text:
    Miles BROWN and Rebecca Brown v. Mary BROWN et al. Mary BROWN et al. v. Miles BROWN and Rebecca Brown.
    77-56, 77-56X.
    Supreme Court of Alabama.
    Aug. 25, 1978.

      Leon G. Duke, Mobile, for appellants and cross-appellees, Miles Brown and Rebecca Brown.
    Mayer W. Perloff, Mobile, for appellees and cross-appellants, Mary Brown, et al.
   MADDOX, Justice.

This is a land dispute involving a 40-acre tract in Mobile County.

The case was heard ore tenus and both sides presented testimony; much of it was conflicting.

We have carefully reviewed the record and find that there was substantial evidence to support the trial court’s decree which determined that the appellees were the lawful owners of a tract described as:

“The East half of the Northwest Quarter of the Northwest Quarter of Section 31, Township 2 South, Range 2 West, Mobile County, Alabama, being 20 acres more or less.”

It was undisputed that Miles Brown and Rebecca Brown executed two separate deeds on September 7, 1950, conveying to James Brown property described in the separate deeds, as follows:

Deed 1 (Book 513, Page 324)
“All that real property located in Mobile County, Alabama, described as follows:
“A ten acre tract or parcel of land. The northwest quarter of the northwest quarter of section thirty-one (31), township two (2) south R. 2 W., Mobile, County, Alabama, and containing thirty (30) acres by deed dated the 13th day of July, 1948, by Ottie L. Cochran, Jr. and Evelyn Cochran, his wife, and recorded in the probate court records of Mobile County, Alabama in deed book 467, page 690. Being the same tract or parcel and premises which Ottie L. Cochran, Jr., and Evelyn Cochran, his wife, by their deed, dated the 13th day of July, 1948, to L. C. Auvil and H. W. Auvil, and being the same tract or parcel of land conveyed by deed to Miles Brown and Rebecca Brown, his wife, on the 29th day of August, 1949, in deed book 485, page 375, in the probate court records of Mobile County, Alabama.
“The ten acres described above as the tract or parcel of land on east boundry of the land described above.”
Deed 2 (Book 513, Page 327)
“All that real property located in Mobile County, Alabama, described as follows:
“Beginning at the N. W. quarter of the N. W. quarter of section thirty one (31) township two, South, Range 2, West, Mobile County, Alabama. Commencing at the N. E. quarter thence running westward along said quarter line three hundred fifty feet (350), thence southwardly thirteen hundred and twenty (1320) feet to a point, thence east three hundred thirty (330) feet, to the southeast corner of said quarter, thence north thirteen hundred twenty (1320) feet to the place of beginning, containing ten acres more or less, as recorded in the probate court records of Mobile County, Alabama, in deed book 418, page 695. Being that same tract or parcel of land transferred by deed to James Edward Brown and wife, and Miles Brown and wife, by Thomas J. Lowell, Sr., and Nettie Lowell, his wife, on the 25th day of February, 1949.”

Miles and Rebecca Brown testified that James Brown brought both of these deeds, which were recorded, back to them and stated that he could not pay for the land. There was no testimony that James Brown ever executed a deed conveying the two tracts back to Miles and Rebecca Brown. There was testimony that Miles and Rebecca Brown paid the taxes on both tracts, but there was also testimony that James Brown claimed to own the 20 acres, and that he used the land for pasturing cattle and a mule and for growing a garden. Miles and Rebecca Brown contended James Brown’s use of the property was by permission.

Even assuming that James Brown, as grantee in the two deeds, surrendered them to the grantors, Miles and Rebecca Brown, that would not revert the title, because a subsequent surrender to the grantor of a deed which has been executed and delivered will not revert the title. Hollingsworth v. Walker, 98 Ala. 543, 13 So. 6 (1893).

By annually listing the land for taxation for a period of ten years, the appellants have satisfied at least one of the statutory alternatives for claiming title by adverse possession. Ala.Code § 6-5-200(a) (1975). But in order to divest the holders of legal title to land on a claim of adverse possession, the claimants have the burden of showing actual, clear, definite, positive, notorious, open, continuous, adverse, and exclusive possession of a definite tract under a claim of right for the time prescribed by law by clear and convincing evidence. Knowles v. Golden Stream Fishing Club, Inc., 331 So.2d 253 (Ala.1976). In this case, the appellants have a heavier burden of proof due to the grantor-grantee relationship between the parties. Walker v. Coley, 264 Ala. 492, 88 So.2d 868 (1956).

“It is the well-settled rule that by the execution and delivery of a deed the entire interests vests in the grantee, and, if the grantor continues in possession afterward, his possession will be that either of tenant or trustee of the grantee. He will be regarded as holding the premises in subserviency to the grantee, and nothing short of an explicit disclaimer of such relation and a notorious assertion of right in himself will be sufficient to change the character of his possession and render it adverse to the grantee.”

We note that Walker holds that payment of taxes for the prescriptive period of twenty years eliminates the presumption of sub-serviency of those claiming title by adverse possession, but in this case, the prescriptive period has not run.

Here, a family relationship also exists between the parties. Courts are especially reluctant to find that an adverse title arises from the continued occupation and use of the property by the grantor after conveyance, where there is a family relationship between the grantor and grantee. Annot., 39 A.L.R.2d 353 (1955). See, Chancellor v. Teel, 141 Ala. 634, 37 So. 665 (1904); Scruggs v. Decatur Mineral & Land Co., 86 Ala. 173, 5 So. 440 (1888).

There was other evidence which we do not set out which would support the decree of the trial court. Suffice it to say that his findings are supported by the evidence and are not clearly and palpably wrong.

AFFIRMED.

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


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Mildred CASEY v. Billy Jo McINTOSH et al.
    77-131.
    Supreme Court of Alabama.
    Aug. 25, 1978.

      W. Kenneth Gibson and Lloyd E. Taylor, Fairhope, for appellant.
    C. LeNoir Thompson, Bay Minette, for appellee, Rosa Kraker.
   MADDOX, Justice.

This is a boundary line dispute between coterminous landowners involving an area of land approximately 40 feet by 267 feet. The parcel is in a rural part of the county, is wooded, and is not under cultivation. Appellant, who was joined as a plaintiff, claimed the strip by adverse possession. The defendant, Rosa Kraker, based her claim upon a deed from her predecessors in title. The case was heard before a jury, which returned a verdict for the defendant, Kraker. The trial judge denied plaintiff’s motion for a new trial. The party joined as a plaintiff appeals. We affirm.

The action was commenced by Billy Jo McIntosh and Opal McIntosh against the defendant-appellee, Rosa Kraker. Appellant, Mildred Casey, was joined as a plaintiff after commencement of the lawsuit.

This controversy arose when the Mcln-toshes concluded that Kraker could not convey the title contracted in a contract of sale, because she had previously conveyed some of the tract to Howard and Mamie Lovett. The Mclntoshes had moved a trailer onto the lot and had made other improvements. There appeared to be some uncertainty over the correct property line between the Lovetts and the Mclntoshes. Also, Casey persisted in claiming that the trailer was on her land and that the Mcln-toshes were, in her words, “Squatters.” The Mclntoshes filed the lawsuit to rescind the contract of sale, alleging the above deficiencies in their vendor’s title and Kraker’s inability to convey to them good and clear title. Appellant Casey was joined as a party to this lawsuit pursuant to a motion filed by the plaintiffs under Rule 19, ARCP, because Casey claimed an interest in the property based upon a claim of adverse possession to a strip of land with dimensions of approximately 40 by 267 feet, bordered on the north by an old fence line.

During the trial, Casey produced evidence that as early as 1920, this fence was recognized as the boundary line between the parties’ predecessors in title. Some witnesses who had known the area for many years testified that the fence was generally thought to be the property line. There was also evidence that this fence was no longer in existence but that ah old fence had been removed from the lot by the Mclntoshes when the land was cleared.

When the controversy arose, Kraker had a person to survey the Lovett’s land, the land described in the contract of sale, and the land which Kraker retained. The survey was made by one Ed Rogers, an employee of Baldwin Engineering and Surveying Company. Although Rogers was not a registered surveyor, he testified that he had done survey work for a railroad and had worked for the-Alabama Highway Department for twelve years before being employed with the Baldwin County company. Rogers testified that he worked under the direct supervision of David Beasley, who had checked Rogers’ notes and plats and signed his survey. It appears that, with only minor deviations, the area claimed by Kraker coincided with the description in the deed which Rogers used to conduct the survey.

The evidence does not show that there were any improvements on the disputed parcel other than those made subsequent to the Mclntoshes’ occupation. Neither was there any evidence that the conflicting claimants or their predecessors in title had cultivated the land or put it to any other particular use. Kraker, on the other hand, testified that until she had contracted to sell the tract to the Mclntoshes, she had been content to let the timber grow.

After considering the above evidence, the jury returned a verdict for the defendant Kraker, and against both the Mclntoshes and the third party plaintiff, Casey. It also set the east-west half section line as the boundary line between the Casey and Kraker lands. Casey alone appealed to this Court.

Casey’s only contention on appeal is that the evidence and testimony adduced at trial does not support the jury verdict with regard to the boundary line determination and that the verdict on this issue is contrary to the applicable law.

In an adverse possession case, the burden of proof rests upon the party who asserts it, Ratcliff v. Giorlando, 343 So.2d 506, Ala.Sup. (1977), to prove that the possession is actual, hostile, open, notorious, exclusive and continuous for the statutory period. Smith v. Claybrook, 349 So.2d 1087, Ala.Sup. (1977). This is a heavy burden requiring substantial evidence. Every presumption is in favor of the holder of the legal title. Prestwood v. Hunt, 285 Ala. 525, 234 So.2d 545 (1970); there is no presumption against the holder of the legal title. Jones v. Mitchell, 258 Ala. 651, 64 So.2d 816 (1953).

In the case before us, the evidence presented by Casey was not substantial. She did present evidence that there existed at one time an ancient fence running along what she asserted to be the boundary line. She also presented evidence that this fence was known by reputation to mark the boundary line, but this was substantially all the evidence she presented to overcome the strong presumptions in favor of the record title holder, Kraker.

In Prestwood v. Hunt, 285 Ala. 525, 234 So.2d 545 (1970), this Court held that this Court could not find the trial court in error where it ruled against the party claiming by adverse possession in the face of evidence that they had cut firewood from the land, that they had occasionally grazed cattle thereon and that the land was known by reputation to be owned by the adverse claimants. Justice Simpson, writing for the Court, stated that this evidence did not rise “to the standard required to divest record title holders of land on the theory of adverse possession.” Supra, at 530, 234 So.2d at 549.

We are of like opinion in this case. We do not believe that the appellant has carried her burden of showing actual, clear, definite, positive, notorious, open, continuous, adverse, and exclusive possession by clear and convincing evidence.

Our conclusion is considerably strengthened by the fact that the jury returned a verdict adverse to the appellant, and by the fact that the trial judge refused to grant a new trial. In Alabama, adverse possession is considered to be a question of fact, Barnett v. Millis, 286 Ala. 681, 246 So.2d 78 (1971), which is properly determined by the trier of fact and whose determination, made upon evidence taken orally, “is favored with a presumption of correctness and will not be disturbed on appeal unless plainly erroneous or manifestly unjust.” Supra, at 684, 246, So.2d at 80. Butts v. Lancaster, 279 Ala. 589, 188 So.2d 548 (1966). Here, the jury and the judge saw the witnesses and heard their testimony. This Court has stated many times that verdicts are presumed to be correct, S. S. Kresge Co. v. Ruby, 348 So.2d 484, Ala.Sup. (1977), and this presumption is strengthened by the denial of a motion for a new trial. Edmondson v. Blakey, 341 So.2d 481, Ala.Sup. (1976).

AFFIRMED.

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


text:
    CHESTNUT HILLS CIVIC ASSOCIATION, INC. v. W. O. DOBBINS and City of Birmingham, a Municipal Corp.
    77-240.
    Supreme Court of Alabama.
    Aug. 25, 1978.
    C. Michael Quinn and Robert L. Wiggins, Jr., Birmingham, for appellant.
    Kenneth D. Wallis, Vestavia Hills, for appellee, W. 0. Dobbins, III, Charles H. Wyatt, Jr., Birmingham, for appellee, City of Birmingham.
   MADDOX, Justice.

This was an action to determine the validity of a municipal building permit which authorized the construction of an apartment complex on one lot and the construction of a parking lot on an adjacent lot, on which there existed a restrictive covenant.

The defendant property owner and the City of Birmingham each filed an answer in which each claimed, res judicata, collateral estoppel and laches.

The trial court, after hearing arguments, entered summary judgment in favor of the property owner and the City. He decreed:

“DECREE OF DISMISSAL
“This cause was duly set on this date upon separate motions to dismiss and motions for summary judgment as filed by the separate Respondents, separately and severally. In its consideration of the separate motions the Court has considered the case of Allen v. Axford, 285 Ala. 251; 231 So.2d 122, cause numbered CV 77 500-924 WCB in this Court, the general laws and statutes and equitable principles set forth in the ease law relative to the situations set forth in the pleadings, the actions and ordinances of the City of Birmingham relative to the questions posed by the pleadings, the statements and arguments of counsel and all the pleadings in this instant cause. From these considerations, the Court is clear in the finding that these separate motions are well taken and are due to be granted.”

The original plaintiff raises two points here:

(1) It was not given 10 days notice of the defendants’ motion for summary judgment, and
(2) The defendants failed to meet their burden of showing that there was no genuine issue of a material fact.
We affirm.

I

Even though Rule 56(c) states that the motion shall be served at least ten days before the time fixed for the hearing [Billingsley v. Gordon, Ala., 340 So.2d 743 (1976)] an objection for failure to comply with this provision cannot be raised for the first time on appeal. Henley v. Boswell, 55 Ala.App. 414, 316 So.2d 342 (1975).

II

We find no prejudicial error in the granting of summary judgment in this case. As is apparent from the decree of the trial court, this is the third time Lot 1, Block 1 of Chestnut Hills subdivision has been involved in litigation. Case # CV 77 500-924 WCB, referred to in the decree, was considered by the trial judge on the motion for summary judgment, apparently without objection from the plaintiff. In fact, the movants for summary judgment contended that all issues presented by this lawsuit were, or could have been, litigated in Case # CV 77 500-924 WCB. An attempted appeal from the adverse judgment in that case was dismissed by this Court because it was not timely filed. In any event, matters were considered on the motions for summary judgment which are not included in the record on this appeal, even though the arguments made by counsel at the hearing on the motions were transcribed and are a part of the record. During those arguments, both the movants and the opponents made reference to the prior case and the issues involved in that case.

It is axiomatic that the burden is on the party alleging error to show it affirmatively by the record. 2A Ala.Dig., Appeal and Error, <s=» No. 901. We do not have before us in this record much of the evidence obviously considered by the trial court in determining that the issues in this suit had been litigated or could have been litigated.

The judgment of the trial court dismissing this cause is due to be affirmed.

AFFIRMED.

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


author: BEATTY, Justice.

text:
    Bianca COX et vir. v. Barbara Currie MILLER.
    77-336.
    Supreme Court of Alabama.
    Aug. 25, 1978.

      Robert L. Hodges of Ford, Caldwell, Ford & Payne, Huntsville, for appellants, Bianca Cox and Richard Cox.
    James H. Porter of Cleary, Lee, Porter, Evans & Rowe, Huntsville, for appellee.
   BEATTY, Justice.

This is an appeal by Bianca and Richard Cox, husband and wife, from a jury verdict in favor of Barbara Miller. We affirm.

The action arose out of an automobile accident which occurred on October 3, 1975 in Huntsville at a point on Governors Drive near its intersection with Bassett Drive. This point is opposite the Cox home on Governors Drive. At approximately 6:00 p. m. on that Friday afternoon Mrs. Cox was proceeding east on the Drive which, though slightly inclined, presents an unobscured view. She was in the left-hand lane of traffic. When she reached a position opposite her driveway she stopped in that lane to allow oncoming traffic to pass before she turned in, but before she could do so her automobile was struck from behind by an automobile being driven by the defendant, Mrs. Miller.

In a single complaint the Coxes sued Mrs. Miller. Mrs. Cox claimed for personal injuries, lost wages, and damage to the automobile; Mr. Cox claimed for the medical expenses incurred by his wife’s hospitalization and treatment, and for loss of consortium. The trial resulted in a verdict for the defendant, following which the trial court denied the plaintiffs’ motions for judgment N.O.Y. and for a new trial.

On appeal the plaintiffs maintain that the verdict was against the great weight of the evidence and therefore it should have been set aside. They deny that a jury question was presented on contributory negligence on the part of the plaintiff, Mrs. Cox. Because that issue is paramount we will address it initially.

The plaintiffs’ position is that when Mrs. Cox stopped her automobile preparing to turn left across the street she violated no duty which proximately contributed to the accident. They rely upon a portion of a statement contained in our case of Gribble v. Cox, 349 So.2d 1141 (Ala.1977) which was quoted from 8 Am.Jur.2d § 768, p. 328:

Generally speaking, however, a motorist ahead owes no duty to a motorist to the rear except to use the road in the usual way, in keeping with the laws of the road, and until he has been aware of it, by signal or otherwise, he has a right to assume either that there is no other motorist in the close proximity to the rear or that, being there, the motorist to the rear has his vehicle under such control as not to interfere with the free use of the road in front of and to the side of him in any lawful manner.

This quotation, it must be observed, places emphasis upon “use of the road in the usual way, in keeping with the laws of the road” and “the free use of the road ... in any lawful manner” on the part of the “motorist ahead.” That is to say, whether any duty is owed by the “motorist ahead” to the “motorist behind” depends upon the former’s proper conduct ahead. In Gribble this principle was applied to a factual situation in which the “motorist ahead” was stopped at an intersection in obedience to a traffic signal when struck from behind, and that decision was based upon the premise that such conduct was usual and in keeping with the laws of the road. See Code of Ala,. 1975, § 32-5-32. Neither the decision nor the statement quoted established any further exemption from possible liability for the motorist preceding another when the circumstances were different. Indeed, the quotation referred to is immediately preceded by language to that effect:

Moreover, even if a motorist complies with all the requirements of a statute or ordinance regulating the operation of motor vehicles, he may yet be liable for the failure to exercise ordinary care to avoid injury to another traveler in front of or behind him on the highway.

Accordingly, Gribble v. Cox, supra cannot apply to the facts of this case.

Those facts reveal an unfortunate set of circumstances. The co-plaintiff, Bianca Cox, testified that the accident occurred on a clear, dry Friday afternoon around six o’clock p. m. while it was still daylight. She did not have her car’s headlights on and did not see any other cars with headlights on. She was in the left-hand lane, turned on her blinker signal for a left turn as she passed Bassett Drive, i. e., about two hundred feet from the driveway of her home, and stopped her car on Governors Drive just opposite her driveway. According to her testimony, her car’s taillights and brake lights, three on each (rear) side, were operative. Although she did not remember how long she had been stopped, she did remember that oncoming cars passed her as she waited in the street, but before she could proceed left her car was struck from behind. She did not hear any horn or other indications of an approaching crash, did not see Mrs. Miller’s automobile before the collision, and up until the impact she had not been aware of anyone following her. The force of the collision propelled her upward and backward, rendering her unconscious.

The testimony of the defendant, Mrs. Miller, varied in some details from that of Mrs. Cox. According to Mrs. Miller the lighting conditions were different. It was dusk, she said, just before getting dark, and the traffic was heavy in both directions. She could see as far as several car lengths without her headlights on. Something distracted her just before the accident occurred, she testified, and when she first saw the Cox automobile it was directly in front of her, more than a car length in front of her, and “[i]t was hard for me to tell . . . ” whether it was moving or not. She saw some small taillights on the Cox car. She did not see a blinker signal, testifying that “[TJhere was none.” In that connection, the following exchange then occurred:

Q Let me rephrase it. Would you tell us what you would have done had there been a blinker signal?
A I would have immediately put my brakes on. It would have given me a signal to put my brakes on.
Q But you were about a car length away when you saw the brake lights?
A I was more than a car length away.
Q How much farther away, please, ma’am?
A I’m sorry, I can’t remember.
Q But you know it was more than a car length? I don’t' want to go over it and over it, but I would like to have your best judgment.
A I think it was more than a car length, because a car length is only twenty feet and that’s pretty close, and I don’t drive that closely, no matter where I am driving, but I’m absolutely positive there was no blinking light on. If there had been, I would have had some warning.

And later she amplified the conditions:

Q Can you give us any judgment, Mrs. Miller, about why you didn’t see Mrs. Cox’s car until the point you did?
A Well, first of all the light conditions were very bad, it was dusk. Traffic was very heavy and because she didn’t have a blinking signal on.
Q Those are the reasons you did not see her car before you did? You are telling us it was only the taillights that you saw and you couldn’t see the car without taillights? Is that your statement of how dark it was, please, ma’am?
A I believe I could see the car, but it was very dusky.
Q What action did you take after you saw her car, please, ma’am?
A I put my brakes on.
Q And do you know how far away you were from her car at this time?
A I wasn’t very far away.
Q Can you say how much?
A No, sir. I’ve tried to tell you that and I- can’t. It was close, I didn’t have any warning.

It is the plaintiff’s contention that these facts clearly disclose that this collision would not have occurred but for the negligence of Mrs. Miller in one of two ways: (1) either that Mrs. Cox did stop suddenly and that Mrs. Miller was following too closely at a speed which, in the exercise of reasonable care, did not allow her to stop without colliding, or (2) that Mrs. Cox’s vehicle had been stopped for an interval of time and Mrs. Miller’s failure to maintain a proper lookout resulted in the collision.

Under version (1) we are cited to Tit. 36, § 15(a), Alabama Code (Recomp.1958) now Code of Ala.1975, § 32-5 — 56 the violation of which has been held negligence as a matter of law:

The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard to the speed of such vehicle and the traffic upon and condition of the highway.

The plaintiffs argue that an application of this rule to these facts makes out a case of negligence on the part of Mrs. Miller.

Under version (2) the plaintiffs cite us to Pike Taxi Co. v. Patterson, 258 Ala. 508, 63 So.2d 599 (1953) for the proposition that the operator of a motor vehicle must keep a reasonably careful lookout so that he may be able to avoid collisions with other vehicles.

We do not dispute the argument of plaintiffs’ able counsel upon the applicability of Tit. 36, § 15(a) to the defendant’s conduct but we must observe that our rules of the road apply to the automobiles “in front” as well as to those who “follow.” For example, Tit. 36, § 17, Alabama Code, supra (now Code of AIa.1975, § 32-5-58) contains admonitions to the operator who stops or turns a motor vehicle:

(b) No person shall . . . turn a vehicle to enter a private driveway or otherwise turn a vehicle from a direct course . . . unless and until such movement can be made with reasonable safety. No person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided in the event any other traffic may be affected by such movement.
(c) A signal of intention to turn right or left when required shall be given continuously during not less than the last 100 feet traveled by the vehicle before turning.
(d) No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided herein to the driver of any vehicle immediately to the rear when there is opportunity to give such signal.
(e) Any stop or turn signal when required herein shall be given either by means of the hand and arm or by a signal lamp .

A violation of this statute is also negligence; however such a breach is not actionable unless it was a proximate cause of an accident. Winfrey v. Witherspoon’s, Inc., 260 Ala. 371, 71 So.2d 37 (1954). That issue is one for the jury. Alabama Power Co. v. Sellers, 283 Ala. 137, 214 So.2d 833 (1968).

Nor do we take issue with the rule of Pike requiring an operator to maintain a reasonably careful lookout. What is a reasonably careful lookout, however, was also described in Pike 258 Ala. at page 511, 63 So.2d at page 602:

The standard of care set up by the authorities is the care- of a reasonably prudent man situated in like circumstances .

The Court continued by quoting from Cooper v. Agee, 222 Ala. 334, 132 So. 173 (1931):

The motorist must exercise due care to anticipate the presence of others upon the highway and not to injure him after he is aware of his presence. . . He is chargeable with knowledge of what a prudent and vigilant operator would have seen, and is negligent if he fails to discover a vehicle which, ... he could have discovered in time to avoid the injury in the exercise of reasonable care.

Due care is relative always and much depends upon the facts of the particular case. Tyler v. Drennan, 255 Ala. 377, 51 So.2d 516 (1951).

Based upon the evidence in this case the jury was faced with questions dealing with the signal of Mrs. Cox to turn (the existence of which Mrs. Miller denied), the adequacy of Mrs. Cox’s taillights under these circumstances as a signal to a following vehicle (the appropriateness of which Mrs. Miller disputed), and the reasonableness of the distance the Cox automobile was followed by that of Mrs. Miller (disputed by both). Under Mrs. Cox’s version, the accident occurred under clear conditions after she had given a signal to turn left and had been stopped for an interval of time. Under Mrs. Miller’s version, the traffic and lighting conditions made it “hard for her to tell” whether Mrs. Cox’s car was moving or not, and according to her, the absence of a blinking (turn signal) gave her no warning of its dangerous proximity. Under this state of the evidence favoring both sides the proximate cause of the collision, whether the failure of Mrs. Cox to adequately warn under the circumstances, or the failure of Mrs. Miller to follow at a safe distance or to maintain a proper lookout, was for the jury. Their verdict should not be set aside merely because it may not correspond with our opinion of the weight of the testimony or because it is against, the mere preponderance of the evidence. McGehee v. Frost, 268 Ala. 23, 104 So.2d 905 (1958).

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

AFFIRMED.

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


author: TORBERT, Chief Justice.

text:
    Daniel and Margaret KESSLER v. Furman C. STOUGH et al.
    77-388.
    Supreme Court of Alabama.
    Aug. 25, 1978.

      Jasper P. Juliano of McDaniel, Hall, Parsons & Conerly, Birmingham, for appellants.
    Conrad M. Fowler, Jr., of Wallace, Ellis, Head & Fowler, Columbiana, for appellees.
   TORBERT, Chief Justice.

Appellants Daniel and Margaret Kessler own property in Indian Springs Ranch Subdivision, Shelby County, Alabama. All tracts of land in this subdivision are subject to the following recorded restriction:

“1. That said property shall be used for residence purposes only and not for any purpose of business or trade.”

Since December 24, 1976 church services and other religious activities have been regularly conducted by appellees Furman C. Stough and others in a house situated on a lot in Indian Springs Ranch Subdivision. The property is owned by appellee Protestant Episcopal Church as Trustee for appel-lee Holy Spirit Episcopal Church.

On January 4, 1977 the appellants brought suit to enjoin the continued use by appellees of the house and adjoining premises for religious purposes, contending that such use violated the above quoted restriction.

Based upon the pleadings, memorandum briefs and stipulations of the parties, and a view and inspection of the property in question, the trial court ruled that the appellees could continue to hold religious services and activities within the house but were enjoined from expanding such activities by constructing additions to the house or on the remaining portion of the property without first acquiring the trial court’s approval or a modification of the injunction. We reverse.

Initially we note that, as the evidence before the trial court was by stipulation of the parties and no testimony was taken orally, the ore tenus rule of review is not applicable to this appeal. Kennedy v. Henley, 293 Ala. 657, 309 So.2d 435 (1975); Smith v. Brown, 282 Ala. 528, 213 So.2d 374 (1968); Martin v. Culpepper, 253 Ala. 412, 44 So.2d 568 (1950). Therefore, our resolution of the issues presented is based upon a de novo consideration of the evidence in light of the legal principles hereinafter discussed.

Appellees contend that the restriction in this case is ambiguous and subject to the rule of construction that restrictions against the free use and enjoyment of property are not favored iji law, and, being in derogation of such right, are to be strictly construed against the enforcement of the restriction. Cox v. Walter, 348 So.2d 454 (Ala.1977); Kennedy v. Henley, supra; Bear v. Bernstein, 251 Ala. 230, 36 So.2d 483 (1948). We recognize this often used rule of construction of unclear restrictive covenants, but find that it is not applicable to the restriction at issue. There is no ambiguity in the language of this restriction. It will therefore be given the effect of its plain and manifest meaning. Hoffman v. Tacon, 293 Ala. 684, 309 So.2d 817 (1975); Springdale Gayfer’s Store Co. v. D. H. Holmes Co., 281 Ala. 267, 201 So.2d 855 (1967); Reetz v. Ellis, 279 Ala. 453, 186 So.2d 915 (1966).

The central question thus presented on appeal is whether a restriction limiting the use of property to residential purposes only prevents the use of such property as a church and for church related purposes.

Because this is a question of first impression in this state, appellants cite numerous decisions from courts of other jurisdictions dealing with this specific issue. These courts appear to have established the rule that use of property as a church and for church related purposes violates a covenant restricting use of property to residential purposes only. The rationale generally given for this conclusion is that in applying the natural, common sense ¿leaning of the terms of the restriction, there is an express exclusion of all uses other than the prescribed use for “residence” purposes. It therefore necessarily follows that the use for “church” purposes is excluded because not residential in character. See, e. g., Ireland v. Bible Baptist Church, 480 S.W.2d 467 (Tex.Civ.App.1972); Chandler v. Darwin, 281 S.W.2d 363 (Tex.Civ.App.1955); Christ’s Methodist Church v. Macklanburg, 198 Okl. 297, 177 P.2d 1008 (1947); Matthews v. First Christian Church of St. Louis, 355 Mo. 627, 197 S.W.2d 617 (1946); Proetz v. Central Dist. of Christian & Missionary Alliance, 191 S.W.2d 273 (Mo.Ct.App.1945); Boston-Edison Protective Ass’n v. Temple of Light, 310 Mich. 48, 16 N.W.2d 662 (1944).

In McDonald v. Chaffin, 529 S.W.2d 54 (Tenn.Ct.App.1975), a recent decision involving a factual situation similar to the case at bar, the Tennessee Court of Appeals stated the following:

“Restrictive covenants are to be strictly construed. That is, they are to be read without the drawing of unnecessary implications and will not be taken to preclude that which is not plainly prohibited. . But in reading the covenant we should give the words a fair and reasonable meaning in order to effectuate its purpose. .
“We agree that any use of the subject property as a church building would constitute a violation of the applicable restrictive covenant. Such use is not for residential purposes, and we take judicial notice that such use would ordinarily entail regular public gatherings. This result is mandated by the plain meaning of the covenant and is consistent with the ‘complete accord’ reached by many other courts that have considered the question of the applicability to churches of covenants restricting property to residential use. See Annot., 13 A.L.R.2d 1239.”

Id. at 57.

In the instant case, it is apparently undisputed that the building on appellees’ property in Indian Springs Ranch Subdivision is in fact being used as a church and not a residence. Therefore, applying the previously discussed rule of other jurisdictions concerning restrictions limiting use of property to residential purposes only, we find that appellees’ use of the house and adjoining premises as a church constitutes a clear and enjoinable violation of the restriction in issue here. We note, however, that we are not faced on this appeal with any issue involving the applicability of such a restriction to persons conducting private religious services in their homes, nor does this appeal present a constitutional (First Amendment) issue.

We observe finally that, because the deed to appellees’ property in Indian Springs Ranch Subdivision incorporated the questioned restriction by reference, appel-lees purchased their property with knowledge that it was subject to the restriction limiting use to residential purposes only. Appellees may not now complain as they purchased with notice of the restriction and paid for the qualified use only. Laney v. Early, 292 Ala. 227, 292 So.2d 103 (1974); Pugh v. Whittle, 240 Ala. 503, 199 So. 851 (1941); Morris & Morris Tuskaloosa Manufacturing Co., 83 Ala. 565, 3 So. 689 (1888).

Accordingly, the judgment of the trial court is reversed and the cause remanded for entry of an order permanently enjoining appellees from further use of the property in Indian Springs Ranch Subdivision as a church and for church related activities.

REVERSED AND REMANDED WITH DIRECTIONS.

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


author: SHORES, Justice.

text:
    Margaret TICE v. Cabell TICE et al.
    77-416.
    Supreme Court of Alabama.
    Aug. 25, 1978.
    Rodney B. Slusher, Florence, for appellant.
    Ralph M. Young, of Bradshaw & Barnett, Florence, for appellees.
   SHORES, Justice.

Margaret Tice served as a babysitter for her son’s children during the days while her son and daughter-in-law worked. For this, she was paid between $100 and $150 each month. On February 18, 1976, while carrying groceries into the house with her grandson, Aaron, she slipped and fell in the front yard. Mrs. Tice filed suit against her son and his wife, Cabell and Debra Tice, alleging that her injury resulted from their negligence in permitting the premises to exist in an unreasonable and dangerous condition. The defendants, by answer, denied liability and asserted contributory negligence on Mrs. Tice’s part. They also filed a motion for summary judgment maintaining that Mrs. Tice had failed to produce sufficient evidence to create a jury question as to negligence on the part of the defendants.

The only'evidence before the trial court on motion for summary judgment was the depositions of Margaret, Cabell and Aaron Tice, and an affidavit of Margaret Tice. There were no eyewitnesses to the fall. The evidence showed that Mrs. Tice was walking up an incline on a sidewalk leading to the front of her son’s home when she either stepped onto the grass where she slipped and fell or slipped from the sidewalk onto the grass where she fell. There was also evidence that toys were generally present throughout the yard, that there were several small holes in the ground, and that the ground was covered with a layer of leaves. Mrs. Tice could not state the cause of her fall, only that she believed it must have been caused by stepping on one of the toys. Based upon this evidence, the court granted summary judgment in favor of defendants. Mrs. Tice filed a motion to vacate the summary judgment which was denied. She then appealed from the summary judgment. We affirm.

The plaintiff claims the status of a business invitee on her son’s property. Assuming that she is an invitee, the duty owed to her by the defendants is the exercise of ordinary and reasonable care to keep the premises in a reasonably safe condition. Winn-Dixie v. Godwin, 349 So.2d 37 (Ala.1977); May-Bilt, Inc. v. Deese, 281 Ala. 579, 206 So.2d 590 (1967). The owner of a premises in such cases is not an insurer of the safety of his invitees, and the principle of res ipsa loquitur is not applicable. There is no presumption of negligence which arises from the mere fact of an injury to an invitee. Delchamps, Inc. v. Stewart, 47 Ala.App. 406, 255 So.2d 586 (1971); cert. denied 287 Ala. 729, 255 So.2d 592 (1971); Great Atlantic and Pacific Tea Co. v. Bennett, 267 Ala. 538, 103 So.2d 177 (1958). Furthermore, the owner of premises has no duty to warn an invitee of open and obvious defects in the premises which the invitee is aware of or should be aware of in the exercise of reasonable care. Hand v. Butts, 289 Ala. 653, 270 So.2d 789 (1972); Crawford Johnson & Co. v. Duffner, 279 Ala. 678, 189 So.2d 474 (1966). In the instant case, the plaintiff must prove, in order to recover, that her fall resulted from a defect or instrumentality located on the premises as a result of the defendants’ negligence and of which the defendants had or should have had notice at the time of the accident. See, Wynn, Slip and Fall Cases in Alabama, 27 Ala.Law. 419 (1966), and authorities cited therein. The plaintiff has not presented any evidence tending to show that the defendants breached any duty owed to her. She asserts only that her fall may have been caused by toys, leaves or holes in the yard. It is her opinion that she tripped on a child’s toy, many of which were frequently in the yard.

She contends that this establishes a question of fact for the jury under Folmar v. Montgomery Fair Company, Inc., 293 Ala. 686, 309 So.2d 818 (1975). In that case, the plaintiff tripped and fell in defendant’s department store while walking in an aisle between two tables holding merchandise. No instrumentality or defect was discovered which could have caused her fall other than a table leg which protruded beyond the top of the table. By affidavit, the plaintiff asserted that this could have been the only cause of her fall. Under these facts, we held that summary judgment was improper. Folmar, supra, is distinguishable from the case at hand, however.

In that case, the plaintiff produced evidence from which a jury could find that Montgomery Fair breached a duty owed to the plaintiff by obstructing aisles intended for walkways by customers. The plaintiff here has not done that. She shows only that there were things in the yard over which she might have tripped. All of these are things which are normally in yards of persons with small children; and the plaintiff’s knowledge of them was equal or superior to that of the defendants. The plaintiff has simply failed to produce any evidence from which a jury could conclude that the defendants have breached any duty owed to her. There was, therefore, no error in granting summary judgment in defendants’ favor.

The judgment appealed from is affirmed. AFFIRMED.

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


text:
    Jean G. RUSSELL v. Billy F. RUSSELL.
    77-496.
    Supreme Court of Alabama.
    Aug. 25, 1978.
    Joe C. Cassady of Cassady, Fuller & Marsh, Enterprise, for appellant.
    John C. Dowling, Enterprise, for appellee.
   MADDOX, Justice.

Appellant/plaintiff, Jean G. Russell, sought to have a deed transferring a house to the appellee set aside on the ground of fraud and failure of consideration. Appellant and appellee, Billy F. Russell, were married in 1963, and divorced in 1974; custody of their son was awarded to the husband. The subject property had remained in their joint names after the divorce.

In November, 1976, appellant was summoned to the home of her former husband’s parents where she signed the instrument she now seeks to set aside.

Appellant contends that appellee’s mother had requested that she stop by to sign a will to ensure that the jointly held property would be left, in the event of the divorced parents’ death, to the infant son; that she believed she was signing such a will at the time; and that she had no reason to believe otherwise, until she saw a “For Sale” sign in front of the house some time later. She argues that there was a fraud perpetrated against her requiring the cancellation of the deed, and that there was an absolute failure of consideration, because nothing which the law deems good and valuable consideration changed hands in this instance.

The former husband admits that the evidence surrounding the execution of the deed is conflicting, but he contends that there was evidence presented that there was no mention of a will, and that the evidence showed that appellant signed the document in the presence of him and his parents after having first read it, and with no threats or duress, but rather of her own free will. In short, he argues that his former wife failed to prove fraud.

As to the issuance of consideration, appel-lee argues that the purported conveyance was part of the final property settlement of their divorce and that by signing, appellant relieved herself of liability on an outstanding mortgage recorded against the property-

We affirm.

In cases where the grantor seeks to set aside a deed on the ground that a fraudulent misrepresentation induced the signing of the deed, this Court has required that the fraud must be clearly and satisfactorily proven. Ingram v. Horn, 294 Ala. 353, 317 So.2d 485 (1975).

As to Mrs. Russell’s theory that there was a lack of consideration, it is well settled that a deed is valid and operative between the parties and their privies, whether it is founded upon a consideration or not. Ingram v. Horn, supra; Taylor v. Godsey (1978), Ala.Sup., 357 So.2d 979.

The cause was heard ore tenus. Where the trial court makes findings after hearing witnesses ore tenus, every presumption will be indulged in favor of the court’s findings, and its findings will not be disturbed on appeal unless they are found to be palpably wrong. Casey v. Beck, Ala., 350 So.2d 429 (1977).

AFFIRMED.

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


author: ALMON, Justice.

text:
    Roy E. WINEGARDNER and Catherine B. Hickman v. The William J. BURNS, International Detective Agency, Inc., a New York Corporation.
    SC 2794.
    Supreme Court of Alabama.
    Sept. 1, 1978.

      Currun C. Humphrey of Humphrey & Smith, Huntsville, for appellants.
    James B. Schrimsher of Morring & Schrimsher, Huntsville, for appellee.
   ALMON, Justice.

Winegardner and Hickman, appellants, sued The William J. Burns International Detective Agency, Inc., (Agency) for breach of contract seeking recovery for damages suffered as the mortgagees in possession of the Townhouse Motel in Huntsville. After a trial without a jury the circuit court entered judgment for the Agency. The issue is whether the court erred in its refusal to allow the appellants to introduce evidence of a subsequent oral modification of the written contract between the parties. We hold it did and reverse.

In August, 1969, the Townhouse Motel closed and the appellants entered into a written contract dated August 6,1969, with the Agency in which the Agency agreed to provide security for the premises. The contract provides that it is operative on a month-to-month basis. A portion of the contract is as follows:

“Burns Patrol Service agrees to furnish Night Patrol Service to the Subscriber at 2806 So. Parkway, Huntsville, Alabama, by bonded, Commissioned Patrolmen intermittently between the Hours of 7:30 P.M. and 5:30 A.M., seven nights per week. These patrolmen will check your premises for Forcible Entry, Unauthorized Persons, Unlocked Doors, Broken Windows, Fire and such other irregularities as may come to their attention, and written reports thereof made to the Subscriber. Check all doors four times a night. Check the swimming pool. Protection signs will be furnished for outside use.
This contract shall be operative on MONTH TO MONTH basis, but shall continue IN FULL FORCE until either party may, by WRITTEN NOTICE to the other, signify the desire to terminate it 30 days thereafter.” [Emphasis added.]

In October, 1969 the appellants activated the heating unit. The heating system pumped hot water through pipes located throughout the motel. In January, 1970 the heating system failed. The water pipes burst during freezing weather causing extensive water damage.

The written contract was supplemented or modified by an alleged oral agreement reached in October, 1969, which provided that the Agency would check on a regular basis the boiler pressure, boiler temperature, and pump to assure that the heating system was functioning properly. Appellants sought to prove the oral agreement by offering evidence of a conversation between Eddie T. Kidwell, an engineer and agent of appellants, and Jimmy Lee Hancock, supervisor of the Agency. The trial court refused to allow this evidence and held that the Agency was under no contractual duty to check the motel heating system.

The Agency argues that Hancock had no authority to contract and consequently could not bind the Agency. W. W. Casey, who was Hancock’s immediate supervisor with the Agency, testified that he had authority to contract but Hancock did not. We quote from portion of the record of Casey’s testimony:

“Q Actually was Mr. Hancock an assistant manager?
A No, sir.
Q Assistant to you?
A No, sir. He was — whatever.
Q Operations supervisor?
A Yes, sir.
Q Well, what did the duties of that office consist?
A He was in charge of everything in the Huntsville area under my supervision.
Q Did he hire?
A Yes, sir.
Did he fire? <©
With my approval. ¡>
Did he assign men to a job? .©
Yes, sir. >
Did he relieve them from a job if necessary? <©
Yes, sir. p>
Is there anything that you were authorized to do that he wasn’t authorized to? <©
A Yes, sir.
Q What was that?
A Sign contracts.
Now, did you sign the contract that started the service at the Town House Motel? O*
No, sir. <
Did anybody sign it?
This one is not signed. Of course, I wouldn’t remember whether it was signed or not, unless I saw my own signature on it.” <
Did you have this contract typed up, this Plaintiff’s Exhibit 4? ¿D
Well, I imagine I did. It was typed in the office there.
You wouldn’t have typed, '7:30 P.M. until 5:30 A.M.’ would you? O’
No. It wa^ typed wrong. If it come across my desk I would have changed it.
Did it come across your desk? «©
Must not have or I would have signed it. i>
In other words, it didn’t come across your desk? O’
I don’t think so.”
So, it never was presented to'you for signature? ,©
If they had sent it back to me without a signature I would have signed it. I didn’t know it wasn’t signed.
Now, do you remember this question I asked you in your deposition, page 9, line 18, ‘Did you sign the contract, or do you recall?’ To which you answered, ‘To my knowledge I can’t remember ever signing it, to tell you the truth about it.’ <y
That’s right, I don’t.
Then the question was, ‘Here is the contract which is attached to this complaint, or at least a copy is attached to the complaint in the case, and we will ask the court reporter to mark that Exhibit 1 to your testimony. You will notice that it has no signature on the behalf of the detective agency.’ You answered, ‘That’s right. That’s because it never did come to me, I guess. I think that looks like Hancock. I don’t know.’ Do you remember saying that?
A I probably said it. I don’t remember.
Q In your best judgment right now?
A I probably said it, sure.
Q Well, right now, though, in your best judgment, did Mr. Hancock supervise the preparation?
A The way Hancock did business, sent it out without having me sign it.
Q That’s what you mean, Hancock did it?
A That’s his way of doing business, that’s the reason he was relieved.”

It appears from the record that if Casey didn’t approve the contract then it must have been approved by Hancock. The record is clear that Hancock was the only person with whom appellants dealt. The contract was not signed by anyone from the Agency. The Agency admits the contract was binding, consequently it appears Hancock was the only person who could have bound the Agency. If in fact Hancock did not have actual authority to contract for the Agency, then clearly under these circumstances he had apparent authority.

The Agency contends there was no consideration for the oral agreement and the trial court should be affirmed. Appellants claim only mutual assent is required to support the modification.

A written contract may, in the absence of statutory provisions requiring a writing, be modified by a subsequent oral agreement. Commercial Credit Co. v. Perkins, 236 Ala. 616, 184 So. 178 (1938); Moore v. Williamson, 213 Ala. 274, 104 So. 645 (1925).

Whether the modification of a contract must be supported by a new consideration other than mutual assent has been, in times past, the object of exhaustive judicial opinions in Shriner v. Craft, 166 Ala. 146, 51 So. 884 (1910), and Moore v. Williamson, supra. While we do not intend to undertake another lengthy review of the principles and authorities involved, we are of the opinion that the rule applicable to this ease is that an executory agreement may be modified by the parties without any new considerations other than mutual assent. Watson v. McGee, 348 So.2d 461 (Ala., 1977); Allied Mills, Inc. v. St. John, 275 Ala. 69, 152 So.2d 133 (1969); Moore v. Williamson, supra. The written contract, operative on a month to month basis was, at least to future months, executory and thus subject to oral modification upon mutual consent of the parties.

We are particularly impressed with the rule stated in Moore v. Williamson, supra:

“ ‘ * * * [1] The power and right of the parties to a contract to cancel, change, or replace it by a new one are beyond dispute; [2] that for the new agreement some consideration is requisite; [3] that consideration, where a contract is rescinded, may consist simply of mutual releases; [4] when it is changed in unimportant details without impairing its main obligations and purposes, nothing more than mutual consent is necessary; [5] and when it is explained, supplemented by additional matter not covered, or corrected as to errors, the original consideration is enough for the new agreement; [6] when a contract is altered in some or all of its essential features, or is supplanted by a substitute, the secondary contract must have a new consideration, which may be, of course, the release of old obligations, the lightening of former burdens, the according of new benefits or advantages, but if all the benefits are conferred upon one party, and all the burdens put upon the other, a consideration will be lacking, and the new contract will be void; [7] either party may waive any right or benefit he may have by a contract, and if the other party acts upon the faith of the waiver, the question of consideration is out of the case, upon the doctrine of estoppel; [8] if a new agreement abrogates, alters, or supplants an old one, and is fully executed by perform-anee on both sides, inquiry into its consideration is closed; [9] as to what constitutes a consideration, especially as to what constitutes a sufficient consideration, for a secondary contract, can be understood only by a great multitude of special instances.’ ”

Designations [4], [5] and [7] in the above quoted rule are Applicable to the facts in this case. In regard to designations [4] and [5] the written contract provided that the patrolmen will check for “such other irregularities as may come to their attention.” It could be argued that this oral agreement was a change in an unimportant detail without impairing the main obligation in the written contract, and also that it tended to explain a possible ambiguous provision. In either instance the original consideration would be sufficient. Designation [7] is based on the doctrine of estoppel. Hancock agreed to check the heating system and posted instructions to that effect in the room where the system was located. This could have lead Kidwell to rely on Hancock’s agreement to check the system. If Hancock had refused to check the system it is not unreasonable to assume that the appellants would have considered obtaining security services elsewhere.

Under all the circumstances we are of the opinion that the trial court’s exclusion of the conversation between Kidwell and Hancock relative to the oral agreement was erroneous.

Appellant sought to introduce evidence of freezing weather conditions during January, 1970, through an official publication of the United States Department of Commerce. The document is certified to be an official publication compiled from government climatological records. Seemingly, the trial court refused admission of the evidence on the ground that the document was not attested to by a person purporting to be the officer having legal custody of the record, or his deputy.

Rule 44(a)(1), ARCP, provides that such records, if admissible for any purpose:

“. . . may be evidenced by an official publication thereof or by a copy attested by a person purporting to be the officer having the legal custody of the record, or his deputy.” (Emphasis added.)

The publication should have been admitted. Wright and Miller, Federal Practice and Procedure, § 2433.

The judgment of the lower court is reversed and the cause remanded.

REVERSED AND REMANDED.

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


text:
    PROTECTIVE NATIONAL INSURANCE COMPANY OF OMAHA, a corporation v. Billy Fred BELL, Jacqueline Scott, Lula Belle McFarland, Fluorescent Maintenance Company, the Home Insurance Company, a corporation.
    SC 2810.
    Supreme Court of Alabama.
    Sept. 1, 1978.

      Mark W. Lee and William A. Scott, Jr. of McDaniel, Hall, Parsons & Conerly, Birmingham, for appellant.
    Dick D. Nave and Robert C. Boyce, III, Birmingham, for appellees, Fluorescent Maintenance Co. and Home Insurance Co.
   ALMON, Justice.

This is a declaratory judgment action to determine which of two insurance companies is the primary insurer.

Bell was involved in an automobile accident while driving a truck owned by his employer, Flourescent Maintenance Co., within the scope of his employer’s permission. McFarland and Scott brought suit against Bell for personal injuries resulting from the accident. Bell is an insured under the omnibus clause of an automobile liability policy issued to his employer by the Home Insurance Company. Bell is also an insured under the non-owned automobile provision in a liability policy issued by Protective National Insurance Company of Omaha to him on his personal automobile.

The circuit court ruled that Protective is the primary insurer. We reverse.

Specifically, the issue is whether the “excess insurance” provided for in the Protective policy is valid and collectible insurance within the meaning of the “other insurance” provision of the Home policy.

Protective’s policy “other insurance” clause reads:

“Other Insurance. If the insured has other insurance against a loss covered by Part I of this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the Declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance with respect to a temporary substitute automobile or non-owned automobile shall be excess insurance over any other valid and collectible insurance.” (Emphasis supplied.)

In the Home policy, the “other insurance” clause reads:

“Other Insurance. This insurance shall not apply to the extent that any valid and collectible insurance, whether on a primary, excess or contingent basis is available to the Insured under any other insurance policy.”

The Home’s “other insurance” clause is properly referred to as an “escape” clause. The applicable portion of Protective’s “other insurance” clause is an “excess” clause. Speaking to the effect of such clauses as they pertain to the same coverage, the court in State Farm Mutual Automobile Insurance Co. v. Auto-Owners Insurance Co., 287 Ala. 477, 486, 252 So.2d 631, 640 (1971), stated that the vast majority of the courts have held:

“. . . that where one policy contains an ‘escape clause,’ and the other contains an ‘excess clause,’ the primary insurer is the company issuing the policy with the escape clause because excess insurance simply is not other valid and collectible insurance. This is in accord with the same reasoning which has already been approved by this court in Burleson. . . ”

The Home policy affords primary coverage. The coverage provided by Protective’s “excess” clause does not constitute “valid and collectible insurance” within the meaning of that term in the Home policy. Protective’s liability is secondary. See, Continental National American Group v. Burleson, 283 Ala. 671, 220 So.2d 611 (1969); Gaught v. Evans, SC 2826, SC 2827, SC 2828 [MS] (1978), Ala.Sup., 361 So.2d 1027.

Home argues that the trial court erred in holding that Bell operated the truck within the scope of his employer’s permission. Home failed to cross-appeal, thus the issue is not presented for review.

The judgment of the circuit court is hereby reversed and the cause is remanded.

REVERSED AND REMANDED.

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


author: PER CURIAM.

text:
    HIGHLANDS UNDERWRITERS INSURANCE COMPANY, a corporation, et al. , v. ELEGANTÉ INNS, INC., a corporation.
    77-73, 77-74.
    Supreme Court of Alabama.
    Sept. 1, 1978.

      Max Hudson of London, Yancey, Clark & Allen, Birmingham, and Clayton H. Farn-ham of Swift, Currie, McGhee & Hiers, Atlanta, Ga., for appellant, Highlands Underwriters Ins. Co.
    W. Michael Atchison, Birmingham, for appellants, Southern American of Alabama, Inc., et al.
    Thomas C. Najjar, Jr., Jack H. Harrison, Birmingham, for appellee.
   PER CURIAM.

Eleganté Inns, Inc., instituted a declaratory action against Highlands Underwriters Insurance Company seeking reformation of a policy of insurance. In a separate action, Eleganté Inns sued Southern American of Alabama, Inc., and Bobby Thornell for negligently endorsing the Highlands’ policy over a third party and for causing Eleganté Inns to be under-insured. The two suits were consolidated and tried without a jury. Respectively, the defendants appeal from the judgment of the circuit court reforming the policy and adjudging Southern American and Thornell guilty of negligence and awarding damages.

Eleganté Inns was the owner-operator of a restaurant known as “The Eleganté” which was located in suburban Birmingham and began operation in 1971. The corporation’s business affairs were handled primarily by its President, Gus Gulas. In July, 1973, Thornell, Vice-President of Southern American, visited Gulas at “The Eleganté” restaurant to solicit the insurance account of Eleganté Inns. The meeting between Gulas and Thornell was arranged by Oscar Harper who was a stockholder and director of Eleganté Inns and a stockholder and President of Southern American.

The meeting between Gulas and Thornell was brief. Gulas turned «over to Thornell Eleganté Inns’ existing insurance policies. As a result of the meeting, Thornell placed a multi-peril insurance policy covering fire, liability, business interruption and workmen’s compensation for Eleganté Inns with Highlands. The policy contained a 90% coinsurance clause and a provision for loss of earnings totaling $55,000.00.

In May, 1974, Eleganté Inns leased the restaurant premises to Jack Nichols under a written lease agreement which provided for a five year term during which the premises were to be used for the operation of a restaurant known as “Ceasar’s IV.” The lease provided that Eleganté Inns would insure the premises from loss due to fire and that Nichols would have no interest in the proceeds of the insurance. The lease contained a provision for the abatement of rent and a surrender clause in the event the building was destroyed by fire.

Gulas informed Thornell of the lease arrangement. Thereafter, Thornell met with Nichols and as a result the Highlands policy was endorsed over to Nichols; Eleganté Inns was removed as the named insured. Eleganté Inns learned of the change only after a loss to the building by fire.

It is undisputed that the change in the named insured on the Highlands policy was a mistake. In addition, it is undisputed that Thornell made a further mistake by not substituting the loss of earnings provision with a loss of rental income provision to reflect Eleganté Inns’ new position as owner-lessor.

The building and its contents were destroyed by fire on November 24, 1974. Highlands denied coverage to Eleganté Inns-

I.

Highlands appeals from that part of the decree and judgment reforming the insurance policy to show Eleganté Inns as the named insured and awarding damages against Highlands for $109,100.77 representing the amount due to Eleganté Inns for the coverage on the building and $60,-000.00 representing the full amount of policy coverage insuring the contents. The court did not reform the loss of earnings provision to provide for loss of rental income.

The policy was reformed on the basis of mutual mistake. In general, a written instrument may be reformed so as to make it conform to the intention of the parties where, through mutual mistake, their intention is not so expressed. Original Church of God, Inc., v. Perkins, 292 Ala. 283, 293 So.2d 292 (1974). An insurance policy may be reformed as other instruments. North Carolina Mut. Life Ins. Co. v. Martin, 223 Ala. 104, 134 So. 850 (1931).

Highlands argues that there is no mutuality of mistake unless Thornell is the agent of Highlands, and that the evidence is clear that Thornell was a broker and the agent of Eleganté Inns only.

We disagree. It is immaterial whether Thornell was the agent of Highlands because the evidence is undisputed that the intention of the parties was to insure the, owner of the property.

Norris E. Krieg, Vice President of the Property Underwriting Department for Highlands, testified as follows:

“REDIRECT EXAMINATION:
“Q. (BY MR. HARRISON:) Mr. Krieg, just a couple of quick questions.
“Had you been in your present position when that endorsement came in changing the named insured from the Eleganté Inn to Jack Nichols d/b/a Caesar’s IV, what would that have indicated to you as an underwriter?
“A. It would have indicated a new ownership.
“Q. New ownership of this physical property, is that correct?
“A. True.
“Q. Had Highlands been advised that this was a lease and not a transfer of ownership to Mr. Nichols, would the policy have been endorsed the way it was?
“A. No, sir.
“Q. What would Highlands have done?
“A. I don’t think the Highlands would have — well, rephrase your question, please.
“Q. Assuming Highlands had been given information that this was a lease arrangement between the Eleganté Inns and Jack Nichols d/b/a Caesar’s IV, then what would have been the appropriate action to take with regard to the policy?
“A. Well, it certainly wouldn’t have been endorsed to a new insured.
“Q. All right, sir. There really wouldn’t have had to be any change in it, would there?
“A. That is correct.
“Q. It would have been appropriate to change the loss of earnings to a loss of RIT coverage, would that not be true?
“A. If it was leased, yes, it would be.”

The above clearly demonstrates that Highlands intended to insure the owner of property and thought that, in fact, it had. The judgment of the court reforming the policy was correct.

II.

In regard to Thornell and Southern American, the court found that they owed a duty to Eleganté Inns to exercise the degree of skill and care required of a reasonable and prudent insurance agent in the community and that they had breached the duty in the following respects:

(1) They had negligently and mistakenly endorsed Eleganté Inns’ insurance policy to Jack Nichols and as a consequence of which, Highlands refused to pay Eleganté Inns the proceeds of its policy. The court further found that Highlands’ action in denying coverage was not arbitrary or capricious.

(2) They had failed to make any inquiry or investigation of the extent, amount and form of the insurance which should have been written for Eleganté Inns at any time throughout some eighteen months of dealings with Eleganté Inns prior to the loss. As a consequence, Eleganté Inns was grossly under-insured and in addition became subject to the provisions of the 90% co-insurance clause.

As a proximate result of their breach of duty, the following damages were awarded to Eleganté Inns:

(a) $33,000.00 representing the loss of rents.

(b) $31,188.23 representing the loss incurred by virtue of the applicability of the 90% co-insurance clause in the policy.

(c) $56,366.92 representing attorneys’ fees incurred by Eleganté Inns in its successful efforts to reform the Highlands policy and collect the proceeds.

(d) $31,283.65 representing interest due on the proceeds of the Highlands’ policy.

Thornell and Southern American make several contentions which we will consider in turn. First, we note that there is no dispute about the $31,283.65 interest award.

A.

Thornell and Southern American contend the court should have reformed the Highlands policy to include and substitute a loss of rental income provision for the loss of earnings provision. We disagree.

It is axiomatic that the remedy of reformation is available to establish and perpetuate the true agreement between parties by making the instrument express the real intent of the parties. Reformation is not available to make a new agreement. Springdale Gayfer’s Store Co. v. D. H. Holmes Co., 281 Ala. 267, 201 So.2d 855 (1967).

Reforming the policy to replace Nichols with Eleganté Inns as the named insured does not necessarily require that the policy be reformed to reflect Eleganté Inns’ position as owner-lessor. The loss of rental income and loss of earnings provisions are separate and distinct, and are designed to insure against different risks. Under the facts of this case, the loss of earnings provision insures the operator of the restaurant, which could have been either Eleganté Inns as owner-operator, or Nichols as lessee-operator. In contrast, the loss of rental income provisions can only insure Eleganté Inns, as the owner-lessor.

The unreformed loss of earnings provision in the policy is consistent with the evidence that Highlands intended to insure the property owner. The policy can be reformed to include a loss of rental income provision only if the evidence shows an intention by Highlands to insure the property owner as lessor of the property, rather than as operator of the business. The evidence is consistent that Highlands thought it was insuring the restaurant owner-operator.

The common intentions of the parties were to insure Eleganté Inns as owner-operator and the policy was reformed to conform to such intentions. The mistake of Thornell in not insuring Eleganté Inns as owner-lessor is a unilateral one, unless the actions of Thornell are imputed to Highlands through principles of agency law. The court made no such finding and the presumption accorded the trial court on findings of fact requires that the judgment on this matter be affirmed.

As an alternative, Thornell and Southern American argue that Nichols has an insurable interest in the property and the court erred in not requiring Highlands to pay the proceeds from the loss of earnings provision to Nichols, as trustee for Eleganté Inns. This issue was not raised below nor decided by the trial court, and, therefore, will not be reviewed on appeal. McWhorter v. Clark, 342 So.2d 903 (Ala., 1977).

B.

Thornell and Southern American contend they were not guilty of any breach of duty owed to Eleganté Inns because their agreement was only to “duplicate” the existing coverage at a cheaper rate.

The law in regard to the duty that insurance agents or brokers owe to their principals, the insureds, is stated as follows:

“. . . when an insurance agent or broker, with a view to compensation, undertakes to procure insurance for a client, and unjustifiably or negligently fails to do so, he becomes liable for any damage resulting therefrom. (See annotation at 29 A.L.R.2d 171.)” Timmerman Ins. Agency, Inc., v. Miller, 285 Ala. 82, 85, 229 So.2d 475, 477 (1969).

Once the parties have come to an agreement on the procurement of insurance, the agent or broker must exercise reasonable skill, care, and diligence in effecting coverage. Crump v. Geer Brothers, Inc., 336 So.2d 1091 (Ala., 1976); Waldon v. Commercial Bank, 50 Ala.App. 567, 281 So.2d 279 (1973). When the agent or broker has failed in the duty he assumes, the principal may sue either for breach of the contract or, in tort, for breach of the duty imposed on the agent or broker. Waldon v. Commercial Bank, supra.

Does the evidence support the court’s finding? We review the record in accordance with the rule that appellate courts will presume that the trial court made such findings as would support the decree rendered. Orton v. Gay, 285 Ala. 270, 231 So.2d 305 (1970).

In regard to the agreement between Thornell and Gulas, Thornell testified that he was only to “duplicate” the coverage Eleganté Inns already had, but at a cheaper rate. Gulas’ testimony confirms that the agreement was to get a better rate. However, Gulas'also maintained that there was no agreement to merely “duplicate” the coverage. In Gulas’ words, “I just told him [Thornell] that I wanted— what insurance I needed.” A question of fact was presented as to the exact terms of the agreement and the trial court’s finding is not plainly and palpably erroneous.

Thornell and Southern American also argue that Eleganté Inns was, as a matter of law, guilty of contributory negligence. At best this was a factual issue also resolved against the defendants.

C.

Lastly, Thornell and Southern American contest the award of attorneys’ fees as unauthorized by either contract, statute, or by special equity.

Eleganté Inns maintains the attorneys’ fees were properly awarded as damages incurred by it in litigating against Highlands for the reformation of the insurance policy. Eleganté Inns claims Alabama recognizes the exception to the general rule that attorneys’ fees can be awarded as damages when the natural and proximate consequence of the defendant’s tortious act is to involve plaintiff in litigation with a third person.

In Alabama and most other jurisdictions, the general rule is that attorneys’ fees or expenses of litigation are not recoverable as damages, in absence of a contractual or statutory duty, other than a few recognized grounds of equity principles. State v. Alabama Public Service Commission, 293 Ala. 553, 307 So.2d 521 (1975); Hartford Accident & Indemnity Co. v. Cosby, 277 Ala. 596, 173 So.2d 585 (1965); 22 Am.Jur.2d, Damages, § 165, p. 235. The reason of the rule disallowing attorneys’ fees is that they are a remote loss. 1 Sedgwick on Damages (9th ed.), § 239m o, 464.

However, it is generally recognized that where the natural and proximate consequences of the defendant’s wrongful act causes the plaintiff to become involved in litigation with a third person, attorneys’ fees and other expenses incurred in such litigation may be recovered as damages. 22 Am.Jur.2d, Damages, § 166, p. 235; 25 C.J.S. Damages § 50, p. 787.

In order to recover attorneys’ fees against a defendant in a tort suit, the following elements are necessary:

(1) The plaintiff must have incurred attorneys’ fees in the prosecution or defense of a prior action.

(2) The litigation must have been against a third party and not against the defendant in the present action.

(3) The plaintiff must have become involved in such litigation because of some tortious act of the defendant. 45 A.L.R.2d 1183.

In Fidelity & Casualty Co. v. J. D. Pittman Tractor Co., 244 Ala. 354, 13 So.2d 669 (1943), Pittman sued Fidelity & Casualty for falsely representing to Pittman that it had liability coverage for certain business operations and sought to recover as damages the judgment, court costs, and attorneys’ fees incurred in defending a prior suit by a third party. Citing the general rule on recoverable damages, the court states that Pittman was:

“. . . entitled to recover all the damages which were within the contemplation of the parties, or which, though not within the contemplation of the parties, were either the necessary or the natural and proximate consequences of the fraud; . . . ”
“Here, appellee is entitled to recover the amount paid in satisfaction of the Chance judgment, the court costs in connection therewith, and attorneys’ fees paid for defending that suit, together with interest from the date of payment . . . ” 244 Ala. at 358-359, 13 So.2d at 672.

The Pittman case was properly distinguished on the facts in Hartford Accident & Indemnity Co. v. Cosby, supra, but neither that case nor any other, as far as we can ascertain, have overruled its precedent. On different facts, but under the same principle the court in First National Bank of Birmingham v. First National Bank of Newport, 116 Ala. 520, 22 So. 976 (1897), allowed as damages court costs and attorneys’ fees incurred in prior litigation necessitated by the defendant’s breach of duty.

We are clear to the conclusion that the facts of this case are within the ambit of Pittman and attorneys’ fees incurred by Eleganté Inns in reforming the insurance policy are recoverable as damages against Thornell and Southern American.

The court award of $56,366.92 for attorneys’ fees is apparently based solely on Gus Gulas’ testimony that he agreed with his attorneys to pay them % of any amounts recovered as attorneys’ fees.

When attorneys’ fees or other expenses of litigation are recoverable as damages, they can be recovered only to the extent that they are necessarily incurred and reasonable in amount. 25 C.J.S. Damages § 91(2), p. 981. The fee charged by counsel for plaintiff is not conclusive on the court of the reasonableness of the fee to be awarded as damages. Such fees must be based, not upon the charges made in the case, but upon evidence showing the service rendered and the reasonable value thereof. United Bonding Ins. Co. v. Presidential Ins. Co., 155 So.2d 635 (Fla.App.1963). Therefore, the award of the attorneys’ fees must be reversed and the cause remanded for the circuit court to re-determine the award in accordance with applicable principles.

The judgment of the court is hereby affirmed in part, reversed in part, and the cause is remanded with directions.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS.

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

      . On cross examination by counsel for Eleganté Inns, Thornell testified as follows:
      “Q. Is there any distinction between coverage known as loss of earnings and loss of rents?
      “A. Yes, sir, it is.
      “Q. Are they two different types of coverage?
      “A. Yes, sir.
      “Q. Do they have different wording?
      “A. Yes, sir.

        “Q. Is it not true that loss of rents coverage is designed to protect a landlord or one who is renting a building to someone else?
      “A. Rental coverage is to protect, yes.
      “Q. That is what it’s for, isn’t it?
      “A. Yes.
      “Q. In May of 1974 when Mr. Nichols leased this premises would it not have been proper at that time to have changed Mr. Gulas’ loss of earnings coverage to loss of rents coverage?
      “A. Yes.
      “Q. All right, sir. Isn’t it correct that what should have been done is that the Elegant Inns policy should have only had one change, and that is change the loss of earnings coverage to loss of rents coverage?
      “A. Yes, sir.”

      . The $109,100.77 award for the coverage on the building was determined by computation under the 90% co-insurance clause. The policy limit on the coverage of the building was $150,-000.00. The actual damages to the building as a result of the fire were $140,289.00. The actual value of the building prior to the fire was $225,000.00.


author: BLOODWORTH, Justice.

text:
    Nancy Lillian WORLEY, Petitioner, in the Matter of the Petition for Letters of Administration on the Estate of Pinkie Maples Worley, Deceased v. William Howard WORLEY, as Administrator of the Estate of Pinkie Maples Worley, Deceased.
    77-337.
    Supreme Court of Alabama.
    Sept. 1, 1978.
    J. Robert Miller, of Culver & Miller, Huntsville, for appellant.
    Jack Giles, Huntsville, for appellee.
   BLOODWORTH, Justice.

The question in this case is whether the Probate Court of Madison County, Alabama, erred in denying a granddaughter’s petition for letters of administration and in granting a son’s petition, holding that the son had a preference since he was in a closer degree of kinship to the intestate than was the granddaughter. We hold the Court did not err and affirm.

Pinkie Maples Worley died intestate on January 7, 1978, leaving real and personal property. She and her husband, Oscar Worley, who predeceased her, had three children: W. H. Worley, the appellee, Lillian Worley, and Leonard Worley. Lillian predeceased Pinkie, leaving no descendants. Leonard also predeceased his mother, leaving a daughter, Nancy Lillian Worley, the appellant. Both the son and the granddaughter filed petitions for letters of administration on Pinkie’s estate. The court denied the granddaughter’s petition, and she appeals.

The basis of the granddaughter’s appeal is that the probate court erred in granting letters of administration to the son because he is in a closer degree of kinship to the intestate, as determined by the rules of civil law. She contends that when both petitioners are in the class next of kin as determined by the laws of descent and distribution, priority should be determined by the inheritable interests of the parties. Her contention is that under the laws of descent and distribution, she and the son would each inherit one-half of the property and would each have an equal right to administer the estate, and the court should have appointed them both as co-administrators.

The statute establishing the order of grants of letters of administration is found in § 43-2-42 (Code 1975), which states in pertinent part as follows:

“(a) Administration of an intestate’s estate must be granted to someone of the persons herein named if willing to accept and satisfactory to serve in the following order:
(1) The husband or widow.
(2) The next of kin entitled to share in the distribution of the estate.
(3) The largest creditor of the estate residing in this state.
(4) Such other person as the judge of probate may appoint.”

Both petitioners claim the right to administer under subsection (a)(2).

In an unbroken line of authority in this state since 1831, the next of kin entitled to a preference in the administration of an estate has been held to be that person in the nearest degree of kinship to the intestate as determined by the rules of civil law. Brown v. Hay, 1 Stew. & P. 102 (Ala.1831). Thus, in Brown, a father, being in the first degree of kinship, was entitled to a preference over sisters (or their husbands), being in the second degree of kinship. This rule has been consistently followed by this court. E. g., Calvert v. Beck, 240 Ala. 442, 199 So. 846 (1941) (brother preferred over niece); Johnston v. Pierson, 229 Ala. 85, 155 So. 695 (1934) (uncle preferred over first cousin); Nichols v. Smith, 186 Ala. 587, 65 So. 30 (1914) (father preferred over grandmother or sister).

The granddaughter acknowledges that this has been the rule in Alabama, but contends that it was changed by Loeb v. Callaway, 250 Ala. 524, 35 So.2d 198 (1948). She cites this case for the proposition that “the next of kin entitled to share in the distribution of the estate” who receives a preference in administration is to be determined by the laws of descent and distribution, not by the rules of civil law. Next of kin, in the context of descent and distribution, means those entitled to inherit under the law, whether or not there is a blood relation. Kimbrough v. Dickinson, 247 Ala. 324, 24 So.2d 424 (1946).

Loeb v. Callaway is not applicable to the issue here presented, however, since there the court dealt with the preferential right of the next of kin over a creditor when there is no property which the next of kin could inherit. In resolving this issue, the court held that the next of kin designated in the administration statute “is one of those of that preferred class who under the law would inherit from the decedent if there should be assets discovered and distributable.” The Loeb rule holds that the existence of the next of kin entitled to a preference is not to be determined by the presence or character of distributable property, but by the right to inherit if there is property. The rule that preference is given to the person in the nearest degree of kinship as determined by the rules of civil law was not altered by that case.

We hold that next of kin, as used in § 43-2-42 (Code 1975), means that person in the closest degree of kinship as determined by the rules of civil law. In this case, the son, being in the first degree of kinship, is entitled to a preference over the granddaughter, who is in the second degree of kinship.

For the foregoing reasons, this cause is due to be affirmed, and the motion to dismiss denied.

MOTION TO DISMISS DENIED.

AFFIRMED.

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


text:
    Doris A. COBB, a/k/a Doris Ingram v. Frank E. BROWN et al., etc.
    77-514.
    Supreme Court of Alabama.
    Sept. 1, 1978.
    Desmond B. Toler, Mobile, for appellant.
    Dan C. Alexander, Jr., James W. Bodi-ford, Jr., Mobile (atty. ad litem and guardian ad litem, concurs in brief of Dan C. Alexander, Jr.), for appellees.
   BLOODWORTH, Justice.

This is an appeal from a final decree entered in a suit to quiet title, brought by the appellant, Doris Cobb, assignee of the State, purchaser at a tax sale. We reverse and remand.

The appellees, Frank E. and Margaret K. Brown, are the record owners and assessed the land for taxes in 1963. Taxes for the year 1963 fell delinquent, and the land was sold at public auction and bid in for the State in 1964. The certificate of sale was assigned to appellant on February 16, 1966, upon her payment of the amount bid by the State at the tax sale and interest, and the taxes accrued since the tax sale and interest, i. e., $20.78. Although the appellant has paid taxes on the land since 1966, the land remains assessed in appellees’ names, but appellees have not paid any taxes on the land since 1963.

In 1975 appellees discovered the land had been sold for taxes. In a letter dated November 26, 1975, appellees offered to pay appellant any money she had expended in acquiring the tax certificate plus costs, in order to clear appellees’ title. Appellant then filed suit under Tit. 7, § 1116 (Code 1940), [§ 6-6-560, Code 1975] to quiet title to the land. Appellees counterclaimed to quiet title, seeking a temporary restraining order to halt the cutting of timber on the land, the right to redeem the property from á tax sale, $1,000 damages for the cutting of timber, and a declaration that appellant had no right, title, claim or interest in the land.

The parties stipulated that the only acts of possession are as follows. Appellant and her husband walked over the land on various occasions and say they did not see any “no trespassing” signs. Appellees also periodically walked over the land and claim to have posted signs on the property at different times.

Based upon the written stipulation of facts, the trial court denied the relief sought by appellant, declared appellees to be the owners of the land, and held that appellant had no right, title or interest therein.

Pretermitting all other considerations, there is one principal reason why neither appellant nor appellees are entitled to judgment. Neither had “actual possession” of the lands. It is stipulated, and appellees state in their answer, the possession was “scrambling” at best.

Title may be quieted in a party under Tit. 7, § 1116 [§ 6-6-560, Code 1975] only when that party is in actual, peaceable possession or when no one is in actual possession. Dennison v. Claiborne, 289 Ala. 69, 265 So.2d 853 (1972); Fitts v. Alexander, 277 Ala. 372, 170 So.2d 808 (1965). Neither situation exists here.

When one party does something (other than mere isolated acts not amounting to an interference with peaceable possession) which indicates that he himself claims to be in possession, the complainant’s possession ceases to be peaceable and becomes “disputed” or “scrambling.” Ford v. Washington, 288 Ala. 194, 259 So.2d 226 (1972). That situation exists here. The stipulation that appellees walked over the property, posted signs, and halted the cutting of timber by others establishes acts of possession sufficient to cause appellant’s possession to be “scrambling” rather than “peaceable.” Likewise, appellant’s walking over the land and having timber cut constituted acts of possession, making appellees’ possession also “scrambling.” While the appellant does not have actual, peaceable possession, both she and the appellees have some possession. There is enough evidence of possession by both parties to prevent either party’s bringing suit under § 1116. Dennison v. Claiborne, supra.

We specifically pretermit consideration as to the issue of redemption. See § 40-10-83, Code 1975.

This cause is due to be reversed and remanded.

REVERSED AND REMANDED.

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