author: JONES, Justice.

text:
    Lola EASON v. The CITY OF HUNTSVILLE, Alabama, et al.
    SC 2136.
    Supreme Court of Alabama.
    March 11, 1977.
    Robert M. Shipman, Huntsville, for appellant.
    W. Stanley Rodgers, of Ford, Caldwell, Ford & Payne, Huntsville, for appellees.
   JONES, Justice.

Question: Did Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975), abolish the requirement for the filing of a statement of claim with a municipality as provided in Title 37, § 504, Code? We answer, “No,” and affirm the trial Court.

The appellant mistakenly argues that the abolition of municipal immunities by this Court was based upon constitutional considerations. A close examination of Jackson shows that the Court did not abolish Title 37, §§ 502 et seq., Code, as unconstitutional; rather, the Court reinterpreted the legislature’s intent in its passage of these provisions.

We are constrained at this time from reviewing our holding in Jackson. Suffice it to say that Title 37, § 504, Code, when uniformly and equally applied, is applicable and constitutional; and the filing of suit within the six-month period following the incident made the basis of the action does not constitute a compliance with the notice provisions of the statute. Dixon v. City of Mobile, 280 Ala. 419, 194 So.2d 825 (1967). Because the appellant failed to comply with the requirements of this statutory provision, the judgment of the trial Court is affirmed.

AFFIRMED.

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

MADDOX, J., not sitting.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Horace PARKER v. JEFFERSON COUNTY COMMISSION et al.
    SC 2271.
    Supreme Court of Alabama.
    May 6, 1977.
    Rehearing Denied July 29, 1977.

      L. Drew Redden and William N. Clark of Rogers, Howard, Redden & Mills, Birmingham, for appellant.
    Edwin A. Strickland, Birmingham, for Jefferson County Commission and its members.
    James F. Reddoch, Jr., of Starnes, Starnes & Reddoch, Birmingham, for United States Fidelity & Guaranty Co.
   MADDOX, Justice.

This is the second time this Court has considered an appeal involving the appellant, Horace Parker.

Plaintiff-appellant, Horace Parker, after getting this Court to reverse his impeachment conviction, Parker v. State, 333 So.2d 806 (Ala.1976), sought to have the trial court declare that he was the lawful treasurer of Jefferson County; that United States Fidelity & Guaranty Company be ordered to reinstate his bond; and that Jefferson County be ordered to pay his back pay and allowances from September 14, 1974 (date of his impeachment conviction), to date. He also asked for costs to be taxed against the defendants and that the court award him a reasonable attorney’s fee. The circuit court denied him any relief. He appealed.

ISSUES

1. Can Parker contest his right to office within an action for pay and allowances rather than by quo warranto?

2. Was the bond properly cancelled and can USF&G be required to reinstate the bond?

3. Was there a “vacancy” in the office?

4. Is Parker entitled to any pay and allowances as treasurer of Jefferson County during the pendency of the appeal of his impeachment conviction or from the date of the reversal of that conviction?

5. Is Parker entitled to attorney’s fees?

STATEMENT OF THE FACTS

Horace Parker was elected to the office of treasurer of Jefferson County in the general election held November 7, 1972. He took office on January 15, 1973. He timely filed the statutorily required bond of $400,000 with the Jefferson County Commission. The bond commenced January 15, 1973, and was to terminate on January 15, 1977.

On September 14, 1974, following an impeachment trial by jury in the Circuit Court of the Tenth Judicial Circuit, Parker was removed from office as treasurer of Jefferson County. A copy of the judgment of the court was served upon the president of the Jefferson County Commission. Parker filed notice of appeal to this Court immediately following his conviction.

Parker was paid as treasurer through September 14, 1974, but has not received any further pay from Jefferson County since that time.

On September 19, 1974, Mr. E. H. Gamble, the Comptroller of Jefferson County, wrote to USF&G advising them to cancel the bond on “former County Treasurer Horace Parker, Bond No. 06-0170-39-73, effective at the close of business September 14, 1974!” After receipt of the letter, USF&G forwarded to Mr. Gamble its form of notice of cancellation, bearing the date of September 24, 1974, to be executed by Jefferson County.

By resolution of October 1, 1974, the County cancelled Horace Parker’s bond with USF&G, effective September 14,1974, and authorized the execution of the cancellation. The notice of cancellation was executed for Jefferson County by W. Cooper Green, then president of the Jefferson County Commission, and was returned to USF&G and received by it on October 15, 1974. Neither the County nor USF&G served a copy of the notice of cancellation on Horace Parker.

Pursuant to the notice from the County, USF&G cancelled Parker’s bond as of September 14, 1974, and on October 16, 1974, refunded the balance of the premium in the amount of $4,634 to the Geralds Agency which had paid the original premium on the bond. Parker was notified orally by Bobby Timmons, the insurance broker who had arranged for the bond, that the bond had been cancelled. The balance of the insurance premium was not paid to Jefferson County until May 26, 1976.

By resolution of September 17, 1974, the Jefferson County Commission, citing as authority § 31, Tit. 12, Code of Alabama 1940, appointed Mrs. Geneva Phillips Moore as County Treasurer of Jefferson County, Alabama. Mrs. Moore’s appointment was contingent upon the Personnel Director of Jefferson County approving a leave of absence for her from her civil service position of Assistant Treasurer of Jefferson County. The Personnel Director ultimately approved successive 120 day leaves of absence for Mrs. Moore. While serving in that position, Jefferson County paid to her an amount equal to that payable by law to the Treasurer of Jefferson County.

On September 17,1974, a bond was issued in the amount of $400,000 covering Mrs. Moore as Treasurer of Jefferson County. The bond has been in effect since Mrs. Moore’s appointment as a result of successive extensions. Jefferson County has caused the bond to extend to January 15, 1977.

On May 14, 1976, this court reversed the impeachment conviction of the Circuit Court. The State of Alabama’s Application for Rehearing was overruled on July 2, 1976, and the certificate of judgment was issued by this Court on July 2, 1976.

Within a week following the reversal of the Circuit Court Judgment by the Supreme Court, Parker called Tom Gloor, a county commissioner, and advised him that he intended to return as treasurer of Jefferson County. After an oral request by his attorney to USF&G to advise him of the reason that the bond was allegedly can-celled failed to get any response, on July 21, 1976, he, by and through his attorney, wrote USF&G advising them that he considered the bond still to be in effect and asked that they take the necessary steps to reinstate the bond. No response was received from USF&G.

On August 4, 1976, in a meeting between the Jefferson County Commissioners and Parker’s attorney, his attorney orally demanded payment of the salary and allowances due him during the pendency of his appeal and to date. The Commissioners advised Parker’s attorney that before Parker would be qualified to assume office, he would have to properly file an official bond in the amount of $400,000, as USF&G had asserted that his former bond had been cancelled and that it was no longer liable as surety. By letter of August 12, 1976, Parker’s attorney advised Commissioner Gloor of his intent to reassume the office of treasurer of Jefferson County and demanded payment of all salary and allowances due him during the pendency of his appeal.

On August 16, 1976, Parker’s attorney delivered to the Jefferson County Commission a “Notice of Reassumption of Office.” By letter of September 2, 1976, Jefferson County Commission President, Tom Gloor, notified Parker in writing that USF&G had refused to reinstate or reissue his bond. The notice further stated that before Parker could reassume the office of Jefferson County Treasurer, he must file a legally acceptable bond in the amount of $400,000 by September 9, 1976.

Parker did not file an additional bond, and by letter of September 28, 1976, Commissioner Gloor certified to the Jefferson County Commission that the fact that Parker had not furnished the bond abrogated any rights which he might have had to the office of treasurer of Jefferson County. On September 28, 1976, the Jefferson County Commission, by a resolution, took notice of the previous appointment of Mrs. Moore as Treasurer of Jefferson County, acknowledged that her appointment was still in effect, and noted that in its opinion, Parker had vacated any right to the office which he might have had.

On June 8, 1965, there went into effect United States Fidelity and Guaranty Company, Public Employees Blanket Bond, Bond No. 10355-08-1442-65. Subsequent to that time, two riders have been added to the bond. The bond has been in full force and effect since June 8, 1965. The last rider to the bond changed the name of the insured from W. A. Morgan, Treasurer, Jefferson County, Alabama. That rider was effective as of noon on January 20, 1978.

It has been stipulated by the parties that Parker has been within the week following the reversal of his conviction by this court, ready, willing and able to perform the duties of and to serve as the treasurer of Jefferson County, Alabama.

I

Was declaratory judgment and not quo warranto the appropriate vehicle for Parker to use in asserting his right to the office? Under the facts here, we think so. As we shall develop later, there was never a legal vacancy in the office of treasurer under the facts of this case. Most of the facts were stipulated. As we construe the pleadings, the controversy is between the County and Parker not Moore and Parker. Parker claims the County Commission has acted illegally. Controversies touching the legality of acts of public officials, or public agencies, challenged by parties whose interests are adversely affected, is one of the favored fields for a declaratory judgment. Scott v. Alabama State Bridge Corporation, 233 Ala. 12, 169 So. 273 (1936). Furthermore, Title 7, § 167, Code, provides:

“This article is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respects to rights, status, and other legal relations; and is to be liberally construed and administered. This article shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it, and to harmonize, as far as possible, with federal laws and regulations on the subject of declaratory judgments and decrees. The remedy provided for by this article shall not be construed by any court as an unusual or extraordinary one but shall be construed to be an alternative or cumulative remedy.”

Parker, having shown a justiciable controversy between him and the County, was entitled to a declaration of rights.

II

The next question is whether the bond was properly cancelled. We hold that it was not. The surety, USF&G, did not follow the statutory requirements for discharge. Title 41, § 97, Code, provides:

“Any person or corporation who is surety upon the official bond of any county officer or employee, by whomsoever approved, may discharge himself or itself of such suretyship upon making sworn application in writing addressed to the official, court, board or commission required to approve such bonds, setting forth such facts. Upon the filing of such application said official, court, board or commission to whom such application is addressed shall forthwith cause personal written notice to be served upon said principal fixing a day not less than fifteen nor more than thirty days after the date of the filing of such application requiring such principal to appear before him or it on and at a certain date and place and give a new bond; and upon the failure of such principal to give such bond within the time specified in such notice, he vacates his office and the official, court, board or commission giving such notice must at once certify such vacation to the appointing power who must fill the vacancy. If a new bond be filed the same must be in such amount and filed and approved as provided in this article. On the execution, approval and filing of such new bond such surety will stand discharged from all liability for any breach of said bond occurring thereafter but said discharge shall not affect the previous liability of any of the obligors, and in case of the discharge of any one or more obli-gors under this article, the same shall operate as a discharge of all other obli-gors on said bond. When the sureties on either bond have made any payments thereon on account of the principal obli-gor therein, they are entitled to the same remedies and recoveries against the sureties in the remaining bonds as was provided by section 67 of this title. Every such new or additional bond approved and filed as in this article provided is binding upon the obligors from the time of its approval and subjects them to the same liabilities, proceedings and remedy as are provided in relation to the first official bond of such officer or employee.”

Where a statute provides a method whereby a surety may apply for a release from liability on an official bond, in order to procure a release the surety must comply strictly with the statute. Cf. Armstrong et a1. v. Pugh, 19 Ala. 209 (1851), which holds that the liability of a surety on a county official’s bond was not discharged until the statutory method of discharge was followed. Bolen v. National Surety Co., 108 S.C. 403, 94 S.E. 1049 (1918); 67 C.J.S. Officers, § 165f., p. 470.

III

Was there a vacancy in the office of treasurer: We hold there was not.

Appeals from judgments of conviction in an impeachment trial are preferred cases (Title 41, § 195, Code), it is unquestionably the law that no vacancy in an office is created until conviction becomes final. If an appeal is not timely filed, or if the judgment of conviction is affirmed on appeal, there is a vacancy. Otherwise, there is not. Title 41, § 198, Code, provides:

“It shall be the duty of the clerk of the supreme court, in all cases, when final judgment of conviction is rendered in that court, on appeal or otherwise, forthwith to certify the vacancy thus created to the appointing power, with a copy of the judgment; and, in like manner, the clerk of the circuit court or person designated to act as clerk, shall certify to the appointing power any final judgment of conviction rendered in such court, from which no appeal is taken.”

While there was no “vacancy” in the office by reason of Parker’s conviction, nevertheless he was legally suspended, by operation of law, from holding the office during the pendency of his appeal. Therefore, he had no right to the office or to any of the emoluments of it during that period. After his conviction was reversed, however, he was entitled to the office and to all the emoluments thereof. His official bond was not cancelled in accordance with law; therefore, he was under no legal obligation, at that time, to post a new bond. The County’s requirement that he post a new bond was without authority of law, under the facts of this case.

IV

Parker asked the trial court to declare that he was entitled to pay and allowances from the date of his conviction until the end of his term. We hold he was not entitled to any pay and allowances while he was suspended, that is, while his conviction was on appeal, but he was entitled to all pay and allowances from the date this Court’s certificate of judgment was issued until the end of his term.

The County relies upon Walden v. Town of Headland, 156 Ala. 562, 47 So. 79 (1908), and Irwin v. Jefferson County, 228 Ala. 609, 154 So. 589 (1934), to support its theory that since it paid Mrs. Moore as a “de facto” officer during the entire period, it is not liable to Parker. Both cases do hold, under the facts of those cases, that payment of the salary of a de facto incumbent discharging the duties of the office exonerates the governmental body from payment of the salary of the de jure officer. Insofar as the amounts paid to Mrs. Moore during the pendency of Parker’s appeal, the rule of Walden and Irwin are applicable. The County had apparent authority to appoint someone to act while Parker was suspended. However, after Parker’s conviction was set aside, the County knew that he was claiming the office. In Irwin v. Jefferson County, supra, this Court inferred that the majority rule was applicable only where the governmental body acted in good faith. We do not mean to say that the County acted with ill will as a bad motive, only that “bad faith,” from a legal standpoint, is in-ferable from the fact that from the date Parker’s conviction was set aside, he became legally entitled to the office, and any payment of a salary to another would be at the peril of the County. In this respect, this case is similar to that of Mitchell v. Greenough, 295 Ala. 165, 325 So.2d 158 (1976). There, the personnel board brought an action for declaratory judgment asking that the Court declare that a city employee was entitled to back pay for the period of time when he was placed on leave of absence without pay because of indictments against him, where he was subsequently acquitted of all charges and reinstated. Construing a personnel board rule, this Court held the employee yvas entitled to back pay.

While Alabama has no statute which specifically provides that an official whose impeachment has been set aside is entitled to pay from the time his conviction is overturned, we think that Alabama procedure envisions that under situations such as we have here, an office holder, whose title to the office has been upheld, is entitled to recover his pay during the time when he was deprived of the office, especially when, as here, the paying authority is the agency responsible for his not assuming his office after his conviction was reversed.

V

Is Parker entitled to his attorney fees? We hold that he is not. In the absence of a contract, statute, or recognized ground of equity, there is no inherent right to have attorney fees paid by the opposing side. White v. State, 294 Ala. 502, 319 So.2d 247 (1975).

AFFIRMED IN PART; REVERSED IN PART, AND REMANDED.

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


author: FAULKNER, Justice.

text:
    MUTUAL SAVINGS LIFE INS. CO. v. Mrs. E. B. MONTGOMERY et al.
    SC 1478.
    Supreme Court of Alabama.
    June 3, 1977.
    Rehearing Denied July 29, 1977.

      Norman W. Harris and William E. Shinn, Jr., Decatur, for appellant.
    Harvey Elrod and Bingham D. Edwards, Decatur, for appellee.
   FAULKNER, Justice.

This is an appeal from a judgment ordering a finance company to reimburse another company for paying an employee a $50,000 bonus. We affirm.

In 1952 Mutual Savings Life Insurance Company began lending money to Par Value by buying schedules of consumer paper at a discount from Par Value. Mutual’s security for the line of credit to Par Value became seriously impaired in 1956. In an effort to forestall the failure of Par Value, with the attendant prospective loss of over $1 million to Mutual, and if possible to salvage the loan, Mutual asked Mrs. E. B. Montgomery to manage Par Value and allegedly made an oral agreement to pay her a $50,000 bonus if she could salvage Mutual’s investment. Par Value then assigned its receivables to, among others, Mutual and Finance, Investment and Rediscount Co. (FIR), a Mutual-controlled company established to salvage Par Value through refinancing. Later upon her request, FIR paid Mrs. Montgomery a bonus of $54,000 in the form of progress payments. FIR assumed Mutual would reimburse these payments once Mutual’s investment was salvaged. However, Mutual refused to set-off the $50,000 bonus against the unpaid balance of Par Value’s debt to Mutual, claimed by Par Value to be $50,000.

Mrs. Montgomery sued Mutual for the recovery of $50,000 as a bonus for managing the affairs of Par Value so as to salvage Mutual’s investment. This suit was dismissed on Mutual’s plea in abatement, to the effect that the suit was premature. After Par Value made its final payment to Mutual, a second suit was brought in the name of Mrs. Montgomery. FIR was later added as a plaintiff and Mrs. Montgomery was dropped as a party. The jury verdict was for FIR for $50,000. FIR moved the court to amend the judgment to include pre-judgment interest, but the court did not rule on the motion. Mutual appeals.

I.

Mutual first contends that there was no contract between Mutual and Mrs. Montgomery. However, there was sufficient evidence from which the jury could find that an oral contract existed. In addition to Mrs. Montgomery’s own testimony, Robert Hutson, the vice-president of Mutual, testified that he hired her and agreed to pay her a conditional bonus. Moreover, Jacqueline Lawson, a bookkeeper at Par Value, testified that Melvin Hutson, president of Mutual, told her that Mutual would reimburse FIR for paying the bonus. Others, including a Mutual director and a certified public accountant, testified they were told about the bonus promise.

An employer’s promise to give a bonus on a condition which is performed creates a contract. Meyerson v. New Idea Hosiery Co., 217 Ala. 153, 115 So. 94 (1927). There was ample evidence from which the jury could find that Mrs. Montgomery complied fully with the condition of salvaging Mutual’s investment. The complaint in this suit was filed on December 7, 1972. The Mutual investment was salvaged in full by June of 1971, according to the evidence. Regardless of any alleged dealings between FIR and Mrs. Montgomery, the condition had been met and Mutual owed the bonus at the time suit was filed.

II.

Mutual also claims that the six-year statute of limitations against the right of reimbursement has run and, thus, bars this action. The statute of limitations could not have run against FIR until it had run against Mrs. Montgomery, whose right of action did not accru" until June, 1971, when the Mutual investment was fully salvaged. See Smith v. Pitts, 167 Ala. 461, 52 So. 402 (1910). Since the complaint was filed in 1972, a mere year after the six-year statute began to run, the action was not barred by the statute of limitations.

III.

Mutual next argues that FIR was not an agent or surety for Mutual. We need not even reach the question of agency or suretyship because in past cases we have held that the right of subrogation extends to those “who pay the debt in self-protection, since they might suffer loss if the obligation is not discharged.” 73 Am.Jur.2d Subrogation § 25 (1974). See Hughes v. Howell, 152 Ala. 295, 44 So. 410 (1907); American Trust & Savings Bank v. Turner, 16 Ala.App. 602, 80 So. 176 (1918); Carter v. Carter, 251 Ala. 598, 38 So.2d 557 (1948). FIR had an interest in keeping Mrs. Montgomery as manager since she was a successful and experienced manager, familiar with their particular financial situation.

Moreover, Mutual received a substantial benefit from Mrs. Montgomery’s managerial abilities, in the form of a recovery of over a million dollar loss. Mutual should not be allowed to so benefit without keeping its promise to Mrs. Montgomery. Industrial Dev. Bd. v. Fuqua Industries, Inc., 523 F.2d 1226 (5th Cir. 1975).

IV.

The final question we need address is whether the judgment should include prejudgment interest. This question was raised in brief by FIR from an otherwise favorable judgment below. However, FIR did not appeal and Mutual’s appeal does not present this question. The question of interest is not properly before this court because the Alabama Rules of Appellate Procedure do not allow an appellee to cross-assign errors without taking an appeal. See 9 Moore’s Federal Practice § 204.11[1] (2d ed.). Section 746 of Title 7 of the Code of Alabama, which allowed cross-errors, has been superseded by Rule 4(a)(2) of the Alabama Rules of Appellate Procedure.

AFFIRMED.

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


text:
    JAMES & SON, INC., et al. v. J. G. BREEDLOVE et al.
    SC 1868.
    Supreme Court of Alabama.
    June 3, 1977.
    Rehearing Denied July 29, 1977.
    Earl V. Johnson, Andalusia, for appellants.
    W. H. Baldwin, Andalusia, for appellees.
   FAULKNER, Justice.

This is an appeal from an order holding that a lessee was not entitled to recover from a lessor for damages caused by a roof collapse under a latent defect theory. We affirm.

On July 23, 1969, James & Son, Inc. (lessee) leased a commercial building from J. G. Breedlove and Joseph M. Breedlove (lessor) for five years. The lease contained no clause exempting lessor from liability for injury to lessee’s property due to defects in the premises but did place a duty on lessor to restore the premises if damaged by storm, fire or other casualty and a duty on lessee to keep the premises in good repair. Lessee sued lessor in the Circuit Court of Covington County, claiming $50,000 damages to lessee’s dry-goods business, resulting from the collapse of the roof on August 1, 1973. Lessee claimed that lessor knowingly falsely represented to lessee that the building was safe. Six weeks after the case was taken under advisement, lessee amended the complaint to claim that lessor had knowledge of latent defects not discoverable by lessee’s reasonable inspection and concealed from lessee. The trial court found for lessor, stating that the law is “that before a tenant can recover damages from a landlord resulting from latent defects in the premises, that the defects had to exist at the time of the letting of the premises and the landlord knew of them and concealed them from the tenant and that the law of negligence relative to duty to inspect does not apply.”

We opine that the trial court correctly stated the law as to recovery of damages resulting from latent defects. See Chambers v. Buettner, 295 Ala. 8, 321 So.2d 650 (1975). Moreover, when the trial court hears evidence ore tenus, its conclusion is, like that of a jury, not to be disturbed unless plainly erroneous. Ford v. Washington, 288 Ala. 194, 259 So.2d 226 (1972). There was sufficient evidence to support the order. We find no reversible error. Frank v. Johnson, 261 Ala. 642, 75 So.2d 153 (1954).

AFFIRMED.

MADDOX, SHORES, EMBRY and BEATTY, JJ., concur.


text:
    B & M HOMES, INC. v. Thomas J. HOGAN et al. Thomas J. HOGAN et al. v. B & M HOMES and Kenneth R. Morrow. Kenneth R. MORROW v. Thomas J. HOGAN et al.
    SC 1921, SC 1921-X and SC 1922.
    Supreme Court of Alabama.
    June 3, 1977.
    Rehearing Denied July 29, 1977.
    Irvin J. Langford of Howell, Johnston, Langford, Finkbohner & Lawler, Mobile, for Kenneth R. Morrow.
    Ray G. Riley, Jr., of Tonsmeire, McFadden & Riley, Mobile, for B & M Homes, Inc.
    Fred W. Killion, Jr., Mobile, for appellees and cross appellants.
   FAULKNER, Justice.

This is an appeal and cross-appeal from a judgment for the buyers in a breach of contract and breach of express warranty action. We reverse and remand.

The Hogans agreed in writing to buy a lot and a house to be constructed on that lot like one they had seen elsewhere. The purchase price was $37,500 and the agreement was signed by Kenneth R. Morrow, the secretary of B & M Homes, Inc. While the house was being constructed, the Hogans noticed a crack in the slab and told Morrow who said they should not worry about it. Later the Hogans also found and notified him of other discrepancies and non-con-formities with the plans.

On January 21, 1974, the Hogans were given a deed and, at closing, a warranty of completion of construction in substantial conformity with approved plans and specifications.

Failing to obtain correction of the defects, the Hogans brought suit on January 24, 1975, in the Circuit Court of Mobile County against Morrow and B & M Homes, Inc., alleging breach of contract and breach of express warranty. The jury returned a verdict for the Hogans against both of the defendants for $75,000 which the court reduced to $50,000. Both Morrow and B & M Homes, Inc. appeal from the verdict and the Hogans cross-appeal from the court’s order reducing the judgment.

The dispositive issue is whether the trial court committed reversible error in granting defendants’ motion to reduce the judgment. We hold that it was reversible error and, therefore, reverse and remand.

The Hogans, on cross-appeal, claim that the trial court’s reduction of the judgment from $75,000 to $50,000 was contrary to Rule 59(f) of the Alabama Rules of Civil Procedure. Rule 59(f) of the Alabama Rules of Civil Procedure states as follows:

“The court may, on motion for new trial, require a remittitur as a condition to the overruling of the motion for new trial; and, the acceptance of such remitti-tur by the plaintiff shall not prejudice his right to raise, on appeal by the defendant, his right to have the verdict reinstated in its full amount.”

Contrary to the spirit and intention of Rule 59(f), the Hogans were not afforded an opportunity to choose a remittitur or a new trial. See 11 Wright & Miller, Federal Practice and Procedure: Civil § 2815 (1973); 6A Moore’s Federal Practice ¶ 59.05[3] (2d ed.). Instead, the trial court denied defendants’ motions for new trial and then remitted the damages as assessed by the jury, without the Hogans’ consent.

The law is clear in Alabama that the trial court cannot direct a remittitur of damages against the plaintiff’s will; such an order is void. London & Scottish Assur. Corp. v. Smith, 229 Ala. 556, 158 So. 892 (1935); W. T. Rawleigh Co. v. Hannon, 32 Ala.App. 147, 22 So.2d 603 (1945); McCormick v. Ala. Power Co., 293 Ala. 481, 306 So.2d 233 (1975); Holcombe v. Whitaker, 294 Ala. 430, 318 So.2d 289 (1975). To arbitrarily reduce the amount of damages deprives the plaintiff of his constitutional right to a jury. Wright & Miller, supra.

Since we reverse and remand, we need not address any other issues raised at this time.

REVERSED AND REMANDED.

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


text:
    James W. LEAGUE v. Chester B. GIFFIN, d/b/a Mil-Pak Company.
    SC 1956.
    Supreme Court of Alabama.
    June 3, 1977.
    Rehearing Denied July 29, 1977.
    J. Robert Miller, Culver & Miller, Huntsville, for appellant.

      Edgar E. Smith, Humphrey & Smith, Huntsville, for appellee.
   MADDOX, Justice.

This is an appeal from a judgment entered on a jury verdict in favor of plaintiff - appellee, Chester B. Giffin, against defendant, James W. League. We reverse and remand.

Giffin filed a declaratory judgment action claiming that prior to entering into a written contract with League in connection with the construction of League’s trailer court, known as the Huntsville Mobile Homes, Giffin had entered into an oral agreement with League whereby Giffin was to serve as the nominal general contractor, and that Giffin would furnish a surety bond for the performance of the contract. The complaint further claimed that for these services, Giffin was to receive $5,000 with the actual work being performed by Claude Hall.

It is undisputed that both League and Giffin signed a construction contract dated March 26, 1974. The contract documents were “Drawings & Specifications, General Conditions of the Contract, and FHA Form 255A.” Section 1.1.1 and Section 1.1.2 of Article 1 of the General Conditions of the Contract for Construction read as follows:

“1.1.2. THE CONTRACT
“The Contract Documents form the Contract. The Contract represents the entire and integrated agreement between the parties hereto and supersedes all prior negotiations, representations, or agreements, either written or oral, including the bidding documents. The Contract may be amended or modified only by a Modification as defined in Sub-paragraph 1.1.1.” [Emphasis added.]

The issue presented is whether the written documents signed by the parties had the effect of a binding agreement on the parties, and, if so, whether the trial court erred by allowing parol evidence of prior negotiations and agreements between the parties in that all prior negotiations and agreements were merged into and became part of the written contract.

Giffin contends that the parol evidence rule has no application in the instant case because the written construction contract dated March 26, 1974, was void for want of mutual consent. We disagree. In applying the “parol evidence rule” this Court, in quoting from Young v. United States, 327 F.2d 933, 935, (CA 5, 1964), stated in Parker v. McGaha, 294 Ala. 702, 321 So.2d 182 (1975), that “[A] strict, formal and technical interpretation of the rule has long since been abandoned.” 294 Ala. at 707, 321 So.2d at 185. In Parker, this Court recognized some of the exceptions to the rule which read as follows:

“1. Parol evidence is always admissible to show that an instrument is void or to show a lack or failure of consideration. Corbin v. Sistrunk, 19 Ala. 203, 205-06 (1851);
“2. Evidence of fraud is always admissible, even though there is a completely integrated writing. Nelson Realty Co. v. Darling Shop, 267 Ala. 301, 309, 101 So.2d 78, 84 (1957); and
“3. Where there is ambiguity in a contract, parol evidence is admissible to aid in the contract’s interpretation. McClendon v. Eubanks, 249 Ala. 170, 178, 30 So.2d 261, 268 (1947).”

It is apparent from a review of the record, however, that Giffin did not allege fraud or mistake. Moreover, the contract is not ambiguous. Even though Giffin may have had an oral agreement with League concerning his participation in the project, it is a basic principle of contract law that this agreement as well as all prior negotiations merged into the written contract between the parties. See Blake v. Coates, 292 Ala. 351, 294 So.2d 433 (1974); McGuffey’s Nursing Home, Inc. v. Taylor, 45 Ala.App. 634, 235 So.2d 885 (1970); 5 Ala.Dig., Contracts, ®=>245(2).

The record contains conflicting testimony. Yet, under the facts of this case, we find that the written contract dated March 26, 1974, was the best evidence of the agreement entered into between League and Giffin. Under it, all prior negotiations and agreements were merged into and became part of the written contract. TLcie-fore, we are of the opinion that the trial court misapplied the “parol evidence rule” by allowing into evidence testimony of prior negotiations between the parties which sought to explain, contradict, vary, or subtract from the written terms of the contract. See Hartford Fire Ins. Co. v. Shapiro, 270 Ala. 149, 117 So.2d 348 (1960); W. T. Rawleigh Co. v. Cone, 232 Ala. 127, 167 So. 274 (1936).

For the reasons indicated, the judgment is due to be reversed and the cause remanded.

REVERSED AND REMANDED.

FAULKNER, ALMON, SHORES and BEATTY, JJ., concur.


author: SHORES, Justice.

text:
    SHELTER MODULAR CORPORATION, a corp., and Shelter Resources, Inc. v. CARDINAL ENTERPRISES, INC., a corp.
    SC 2074.
    Supreme Court of Alabama.
    June 3, 1977.
    Rehearing Denied July 29, 1977.

      Robert S. Vance, Birmingham, for appellant.
    Edward L. Hardin, Jr., Hardin, Stuart & Moncus, Birmingham, for appellee.
   SHORES, Justice.

This litigation arose out of the following facts:

In 1966, Mr. Milton Andrews, his son Bruce Andrews and Mr. Denson Hinton formed a corporation called Charter Corporation. John Andrews, another son of Mr. Milton Andrews, went to work with that company about the time it was formed. The business of the corporation was developing land, building and selling houses to the public.

Charter Corporation was sold to Electronics Capital Corporation in August, 1969. The name was ultimately changed to Shelter Resources. After Shelter Resources acquired Charter Corporation, Mr. Milton Andrews stayed on as chairman of the board, Bruce Andrews stayed on as president, and John stayed on and was in charge of building a manufacturing plant for the production of modular homes for Shelter Resources in Double Springs, Alabama. John Andrews was, according to Mr. K. L. Jones, who was employed by the corporation in November, 1969, vice-president of the corporation and general manager of the production facility of the company.

The corporation (the names “Charter Corporation” and “Shelter Resources” are used interchangeably in the record, both sides agreeing that they are the same, except for a difference in name) entered into a contract with a corporation called “Jasco, Inc.” on December 30, 1969, whereby Charter Corporation agreed to buy certain lots in Walker County from Jasco, all of the lots being in a subdivision known as Edgewood Subdivision, Sector 2. Charter was to pay for these lots in phases as it developed them. Jasco agreed with Charter to furnish, at the closing of each group of lots, a certificate of satisfactory percolation tests approved by the Walker County Health Department for the installation of individual sewage disposal systems.

By letter dated December 18,1969, Jasco, Inc. also agreed with Charter Corporation to place “ . . .a double surface bituminous street according to specifications of Walker County, Alabama, throughout the dedicated streets of the subdivision. Further, we are to bring a main water line of a minimum size of 2lh inches to the point of beginning of the first lot nearest the old Bankhead Highway.”

This letter indicated that Jasco was “handing” Charter percolation test information indicating approval of the Walker County Health Department of the property for the installation of septic tanks.

Shortly after signing the agreement with Jasco, Charter started building on these lots. K. L. Jones, employed by Charter until December, 1970, testified that Charter built on five to ten of the lots acquired from Jasco. It was also his testimony that, after building two houses, he was either notified in writing or received a call from the county sanitation officer indicating that:

“ . . . [T]here might be some problem there and we had better hold up and not go so fast with the construction because it looked like we were saturating the ground with septic tanks much more rapidly than they had thought we were going to do. And that before we started any additional construction we had better talk to them and take a look and see just where we were going to go and be sure that we didn’t get into a saturated area. I can’t actually say they said no this won’t perc now because they had already approved the lots.”

Jones also testified that, while he was employed by Charter, he was in charge of various subdivisions being developed by the corporation, some forty of them, and John Andrews was in charge of the manufacturing plant. He testified that John Andrews was not active in the development of the lots, but it was necessary for the two of them to stay in touch because “ . [H]e [John] was constituting the various lots where we wanted them to be placed. So, it was necessary we maintain contact.”

John Andrews testified that he worked for Charter Corporation (after its acquisition in August of 1969 by Shelter Resources) for about a year, or “ . . .It may have been a little more than a year. . ."

Jones testified that he left the company in December, 1970, and John left before he did.

By late summer or early fall of 1970, the corporation was financially distressed, by all accounts. A Mr. Quindlen came to Birmingham from New York (Shelter Resources was headquartered there at that time) and started liquidating assets of the corporation. Bruce Andrews testified that the corporation had assets, but it also had enormous accounts payable. At about this time, John Andrews approached K. L. Jones, who was still with the company, and asked to see what lots the corporation had to sell. His father was still chairman of the board; and his brother was still president of the corporation at the time John resigned; but the record does not disclose just when John left. It was his testimony that he “ . . . just phased out” after a year or more. It was John’s idea to buy the lots and build houses on them. He formed a corporation called “Cardinal Enterprises, Inc.” for this purpose. He first bought five lots and built houses and sold them. He then entered into the following contract with Charter Corporation to buy twenty more lots:

“November 20, 1970
“Mr. R. V. Quindlen, Vice President
Charter Corporation
1130 Bank for Savings Building
Birmingham, Alabama 35203
“Dear Mr. Quindlen:
“The purpose of this letter is to outline our position with reference to the proposed acquisition from Charter Corporation of 20 lots in the second Sector of Edgewood Subdivision.
“We propose to buy these lots for a consideration of $37,000.00, Thirty Thousand of which we have already paid to Charter Corporation. We hereby agree to pay the remaining $7,000, without interest at the rate of $350 per lot, payable at the time the [The words “permanent loans are closed and the proceeds received by us” were marked out and the following underlined words were substituted:] units are set. JMA RVQ It is our intention to liquidate this obligation within 120 days from the date hereof, but it is further understood and agreed that any lots remaining unused by Cardinal Enterprises, Inc. at the expiration of 120 days will, at the option of Cardinal Enterprises, be re-purchased by Charter Corporation at a price of $1950.00 per lot. Any portion of the above mentioned $7,000 which has not been liquidated will be credited against the re-purchase price at the rate of $350 per lot.
“[The following underlined words were added at the beginning of this paragraph:] Any lot repurchased could be paid for at Cardinal’s cost in purchase + $100 RVQ 11/20/70 It is further understood and agreed that all the terms and conditions and guaranties warranted to Charter Corporation by JASCO, INC., are hereby warranted to Cardinal Enterprises, Inc. by Charter Corporation. To indicate that you understand and are in accord with this agreement, please so indicate by signing the enclosed carbon copy of this letter and at the same time executing to Cardinal Enterprises, Inc. a deed with appropriate title covering the 20 lots involved.
“Yours very truly,
“/s/ John M. Andrews
“John M. Andrews, President CARDINAL ENTERPRISES, INC.
“CHARTER CORPORATION
“By /s/ R. V. Quindlen 11/20/70 R. V. Quindlen,
Vice President”

John Andrews borrowed $30,000 of the purchase price of these twenty lots and was to pay the other $7,000 at the rate of $350 per lot as modular units were set on them. It normally took him one month from start to finish to complete a modular home, including grading the lot, putting in the foundation, setting the house on the foundation, and landscaping. The 120 days mentioned in the contract was the period of time it would take him to see whether his program would be successful. At the end of that time, at his option, he could call on Shelter Modular to buy back any unused lots.

After executing this agreement, John built houses on seven of the twenty lots and sold them. He then started getting complaints from the people who bought the houses, complaining of problems with the septic tanks. He tried to remedy the problem, but could not. He made a profit of $12,742.05 on the lots he sold. After the problems started, he stopped building on the other lots. He testified that, when he signed the agreement to buy the lots the subdivision was approved by the U. S. Government for “235” program financing. The Government failed to renew that program for this subdivision in the summer of 1971.

In June, 1971, the record shows a letter addressed to Shelter from Cardinal, enclosing a check in the amount of $7,873.78, which, according to Cardinal, represented the balance of the account to Shelter on the lots to date. This letter also said:

“. . . Although we acknowledge the debt of $4,200.00, we intend to pay it in accordance with the terms in the attached letter.”

The contract letter of November 20, 1970, was attached.

In August, 1971, Mr. Andrews had an engineer run percolation tests on the remaining thirteen lots. This test showed that seven of the lots did not percolate and six of them did. Approval for the installation of septic tanks by the Walker County Department of Health was never withdrawn. However, no further building was done after the summer of 1971 on any of the remaining thirteen lots.

Thereafter, on February 22, 1972, Cardinal called upon Shelter Modular to repurchase the thirteen unused lots at a price of $1950 per lot, saying by letter “Cardinal Enterprises, Inc. hereby exercises its option to have these lots repurchased by your company.”

Suit was filed in November, 1972, seeking damages for breach of contract alleging failure on Shelter’s part to put roads in as agreed, damages for failure to repurchase the lots in accordance with the agreement, and a third claim for misrepresentation. As to the third claim, it was Cardinal’s contention that Shelter knew that the lots would not percolate and failed to reveal that information when it sold the lots.

The case was tried and submitted to the jury on all three claims. It returned a general verdict in favor of Cardinal in the amount of $75,000. Shelter Modular appealed.

Although the appellant raises a number of issues for review, it most strongly asserts that there was no evidence produced by the plaintiff below which made out a jury question on the issue of fraud. We have carefully read the full record in this case. Without elaboration, we are satisfied that there was evidence from which the jury could have found that the appellant breached the contract sued on. However, we agree with the appellant that the plaintiff failed to carry its burden of proof on the fraud claim. In its complaint, the plaintiff alleged that the defendant represented to it that the lots were acceptable for construction of residential housing and septic tanks could be installed on each of the individual lots. It averred that this representation was false and that the defendant knew that this was false, or without knowledge of the facts, recklessly misrepresented them. Plaintiff believed the representations and, in reliance upon them, purchased the property.

The only proof the plaintiff offered, to support its allegation that the defendant knew that the lots would not percolate, was the testimony of K. L. Jones who testified that, while he was still in the employ of the corporation, he received a call from someone with the Walker County Health Department indicating that there was a saturation problem in the subdivision. His testimony in this regard is set out in its entirety above.

In its oral charge to the jury, the trial court correctly stated the law with regard to the plaintiff’s burden of proof on the fraud claim. The charge stated:

“. . . The defense places the burden on the Plaintiff to reasonably satisfy you from the evidence in the case that the Defendant knew or should have known that the soil of the property sold to the Plaintiff by the Defendant would not be acceptable for the construction of residential housing and installation of septic tanks. And that these facts are concealed from the Plaintiff, and the Plaintiff had no knowledge "of such facts.”

Assuming that the call which Mr. Jones said he received from the Walker County Health Department is sufficient to indicate that the lots would not percolate, every indication from the record is that this information was received by the company while John Andrews was a vice-president thereof. Although the record is silent as to the date this information was received, Jones said it came after the corporation had built two houses on lots in this subdivision. It built a total of five to ten, according to him. It would appear very unlikely that this information was received in the short period after John left the company, of which he was a vice-president and before he agreed to buy the lots.

This court has, as most others, repeatedly held that a corporation cannot escape liability in fraud cases by showing that the agent through whom it acted was without knowledge of the true facts. The issue in those cases is whether the corporation had knowledge of the true facts. J. Truett Payne Co. v. Jackson, 281 Ala. 426, 203 So.2d 443 (1967); Bolton Ford of Mobile, Inc. v. Little, Ala., 344 So.2d 1208 (April 22, 1977).

In fact, it is that principle of law which the plaintiff relied upon below in correctly asserting that it was immaterial whether Mr. Quindlen, who acted for the corporation in selling the lots, knew that the corporation had received information that the lots might not be suitable for septic tank installation. However, the converse of that rule is applicable here. The record indicates, although there is no specific evidence either way, that Mr. Andrews was probably still a vice-president of the corporation when it received information which could be treated as sufficient to indicate that the lots would not percolate. As a vice-president of the corporation, he, of course, was an agent thereof. This state has codified the common law at Title 9, § 72, Code.

“As against a principal, both principal and agent are deemed to have notice of whatever either has notice of, and ought, in good faith and the exercise of ordinary care and diligence, to communicate to the other.”

This statute does no more than restate the common law rule imputing to both principal and agent “whatever either has notice of.” Under that long established rule, John Andrews, as vice-president of Shelter Modular, is deemed to have notice of whatever his principal had notice of, if such information was received while the agency relationship existed. That, of course, is a question for the jury to determine.

We are in complete agreement with the appellee that a fraud claim may be maintained where a party who knows material facts is under a duty to disclose that information, and fails to do so. We further agree that there are times when the law imposes a duty to disclose facts within a party’s knowledge. Metropolitan Life Ins. Co. v. James, 228 Ala. 383, 153 So. 759 (1934). But, the purpose of these rules is to place the parties upon an equal footing, so that each may have the benefit of all material information. 37 Am.Jur.2d, Fraud and Deceit, § 146.

In the instant case, the plaintiff had the burden of proving that the defendant knew, or should have known, that the lots were unacceptable for the construction of houses, that it concealed this fact from the plaintiff, and that the plaintiff had no knowledge of these facts. Under the circumstances presented here, this would require the plaintiff to show that the defendant corporation acquired this information at a time when the plaintiff was no longer a vice-president of the corporation. This, the plaintiff did not do. The fact that John Andrews formed a corporation for the purpose of building houses on the lots acquired from Shelter is of no consequence. It is not controverted that Cardinal Enterprises, Inc. is John Andrews.

The trial court correctly submitted the contract claims to the jury. The defendant, however, was entitled to a directed verdict on the fraud claim, since the plaintiff failed to prove one of the elements of that claim. The jury rendered a general verdict and it is not possible to determine what amount related to the three claims submitted to it. It is, therefore, necessary to reverse and remand the cause for a new trial. If, on a new trial, the plaintiff is able to produce evidence from which the jury can determine when the information made the basis of the fraud claim was acquired by the corporation, and that it was acquired after the agency relationship between Shelter and Andrews was terminated, it would then be proper to allow the jury to pass on that claim.

REVERSED AND REMANDED.

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


author: BEATTY, Justice.

text:
    Alford TURNER et al. v. A. J. COOPER, Jr., et al.
    SC 2162.
    Supreme Court of Alabama.
    June 3, 1977.
    Rehearing Denied July 29, 1977.

      John M. Tyson and Joseph J. Boswell, Mobile, for appellants.
    Charles S. Street and Donald M. Brisk-man, Mobile, for appellees.
   BEATTY, Justice.

This is an appeal from an order of the Circuit Court of Mobile County granting a motion to dismiss the action of election contestants. We affirm.

The City of Prichard held an election on August 10, 1976 to fill, among others, the offices of mayor and five councilmen. All of the plaintiffs, with the exception of Yan-cina Stallworth Douglas, were candidates for office in that election. Under Tit. 37, § 34(68), Alabama Code (Recomp. 1958), they initiated a contest of the elections of the defendants who had been declared elected to those offices, alleging numerous separate grounds of contest.

We will not attempt to set out all of the pleadings, which were many, but only so much as appears to be necessary to focus upon the principal issues before us.

Motions to strike portions of the complaint were granted by the trial court, after which plaintiffs filed an amended complaint, striking one party-plaintiff and adding additional grounds of contest. Again, motions to strike were granted, leaving the following grounds of contest:

7. The election of A. J. Cooper, Jr., Freddie Harris, John L. Myrick, John Langham, John Sanderson, and Shafter Summers, separately and severally, are each contested upon the following grounds:
E. That illegal votes were cast for the following named candidates by persons who were not qualified voters in that they were not bonafide resident citizens of the City of Prichard, Alabama, within the time prescribed by law prior to the date of said election, to-wit:
(1) A. J. Cooper, Jr.
(2) Freddie Harris
(3) John L. Myrick
(4) John Langham
(5) John Sanderson
(6) Shafter Summers
F. That illegal votes were cast for the following named candidates by voters who were or may have been bonafide resident citizens of the City of Prichard, Alabama, but were not duly qualified electors in that they were not properly registered as voters in accordance with the laws of the State of Alabama, to-wit:
(1) A. J. Cooper, Jr.
(2) Freddie Harris
(3) John L. Myrick
(4) John Langham
(5) John Sanderson
(6) Shafter Summers
G.That legal votes for contestant candidates and other candidates were rejected and illegal votes were given to the following named candidates for the offices set opposite their respective name which, if taken from him and legal votes added to other candidates, would reduce the number of legal votes given to the defendant candidates, separately and severally, below the number of legal votes necessary and required to have the defendant candidates declared winners of the races set opposite their names, to-wit:
(1) A. J. Cooper, Jr., Mayor
(2) Freddie Harris, Councilman, Place One
(3) John L. Myrick, Councilman, Place Two
(4) John Langham, Councilman, Place Three
(5) John Sanderson, Councilman, Place Five
(6) Shafter Summers, Councilman, Place Four
(1) They allowed persons who were not qualified voters to cast illegal votes;
(2) They allowed persons who were duly challenged by a qualified elector to vote on the voting machines in violation of Title 37, Section 34(39) of the Code of Alabama;
(4) They fraudulently and willfully disposed of challenged ballots;
(8) They fraudulently and negligently allowed qualified and unqualified voters to vote more than one time in said election;
(9) They refused to accept or allow voters who were duly qualified to vote in violation of the laws of the State of Alabama;
(22) They unlawfully failed or refused to record the legal votes cast for the contestant candidates herein and other candidates;
(23) They unlawfully recorded illegal votes for the defendant candidates herein;

The defendant Cooper moved to prevent the City of Prichard from opening the ballot boxes and voting machines which had been used in the election, and the trial court granted a temporary restraining order accordingly. A petition for a writ of mandamus was then filed in this Court seeking to compel the vacation of that order, and the proceeding in the trial court was continued pending our action on that petition. After this Court denied that petition, the trial court, which had custody of the machines, granted the motion to intervene of the Judge of Probate of Mobile County. That official sought the release of fifty of the voting machines which had been used in the contesting election. After making certain findings, which we quote below, the trial court granted this motion:

The court finds that the voting machines used in said election are so constructed that the only information which may be obtained from the machines are the total votes cast on the machines, the total votes cast on the machines subsequent to resetting its counters to zero, and the votes cast for each candidate or propositions voted on since the last time the counter was reset to zero, and the names of any write-in votes cast subsequent to clearing the write-in register; that all of the above information may be retained by the court without physical retention of the voting machines by means of physically reproducing the printouts and inspecting the write-in register and recording the reading of the total vote counter, and proper operation of the machine at this time can be determined by voting on said machine one vote for each candidate; that upon obtaining this information from each of the 50 voting machines used in said election, there will be no further need for this court to retain custody of said voting machines.
The court further finds that the said voting machines were physically transported from the polling places where used in said election to the voting machine warehouse of Mobile County, Alabama, on August 11, 1976; that they were received there sealed with no evidence of their having been tampered with in any manner, and that said machines have been physically stored in the city voting machine warehouse since that date; that the boxes and any other equipment, supplies or paraphernalia have remained in actual possession of the City Clerk of the City of Prichard, Alabama. The court being of the opinion that all of the aforesaid items should be impounded by the court and preserved pending this election contest, and the court being of the opinion that substantial justice will be done and no inconvenience will be caused the parties by the release of the voting machines to the Probate Judge of Mobile County, Alabama, after preserving the information contained therein as herein-above set forth.
It is ORDERED, ADJUDGED AND DECREED, that John E. Mandeville as Clerk of the Circuit Court of Mobile County, Alabama, forthwith take into his possession and control all of the voting machines, boxes, equipment, supplies, and paraphernalia used by the City of Prich-ard in conducting said municipal election in the City of Prichard, Alabama, on August 10,1976, and all City officers, clerks, employees, agents, and servants, and any other persons having possession or control of any of these items turn over and release to the said John E. Mandeville, all such items in their possession or under their control.
It is further ORDERED, ADJUDGED AND DECREED that John E. Mande-ville, upon receipt by him of sufficient supplies to do so furnished by the Probate Judge of Mobile County, Alabama, shall proceed to record all information presently shown on each of the said voting machines, including the voting machine number and the number on the seal locking said machine against voting, that he shall then cast one additional vote for each of the candidates in said election and shall again record the counter readings, and shall reseal each such machine against further voting thereon; that the said John E. Mandeville shall then seal the information so obtained, and shall store the same with the other items herein impounded, and shall secure all such items pending further order of this court.

Meanwhile, on September 23, 1976 the defendant Cooper moved to have a hearing date set on the election contest, and on the same date moved for an order that the plaintiffs furnish to the defendants:

. in writing, the number of illegal votes and by whom given and for whom given, and at what precinct or voting place cast, or the number of legal votes rejected, and by whom offered, and at what precinct or voting place cast, which he expects to prove on the trial.

Much of the language of this motion is taken from Tit. 17, § 237, Alabama Code (Recomp.1958).

On September 24,1976 the trial court set November 1, 1976 as the hearing date and ordered the plaintiffs to furnish the requested information “on or before October 15, 1976,” (within twenty-one days).

Later, on October 8, 1976, plaintiffs moved for a preliminary hearing date in, order to allow them to “present evidence in support of the allegations made in their complaint,” and attached affidavits in support of this motion. On that date plaintiffs also filed a motion to require the opening of the voting machines and election supply records on the ground “that it is necessary in the presentation and prosecution of their case. . . Both of these motions were denied.

The defendants then moved to dismiss the action on the ground that the plaintiffs had failed to comply with the trial court’s order requiring plaintiffs to furnish the witness list in accord with the provisions of Tit. 17, § 237. After argument in open court, this motion was granted with prejudice on October 29, 1976.

The plaintiffs have ascribed several er.rors to the trial court on this appeal, all of which depend upon the propriety of his ruling granting the defendant’s motion to dismiss. If it was necessary in this election contest to furnish such a witness list as defendants requested and as the court ordered, the failure to provide it, in the sound discretion of the trial court, would have justified a dismissal with prejudice. Rule 41(b), ARCP allows such action for “failure of the plaintiff to . comply with . any order of court.” In considering the trial court’s action, it is relevant to note that when the pending motions were heard on October 29, 1976, three days before the date set for the hearing on the merits and thirty-five days after the trial court had ordered the information to be furnished, counsel for plaintiffs stated to the court that it was impossible for them to furnish those names without getting into the voting machines and voting records in order to ascertain that information. Moreover, plaintiffs declined an offer of a continuance by the trial court and additional time within which to comply with the order. So we have this situation: the trial court had impounded the voting machines and records, and had ordered the plaintiffs to furnish the names of the legal and illegal voters they expected to prove at the trial. Plaintiffs had subpoenaed eighty-three witnesses for the hearing three days later, and had previously requested a preliminary hearing to present evidence. They maintained that they could not comply with this order without an examination of those very machines and records which, they contended, contained such information and which the trial court would not allow them to examine in order to comply. In short, they did not possess this information at the time the contest was filed and at the time the defendants’ motion to dismiss was granted. Was it fundamental to their contest that such a list be furnished by them?

It is undisputed that Tit. 37, Chap. 3A, Alabama Code (Recomp.1973 Supp.) governing certain municipal elections is applicable here. Section 34(68) of that Title specifies five causes upon which a qualified elector may contest such an election:

1. Malconduct, fraud, or corruption on the part of any election official, any marker, the municipal governing body, or any other person.
2. When the person whose election to office is contested was not eligible thereto at the time of such election.
3. On account of illegal votes.
4. On account of the rejection of legal votes.
5. Offers to bribe, bribery, intimidation, of [sic] malconduct calculated to prevent a fair, free, and full exercise of the elective franchise.

That section, in addition, makes it plain that “. . . all proceedings relative to contests of elections to municipal offices shall be governed by the provisions of articles 22 and 23, chapter 1, Title 17, Code of Alabama, 1940, insofar as they are applicable.”

Annulments of elections, however, are limited by the provisions of § 34(69):

No malconduct, fraud, or corruption on the part of the election officers, the marker, the municipal governing body, or other person, nor any offers to bribe, bribery, intimidation or other malconduct which prevented a fair, free, and full exercise of the elective franchise, can annul or set aside any municipal election unless thereby the person declared elected, and whose election is contested, be shown not to have received the requisite number of legal votes for election to the office for which he was a candidate, nor must any election contested under the provisions of this chapter be annulled or set aside because of illegal votes given to the person whose election is contested, unless it appears that the number of illegal votes given to such person, if taken from him, would reduce the number of votes given to him below the requisite number of votes for election. Nor must any election be annulled or set aside because of the rejection of legal votes unless it appears that such legal votes, if given to the person intended, would increase the number of his legal votes to or above the requisite number of votes for election.

These statutes, which we consider in pari materia, establish clearly that election contests which turn upon the number of legal or illegal votes cast or rejected, subsume Tit. 17, Art. 23, § 237, Alabama Code (1958 Recomp.) which requires the notice of the nature of the evidence. Without that written notice having been served upon the adverse party by the contesting party “. . .at least ten days before the taking of testimony in reference to such votes,” as that statute requires, “[n]o testimony must be received of any illegal votes, or of the rejection of any legal votes. . ."

The legislature has made Tit. 17, § 237 a constituent part of the procedure for engaging in an election contest when either illegal votes or the rejection of legal votes is in issue. Thus, the defendants were within their rights to demand the production of the notice described therein, since under those allegations the motion required is mandatory. Dobbs v. Brunson, 17 Ala.App. 318, 85 So. 38 (1920). We are not concerned here with a situation in which there is no question as to which candidates received the most votes, cf. McGallagher v. Bosarge, 273 Ala. 133, 136 So.2d 181 (1961), rather we are concerned with allegations of malconduct which charge illegal voting, the unlawful rejection of legal votes, and the fraudulent disposal of challenged ballots.

The annulment of elections under Tit. 37, § 34(69) requires either proof of illegal votes, rejected legal votes, or the failure of the contestee to receive the requisite number of legal votes. In other words, other instances of election law violations under § 34(69) may not be used to annul or invalidate a municipal election. In this case, for example, plaintiffs have alleged, inter alia, that the defendants “fraudulently and willfully disposed of challenged ballots.” Clearly, this is an allegation of fraudulent malconduct, but it does not charge either of the three grounds for annulment listed under § 34(69). Errors and irregularities of election officers which are shown not to affect the election result will not be considered in a municipal election contest, otherwise legal voters would be deprived of their franchise. Pope v. Howle, 227 Ala. 154, 149 So. 222 (1933); Montgomery v. Henry, 144 Ala. 629, 39 So. 507 (1905).

The legislature having mandated the notice, could plaintiffs comply with the trial court’s order thereunder without being allowed to examine the voting machines and election supply records? In their motion to have the machines and election supply records opened, plaintiffs did not allege more than that “it is necessary in the presentation and prosecution of their case that this motion be granted.” The record is silent on any proof related to the grounds of annulment to support this assertion. As we have already pointed out, plaintiffs contended that they could not furnish the voter information without this examination.

Plaintiffs did object to the findings of the trial court on the information which would be revealed by an inspection of the voting machines, but these findings are supported by the evidence adduced at the hearing of September 24,1976. From that hearing the trial court found that the information which the machines would reveal consisted of the total votes cast, the total votes cast after the counters were reset to zero, the votes cast for candidates or propositions since the counters were reset to zero, and the names of write-in votes cast after clearance of the write-in votes cast after clearance of the write-in register. This information was ordered recorded and preserved, and reasonably would be encompassed in the plaintiff’s motion for inspection of the records which the trial court denied. Certainly the votes cast for candidates and the names of write-in votes cast not only would be relevant, but would be material in proving that a person whose election was contested did not receive the requisite number of legal votes, as required by § 34(69). Even though proof of the number of votes cast would not prove illegal voting by any individual voter, any more than it would prove the rejection of any individual legal vote, still it would directly apply to the requisite number of legal votes required by the contestees.

Moreover, with the one exception to which we have previously alluded, that is, the fraudulent and willful disposition of challenged ballots which did not pertain to a ground specified in § 34(69), plaintiffs alleged only illegal votes and the rejection of legal votes as grounds to annul this election. The written notice of Tit. 17, § 237 specifically applies to those grounds, and as we have shown, these grounds would not have been aided by an inspection of the machines and their contents. Clearly, upon this record, the trial court properly concluded that plaintiffs could not “offer testimony” on the issues of this contest, after first allowing plaintiffs twenty-one days (from September 24, 1976 to October 15, 1976), then fourteen additional days (until October 29, 1976 when the final order of dismissal was ordered). The trial court even offered a continuance of twenty days from October 29, 1976.

Although Tit. 17, § 237 does place a deadline of ten days prior to the taking of testimony for the service of the notice, this section cannot have been intended to prevent a trial court from recognizing in advance of the statutory deadline the inability or unwillingness of the complaining party to comply.

Therefore, the order of the trial court to produce the written notice was a proper one, and under the facts disclosed the sanction of dismissal with prejudice was not improper. Indeed, having chosen to follow Tit. 37, § 34(68), (69), and having selected the very grounds of contest to which the written notice applies, it does not appear that plaintiffs could have amended their complaint in such a way as to restate the grounds alleged as the bases for their contest without also being required to comply with the notice required by Tit. 17, § 237. Jefferson v. Greater Anchorage Area Borough, 451 P.2d 730 (Alaska 1969); Feinberg v. Leach, 243 F.2d 64 (5 Cir. 1957).

Finally, plaintiffs argue that the fraudulent manner in which this election was conducted was sufficient to require the trial court to exercise its equity powers and declare the election void, even if they might be unable to prove that the result would have been different after deducting “illegal votes” from the declared winning candidates and adding rejected “legal votes” to the losing candidates. The plaintiffs cite Bouldin v. City of Homewood, 277 Ala. 665, 174 So.2d 306 (1965) for this proposition.

With deference to plaintiffs, Bouldin does not support that position. Bouldin dealt with an annexation election in which the statutory election notice was not properly published. In considering whether any equity jurisdiction existed authorizing injunc-tive relief to prevent one municipality from transferring property to another, this Court compared the restrictions of Tit. 17, § 235 with the pleadings, and held that a temporary injunction should have issued because:

Where as here, illegality of the election is charged, and the interests of individuals comprising the public are affected, and the rights and property of the city are affected, as well as the misuse of corporate power, ... equity did have jurisdiction.

No such allegations are made here. In fact, plaintiffs’ amended complaint states that:

1. The election contest is filed pursuant to the provisions of Title 37, Section 34(68) of the Code of Alabama, 1940 . and the other sections of the Code . . . cited therein. The alternative action to declare the election null and void is brought under the general equity jurisdiction of this Court. (Emphasis supplied.).

Nowhere is it alleged, as was alleged in Bouldin, that the interest of individuals was put in jeopardy, nor was there any allegation of corporate abuse of power as therein referred to. The case of Wakefield v. Town of Carbon Hill, 215 Ala. 22, 108 So. 855 (1926), cited by plaintiffs, expressly found that no statutory means of contesting elections existed at that time. That is far from the situation here, as we have shown. Not only do contestants of municipal elections have legal remedies under Tit. 37, § 34(68), (69) and (72), but Tit. 37 is replete with statutory penalties for those who offend the municipal election laws, e. g., § 34(58), (59), (60), (61), (62), (63), (64), (65), (66) and (67). In short, we discern nothing in the allegations which would have allowed the trial court to exercise equity powers aliunde Tit. 17, § 235, which states:

No jurisdiction exists in or shall be exercised by any judge . . . exercising chancery powers to entertain any cause ... for ascertaining the legality, conduct or results of any election, except so far as authority to do so shall be specifically enumerated . by statute. .

We cannot agree with plaintiffs that it is this Court’s duty to oversee elections and to prescribe the duties and obligations of election officials. However abhorrent the conditions described are to us personally, nevertheless those are clearly legislative matters. It is this Court’s duty to respect and preserve the separation of governmental powers, not to act unilaterally as self-appointed ombudsmen. Contests of elections are statutory creations, except insofar as we have noted, and the statutory requirements must be strictly complied with. Longshore v. City of Homewood, 277 Ala. 444, 171 So.2d 453 (1965); Black v. Pate, 130 Ala. 514, 30 So. 434 (1920); Pearson v. Alverson, 160 Ala. 265, 49 So. 756 (1909). To the suggestion that equity has the general power to review the conduct of an election, therefore, we must point out that “equity follows the law.” Moulton v. Reid, 54 Ala. 320 (1875).

AFFIRMED.

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


text:
    George Wallace MOBLEY v. BRUNDIDGE BANKING COMPANY, INC., a corporation.
    SC 2085: 2085-X.
    Supreme Court of Alabama.
    June 24, 1977.
    Rehearing Denied July 29, 1977.

      James C. Clower, Troy, for appellant.
    John B. Crawley, Crawley & Ford, Troy, for appellee.
   BEATTY, Justice.

This is an appeal from an order of the Circuit Court of Pike County denying recovery to the plaintiff in an action of general assumpsit for money had and received. We reverse.

Charles E. Senn and his wife, Cheryl R. Senn, were indebted to Brundidge Banking Company (BBC) for money borrowed, and to secure these loans they executed mortgages on separate parcels of real estate in Pike County. The Senns also borrowed money from the First National Bank of Brundidge (FNBB) and on December 11, 1971 they executed a mortgage upon 1.42 acres of land in Pike County. This land was not included in the mortgages to BBC. The FNBB mortgage contained the following clause:

Now then in order to better secure the payment of said note, (s) together with all other indebtedness we may owe The First National Bank of Brundidge, before the full payment of this note(s) and mortgage,] [ granting have granted, bargained, sold and conveyed, . . .

and a defeasance clause referring to “such other and additional indebtedness. . .”

On March 11, 1974, the Senns gave another mortgage on the same 1.42 acres to Wire-grass Bank and Trust Company, Headland.

Then on May 16, 1974, the Senns borrowed money from George W. Mobley and executed a mortgage on the same 1.42 acres of land.

Later that year, on October 9, 1974, FNBB transferred the mortgage of December 11, 1971 to BBC, and there is evidence in the record that one of the BBC officials involved in this assignment was informed by an official of FNBB of the existence of the second mortgage on this 1.42 acres. Apparently, the Senns were already indebted to BBC in the amount of approximately $90,000, and BBC took the assignment, in exchange for a payment of $20,800.54, in order to better secure themselves.

On October 9, 1974 the Senns executed a new promissory note in the amount of $50,-035.50, payable to the order of BBC. This note recited that it was secured by the mortgage of October 9, 1974 assigned by FNBB to BBC. The proceeds of this note apparently were not paid to the Senns, but were used to pay to BBC the purchase price of the October 9, 1974 mortgage, and to satisfy other past due loans made by BBC to the Senns.

On May 8,1975, BBC foreclosed the mortgage on the 1.42 acres of land, as well as two Senn mortgages on other parcels. The three parcels were offered separately. The highest bid for the 1.42 acre parcel was $55,676.12. The aggregate sum for which the three parcels sold was $99,506.78. This lump sum bid was made by BBC, which bought the property, by adding the three separate bids, each representing the debt on the respective parcels, and adding $2.00 to that sum. At the time of this foreclosure sale, the Wiregrass Bank had released the I.42 acre parcel from its mortgage of March II, 1974, and so the only lienholders claiming an interest in it were BBC and Mobley.

Mobley contends that at the time of the foreclosure sale he was owed a principal balance of $35,000, plus $2,847.90 in interest, or a total of $37,847.90. He claims an additional sum of $2,569.45 as interest from the foreclosure sale to the date of trial, or a grand total of $40,417.35. Mobley’s position, simply put, is that he is a lienholder with a second priority upon the sum which the foreclosure sale brought in on the 1.42 acre parcel. Put in another way, he maintains that because BBC purchased the first mortgage from FNBB for $20,800.54, that is the only sum which BBC should receive from the sale before Mobley’s second mortgage is satisfied. To collect the sum he claims, Mobley brought this action of general assumpsit under the common count for money had and received, demanding $39,-946.66, but on this appeal he claims only the difference between $55,676.12 (the amount bid by BBC for the mortgage) and $20,-800.54 (the sum paid by BBC to FNBB for the mortgage), or $34,875.58. We have not overlooked Rule 2, ARCP, which abolishes the forms of action and replaces them with one form of action justifying whatever relief is appropriate under the allegations. This rule, however, does not purport to abolish substantive remedies in existence at the time of adoption of the rules, of which general assumpsit was one.

After a hearing without a jury, the trial court found in favor of BBC, holding that:

The effect of the foreclosure of the senior mortgage was to cut off the equity of redemption in the property covered by the junior mortgage, and the junior mortgagee would be entitled to recover from the senior mortgagee any money which lawfully belonged to him. The suit must be predicated on a valid foreclosure of the senior mortgage.
The senior mortgage assigned to the defendant must be construed to secure any other indebtedness owing by Senn to the mortgagee First National or assignee mortgage holder Brundidge Bank, and such provisions of the mortgage shall be given full effect as provided by law. First National Bank of Guntersville v. Bain, 237 Ala. 580, 188 So. 64 (1939); City National Bank of Dothan v. The First National Bank of Dothan, 285 Ala. 340, 232 So.2d 342 (1970).
After notice of the attaching of a junior lien, the senior mortgagee will not be protected in making optional future advances under his mortgage given to secure such advances. This rule applies in Alabama even though the junior mortgage contains language expressly stating it is subordinate to the senior mortgage. Hampton v. Gulf Federal Savings & Loan Association, 287 Ala. 172, 249 So.2d 829 (1971).
There is credible evidence from disinterested witnesses to the effect that an officer of defendant bank had actual knowledge of the existence of a junior mortgage. Whose — the evidence does not reflect. There can be no different result from the fact that the officer of the defendant bank was merely told of an existence of another mortgage rather than specifically the second mortgage of the plaintiff.
The manner of the sale and purchase of several tracts for one price; the lack of evidence as to the market value of the tract covered by the plaintiffs mortgage and failure of the plaintiff to require the defendant to sell the tract separately as provided in Vines v. Wilcutt, 212 Ala. 150, 102 So. 29 (1924), requires that a judgment be entered for the defendant in this civil assumpsit action.

We have no disagreement with the trial court’s references to Bain and Dothan, as they pertain to the law of advances. Nor do we take issue with the statement of the general principle of law governing the effect of notice, or actual knowledge, to a senior lienholder of the existence of a junior lien when the senior makes advances under his mortgage, Hampton v. Gulf Federal Savings & Loan Association, 287 Ala. 172, 249 So.2d 829 (1971), although we point out that the issues discussed in the dissent in that case, dealing with exceptions to this general rule, are not presented in the case before us. It should not be overlooked also that the trial court here found as a fact that BBC had actual knowledge which, under the principle stated above, and under the ore tenus rule, would withhold from the bank the protection of the advances clause in favor of the junior mortgagee. 2 A Ala.Dig. Appeal and Error «=» 1008.1(6).

At this point it may be helpful to summarize the issues presented by the parties, both of whom have appealed the trial court’s ruling.

BBC contends that: (1) the effect of the trial court’s order pertaining to the assigned mortgage was to secure any other indebtedness of Senn to BBC, thus, after the proceeds of the foreclosure sale were applied to those debts no surplus remained for Mobley; (2) that Mobley’s failure to argue the effect of the advances clause of the assigned mortgage precludes any consideration of that issue now; (3) that the ore tenus rule requires an affirmance; (4) that the presumption accompanying the trial court’s denial of the motion for a new trial requires affirmance; (5) that Mobley’s equity, if any, was as a remote third, not second, mortgage in view of the Wiregrass Bank mortgage; (6) that Mobley’s rate of interest on the note executed by Senn was usurious and thús Mobley came into court, in his equitable action for money had and received, with unclean hands.

Mobley, on the other hand, contends that the case presents only two principle issues: (1) whether in his action for money had and received the plaintiff was required to prove market value of the asset sold which forms the basis of his action; and (2) whether a second mortgagee is deprived of his common counts action because he failed to require the senior lienholder to sell the property separately when it was offered and bid separately (but sold in the aggregate).

BBC’s first and third issues overlook that part of the trial court’s order on the effect of notice of a junior lien upon the senior mortgagee who nakes advances. Accordingly, whatever was the effect of the advances language in the FNBB mortgage transferred to BBC, the factual finding of the trial court that BBC had actual notice of the junior lien preserved any surplus for that junior mortgagee, as we have shown above. The ore tenus rule would support the trial judge’s finding of that fact.

On BBC’s second, third and fourth issues, as we construe the briefs and argument, Mobley contends that any issue on the effect of the advances clause is immaterial because the court’s finding of actual notice of the second mortgage established Mob-ley’s priority over any sum constituting an advance. We agree that this was the effect of the trial court’s finding, and thus the material legal issue created thereby was whether, as a matter of law, Mobley was entitled to any of the proceeds of the foreclosure sale as a junior mortgagee. If he were so entitled as a matter of law, the denial of Mobley’s motion for a new trial would not mitigate the application of an erroneous principle of law to his case. Cf. Parker v. McGaha, 291 Ala. 339, 280 So.2d 769 (1973); McDaniel v. Birmingham News Company, 276 Ala. 320, 161 So.2d 799 (1964).

BBC’s fifth point is equally without merit. Wiregrass Bank did not assert any claim to the 1.42 acres at the time of the foreclosure sale and in fact had released its claim prior to that time. When the sale took place, therefore, there were only two claimants to the proceeds, BBC and Mobley, one a senior and one a junior mortgagee. And the legal issue between these two dealt with any priority each had to those proceeds.

Concerning BBC’s final point, as Mobley indicates, usury is an affirmative defense which must be specially pleaded, and cannot be considered for the first time on appeal. Brown v. Warner, 173 F.2d 162 (C.A. 5 1949); American Casualty Company v. Morris, D.C., 51 F.Supp. 889, aff’d 146 F.2d 208 (CCA 4th 1944). The defendant’s general denial addressed to the plaintiff’s count for money had and received cannot be construed as placing in issue the rate of interest on a promissory note, hence that matter should have been specifically pleaded.

Turning now to the issues raised by the plaintiff-appellant, his first point is well-taken. The trial judge’s order shows that he placed emphasis upon the fact that the three mortgaged tracts were sold for one price rather than separately, and concluded that plaintiff should not recover anything out of that sales price because (1) he had not offered proof of the market value of the 1.42 acres, and (2) had not required BBC to sell that 1.42 acres separately as he must have done, according to the trial court, under the mandate of Vines v. Wilcutt, 212 Ala. 150, 102 So. 29 (1924).

We believe the trial judge misconceived that decision when he applied it to the facts of this case. The failure of plaintiff to require a separate sale undoubtedly applies to a supposed requirement that this junior mortgagee should have marshalled the assets of the Senns in order that a priority in their sales be established in order to protect the interest of the junior. But marshalling was inappropriate here because the Senns never sold the 1.42 acre tract by separate parcels. FNBB (later BBC) and Mobley both held mortgages on the same tract. There were no conveyances of parcels of that one tract which remained under the two mortgages. The following language, taken from Vines at 152-3, 102 So. at 30 which quotes Pomeroy, Equity Jur. and Jones on Mortgages is appropos:

‘Whenever the mortgagor has conveyed separate parcels of the mortgaged premises by warranty deed to successive grantees, and there are no special provisions in any of their deeds, and no other dealings between themselves or with the mortgagor which disturb the equities otherwise existing, a priority results, depending upon the order of conveyance. As between the mortgagor and all the grantees, the parcel in his hands, if any, is primarily liable for the whole mortgage debt, and should be exhausted before having recourse to any of theirs; as between the grantees, their parcels are liable in the inverse order of their alienation, and any parcels chargeable first in order must be exhausted before recourse is had to the second.’
‘When the mortgagor has made successive sales of distinct parcels of the mortgaged land to different persons by warranty deeds, it is generally regarded as only equitable that the mortgagee, when he afterwards proceeds to foreclose his mortgage, should be required to sell in the first place such part, if any, as the mortgagor still retains, and then the parts that have been sold in the same subdivisions, beginning with the parcel last sold by the mortgagor.’
‘These equitable considerations have led to the adoption of the rule that the mortgagee in such case shall sell the mortgaged land in the inverse order of its alienation by the mortgagor; and it will be seen by the cases cited that this rule has been generally adopted.’

Neither party has cited us to Title 33, § 4, Ala.Code which allows marshalling, but we observe in passing that, even if applicable, this section would not have required the prior lienor (BBC) to resort to that order of the property unless he could have done so without risk of loss to himself. S. Lotman & Son, Inc. v. Southeastern Financial Corp., 288 Ala. 547, 263 So.2d 499 (1972). Before that question becomes relevant, however, another question is begged, that is, whether the senior mortgagor here had any right to apply the surplus of the sale over the amount of the FNBB mortgage to the amounts of the other Senn mortgages on different tracts. BBC’s knowledge removed this question, as the trial court found.

In any event, Vines v. Wilcutt, supra, is not the case which allows such a procedure. In that case a foreclosure sale had already occurred. The complainant, a junior mortgagee, nevertheless sought afterward to exercise his equity of redemption and marshalling. We have already addressed ourselves to the latter aspect. As to the former, this Court held that the equity of redemption had been cut off by the foreclosure, leaving only the statutory right of redemption. The Court went on to hold that upon a regular sale under the power contained in the mortgage, the senior mortgagee was under no duty to assert the equitable rights of the junior lienholder. That case did not hold that all of the junior mortgagee’s rights in the property or in the proceeds of the sale were waived. It held only that, even if he had been entitled to marshalling, his failure to assert his equity of redemption prior to foreclosure caused him to lose his equitable rights incident to his equity of redemption, “leaving only the statutory right of redemption which is not sought to be here exercised.” Ibid, 212 Ala. at 154,102 So. at 32. The plaintiff’s statutory right of redemption remains available to him, Memorial Shrines, Inc. v. McConnell, 270 Ala. 266, 117 So.2d 684 (1960), and the question is whether that is the only remedy available to a junior mortgagee who claims a surplus from the foreclosure sale. We think not. Foreclosure of a mortgage extinguishes the debt to the amount of the purchase price, if that amount is less than the debt, or extinguishes the entire debt if the purchase price is more than that amount, and it is only the correct amount of the mortgage debt which is extinguished by the sale. Alford v. Sou. Bldg. & Loan Assn., 228 Ala. 412, 153 So. 864 (1934). But foreclosure has been held not to preclude the right to bring an action for money had and received in order to determine whether a surplus exists for the benefit of the mortgagor, Alford, supra, and we do not doubt that the junior lien-holder may test his entitlement by the same action. Meadows v. Birmingham Fed. Sav. Loan Soc., 232 Ala. 3, 166 So. 53 (1936); Union Bank and Trust Co. v. Royall, 226 Ala. 670, 148 So. 399 (1933); Webster & Wilson v. Singley, 53 Ala. 208 (1875). Having this right, it would be incumbent upon the junior lienholder to prove only the amount of the surplus received as a sum certain, or one which could be made certain:

The property mortgaged had been sold and converted into money by appellants [senior mortgagees], they having the pri- or mortgage. The surplus of the proceeds of sale, remaining in their hands after the satisfaction of their mortgage, was money had and received, belonging ex equo et bono, to the subsequent mortgagees. It was recoverable in an action of assumpsit [citations omitted]. In such an action it is permissible for the second mortgagee to show the sums received by the prior mortgagees from the property covered by his mortgage, that the sum in their hands to which they are entitled may be ascertained. No resort to a court of equity is necessary to compel the appropriation of such money to the satisfaction of his mortgage. The law makes the appropriation. (Emphasis supplied.)

This quotation from Singley, supra at 211 discloses that the amount of the junior mortgagee’s recovery is not dependent upon his establishing market value; he need establish only the surplus of the proceeds and the amount of his mortgage debt.

Was there a surplus from this sale which could be applied to Mobley’s debt? As we have indicated, the entire sale brought in $99,506.78. This sum includes only two dollars more than the sum of the individual bids for the three tracts. The bid for the 1.42 acre tract was $55,676.12 and this sum obviously was obtained for it. BBC simply added two dollars to the total of all bids' and bid in all three parcels. The most which can be stated about any claim of Mobley to a part of this two dollars is that by not insisting on a separate sale he had waived his right to it. He had not, however, lost his right to prove that sum alloca-ble to the 1.42 acres as the price received for it on the foreclosure sale, and the record discloses such proof.

Having proved a surplus from the sale and the receipt by the senior mortgagee of a sum in excess of his mortgage debt, Mob-ley as junior mortgagee was entitled to have that excess applied to his mortgage indebtedness. Accordingly, the case must be reversed and remanded to afford that result. It is so ordered.

REVERSED AND REMANDED.

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