:
    Lovie C. DODD v. STATE of Mississippi.
    No. 49923.
    Supreme Court of Mississippi.
    Oct. 5, 1977.
    Crawley & Ford, Michael H. Steele, Kosciusko, for appellant.
    A. F. Summer, Atty. Gen. by Scherry J. LeSieur, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., and ROBERTSON and BOWLING, JJ.
   AFFIRMED.


text:
    Mrs. Louise I. WINTERS v. DEPOSIT GUARANTY NATIONAL BANK, Executor and Trustee.
    No. 49619.
    Supreme Court of Mississippi.
    Oct. 5, 1977.
    Rex K. Jones, Hattiesburg, for appellant.
    Burgin, Gholson, Hicks & Nichols, Ralph E. Rood, Columbus, for appellee.
    Before INZER, P. J., and ROBERTSON and BOWLING, JJ.
   AFFIRMED.


text:
    Wayne MATTOX v. STATE of Mississippi.
    No. 49926.
    Supreme Court of Mississippi.
    Oct. 5, 1977.
    Robert W. Elliott, Ripley, for appellant.
    A. F. Summer, Atty. Gen. by Scherry J. LeSieur, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., and ROBERTSON and BOWLING, JJ.
   AFFIRMED.


text:
    M. Don TURNER, as father and next friend of James M. Turner v. MISSISSIPPI POWER AND LIGHT COMPANY.
    No. 49913.
    Supreme Court of Mississippi.
    Oct. 5, 1977.
    Rehearing Denied Nov. 16, 1977.
    Young, Scanlon & Sessums, R. Brad Ses-sums, Jackson, for appellant.
    Green, Cheney, Jones, Hughes, McKibben & Stack, Joshua Green, Wise, Carter, Child, Steen & Caraway, Sherwood W. Wise, Jackson, for appellee.
    Before SMITH, P. J., and BROOM and LEE, JJ.
   AFFIRMED.


text:
    Mrs. Elise G. STRANGE v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY.
    No. 49915.
    Supreme Court of Mississippi.
    Oct. 5, 1977.
    Riddick & McCoy, B. L. Riddick, Joseph T. Wilkins, III, Jackson, for appellant.
    Heidelberg, Woodliff & Franks, Timothy R. Smith, Jackson, for appellee.
    Before SMITH, P. J., and BROOM and LEE, JJ.
   AFFIRMED.


author: ALMON, Justice.

text:
    MOBILE COUNTY BOARD OF HEALTH et al. v. G. E. McNEILL et al.
    SC 2216.
    Supreme Court of Alabama.
    Sept. 9, 1977.
    John R. Wible, Asst. Atty. Gen., Legal Section Environmental Health Administration, Montgomery, for appellants.
    William M. Lyon Jr., Mobile, for appel-lees.
   ALMON, Justice.

As of May 23, 1976, McNeill was in the process of constructing his own residence and a neighbor’s residence on Dauphin Island. On May 25, 1976, a moratorium was to go into effect prohibiting further installation of septic tanks on Dauphin Island. When McNeill attempted to install septic tanks on May 23, he was stopped by an inspector for the Mobile County Board of Health because he did not then have his plumbing “roughed in,” a prerequisite to receiving a permit for the septic tanks.

On September 14,1976, McNeill filed suit in the Circuit Court of Mobile County seeking injunctive relief, which was granted. We reverse and remand.

The history of septic tank installation on Dauphin Island and the eventual moratorium is presented by the testimony of James E. Fibbe, Director of the Bureau of Environmental Health at the Mobile County Board of Health and by Dr. George W. Newburn, County Health Officer for the Mobile County Board of Health.

The testimony of James E. Fibbe, in pertinent part, is as follows:

“Q. All right, under the criteria established by the rules and regulations which you administer, would a septic tank system normally be permissible in an area of soil and water conditions such as Dauphin Island?
“A. Under the rules and regulations, a water table shallower than five feet would prohibit the installation of septic tanks and disposal systems. There is also some question as to the percolation time in coarse sand type materials. This will allow the material to pass through the coarse sand and part of the purpose of the septic tank is the filtering capability of the soil.
“Q. All right, and septic tanks have been allowed to be installed on Dauphin Island in the past, is that correct?
“A. Yes sir.
“Q. How was this handled under the rules and regulations?
“A. This was handled, Dauphin Island was handled as an exception to the rules and regulations, basically because of the sparseness of the development on Dauphin Island for a long period of time. It was relatively uninhabited or sparsely settled and septic tanks were allowed to go in. . ”
Testimony of Dr. Newburn:
“Q. Dr. Newburn, evidence has been shown that fecal coliform can be seen and other tests which indicate the presence of bacteria on Dauphin Island. What does that mean to you as County Health Officer in terms of public health?
“A. It means that the possibilities for disease production on Dauphin Island are very readily available.
“Q. What to you mean by possibilities?
“A. We have tested the water, drainage water in the ditches and have found salmonella growing in numerous areas on Dauphin Island. There is only one place that these bacteria could come from and that is from wash out from the septic tank fields into the- — there is no drainage system on Dauphin Island except ditches, and this drains directly into the ditches and then into the water surrounding Dauphin Island.
“Q. Doctor, why was May 25th, 1976, chosen as the cut-off date for stopping septic tank installation?
“A. Because I had had conversation with the State Health Department and with the Federal people about the possibility of putting a moratorium on septic tanks on Dauphin Island because I had been, become convinced that septic tanks were where it was reaching a critical point. In November of 1975 and in December of 1975 I had approached the State Health Department with the idea of a permanent moratorium on Dauphin Island and of course, this went through requests from the whole Board of Health. The reasons for this that we gave the State Health Department people, and they said, well, you have got to — we had been accumulating evidence, bacterial counts and accumulating evidence all during this period for over a year prior to this time. We had gotten to the point where I, although I wanted to do it, I had to have the acquiscence of the State people at the same time and on the advice of the attorneys and on the advice of the State Attorney General we were told that before we put a moratorium, a permanent moratorium on septic tanks, that we would have to have an opening for construction within a certain time and it had to be a set date, and that beyond that date there was to be no construction. This was worked out with the State people and May the 25th was set as the date.
“Q. All right Dr. Newburn, have any people been allowed to continue to build or put in septic tanks after this date?
“A. No sir. ...”

McNeill received his first variance November 22,1974. By its terms, the “[bjuild-ing must be commenced within 6 months of issuance date.” A second variance, issued June 27, 1975, specified that the “[bjuilding must be well under construction prior to December 31, 1975, (as all variances will be invalid after December 31, 1975.)” On December 8, 1975, the Board, due to a disruption of transportation over the bridge to the island, extended the variance to January 31, 1976. On February 25, 1976, McNeill received a letter from Dr. Newburn explaining that the Board voted to allow installation of septic tanks “for a limited time under specified conditions.” The attached sheet specified the following:

“1. No septic tank will be allowed to be installed and-or connected for use after 5:00 P.M., May 25, 1976.
“3. Plumbing permits must be obtained from the Board of Health prior to installation of any plumbing.
“4. Permits to install a septic tank system will be issued only after all plumbing has been completed, inspected, and approved for a ‘rough in’ inspection by the Mobile County Board of Health Plumbing Inspector. This includes all parts of the plumbing except the setting of fixtures.

In the latter part of 1975 Mrs. Dees had orally contracted with Mr. McNeill to build a house for her similar to the one he was building for himself, which was a custom designed circular home requiring special plans and materials. As of December 31, 1975, plans had been drawn and substantial materials ordered for the residences, but no construction has taken place. As of May 25, 1976, McNeill had, on his residence, the pilings on which the house would set and the flooring in. On the Dee’s residence only the pilings were in. None of the plumbing was installed. As previously mentioned, a county inspector has refused to allow McNeill to install the septic tanks 2 days before the deadline because the plumbing had not been roughed in.

On May 25,1976, McNeill wrote Dr. New-burn explaining his situation. With regard to the roughing-in requirement, McNeill stated:

“ . . . My permit made no mention of this and I had not been notified of it. My understanding of what I had read was that this applied to new permits. I considered my house well under construction with the pilings and' floor framing in, and $13,000.00 spent on material, as my permit specified.”

On May 26, 1976, McNeill received a letter from James Fibbe in reply to telephone communications he had with Fibbe. Fibbe explained that a survey conducted on May 25 showed that construction consisted of having pilings in place with some of the joists in place, which did not meet the requirements necessary to allow installation of a septic tank. The letter also stated:

“I will be glad to discuss with you alternate sewage disposal systems or other aspects of this program.”

On May 31,1976, McNeill received a reply from Dr. Newburn, which read as follows:

“I am sorry to inform you that I cannot give you permission to install a septic tank on the properties you refer to on Dauphin Island (G. E. McNeill and A. L. Dees).
“Appeal must be made directly to the six-member Board of Health. The current Chairman of the Board is Dr. O. M. Otts, Jr., and I do not know at this time what the Board might say with regard to any appeal.
“If the Board elects to continue the moratorium on septic tanks, I feel sure that they will direct us to consider alternate non-discharging systems.”

On July 9, 1976, McNeill received a standard form letter from Fibbe as a follow-up to a May 20, 1976, public hearing on the sewage problem. Attached to the letter was a resolution signed June 14, 1976, by the Chairman of the Mobile County Board of Health, Dr. O. M. Otts, Jr., stating that no new septic tanks, ground absorption sewage disposal systems shall be permitted. After the July 9 letter, McNeill did not see any purpose to be served in appealing to the Board.

Between the end of May and September 14, 1976, when this suit was filed, McNeill contends he attempted through discussions with Fibbe or Mr. David Kingston, another staff member, to obtain approval for an alternative disposal system suggested either a “gray water” system or a holding tank, but never received an answer. In the hearing on October 1, 1976, McNeill explained his position as follows:

“A. Yes, sir, I hadn’t heard from the Board of Health on that separate system I asked them about. I was having materials stolen constantly from down there. We had stopped, almost completely, construction on the houses because, you know, the sun warping materials, decking coming up. We are replacing the decking on the front porch to Mr. Dees’ house now. Mine is all warped and separated and coming up. We had a lot of stuff stolen down there and even had a fire on Mr. Dees’ house. We don’t know where it come from. The Dauphin Island Fire Department put it out, them and the neighbors next door. We had no idea how it started. There were kids coming up from the beach at night and using them like they want to and I had $5,100 worth of those windows that they had finally got made. I had a notice that they were being shipped and I knew they would be sitting down there in the wide open space, because I couldn’t put them in or didn’t want to put them in until I knew I was going to be able to finish the house, so when I got a notice they were coming in and everything else combined, that was when I come to you.
“Q. All right, and was it a concern to you, at that time, that the Board of Health not come forth on any alternate suggestions that you had made?
“A. Yes sir.”

On September 14, 1976, McNeill requested and received a temporary restraining order enjoining the Board from preventing him from installing the septic tanks. No prior notice of the request was given to the Board, though a copy of the complaint was served on the Board that day. A hearing was set for September 24,10 days later, and later continued until October 1,1976. During this time McNeill installed both septic tanks.

County Boards of Health are authorized by Tit. 33, § 4, Code of Alabama 1940, Recompiled 1958. County Boards have the authority to adopt and promulgate rules and regulations for administering the health laws of the state. The rules and regulations have the force and effect of law. Tit. 22, § 8. Tit. 22, § 140(13) to § 140(18) provides specific authority to county boards of health oyer sewage disposal systems:

“It shall be unlawful and shall constitute a misdemeanor to build an insanitary sewage collection, treatment and disposal facility ... including . . . septic tank systems . . . .” Tit. 22, § 140(13).
“The state board of health and/or county boards of health . . . shall require every person ... to install the required plumbing facilities, type and number of sewage collection, treatment and disposal facilities conforming to rules and regulations of the state board of health and/or county boards of health . . . .” Tit. 22, § 140(14).
“All plans and specifications applying to sewage collection, treatment and disposal shall be first submitted to the state board of health and/or county boards of health for approval before construction. ...” Tit. 22, § 140(16).
“The issuance of permits for the installation of plumbing . . . shall be in conformance with the rules and regulations of the state board of health and/or county boards of health . . . .” Tit. 22, § 140(18).

Violations are misdemeanors punishable by fine. Tit. 22, §§ 140(15), 140(16).

Appellants question whether McNeill exhausted his administrative remedies, as he did not request a hearing before the Mobile County Board of Health. Although we find no statutory scheme for a hearing or appeal to a county board of health, we believe a decision in this matter should be first decided by the County Board of Health under the theory of primary jurisdiction or prior resort.

“One of the aims of the doctrine is to insure uniformity and consistency in dealing with matters entrusted to an administrative body. Texas & Pacific Railroad Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553. Another factor which must be considered is whether referral to an agency is preferable because of its specialized knowledge or expertise in dealing with the matter in controversy. Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576. See also United States v. Western Pacific Railroad Co., supra [352 U.S. 59, 77 S.Ct. 161, 1 L.Ed.2d 126]; United States Navigation Co. v. Cunard Steamship Co., 284 U.S. 474, 52 S.Ct. 247, 76 L.Ed. 408. Still another is whether initial review of the controversy by the administrative body will either assist a court in its adjudicatory function or perhaps alleviate entirely the need for resort to judicial relief. Chicago Mercantile Exchange v. Deaktor, 414 U.S. 113, 94 S.Ct. 466, 38 L.Ed.2d 344; Ricci v. Chicago Mercantile Exchange, 409 U.S. 289, 93 S.Ct. 573, 34 L.Ed.2d 525, reh. denied, 410 U.S. 960, 93 S.Ct. 1411, 35 L.Ed.2d 697. This latter factor indicates it is preferable to obtain the views of the administrative body concerning the statutes or rules with which it must work and how those statutes or rules should be applied to the controversy at hand. See Miron, Primary Jurisdiction, 43 Antitrust L.J., S.B.A., Issue No. 2, p. 329.
“We hold today that when a court and an administrative agency have concurrent jurisdiction over a controversy, the court may decline judicial relief pending administrative review when the court finds that administrative review of the controversy will promote uniformity and consistency in the application of the pertinent statutes, rules and regulations; agency expertise is required, and initial agency review will materially assist the court upon later review. In stating this rule we use a conjunctive form of expression. This should not be taken as demanding that all of the determinative factors be present simultaneously. Where one or more of the factors are present it is for the court to weigh the need of initial agency review against the right and need of the parties to immediate judicial determination. In ruling on such questions, a trial court should make known those factors considered in deciding whether to decline immediate judicial relief or not.” Fraternal Ord. of Police, Strawberry L. #40 v. Entrekin, 294 Ala. 201, 210, 211, 314 So.2d 663, 671, 672.

The problems caused by septic tanks in a coarse, sandy soil under high water table conditions lies within the specialized knowledge and expertise of the Board of Health. Substantial research and investigation were completed before the decision was made to halt further installation of septic tanks. The Board gave prior notice of its intention followed by a public hearing on May 20, 1976. McNeill’s variance, expiring January 31, 1976, required the building to be well under construction. The residence was not well under construction at that time. For some reason not explained in the record, the prerequisite was thereafter changed to require the plumbing to be first roughed in. Perhaps this was intended as a more specific definition of “well under construction.”

We can well understand the dilemma McNeill found himself in. Moreover, we are aware of the presumption of correctness in the trial court’s decision. Valley Heating, etc. v. Alabama Gas Corp., 286 Ala. 79, 237 So.2d 470 (1970). However, we find nothing arbitrary in the manner in which the Board stopped McNeill from installing his septic tanks.

Quite likely McNeill was not the only one injured by the moratorium. We would like to know the intentions of the Board. McNeill, according to his testimony, suggested alternatives to the staff member of the Board (without reply), but never went directly to the Board.

McNeill contends an appeal to the Board would be a useless act. We are not permitted to indulge such a presumption. Moreover, the Board may approve alternative systems of sewage disposal. We hope a decision by the Board will alleviate the need for judicial relief.

The judgment in this cause is reversed and the cause is remanded to the circuit court which shall retain jurisdiction pending McNeill’s appeal to the Mobile County Board of Health. We pretermit consideration of the other issues raised.

REVERSED AND REMANDED WITH DIRECTIONS.

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

      . The plaintiffs-appellees include Mr. G. E. McNeill’s neighbor, A. Lamont Dees. The situation as to Mr. Dees is substantially the same as McNeill’s.

      . In a gray water system, as McNeill describes it, the septic tank is not connected to the filter field. Water not containing sewage goes to the filter field while water containing sewage goes to the septic tank, which is periodically pumped out.


author: SENTELL, Clerk.

text:
    OPINION OF THE CLERK, SUPREME COURT OF ALABAMA.
    No. 7.
    Supreme Court of Alabama.
    Sept. 21, 1977.
   SENTELL, Clerk.

RULE 3(A), ALABAMA RULES OF JUDICIAL ADMINISTRATION FACILITIES TO BE FURNISHED BY COUNTIES

Mr. Charles Y. Cameron, Administrative Director of Courts, has requested my opinion as Clerk of the Supreme Court, pursuant to Section 6-105, Act No. 1205, Acts of Alabama, 1975 Regular Session, as follows:

(1) Does the word, “utilities,” in Rule 3(A) of the Alabama Rules of Judicial Administration include telephone service and, if so, does this include long distance telephone service?
(2) Does Rule 3(A) of the Alabama Rules of Judicial Administration preclude counties from charging the state a rental for space occupied by the courts in county courthouses?

In my opinion, each of these questions should be answered in the affirmative.

Section 6.11 of the Judicial Article (Amendment 328 to the Constitution of Alabama) grants to the Supreme Court the power to make and promulgate rules governing the administration of all courts. The pertinent part of Rule 3, Alabama Rules of Judicial Administration, is as follows:

(A) Physical Facilities. — Counties shall furnish and maintain courtrooms and offices for court officials and employees, including judges, clerks, registers and district attorneys, utilities and other necessary facilities for state courts in accord-anee with standards prescribed by the administrative director of courts (ADC).

A “utility” in the context of Rule 3(A) is “a service provided by a public utility.” Webster’s Third New International Dictionary.

A telephone company is a public utility. Pike v. Southern Bell Telephone & Telegraph Co., 263 Ala. 59, 81 So.2d 254 (1955); Mickwee v. Boteler, et al., 265 Ala. 544, 93 So.2d 151. See also 73 C.J.S. Public Utilities § 1 (1951).

Telephone service includes long-distance toll charges, extension telephones and like facilities. Attorney General of Alabama, Quarterly Reports, Vol. 102, pp. 24, 25 (1961).

The word, “furnish,” means “to provide or supply with what is needed, useful or desirable . . . equip.” Webster’s Third New International Dictionary (1971).

The word, “maintain,” means “to keep in a state of repair, efficiency or validity; preserve from failure or decline ... to provide for; bear the expense of.” Webster’s Third New International Dictionary (1971).

There is no provision in Rule 3(A) for the State to pay counties for the use of courtrooms and offices for court officials and employees.

In my opinion, the requirement that “counties shall furnish and maintain courtrooms and offices for court officials and employees . . . ” precludes counties from charging the State a rental for space occupied by the courts in county courthouses.


text:
    Maggie Rolison BRASHIER, Carolyn P. Lynch and Rufus R. Lynch v. Mamie Rolison BURKETT.
    SC 2076.
    Supreme Court of Alabama.
    Sept. 23, 1977.

      W. J. Williamson, Greenville, for appellants.
    Elisha C. Poole, Greenville, for appellee.
   ALMON, Justice.

This is an appeal by the defendants in an action for declaratory judgment seeking construction of a deed conveying ownership of 80 acres of land. The trial court determined that the deed established a joint tenancy with rights of survivorship among plaintiff Mamie Rolison Burkett, defendant Maggie Rolison Brashier, and defendant’s deceased husband E. W. Rolison. We reverse.

E.' W. Rolison was the owner of an 80 acre parcel of land situated in Butler County, Alabama. On April 24, 1963, E. W. Rolison, joined by his wife Maggie Rolison, executed a deed conveying the 80 acres of land to themselves and their daughter Mamie Rolison Burkett. The deed contained the following pertinent clauses:

WHEREAS CLAUSE:
“WHEREAS, it is the desire of the said E. W. Rolison that the property be owned by himself and wife Maggie Rolison, jointly, so that in the event of the death of either of them, the entire interest in the property shall vest in the survivor of them, and upon the death of the survivor of them, that said property shall vest in Mamie Rolison Burkett, daughter of E. W. Rolison and wife Maggie Rolison.”
GRANTING CLAUSE:
“We, E. W. Rolison and wife Maggie Ro-lison, do hereby grant, bargain, sell and convey unto E. W. Rolison and wife Maggie Rolison, and to the survivor of us, and at the death of the survivor of us to Mamie Rolison Burkett, the following described real property . . . ”
HABENDUM CLAUSE:
“TO HAVE AND TO HOLD unto the said E. W. Rolison and wife Maggie Roli-son, for and during their joint lives, and upon the death of either of them, then to the survivor of them in fee simple, and if still owned by the survivor of them at the death of the survivor of them then to Mamie Rolison Burkett, and to her heirs .and assigns, in fee simple, forever, together with every contingent remainder and right of reversion.”

Three months after the execution of this deed E. W. Rolison died.

In 1965, Maggie Rolison married James F. Brashier and promptly executed a deed conveying the 80 acres to herself and her new husband as joint tenants. Several months later, on July 30,1966, Maggie Roli-son Brashier and her husband James F. Brashier, executed a deed conveying 30 acres of the land to C. L. Blackburn and Leah Blackburn in consideration for a $3,000 mortgage. Upon learning of these transactions the plaintiff Mamie Rolison Burkett filed a suit for declaratory judgment to determine the ownership of the land. Before the case came to trial, however, James F. Brashier conveyed his joint interest back to Maggie Rolison Brashier and the Blackburns, who defaulted in their mortgage payments, conveyed their 30 acres of land back to Maggie Rolison Bra-shier. In 1969, the suit was dismissed without prejudice at Mamie’s request. A year later, on May 20, 1970, Maggie Rolison Bra-shier obtained a divorce from James F. Bra-shier.

The transaction which instigated the present suit occurred in August of 1970. Following an illness which confined her to a hospital for three weeks, Maggie Rolison Brashier moved into the home of her daughter and son-in-law, Carolyn and Rufus Lynch. On August 11, 1970, Maggie Rolison Brashier executed a deed conveying the entire 80 acres of land to Carolyn and Rufus Lynch. In response to this conveyance, Mamie Rolison Burkett instituted the present suit for declaratory judgment on April 29,1975, naming Maggie Rolison Bra-shier, Rufus Lynch and Carolyn Lynch as defendants.

The trial judge, after hearing the testimony of three witnesses, issued a final order finding that it was the intention of the parties to the 1963 deed to create a joint tenancy with rights of survivorship among E. W. Rolison, Maggie Rolison Brashier, and Mamie Rolison Burkett. Relying on the landmark decision of this court in Nunn v. Keith, 289 Ala. 518, 268 So.2d 792 (1972), the trial judge concluded that the subsequent conveyance by Maggie Rolison Bra-shier served to destroy the joint tenancy with the result that Mamie Rolison Burkett took an undivided % interest in the land as a tenant in common with Rufus and Carolyn Lynch, who jointly owned the other lh interest. Because we feel that such a construction of the 1963 deed is supported by neither the language of that deed nor the intent of the parties, we reverse.

It is a fundamental precept of property law that courts should construe instruments so as to give effect to the intent of the parties. Ala.Code, Tit. 47, §§ 17, 23 (1940); Stratford v. Lattimer, 255 Ala. 201, 50 So.2d 420 (1951). ■ Yet, any court undertaking the dissection of such an instrument in order to ascertain the intent of the parties is faced with a task which, by its very nature, is plagued with the difficulties and uncertainties that necessarily accompany any probe into mental processes. Fortunately, however, the burden placed on the courts in scrutinizing deeds is facilitated by a body of judicially and legislatively created guidelines for the construction of deeds conveying property.

Initially, the court should seek to ascertain the intention of the parties by looking to the entire instrument. Tit. 47, §§ 17, 23, Code of Alabama 1940; Stratford v. Lattimer, supra; The court should be careful to try to give meaning to every clause and provision of the instrument. Gentle v. Frederick, 234 Ala. 184, 174 So. 606 (1937); Nettles v. Lichtman, 228 Ala. 52, 152 So. 450 (1934).

Second, the court should look to the factual situation and the circumstances existing at the time the instrument was created. Nettles v. Lichtman, 228 Ala. 52, 152 So. 450 (1934).

Finally, the court may look to the subsequent acts of the parties to determine the correct construction of the instrument. Slaten v. Loyd, 282 Ala. 485, 213 So.2d 219 (1968).

Applying these criteria to the 1963 deed, it is apparent that neither E. W. Rolison nor his wife Maggie contemplated that Mamie be included as a joint tenant.

First, looking at the language of the deed itself, there are several phrases which strongly negate any inference of a three-way joint tenancy. The whereas clause, for example, clearly states that “the entire interest” in the property would vest in the survivor of E. W. Rolison and Maggie Roli-son. Likewise, the habendum clause explicitly provides that the survivor of E. W. Rolison and Maggie Rolison would take the property in “fee simple,” and that the daughter Mamie Rolison Burkett would take the property only if it was “still owned by the survivor.” The implication of these provisions is that they evidence an intent to allow the survivor of E. W. Rolison and Maggie Rolison to exercise complete and unfettered control and ownership of the property during his or her lifetime. Such an implication is completely inconsistent with a three-way joint tenancy.

Second, although this court is reluctant to dispute the findings of a trial judge based on evidence taken ore tenus, we can find no basis for the judge’s finding that it was the intent of the parties to create a three-way joint tenancy. The two witnesses who recalled being present at the signing of the 1963 deed were unanimous in the opinion that the survivor of Maggie Rolison and E. W. Rolison was to be free to alienate the entire property. Maggie Rolison Brashier testified that the attorney who drew up the deed had indicated to her at the signing that she and her husband would be free to transfer the property:

Mr. Williamson: “Q. Alright, tell the judge what ya’ll decided to do?:
Mrs. Maggie Rolison Brashier: “Well, he [E. W. Rolison] told me and then Paul Hartley [the attorney] told me that if we lived the deed in Mamie’s name, and if I didn’t sell it or do away with it while I was living, he said that it would go to her at my death, and he said that if I wanted to sell it or deed it to anybody, I could make as good a deed as anybody.”

Likewise, the testimony of Jimmy Dukes, a disinterested party who had witnessed the signing of the deed, clearly suggests that it was the intent of the parties that the survivor would receive ownership of the entire 80 acres:

Mr. Williamson: “Q. Tell the judge how he [the attorney] explained it in your presence?”
Mr. Jimmy Dukes: “A. Well, they said they understood that if either one of them would deceased the other, that the other would have full control of this land, you know, the whole premises. If either one of them died, the other one had full control.”

The only other witness who testified at the trial, Mamie Rolison Burkett, denied having been present at the signing of the deed, in spite of the testimony of Jimmy Dukes and Maggie Rolison Brashier that she had indeed been there. Mamie Rolison testified that it was her impression from conversations with her father, E. W. Rolison, and the attorney that the land was to be held by both her and Maggie Rolison Brashier upon E. W. Rolison’s death. Nevertheless, at one point in her testimony Mamie did admit that Maggie had the power to dispose of the property:

Mrs. Mamie R. Burkett: “A. It was not to be done away with without she decided to sell it and divide it with the eleven children while she was living.”

The overall impact of the testimony of the three witnesses, viewed in reference to the deed itself, is that it was the intent of the parties that the survivor of E. W. Rolison and Maggie Rolison Brashier be the legal owner of the entire parcel of land. Such an intent precludes Mamie Rolison Burkett’s contention that she was .a joint owner.

Finally, the subsequent acts of the parties strongly suggest an intent to create an estate other than a three-way joint tenancy. The fact that Maggie Rolison Brashier felt free to convey the property indicates an impression on her part that she was the sole owner. Likewise, the fact that the same attorney who drew up the 1968 deed also drew up the 1965 conveyance by Maggie Rolison Brashier to herself and her new husband James F. Brashier, without any mention of Mamie Rolison Burkett, indicates an impression on his part that the deed he drew up in 1963 conveyed full ownership to Maggie Rolison Brashier upon E. W. Rolison’s death.

In light of the express language of the deed, as well as the contemporaneous and subsequent manifestations of the intent of the parties to the deed, we feel that the determination of the trial court that a three-way joint tenancy was created is erroneous. Having determined that the 1963 deed did not create a three-way joint tenancy, however, this court is faced with a difficult task of determining precisely what interests the 1963 deed did create.

It is our opinion that a proper construction of the 1963 deed will reveal two distinct estates in land. First, the deed, by the express language of the whereas, granting, and habendum clauses, clearly established a joint tenancy with rights of survivorship between E. W. Rolison and Maggie Rolison Brashier. Since the estate in joint tenancy expired upon the death of E. W. Rolison, we need not concern ourselves with its specific terms.

Second, the language “to the survivor of them in fee simple, and if still owned by the survivor of them at the death of them then to Mamie Rolison Burkett” contained in the habendum clause clearly evidences an intent to create an estate in fee simple defea-sible subject to an executory interest. Since this is the estate which is the focal point of the present controversy, a discussion of the parameters of the fee simple defeasible and our reasons for finding its presence in this 1963 deed is in order.

Alabama has long recognized the existence and viability of the estate in fee simple defeasible. McRee’s Adm’rs v. Means, 34 Ala. 349 (1859); Flinn v. Davis, 18 Ala. 132 (1850). The estate in fee simple defea-sible has been defined as “an estate in fee simple which is subject to a special limitation, a condition subsequent, an executory limitation, or a combination of such restrictions.” Restatement, Property, § 16. One particular limitation on the estate in fee simple defeasible which was recognized by early Alabama law was the general rule that if the first taker was granted an absolute power of disposition over the property, the executory interest to a third person was void for repugnancy. McRee’s Adm’rs v. Means, supra; Park v. Powledge, 198 Ala. 172, 73 So. 483 (1916); Howard v. Carusi, 109 U.S. 725, 3 S.Ct. 575, 27 L.Ed. 1089 (1884). Under modern law, however, this rule has been substantially altered by statutory enactment. Tit. 47, §§ 76-79, Code of Alabama 1940, Recompiled 1958. Basically, these sections of the Code provide that if an estate for life or years contains an absolute power of disposition, that portion of the estate which is conveyed by virtue of that power of disposition is enlarged into an estate in fee simple absolute, while any portion not disposed of remains subject to the executory interest. Although these provisions of the Code expressly refer to only life estates, estates for years, or undefined estates, they have been judicially interpreted to include estates in fee simple absolute. Bailey v. Brannon, 293 Ala. 83, 300 So.2d 344 (1974); Robertson v. United States, 199 F.Supp. 78 (N.D.Ala.1961).

The language contained in the habendum clause of the 1963 deed conveying the land “to the survivor of them in fee simple, and if still owned by the survivor of them at the death of the survivor of them then to Mamie Rolison Burkett” clearly conforms with the language necessary to establish a fee simple defeasible. See e. g., Farr v. Perkins, 173 Ala. 500, 55 So. 923 (1911); Park v. Powledge, supra; Howard v. Carusi, supra. Likewise, the language “if still owned by the survivor of them” implies that Maggie Rolison Brashier was free “to dispose of the entire fee for [her] own benefit,” thus coming under the statutory definition of an absolute power of disposition. Tit. 47, § 79, Code, supra. By consolidating and interpreting these phrases in light of the statutory enactments of the legislature as well as the decisions of the courts, we hold that Maggie Rolison Brashier possessed an estate in fee simple defeasible with an absolute power of disposition over the entire property. Having exercised this power over the entire estate by her deed of 1970, the entire estate passed in fee simple absolute to the grantees of that deed, Carolyn and Rufus Lynch. Since the contingency upon which the executory interest is predicated has been effectively precluded, Mamie Rolison Burkett has no interest in the 80 acres of land.

The judgment is hereby reversed and the cause is remanded.

REVERSED AND REMANDED.

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

       Alabama courts have used various terms to describe the fee simple defeasible. Farr v. Perkins, 173 Ala. 500, 55 So. 923 (1911) (determinable fee, qualified fee); Montgomery v. Montgomery, 236 Ala. 161, 181 So. 92 (1938) (base fee); Newsom v. Hosesapple, 101 Ala. 682, 15 So. 644 (1894) (conditional fee).


text:
    E. L. (Ed) CAMERON and Bessie Cameron v. UNION HILL BAPTIST CHURCH, a corporation.
    SC 2192.
    Supreme Court of Alabama.
    Sept. 23, 1977.
    Alto V. Lee, III, and Stephen T. Ether-edge, Dothan, for appellants.
    S. Edward Jackson, Dothan, for appellee.
   ALMON, Justice.

The Union Hill Baptist Church (Church) filed suit in ejectment against E. L. Cameron and Bessie Cameron (defendants). Approximately one acre (an old railroad right of way) is in dispute. Defendants deny that the Church has legal title to the property and claim title by adverse possession and prescription. A jury verdict was rendered for the Church. We affirm.

The property in question is located adjacent to the Church building and cemetery. The property is 357 feet long and 100 feet wide situated on the east side of the Church running north and south between the Church and the defendants’ property.

Both sides claim chain of title from a patent which Daniel Cameron received from the U. S. Government on June 10, 1892. Daniel Cameron died intestate on March 19,1903, survived by his wife, Melinda Cameron, and three sons, W. Y., C. A., and R. C. Cameron.

On May 21, 1903, Melinda Cameron executed a warranty deed to the Forrester Lumber Company purporting to convey the property now in dispute. There were various other conveyances culminating with a conveyance to the Alabama and Florida Railroad Company, Inc., on July 15, 1937. On January 22, 1959, the Alabama and Florida Railroad Company, Inc., conveyed the property to the Church and its Deacons and Trustees. On November 2, 1960, the Railroad conveyed to the Church and on December 28, 1960, the Deacons and Trustees conveyed to the Church as a corporate body any interest which they had received in the January 22, 1959, deed.

In 1903 the Forrester Lumber Company laid rails on the property and it and its successors used the tracks continuously until April, 1934. The rails remained on the land until they were removed in about 1942.

The defendants’ alleged chain of title arises from deeds executed by members of the Cameron family from January 19,1920, to December 9,1944. These deeds conveyed portions of the land which Daniel Cameron acquired by government patent and included the property in question. In 1920, W. Y. Cameron and wife and R. C. Cameron and wife conveyed to D. A. Cameron. In 1921, D. A. Cameron and wife and Melinda Cameron conveyed to W. Y. Cameron. W. Y. Cameron died intestate in 1923 survived by his wife Gertrude and two sons, E. L. Cameron and Ralph Cameron. In 1944, Gertrude and Ralph and wife conveyed to E. L. Cameron and Bessie Cameron, the defendants to this suit.

I

The defendants claim the trial court erred for failure to grant their requests for a directed verdict at the close of the evidence. They maintain that the evidence affirmatively proved title in them through adverse possession.

The statutory requirements for title by adverse possession are set out in Tit. 7, § 828, Code of Alabama 1940, Recompiled 1958. One claiming under Tit. 7, § 828, must also establish the elements of adverse possession as stated by the court in Long v. Ladd, 273 Ala. 410, 412-413, 142 So.2d 660, 662 (1962):

“. . . (1) such possession as the land reasonably admits of, (2) openness and notoriety and exclusiveness of possession, (3) hostility toward everybody else in respect of possession, (4) holding possession under claim of right on claim of color of title, and (5) continuity for statutory period of ten years.”

The defendants maintain that the evidence shows that they assessed the property from 1944 to 1949, when an apparent clerical error was made. The alleged error was corrected in 1970 and defendants assessed the property for taxation until commencement of this action. The defendants further maintain that they cultivated the property as a home garden from 1942 to the commencement of this action.

The Church contends that the evidence shows that the defendants’ assessment from 1949 to 1970 excepted one-half acre for “R.R.” In 1970 the defendants bulldozed and planted the property. In the same year the tax assessment records failed to show the “R.R.” exception. Several Church witnesses who lived in the vicinity of the Church testified that after the rails were removed in 1942, the land lay untended and that it became covered with weeds, bushes, and small trees, some with a diameter of four to six inches, until the bulldozing in 1970. The Church also introduced minutes of the Church which tend to show that the defendant Bessie Cameron had been associated with the Church and that at least beginning in 1942, the matter of purchasing the property from the Railroad was brought up from time to time within the Church. The Church’s witnesses also testified, contrary to the defendants’ witnesses, that there was gardening only on the north end of the disputed property and that even this gardening was only sporadic and not continuous from year to year.

The defendants correctly state that the issue is whether their possession of the property in question was sufficient under the elements of adversity as espoused in Long v. Ladd, supra. The testimony clearly shows that a conflict in the evidence existed as to whether the defendants maintained the requisite continuity of possession. Such a conflict is due to be resolved by the jury. Eiland v. Frost, McGhee & Co., 199 Ala. 639, 75 So. 293 (1917). The trial court correctly refused to grant a directed verdict.

n

The defendants also claim that reversible error was committed when the trial court allegedly commented on the effect of the evidence. Defendants assert the court commented on the interpretation of Church minutes introduced into evidence. Defendants objected to the introduction of these minutes on the grounds that they did not evidence any official action taken by the Church relative to the acquisition of the property in question. We quote from the record:

“THE COURT: You never have had a copy of those documents, Mr. Lee?
“MR. LEE: Yes, sir. It’s got more than two meetings in it, though, and that’s what I was—
“MR. JACKSON: We can eliminate this bottom one. It’s on the same page.
“MR. LEE: That’s the reason I — yes, sir, this is the part he is trying to offer, and we would renew our objection. It does not evidence any official action taken by the church.
(Paper handed to the Court)
“THE COURT: I would overrule the objection as to that part of it.
“MR. JACKSON: Your Honor, are you talking about the top part?
“THE COURT: Yes, sir. That meeting. Do you object to it — if he objects to it—
“MR. LEE: Yes, sir. And then — I don’t see — of course, anything in the January 10, 1943, part of it. I certainly — in that form—
“THE COURT: Yes, I would sustain the objection to that portion of it, but I would overrule—
“MR. LEE: May I assign our grounds?
“THE COURT: Yes.
“MR. LEE: I may have — but did I get in there, that it does not evidence any official action taken by the church relative to the acquisition of the property in question, or any interest therein. Do you want to just cut it off?
“MR. JACKSON: Yes, sir.
“THE COURT: I would overrule the objection as to the minutes that show that the Camerons were present at that meeting, and that there was an official action taken, and it was dismissed until they found out the price. As I read it.
“(Thereupon, the bottom part of Plaintiff’s Exhibit # 2 being cut off and the rest admitted into evidence as Plaintiff’s Exhibit 2.)
“Q. Mrs. Halstead, backtracking, I show you what has been marked as Plaintiff’s Exhibit number 2? Are these the minutes that you have just referred to?
“A. Yes, sir.
“Q. Would you read those minutes to the Court and Jury?
“A. All of it?
“Q. Yes Ma’am.”

Counsel’s objection to the introduction of the minutes properly preserves for review only the issue of whether the minutes were properly admitted. Whether the court improperly commented on the evidence is not raised as an issue for our consideration in the absence of an objection. Dendy v. Eagle Motor Lines, Inc., 292 Ala. 99, 289 So.2d 603 (1974); State v. Boyd, 271 Ala. 584, 126 So.2d 225 (1961).

III

The defendants also contend that the court erred by giving a charge that was misleading, erroneous, and incomplete because it ignored the defendants’ defense of adverse possession. The court charged the jury in part as follows:

“The Court charges the jury that the Plaintiff may recover in this case by either showing title from a grantor in possession, from a common source, or by unbroken chain of title from the government.”

The rule for review of an alleged error in giving a requested charge is stated in Alabama Power Co. v. Tatum, 293 Ala. 500, 306 So.2d 251 (1974) as follows:

“. . .we will review alleged error in the giving of a written requested charge in the same context as if such charge were a part of the oral charge; and, as we have stated many times, where the objected to portion of an oral charge is misleading, abstract, or incomplete, we will adjudge error to reverse only if we conclude that prejudice resulted from the giving of such charge in light of the entire instruction. Wren v. Blackburn, 293 Ala. 393, 304 So.2d 187 [1974].” 293 Ala. at 505, 306 So.2d at 255.

We have reviewed the record and it is clear from the other written requested charges given by the court and the trial court’s oral charge that the jury was adequately charged as to the issue of defendants’ claim of adverse possession. National Distillers and Chemical Corp. v. American Laubscher Corp., 338 So.2d 1269 (Ala., 1976).

IV

Lastly, the defendants contend that the trial court erred in sustaining objections to the testimony of two members of the jury at a hearing upon defendants’ motion for a new trial. The defendants sought to have A. B. Rudd and Raymond Shelley testify for the purpose of showing that questions propounded to prospective jurors on voir dire examination were not answered truthfully. The question put to the jury venire on voir dire was whether they would have any reluctance in finding against a church if the evidence justified it. There was no response to this question. The evidence to which objections were sustained was to the effect that some member of the jury stated during deliberations that the church needed this property for cemetery purposes.

The defendants concede that a juror is not allowed to testify to matters impeaching his verdict. Gulf States Steel Co. v. Law, 224 Ala. 667, 141 So. 641 (1932), and authorities cited therein. However, defendants maintain that their purpose was not the direct impeachment of the verdict, but only to prove that a juror had testified falsely on voir dire examination. Any impeachment of the verdict, it is argued, would be indirect.

This issue was decided in Alabama Fuel & Iron Co. v. Powaski, 232 Ala. 66, 166 So. 782 (1936). In Powaski, the appellant offered on a motion for new trial the affidavits of jurors concerning jury deliberations which showed that some jurors had answered falsely on voir dire examination to questions concerning union affiliations. The court refused to allow the affidavits stating as follows:

“. . . And by an unbroken line of decisions this court has steadfastly adhered to the rule that the verdict of the jury may not be impeached by proof as to such deliberations. Our latest expression upon the subject is to be found in Gulf States Steel Co. v. Law, 224 Ala. 667, 671, 141 So. 641, 645, where the underlying principle for the rule is stated in the following language: ‘The court committed no error, when it declined to consider the affidavit of one of the jurors trying the case, who undertook to testify to his own and fellow jurors’ action and conduct while considering the case. A due regard for the proper and orderly administration of the law, a proper regard for the solemnity of verdicts of jurors, was well as a sound public policy forbid that members of a jury, after they have made their deliverances in court, should be allowed to impeach their verdicts. To give consideration to such affidavits would tend to bring the law and its administration into disrepute.’
“There may be for such purpose proof of extraneous facts, as illustrated by the case of Alabama Fuel & Iron Co. v. Rice, 187 Ala. 458, 65 So. 402.
“But the affidavits here offered were not of extraneous facts, but concerned the debates and discussions of the case by the jury while deliberating thereon. They are therefore directly within the influence of the authorities herein noted.
“It appears that, when questioned on their voir dire examinations as to any affiliations with any labor organization, some of the jurors, whose conduct in the jury room is complained of by the affidavits of Pratt and Buzbee, remained silent — accepted by the court as meaning they had no such affiliations. It is upon this fact and these affidavits as to what occurred in the jury room defendant relies to sustain its contention in this regard.
“The difficulty, however, with defendant lies, not in the principle it seeks to apply, but with the method of attack. There is offered no extraneous fact, and there is nothing upon which to base any false concealment on the part of any jur- or, save the affidavits relating to the jury room deliberations. Defendant’s case is therefore not brought within the rule of the Clark Case, supra, as will be observed from the following expression found therein: ‘In saying this we do not mean that a mere charge of wrongdoing will avail without more to put the privilege to flight. There must be a showing of pri-ma facie case sufficient to satisfy the judge that the light should be let in. Upon that showing being made, the debaters and ballots in the jury room are admissible as corroborative evidence, supplementing and confirming the case that would exist without them.”

No other evidence was offered to establish a prima facie case that some jurors had falsely answered questions on voir dire examination. The trial court correctly ruled the evidence inadmissible. See Freeman v. Hall, 286 Ala. 161, 238 So.2d 330 (1970); and 66 C.J.S. New Trial § 169, pp. 416-417.

The judgment is hereby affirmed.

AFFIRMED.

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


author: BLOOD WORTH, Justice.

text:
    Amy Camelia HOWARD et al. v. Anna Ruth W. SPRAGINS et al.
    SC 2273.
    Supreme Court of Alabama.
    Sept. 23, 1977.

      Elbert H. Parsons, Jr. of Ford, Caldwell, Ford & Payne, Aubrey 0. Lammons of Lammons, Bell & Sneed, Julian D. Butler of Butler & Potter, Huntsville, for appellants.
    Patrick W. Richardson of Bell, Richardson & Cleary, Huntsville, for appellee, First Alabama Bank of Huntsville.
    J. Allen Brinkley of Johnston & Johnston, Huntsville, for appellee, Anna Ruth W. Spragins.
    M. U. Griffin, II, of Griffin & Griffin, Huntsville, for appellee, M. B. Spragins, Jr.
   BLOOD WORTH, Justice.

Appellants, Amy Camelia Howard, et al., appeal from a judgment authorizing and ordering appellee, First Alabama Bank of Huntsville, N. A. (Bank), as trustee, to pay a judgment for child support out of the corpus of two trusts.

The issue presented is whether the trustee, Bank, may legally pay child support payments from the corpus of the two trusts, notwithstanding the spendthrift provision in each trust. We hold that the trustee may do so with respect to the 1970 testamentary trust. We, therefore, affirm in part and reverse in part.

On March 30, 1976, appellee, Anna Ruth W. Spragins, filed a petition for Rule Nisi against her former husband, M. B. Spra-gins, Jr., praying that he be found in contempt for failure to make child support payments, and seeking a judgment for unpaid child support, plus interest, attorneys’ fees, and costs.

Spragins, Jr., filed an answer, in which he admitted being in arrears on child support, and a claim denominated a “third party claim” against the Bank as trustee of two inter vivos trusts and one testamentary trust under the will of his deceased father, Spragins, Sr., seeking construction of the trusts in regard to payment of the claim for unpaid child support. In his answer and “third party claim,” as amended, Spragins, Jr., also sought to have his legal granddaughter, his legal children, and all unborn beneficiaries under the testamentary trust, made party respondents.

The Bank answered the “third party claim” of Spragins, Jr., stating that its authority, under the trusts, to pay the claim for past-due child support was unclear. The Bank then cross-claimed against all other parties. It later amended to include any possible widow of Spragins, Jr., and sought to have its authority under the trusts declared.

Three guardians ad litem were appointed to represent the interests of the children, grandchildren, and possible widow of Spra-gins, Jr., and they filed answers, denying that the corpus of the trust could be invaded to pay child support.

The case was heard ore tenus and judgment was entered for appellee, Anna Ruth W. Spragins. The court ordered Spragins, Jr., to pay child support, plus costs. The court held that the Bank, in its discretion under the terms of the testamentary trust and the 1968 inter vivos trust, was ready and willing to discharge the child support obligation from the substantial corpus available if such payment was authorized. The court found that the Bank was so authorized under the clear language of the trusts, and that it was a reasonable exercise of the trustee’s discretion to do so. The court, therefore, ordered that the judgment be paid by the Bank, as trustee, out of the corpus of the trusts, or the corpus of either trust, according to the judgment of the trustee as to what assets of said trusts, or of either trust, should be so expended, in the best interest of the beneficiaries and in the exercise of the trustee’s sound financial judgment. The court further found that Spragins, Jr., was not in contempt of court and denied appellee-Anna W. Spragins’ request for attorney’s fees. The court made awards to each guardian ad litem and required the Bank, as trustee, to pay for any transcripts, costs of appeal, and to secure the costs in case of appeal.

On this appeal, appellants, represented by the guardians ad litem, contend that Spra-gins, Jr., as a beneficiary of the trusts, is attempting to defeat the intent of his father Spragins, Sr., as settlor and testator, by virtue of Spragins, Jr.’s, seeking to have the trustee Bank pay the child support payments from the corpus of what the appellants denominate as “discretionary trusts.” While appellants do not dispute the ex-wife’s right to the past-due child support payments, they argue that she has the remedy of going to the income of the trusts, which they say, is adequate for her purposes. Appellants also contend that affirmance would effectively allow one trust beneficiary to strip other beneficiaries of any interest in the trust by simply creating debts equal to or exceeding the corpus of the trust and then demanding payment of said debts by the trustee.

We proceed to construe the pertinent provisions of these trusts which are as follows:

The 1968 inter vivos trust indenture provides, inter alia:

“ARTICLE I
“The Trustee, (or such successor corporation having trust powers as shall succeed to the business of The First National Bank of Huntsville, by purchase, merger, consolidation, or change of charter or name), shall hold the above described property and such other property as may be acquired by the Trustee, for the use and benefit of the Beneficiaries hereinafter set forth, and said Trustee shall administer this Trust for the following purposes:
“1. To pay the net income quarterly, or at such other intervals as may be determined by the Trustee, (except that said income must be paid at least once a year), to Marion B. Spragins, Jr., the said income payments to be made to Marion B. Spragins, Jr. for as long as he shall live. The Trustee shall also be fully authorized to pay to Marion B. Spragins, Jr., such sums from the principal of the trust estate as in its sole discretion shall be necessary from time to time for his medical care and reasonable support.
“2. If at any time the Trustee deems it inadvisable to make the income payments direct to the said Marion B. Spra-gins, Jr., the Trustee is hereby authorized, in its sole discretion, to apply the net income from this Trust for the support and maintenance of said Beneficiary.” * * * * * *
“ARTICLE IY
“The Trustee is relieved of making any accounting to the Courts in the administration of this Trust, and it is expressly relieved of applying to any Court for authority to carry out the provisions of this Trust, as it is intended hereby that the Trustee shall have full and complete authority to administer the Trust in the manner it deems best, without the aid or assistance of any Court.”
* if: * * * *
“ARTICLE VI
“To the extent permitted by law, no Beneficiary under this Trust shall have the power to dispose of, or to change by way of anticipation, any interest given to him, or her, and all sums payable to any Beneficiary shall be free and clear of his, or her debts, contracts, distributions, and anticipations, and shall not be taken or reached by any legal or equitable process in satisfaction thereof.” (Italics supplied.)

The 1970 testamentary trust provides, inter alia:

“(1) The Trustee shall divide the Trust Estate into equal separate shares so as to provide one share for each then living lawful child of mine and one share for the then living lawful descendants, collectively, or each deceased child of mine, per stirpes. Each of said shares of my Trust Estate shall be administered as follows:
“(a) The share of my Trust Estate held for the benefit of my son M. Beirne Spra-gins, Jr. shall be held in trust for the benefit of M. Beirne Spragins, Jr. and his lawful children, and during the lifetime of M. Beirne Spragins, Jr. my Trustee shall pay to my said son or to his lawful children such amounts from the trust income or principal as my Trustee shall determine to be necessary and advisable for the reasonable support of the said M. Beirne Spragins, Jr. and his lawful children . . . .”
******
“(2) PROVISIONS RELATING TO TRUSTS. With respect to all the trusts herein created:
“(a) In making payments committed to its discretion, to or for the benefit of any beneficiary, my Trustee shall take into consideration any other income or support received, or property possessed by such beneficiary, and known to my Trustee, but the extent to which such other income, support, or property must be first used or liquidated by such beneficiary, shall be in the absolute discretion of my said Trustee.
“(b) The interest of beneficiaries in principal or income shall not be subject to claims of their creditors or others, nor to legal process, and may not be voluntarily or involuntarily anticipated, alienated, or encumbered.”

In a true “discretionary trust,” the general rule is that the beneficiary’s interest is not subject to a claim for child support. E. g. In re Watts, 160 Kan. 377, 162 P.2d 82 (1945); Watts v. Watts, 151 Kan. 125, 98 P.2d 125 (1940); see also “Trust— Claim Against Beneficiary,” 91 A.L.R.2d 262, at 281.

The trusts in question, here, however, are not true “discretionary trusts.” A true discretionary trust “must be distinguished from trusts where the discretion of the trustee pertains to the item or manner of the payments, or to the size of the payments needed to support the beneficiary. The trustee must be free to pay or apply or to totally exclude the beneficiary, if the trust is to be called ‘discretionary’ in a technical sense. Bogert, Trusts & Trustees, 2d ed. § 228 at 718-19. The language of both trusts clearly negates any impression that these trusts are true discretionary trusts. In the 1968 inter vivos trust indenture, it is expressly provided that the income must be paid quarterly, or at such other intervals as may be determined by the Trustee, (except that said income must be paid once a year) . . . .” Therefore, although the trustee is granted discretion by the terms of this trust, the mandatory provision that the income be paid at least annually clearly demonstrates that this is not a true discretionary trust. The same 'holds true for the 1970 testamentary trust. Although that trust vests “absolute discretion” in the trustee, Bank, nevertheless, by its express terms it is clear that the trustee, Bank may not totally exclude the beneficiaries. Therefore, this trust, too, may not be termed a true discretionary trust, and the general rule mentioned above is applicable.

The rule is different for support or spendthrift trusts. Here, the rule is that, absent a statute, the income of a spendthrift or a support trust of which the husband is the current income beneficiary may be reached to satisfy his wife’s claim for child support. E. g. Shelley v. Shelley, 223 Or. 328, 354 P.2d 282 (1960); Zouck v. Zouck, 204 Md. 285, 104 A.2d 573 (1954). See also II Scott on Trusts, 3d ed. § 157.1.

[5] It is also generally held that the corpus of the trust may be reached to satisfy the claim for child support. Dillon v. Dillon, 244 Wis. 122, 11 N.W.2d 628 (1943); In re Chusid’s Estate, 60 Misc.2d 462, 301 N.Y.S.2d 766 (1969); Shelley v. Shelley, supra; “Trust—Claim Against Beneficiary,” 91 A.L.R.2d 262, at 296; Zouck v. Zouck, supra.

The raison d’etre for these rules is articulated in several different ways. Some courts base their holdings on the settlor’s intent. E. g. Dillon v. Dillon, supra. Other courts hold that child support is not a “debt” contemplated by the spendthrift provision of the trust. E. g. Marsh v. Scott, 2 N.J.Super. 240, 63 A.2d 275 (1949); In Re Moorehead’s Estate, 289 Pa. 542, 137 A. 802 (1927). Some courts have said that it would be contrary to public policy to hold that a wife may not enforce child support claims against a recalcitrant husband. E. g. Wife v. Husband, 286 A.2d 256 (Del.Ch.1971); In re Chusid’s Estate, supra. These decisions reflect the wide variety of reasons which courts have given to justify these rules.

As would be expected, some courts have refused to adopt these positions. E. g. Smith v. Francis, 221 Ga. 260, 144 S.E.2d 439 (1965); Schwager v. Schwager, 109 F.2d 754 (7th Cir. 1940). They appear to be in the minority, however.

In the instant case, both trusts contained spendthrift provisions. It seems reasonable to assume, however, particularly with reference to the 1970 testamentary trust, that Spragins, Sr., intended to refer only to contracts or debts ordinarily made or incurred in the usual contractual or financial transaction. To assume that it was the Spragins Sr.’s intent, with respect to the 1970 trust, to deliberately allow his own son to deprive his own grandchildren of the necessary protection and support, which by law the son owed them (and who are themselves beneficiaries under the trust) is supportable neither by common sense nor by the terms of that trust.

Thus, it is that in this case, we base our decision on the 1970 testamentary trust, and need not consider the 1968 inter vivos trust. We have reached this conclusion for two reasons. First, the language of the 1970 testamentary trust clearly evidences the testator’s intent that both corpus and income be used and that Spragins, Jr.’s children are beneficiaries. The language of the 1968 inter vivos trust is less conclusive. Second, the corpus of the 1970 testamentary trust is significantly larger than that of the 1968 inter vivos trust and can easily accommodate the lump-sum child support payment.

The 1970 testamentary trust is not greatly dissimilar to the trust involved in Clarke v. Clarke, 246 Ala. 170, 19 So.2d 526 (1944). In Clarke, the beneficiary’s daughter contended that she, too, was an independent beneficiary and, as such, entitled to share equally with her father in the net proceeds of the trust. The pertinent provisions of the trust were as follows:

“ ‘(b). The trustee shall pay to or for the benefit of my son, Basil M. Clarke, during his life all of the net income from the trust property.
“ ‘It is my will that the income from the trust estate which I have directed to be paid to or for the benefit of my said son shall not be liable for or subject to any debts or obligations of my said son, nor shall my said son have the right or power to transfer or assign said income or any part thereof and the trustee shall have the right and power and it shall be its duty at any time during the existence of this trust that the trustee deems best for the trustee to expend, use and apply the income for the comfort, support and maintenance of my said son and/or his family, if he has a family, as the trustee may deem best instead of paying over the income or any part thereof to my said son, it being my will that said income shall not be used or applied in paying any debts or obligations against my son or on any order, transfer or assignment made by my son, but on the contrary it is my will that the income shall be used and applied for the support and maintenance of my son and his family, if he has a family, so as to provide a support and maintenance at all times. * * *

Although this Court refused to award the daughter one half of the net revenues, the Court held inter alia, that viewing the instrument as a whole, the daughter was also a beneficiary, and, therefore, entitled to participate to the extent of a reasonably sufficient amount to properly maintain her within the trustee’s discretion. “Otherwise, the several later provisions, following the single bequest to Basil, directing that the net income of the trust be utilized, at the trustee’s discretion, for the benefit of his ‘family, if he has a family,’ must be entirely ignored and rejected, which cannot be done, under any sort of judicial interpretation.” 246 Ala. 170,173,19 So.2d 526. In this case, too, we think that the children are beneficiaries under the testamentary trust.

Moreover, “The claim of a wife and dependent children to support is based' upon the clearest grounds of public policy. They are in quite a different position from ordinary creditors who have voluntarily extended credit. It would be shocking indeed to permit a husband to receive and enjoy the whole of the income from a large trust fund and to make no provision for his needy dependents.” II Scott on Trusts, 3rd ed. § 157.1, p. 1210.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.

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

      . Tit. 58, § 1, Code of Alabama 1940, limits the amount protected by a spendthrift trust to $1,800.00 annually.


author: TORBERT, Chief Justice.

text:
    The DRUMMOND COMPANY, a Delaware Corp. v. Sam L. FRIEDMAN et al.
    SC 2334.
    Supreme Court of Alabama.
    Sept. 23, 1977.

      Olin W. Zeanah of Zeanah, Donald & Hust, Tuscaloosa, for appellant.
    Perry Hubbard, Tuscaloosa, for appellees.
   TORBERT, Chief Justice.

On October 1, 1970 appellees, Sam L. Friedman and others, entered into a lease agreement whereby appellees granted the exclusive right to Republic Products, a corporation, to mine and remove coal from approximately 2,840 acres of the appellees’ land in Tuscaloosa County, Alabama. Appellant, The Drummond Company, became the successor lessee to the lease agreement through merger with Republic Products.

The lease contains the following provision for terms and renewal:

“. . . for and during the initial term of five (5) years, beginning on the First day of October, 1970, and for five (5) consecutive extended terms of five (5) years each, the renewal of each extended term to be at the option of the lessee, with each extended term to be renewed within six months prior to the expiration of the preceding initial term . . .”

On August 13, 1975, one and one-half months prior to the expiration date of the initial term of the lease, appellant sent Friedman a letter notifying him and the other appellees that appellant was exercising its right to renew the lease. This letter was the first notice of extension given by The Drummond Company to Friedman.

Friedman and the other appellees filed a declaratory judgment action against appellant on December 19, 1975. Appellees alleged that appellant did not have the right to renew the lease for an additional five-year term because of failure to give notice of renewal not less than six months prior to the expiration of the first five-year term.

The trial court heard the case without a jury on the pleadings, stipulations, and exhibits of the parties. Judgment was rendered for Friedman and the other appellees on November 29, 1976. The trial court decree stated that The Drummond Company had not given timely notice of renewal according to the lease. The court interpreted the provision “to be renewed within six months prior to the expiration of the preceding initial term” as requiring appellant to give notice of renewal not later than six months before the October 1, 1975 expiration date of the initial lease term. We affirm.

The sole issue presented for review is whether or not The Drummond Company timely exercised its option to renew the lease. The controversy between the parties arises over the construction which should be given to the phrase “to be renewed within six months prior to the expiration of the preceding initial term.” Appellant’s contention is that it had the right at any time during the six months next preceding the expiration date of the lease to give notice to Friedman of the exercise of the option. Appellees argue, and the trial court held, that this notice should have been given to Friedman not later than six months before the expiration date. We believe appellees’ construction of the lease provision to be correct.

As noted by the trial court, there are no Alabama decisions directly on point with the present case. However, we are not without guidance for our interpretation of this lease. Courts in other jurisdictions have construed the preposition “within” in conjunction with the phrase “prior to the expiration of” in similar lease agreements.

In Berkow v. Hammer, 189 Va. 489, 53 S.E.2d 1 (1949), the Supreme Court of Virginia construed a renewal provision in a lease which read, in pertinent part, as follows:

“. . . and the exercise of the privilege of this said renewal option to be made known to the said parties . in writing within sixty days prior to the expiration of this Lease.”

Id. at 491, 53 S.E.2d at 2 (emphasis added). The Virginia court, in holding that this language required that notice be given not later than sixty days before the expiration date of the initial term, stated the following:

“Although we have not had occasion heretofore to construe the word ‘within,’ when used in conjunction with the words ‘prior to,’ we do not find the problem of interpretation difficult, viewing the option in the light of options customarily used in leases. So used its meaning is neither unusual nor strained. It is well recognized in law. Courts in other jurisdictions have invariably construed the words to mean ‘not later than.’ Not a single case to the contrary has been cited, and we have been unable to fine [sic] one.”

Id. at 494, 53 S.E.2d at 3.

In Berkow, supra, the Virginia court cited with approval, as did the trial court in the present case, Royal Grocery Co. v. Oliver, 57 Cal.App. 278, 207 P. 61 (1922). In that case, the parties entered into a lease containing an option to renew which provided the following:

“It is further agreed and understood, however, that, in the event the lessee herein, shall fail to give the lessor herein a written notice of its election to exercise this option for a 3-year renewal of this lease within 90 days prior to the expiration of this lease, this option for a 3-year renewal shall thereafter be and become null ...”

Id. at 279, 207 P. at 62 (emphasis added).

The California court held that the above provision required the lessee to give the lessor notice of renewal at least 90 days prior to the expiration date of the lease. The rationale given by that court for this interpretation of “within” and “prior to the expiration of this lease” is as follows:

“The usual purpose of requiring the lessee in any case to give notice of the exercise of an option to renew the lease is that the lessor may not be compelled to wait until the last day of the term of the lease before he may know whether or not the lessee desires to continue to occupy the premises for a further term and thereby take the risk of having his premises remain idle for an indefinite period in the event that said option to renew the lease is not exercised. If appellant’s contention be sustained, it would mean that appellant was not permitted to notify the landlord at any time during the year and nine months it occupied the premises that it desired to and would continue its tenancy after the original term fixed in the lease, but that it was required to wait until ninety days of the expiration of the lease before it could serve such notice. Such a limitation would obviously be to the disadvantage of both parties to the lease, and there appears to be no reason in law or fact why such a provision should have been made. If the option had read ‘within ninety days of the expiration of the lease,’ then there would be some force in appellant’s contention, but the presence of the words ‘prior to’ clearly indicates, we believe, that it was the clear intention of the parties that the notice should be served at least ninety days pri- or to the date on which the lease expired.”

Id. at 280, 207 P. at 62.

The interpretation given by both the Virginia court and the California court to renewal provisions identical to the one in the present case has been consistently accepted in several other jurisdictions. See Annot., 51 A.L.R.2d 1404, 1434 (1957). Therefore, we agree with the trial court’s finding that the appellant failed to give timely notice of renewal and its decree is hereby affirmed.

AFFIRMED.

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


text:
    Bertha L. WHITE v. George D. WHITE.
    SC 2379.
    Supreme Court of Alabama.
    Sept. 23, 1977.
    Betty C. Love of Love, Love, Lawrence & Burton, Talladega, for appellant.
    Robert J. Teel and Frank S. Teel, Rockford, for appellee.
   TORBERT, Chief Justice.

Appellant, Bertha L. White, brought suit in 1975 seeking an order of sale for division of certain real property, known as Lots 4 and 5, in Coosa County, alleging that she jointly owned this property with her former husband, George D. White, appellee. The trial court decreed that Bertha White had no title or right to the subject property that would support her petition for sale for division. The decree stated that Bertha White had conveyed her interests in the lots to George White by a valid warranty deed executed and delivered July 7,1969, as part of a division of real property in contemplation of divorce. We affirm.

Bertha White and George White were married in 1963. On July 7, 1969 they met with an attorney to work out details of an uncontested divorce. The divorce documents were prepared and executed on that day.

An oral agreement was also entered into by Bertha White and George White on July 7 which provided for the complete disposition of their marital property. Pursuant to the agreement, deeds dividing the jointly owned real property were prepared and exchanged between the two parties while still present at the attorney’s office. A deed to Lots 4 and 5 was executed by Bertha White, notarized and delivered to George White at this time. In return, George White deeded his interests in some of the marital property to Bertha White, including a housetrailer and the lots upon which it was located, and land in Clay County. These deeds were never recorded.

The parties were granted a divorce on July 19, 1969. However, they reconciled shortly thereafter and jointly petitioned the court to set the divorce aside. This relief was granted July 26, 1969. Bertha White and George White then resumed cohabitation and continued to live together for several years.

On December 5, 1974 the parties were again divorced. The decree provided for a division of marital property but contained no mention of Lots 4 and 5. Apparently counsel for both Bertha White and George White failed to provide evidence for the trial court concerning these two lots at this second divorce proceeding. Bertha White then filed the action in 1975 which is the basis of this appeal.

We begin by stating the rule that, as between the parties, a deed is valid though unrecorded. Ala.Code tit. 47, § 120 (1958); Murphree v. Smith, 291 Ala. 20, 277 So.2d 327 (1973). Thus, we agree with the trial court that, as there was an exchange of validly executed deeds between Bertha White and George White in a consummated property settlement July 7, 1969, legal title to Lots 4 and 5 was conveyed to George White.

Bertha White asserts that the trial court committed reversible error by rendering its decision without a determination of the parties’ intentions as to whether the 1969 property settlement was enforced or annulled by the 1969 reconciliation and actions of the parties after the reconciliation. She relies principally upon Williams v. Williams, 261 Ala. 328, 74 So.2d 582 (1954). In that case, this court ruled that where a husband and wife make a separation agreement and thereafter reconcile and resume cohabitation, the separation agreement is annulled. This court further reasoned that the question of whether or not a property settlement, such as we have in the present case, is abrogated by reconciliation and resumption of cohabitation depends upon the intentions of the parties as shown by the terms of the agreement and the actions of the parties.

It is a well-known rule of review that where the trial court makes a decision based upon evidence taken ore tenus, its decree is favored with a presumption of correctness and its finding will not be disturbed on appeal unless plainly erroneous or manifestly unjust. Downs v. Downs, 260 Ala. 88, 69 So.2d 250 (1953); Stephens v. Stephens, 233 Ala. 178, 170 So. 767 (1936).

A review of the entire record in this case reveals that George White testified that he considered Lots 4 and 5 to be his; that he retained possession of the lots after July 7, 1969; that he had paid taxes in his name on the lots since July 7, 1969.

Bertha White testified that after reconciliation, she collected rent from the tenant who lived in the housetrailer deeded to her by George White in 1969; that she considered that property to be hers; that when she sold the Clay County property for $8,000.00 she retained most of the sale proceeds, giving. George White $3,000.00 to purchase a car.

This court has stated that where there is no direct finding by the trial court on a matter but the decree rendered necessitated such a finding, the reviewing court will presume such a finding if it is supported by the evidence and justifies the decree rendered. Orton v. Gay, 285 Ala. 270, 231 So.2d 305 (1970); Martin v. Cameron, 203 Ala. 548, 84 So. 270 (1919). It is therefore unnecessary in the present case for the trial court to state specifically that its findings were based upon the intentions of Bertha White and George White so long as there was sufficient evidence to reach its conclusion set forth in its decree. In light of the abovementioned testimony, we find that there was ample evidence from which the trial court could reach a conclusion that Bertha White conveyed her interests in Lots 4 and 5 to George White, and further, that both parties treated their respective deeds as valid after the reconciliation.

AFFIRMED.

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