text:
    Howard L. SMITH v. Margie H. SMITH.
    No. 50591.
    Supreme Court of Mississippi.
    Oct. 11, 1978.
    W. E. Gore, Jr., William 0. Marble, Jackson, for appellant.
    Tighe & Ross, B. Stirling Tighe, Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and LEE, JJ.
   Appeal from Chancery Court, Hinds County; James Arden Barnett, Chancellor.

AFFIRMED.


source: Caselaw Access Project

author: BROOM, Justice, for the Court:

license: Public Domain

text:
    Roscoe F. MOORE v. Jackie B. MOORE.
    No. 50689.
    Supreme Court of Mississippi.
    Oct. 18, 1978.
    Chill, Chill & Dove, Bernard W. N. Chill, Sr., Jackson, for appellant.
    Zachary & Gillespie, Francis T. Zachary, Jere R. Ramsay, Hattiesburg, for appellee.
    Before ROBERTSON, WALKER and BROOM, JJ.
   BROOM, Justice, for the Court:

Divorce and other relief were sought by cross-appellee, Roscoe F. Moore (Mr. Moore herein), by his original bill of complaint against cross-appellant, Jackie B. Moore (Mrs. Moore herein), in the Chancery Court of Forrest County, Mississippi. Mrs. Moore denied Mr. Moore’s charge of habitual cruel and inhuman treatment, and successfully sought a divorce herself on that ground. She also sought certain property rights. Both parties appealed to this Court from the final decree entered below, but Mr. Moore’s appeal was dismissed on his motion, leaving only Mrs. Moore’s cross-appeal before us.

The final decree awarded Mrs. Moore (1) a divorce, (2) $9,596.92 as temporary alimony for the period of September 16, 1976 to March 16, 1977, (3) an additional sum of $9,680.92 representing Mrs. Moore’s original investment in the parties’ joint adventure of buying and selling oil and gas interests, et cetera, plus $276.88, or half the profits, (4) $1,500 solicitors’ fees, and (5) an automobile. In her cross-appeal Mrs. Moore argues that the chancellor erred by failing to grant her (1) permanent alimony, (2) ownership of certain municipal bonds her husband bought in her name, and (3) an equitable division of the joint adventure which the court found to exist between the parties. Mr. Moore having dismissed his appeal, only the legal propositions raised by Mrs. Moore’s cross-appeal remain here for decision. Facts will be set forth where appropriate to this opinion.

DID THE LOWER COURT COMMIT REVERSIBLE ERROR IN NOT ALLOWING MRS. MOORE PERMANENT ALIMONY? Facts of the case show that the parties were married October 19, 1974, and lived together until September 20,1976, the date of their separation. The parties were middle-aged people, both with adult children by their respective prior marriages. Mrs. Moore, at the time of the marriage of the litigants, quit her job as office manager of W. T. Grant Company in Hattiesburg, where she earned about $175 per week. According to her, the marriage to Mr. Moore was “a beautiful 23 months together,” and their separation came about largely as a result of (1) his wanting “the bonds that he had said would be mine if he died,” and (2) his “deception” concerning their going into the oil business: “We had a verbal agreement . . . that either of us would put in whatever funds we had . all of mine and ... all of his.”

The decree awarded Mrs. Moore the $9,596.92 as temporary alimony and support from the date of the separation on September 20, 1976, until the date of this decree, which the court felt adequate to support her in the manner in which she had become accustomed during her marriage to Mr. Moore. Additionally, the decree provided that due to the fact that Mrs. Moore “has had ample time to secure new employment since the separation, and taking into consideration the short term of the marriage, no further alimony or support should be awarded” to her.

Citing no authority directly in point, Mrs. Moore argues that the chancellor’s failure to award permanent alimony requires reversal of his decree. Her cross-bill sought suit money but made no averment pertaining to or prayer for permanent or temporary alimony. It does not aver that she is entitled to alimony, and her prayer does not contain the word “alimony” or any word of similar import. No argument is advanced that she should be awarded further alimony on account of her physical disability, inability to work, or illness. Indeed none of the pleadings or testimony indicate that she is sick or suffers any physical impairment. We cannot say that the learned chancellor erred as to the question of alimony upon the state of the record and proof. Pursuant to Horton v. Horton, 269 So.2d 347 (Miss.1972) the chancellor has considerable discretion in allowing or not allowing permanent alimony, and his beneficence in granting her temporary alimony not sought in her pleadings cannot be reversible error as to her.

We have considered Mrs. Moore’s argument that THE TRIAL COURT ERRED IN NOT DECREEING THAT SHE WAS THE SOLE AND UNDISPUTED OWNER OF CERTAIN BONDS and find it to be without merit. There was considerable conflict in the testimony regarding the circumstances surrounding the purchase of these bonds. Mrs. Moore’s version is that she and Mr. Moore had a previous agreement that a “certain dollar amount of bonds would be kept in our joint lock box. These were to be kept at my disposal in case something happened to Roscoe, well that he died, that I would have funds to sustain me until the estate was settled. This was an agreement — a mutual agreement between Roscoe and me. . . . ”

“It was not in writing. This was a verbal agreement between Roscoe and I (sic).”

Mr. Moore’s version of the transaction and agreement was somewhat different. According to him, there was an understanding that he would be reimbursed after she had received some income from real estate in Florida.

Q. And that was bought in her name in the amount of $15,000.00 Gulf Coast Water Disposal Authority 9V2 percent at par. Do you recall that transaction?
A. She needs to explain this. I can’t explain it.
Q. You don’t know anything about that transaction?
A. Yes. I know something about it.
Q. Well what is it you know about it?
A. You see these are confirmations, and a lots of times they’d confirm them in one name and then somebody’s else’s funds would pay for it. And Jackie was anticipating of using her Treasury bill money and these were billed out and she never did get the money because we never did take them out. Let me clarify a little further. Jackie explained that she owned some real estate in Florida and was anticipating a sale in which she would have funds. But she didn’t have the funds and it was my funds or the children’s funds that paid for it.

It is undisputed that the bonds were purchased with Roscoe Moore’s money (or his children’s), but Mrs. Moore argues that “the fact that the bonds referred to . are actually bought in cross-appellant’s name must give rise to the presumption that they were bought for her account and that ownership of them vested in the cross-appellant.” This is inconsistent with her testimony, which was to the effect that she was to receive ownership of these bonds only in the event of Mr. Moore’s death. Had the bonds been delivered to her in her full possession, her testimony quoted supra would negate any conclusion that the bonds were an inter vivos gift. According to the record, the bonds were not literally bought in any particular person’s name but the purchase confirmations were in the name of Mrs. Moore. Significant as to this proposition is the fact that the bonds in question were kept in a safety deposit box jointly maintained by the parties. Roscoe himself went and removed these bonds from the box after the parties became involved in the dispute over disposition of the bonds. Obvious from these facts is the inescapable conclusion that Roscoe retained some element of control over the bonds according to the testimony of Mrs. Moore. We held in Yates Estate v. Alabama-Mississippi Conference Ass’n of Seventh-Day Adventists, 179 Miss. 642, 176 So. 534 (1937) that:

[0]ne of the essentials of a valid gift causa mortis, as well as a gift inter vivos, is that the property must be delivered in such manner that the donor retains no control or dominion over it.

With the record clearly showing that Mr. Moore retained control and dominion over the bonds to the extent that he could remove them from the box at any time, we cannot say that the chancellor erred by his failure to decree thrt Mrs. Moore owned the bonds which in actuality appear to be “bearer” bonds.

DID THE COURT, HAVING FOUND THAT A JOINT ADVENTURE EXISTED, ERR IN NOT REQUIRING A FULL AND COMPLETE ACCOUNTING, INCLUDING THE CASH TRANSACTIONS, AND IN FAILING TO RECOGNIZE THE BENEFICIAL OWNERSHIP OF JACKIE B. MOORE IN THE INVENTORY OF THE JOINT ADVENTURE? We find it unnecessary to deal with this question on the merits because this question was not raised in Mrs. Moore’s original assignment of errors. When she filed her original assignment of errors and brief, Mr. Moore moved to strike the assignment and brief and require her to abstract and brief the case in conformity with Rule 41 of this Court. She then complied with Rule 41 in her redrafted abstract and brief, but then raised this question, which is a third assignment of error not set forth in her original assignment of errors. Our opinion is that we allowed her to amend her brief and abstract, but we did not give her any authority to include the third (additional) assignment of error and, therefore, Mr. Moore’s motion to strike this proposition from the case is sustained. Regardless of our action on the motion to strike, there is no merit to the argument of Mrs. Moore as to this aspect of the case.

AFFIRMED.

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

SUGG, J., took no part.


author: WALKER, Justice, for the Court:

text:
    John H. BIANCHI v. Gerald H. SCOTT.
    No. 50566.
    Supreme Court of Mississippi.
    Oct. 18, 1978.

      Charles Ed Harper, Jackson, Donald G. Kruger, Prentiss, for appellant.
    Craig Castle, Jackson, for appellee.
    Before SMITH, P. J., and WALKER and BOWLING, JJ.
   WALKER, Justice, for the Court:

Gerald H. Scott, proceeding under Mississippi Code Annotated section 91-1-27 (1972) filed a petition on November 12, 1976, in the Chancery Court of Jefferson Davis County, Mississippi, requesting the court to recognize Gerald H. Scott, James C. Wallace, III, and Maudella L. Wallace as the owners of an undivided four-ninths interest in a described 260 acre tract of land in that county. It was alleged that the three individuals were the heirs at law of Annetta L. Scott, deceased. Gerald Scott was the stepfather of James and Maudella Wallace.

Annetta Scott died intestate in Muskeg-on, Michigan, on January 12, 1971. On April 6, 1971, her husband pled nolo conten-dere to involuntary manslaughter, the count being that “Gerald H. Scott did kill and slay one Annetta L. Scott as the result of the gross and reckless use of a firearm, to-wit, a shotgun.” On June 17, 1971, the probate court of Muskegon, Michigan, entered an order decreeing Gerald Scott, Mau-della Wallace and James Wallace the heirs of Annetta. Subsequently, a consent judgment was entered into between Scott through his guardian ad litem and the two children of Annetta. The judgment divided the Michigan assets of Annetta approximately equally between the three parties. No mention was made of real estate located in Mississippi in the judgment, inventory or any other pleadings filed in that cause.

Prior to a hearing upon Scott’s petition, John H. Bianchi filed a motion to intervene identifying himself as the owner of two oil, gas and mineral leases executed by James C. Wallace, III,, and Maudella L. Wallace, respectively. Scott waived objection to the intervention and Bianchi was allowed to file an answer which contained affirmative matter. Bianchi alleged that James C. Wallace, III, and Maudella L. Wallace were the sole heirs at law of Annetta L. Scott, deceased, and that Gerald H. Scott, husband of the deceased, was barred from inheriting any interest in the property of the deceased because he had willfully killed Annetta L. Scott. Bianchi also averred that Gerald H. Scott did not inherit any interest in the Mississippi lands because of a consent decree entered by the Circuit Court of Musk-egon County, Michigan, which purported to preclude Scott from any further participation in the estate of Annetta L. Scott.

Scott filed an amendment to the original petition which responded to the affirmative matter. The petition averred that Scott was insane at the time of the altercation between Scott and his wife; that Scott had been adjudicated as mentally ill on October 5, 1970, and not discharged from convalescent status at the time of the altercation. Scott further averred that the death of Annetta L. Scott resulted from the accidental discharge of a shotgun during the course of the altercation and that the action of Scott was not willful, malicious, or premeditated in any respect. Scott denied that the consent decree in Michigan affected the Mississippi property. Scott attached to his amended petition certain proceedings relating to the insanity matter, the criminal charges against him in Michigan, and the proceedings in probate in Michigan.

At trial, in addition to the documentary evidence entered by stipulation, testimony was offered by Scott to explain the circumstances of the killing. Bianchi testified as an adverse witness, and Jerome R. Sanford, an attorney from Muskegon, Michigan, testified. Bianchi objected to testimony by Scott which he argues was an attempt to vary the terms of a judgment. This was overruled. Also, while offering no witnesses himself, he objected to the testimony of Gerald H. Scott under the “Dead Man Statute,” Mississippi Code Annotated section 13-1-7 (1972), claiming that Scott was attempting to testify in support of a claim against the estate concerning events which occurred during the lifetime of the deceased. This objection was also overruled and the court below held for Scott. We affirm.

I.

Bianchi assigns as error that “The trial - court erred in admitting parol evidence to vary the terms of a previously entered consent settlement decree in the Michigan court when such decree is not ambiguous or affected by fraud, accident or mistake.”

The major thrust of Bianchi’s argument is that the testimony of Scott that he “did not know his wife owned Mississippi property when the consent decree was entered” is an attempt to vary the terms of the Michigan decree. This emphasis is misplaced, and the contention misleading.

The real inquiry is whether the Mississippi lands were a subject of the Michigan decree. The decree itself makes no reference whatever to Mississippi lands. It provides in pertinent part:

Neither admitting nor denying the allegations of the complaint heretofore filed in this cause, Jerome R. Sanford, Administrator of the estate of Annetta L. Scott, deceased, and attorney for plaintiffs James C. Wallace III. and Maudella L. Wallace; Norman C. Halbower, attorney for defendant Gerald Scott, and Alan Ra-poport, Guardian ad Litem of Gerald Scott, agree to the following consent judgment:
Pursuant to the consent of the parties, and the Court being satisfied as to the reasonableness of the settlement, it is ORDERED and ADJUDGED:
1. That the estate of Annetta L. Scott, deceased is hereby awarded the proceeds of the $5000 life insurance policy on her life with the Great American Insurance Company, free of any claim of defendant Gerald Scott.
2. Defendant Gerald Scott shall have the savings account held jointly by him and Annetta L. Scott, in the Hackley Union National Bank and Trust Company, free of any claim of the estate of Annetta L. Scott, deceased, or her heirs.
3. That the estate and the heirs of Annetta L. Scott shall transfer all interest in the following described premises to Gerald Scott, the defendant:
Lots 2 and 3, Block 6, Village of Baldwin, Lake County, Mich.
And recording of this judgment shall operate to pass to Gerald Scott all interest of the estate of Annetta L. Scott, or her heirs, in the above described premises.
4. That defendant Gerald Scott shall convey to the estate of Annetta L. Scott, deceased, all of his interest to the following described premises:
Lot 1, Block 6, Village of Baldwin,
Lake County, Michigan.
And recording of this judgment shall operate to pass to the estate of Annetta L. Scott, deceased, all interest of Gerald Scott in the above premises.
5. That the estate of Annetta L. Scott, deceased, is awarded all of the household furniture of the parties, except a color TV set and organ, which shall be the property of Gerald Scott, defendant.
6. That the provisions made in this judgment in favor of the estate of Annet-ta L. Scott, deceased, shall be deemed to include a settlement for the estate’s claim under the Unlawful Death Act of Michigan; and the above provisions are in lieu of any claim of Defendant as heir of Annetta L. Scott.
/s/ James F. Schoener
Circuit Judge

Item No. 6 provides in part “. and the above provisions are in lieu of any claim of Defendant [Scott] as heir of An-netta L. Scott.”

Bianchi contends that by virtue of this language in the consent decree, Scott relinquishes all rights as an “heir” of his wife, Annetta, and thus did not inherit one-third of Annetta’s interest in the 260 acre tract in Mississippi as he would have done, absent the decree, under the laws of descent and distribution of Mississippi. Mississippi Code Annotated section 91-1-7 (1972).

It is well settled that a judgment of the courts of one state cannot directly affect and determine title to real property in another state. Lyle Cashion Co. v. McKendrick, 227 Miss. 894, 87 So.2d 289 (1956). We have, however, held that where a court of another state has jurisdiction over the parties themselves, in personam, that court may determine their legal rights with respect to the property as between them, even though the court is without power to act directly upon the title to foreign real estate. In such a case, we have allowed the foreign decree to be pled in this State, and have applied the doctrine of collateral es-toppel if warranted by the facts. Cuevas v. Cuevas, 191 So.2d 843, 847 (Miss.1966).

In order to determine whether the doctrine of collateral estoppel is applicable in this case, we must construe the Michigan judgment “in light of the situation of the court, what was before it, the accompanying circumstances, and what was intended to be decided.” Gillum v. Gillum, 230 Miss. 246, 92 So.2d 665 (1957). In that case we pointed out:

“ * * * As a general rule, the meaning, effect, and legal consequences of a judgment must be ascertained from its own provisions and language, if possible. If, however, the judgment is ambiguous or obscure, or a satifactory [sic] interpretation cannot be determined from the judgment itself, the entire judgment roll or record may be looked to, examined, and considered for the purpose of interpreting the judgment and determining its operation and effect.” (230 Miss. at 255, 92 So.2d at 669 quoting from 49 C.J.S. Judgments § 436 p. 867). (Emphasis added).

The Michigan pleading entitled “Petition for Authority to Settle Interest of Estate of Deceased in Real Estate, Bank Account and Life Insurance” provided in part:

4. That on the 30th day of September, 1970, husband Gerald Scott was adjudicated mentally ill by the Muskégon County Probate Court, and at the time he shot deceased had not been officially declared sane; and the circumstances under which he shot the above deceased were irrational, not having been preceded by any significant argument.
5. That this Administrator believes, and the heirs of Annetta L. Scott agree, that there is a substantial possibility that in the pending murder trial against Gerald Scott, he will be acquitted by reason of insanity.
6. That if Gerald Scott is acquitted by reason of insanity, he will become the sole owner of the proceeds of an insurance policy, Hackley Union National Bank joint savings account, and the undivided interest of deceased in the Village of Baldwin parcels of land; and the estate of Annetta L. Scott would then consist solely of a claim under the Michigan Unlawful Death Act limited to the $2500 funeral bill, inasmuch as Annetta L. Scott died without conscious pain and suffering and no one was dependent upon her for support.
7. On the other hand, if Gerald Scott, husband of deceased, is convicted of murder or manslaughter, he would still be entitled, under Michigan law, to one-half of the joint bank account, and an undivided one-third interest in the Village of Baldwin properties held jointly with deceased and her mother.
8. That petitioner, with the approval of the two heirs, proposes to settle with the surviving husband, Gerald Scott, the disputed assets in the estate — namely, the Hackley Union National Bank savings account, the life insurance policy, and the Village of Baldwin real estate — in such a way that the estate of Annetta L. Scott receives the $5000 life insurance policy and Gerald Scott’s interest in Lot 1 of Block 6 Village of Baldwin, allowing Gerald Scott the Hackley Union National Bank savings account and deceased’s interest in Lots 2 and 3, Block 6, Village of Baldwin.
9. That the effect of the above settlement would be to give the estate of An-netta L. Scott disputed assets worth $9000 — in addition to other inventoried assets that were in her name alone — giving Gerald Scott, her husband, disputed assets in the amount of about $4000.
WHEREFORE, petitioner asks this Court for authority to enter into consent judgments in Circuit Court giving the estate of Annetta L. Scott the $5000 Great American insurance policy on her life, Gerald Scott’s interest in Lot 1, Block 6, Village of Baldwin, and a share of disputed furniture, leaving to Gerald Scott the interest of Annetta L. Scott in Lots 2 and 3, Block 6, Village of Baldwin, plus the interest of deceased in the Hack-ley Union National Bank savings account and also a share of the furniture of the parties. (Emphasis added).

Looking to the Michigan judgment, the judicial opinions accompanying the judgment, and the pleadings in the cause, it becomes evident the parties did not intend that the Michigan consent decree would cover Mississippi lands. The parties went to great pain to list the assets of Annetta Scott, all of which were located in Michigan; no Mississippi lands were mentioned. Further, the consent judgment was a compromise whereby each of the three parties, Scott, James, and Maudella received essentially equal portions of the assets therein listed.

We also note that Scott was named a defendant in the suit at a time when he had been declared mentally ill by the Michigan courts. He did not participate personally in the negotiations leading to the consent judgment and there is no evidence in the proceedings that his appointed guardian ad litem or the other participants had any knowledge of the Mississippi lands.

Having considered the record as a whole, we reach the inescapable conclusion that none of the parties ever contemplated the consent judgment would apply to any assets other than those enumerated in the judgment and located in Michigan. The doctrine of collateral estoppel is not applicable under the evidence presented.

Therefore, Scott’s testimony was immaterial and the assignment of error with regard to parol evidence has no merit.

II.

The appellant next contends it was error to allow Scott to testify since he was a claimant to Annetta’s estate and his testimony was in violation of Mississippi Code Annotated section 13-1-7 (1972) (the Dead Man’s Statute). He also contends the chancellor was in error in finding as a matter of fact that Scott did not willfully take the life of his wife. Bianchi’s contention in this regard is based on Mississippi Code Annotated section 91-1-25 (1972) which provides that “If any person wilfully cause or procure the death of another in any way, he shall not inherit the property, real or personal, of such other . . . .”

The only evidence in the entire record going to the issue of willfulness in the killing was Scott’s criminal plea and his testimony. The plea was that of nolo con-tendere, which, under Michigan law, admits no facts as to the occurrence. Further the plea was to charges of involuntary manslaughter which per se carries no indication of willfulness. Thus it is answer enough to Bianchi’s contention under the Dead Man Statute that if Scott’s testimony is excluded there is no evidence at all as to how the killing occurred and Bianchi must fail in his contention that Scott is barred from inheriting by Mississippi Code Annotated section 91-1-25 quoted above. On the other hand, if Scott’s testimony is considered, he testified the shooting was accidental and there was no evidence to the contrary. Moreover, although the prohibition of the Dead Man Statute was not specifically considered, we held in Henry v. Toney, 211 Miss. 93, 50 So.2d 921 (1951) that the testimony of the accused spouse is admissible, stating:

After the appellees rested their case, the appellant, Henry, offered to testify to the circumstances of the killing, and in explanation of his plea of guilty, but objection thereto was sustained. However, a record of his testimony was made and appears in the record. His story, if believed, showed that he was not even guilty of culpable negligence under our law, much less of a willful killing. His evidence should have been admitted.
On a new trial of this case, all evidence which will throw any light on the issue of whether or not this killing was willful is competent and admissible, without regard to the action of the Ohio court. (211 Miss, at 99-100, 50 So.2d at 924).

We hold the court did not err in its determination that Scott did not willfully kill his wife and further hold the spouse’s testimony in such a case is an exception to the Dead Man’s Statute, Mississippi Code Annotated section 13-1-7 (1972).

For the above reasons, the judgment of the trial court is affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and BROOM, LEE, BOWLING and COFER, JJ., concur.

SUGG, J., took no part.


text:
    Donald Ronnie CUMBEST v. Bedford HARRIS.
    No. 50670.
    Supreme Court of Mississippi.
    Oct. 18, 1978.

      Lester C. Franklin, Jr., Pascagoula, for appellant.
    Alfred Lee Felder, Pascagoula, for appel-lee.
    Before PATTERSON, C. J., ROBERTSON and WALKER, JJ.
   WALKER, Justice, for the Court:

This is an appeal from an order of the Chancery Court of Jackson County, Mississippi, dismissing appellant Cumbest’s bill of complaint.

The sole question presented is whether the personal property, which was the subject of the controversy, is of such peculiar, sentimental or unique value as to come within the exception to the general rule that a chancery court will not ordinarily decree specific performance of a contract involving personal property.

Cumbest’s bill of complaint and exhibits attached thereto aver, among other things, that on May 19, 1976, Donald Ronnie Cum-best and Bedford Harris, respectively, contracted for the sale and purchase of certain hi-fi equipment via a bill of sale. An option agreement was also signed on the same date allowing Cumbest to repurchase the audio equipment on or before 5:00 p. m., Monday, June 7, 1976. The language of these two instruments is clear and unambiguous and both were signed and notarized.

The complainant averred that the transaction was intended to be a loan, in substance, and that the audio equipment was to serve as collateral. It also states that from early morning on Monday, June 7, 1976, until late that evening every effort humanly possible was made to pay the required amount of money to the defendant. The defendant purposely avoided meeting with him at various places during the day, thereby fraudulently and deliberately evading the receipt of the money as contracted for in The Option to Repurchase Agreement. In desperation the complainant deposited the required amount of money with the defendant’s landlord on the evening of June 7, 1976, and approximately a week later initiated this lawsuit seeking equitable relief. Subsequently, the landlord, Mrs. Neuhaus, turned the money over to her attorney, Mr. Schroeder. Both of these parties have been joined as defendants in this lawsuit and the money paid into the registry of the court.

The amended complaint further averred that the complete assemblage of the audio equipment took several years for the appellant to acquire and because of the unique nature and irreplaceability of much of the equipment the court should assert jurisdiction of the case and grant such equitable relief as it deems appropriate. Finally, the complainant prays for the defendant to be enjoined against the disposition, sale or removal of the property and for the court to mandate specific performance of the contract to reconvey.

The chancellor allowed a hearing solely on the question of whether the property was of such sentimental value or so unique as to come within the exception to the general rule that the chancery court will not ordinarily decree specific performance of a contract involving personal property.

Cumbest was the only witness to testify at the proceeding. The property involved was a stereo system allegedly valued at $10,000. The system consisted of twenty separate parts accumulated over a period of fifteen years. There was testimony that Cumbest had acquired experience in stereophonic and recording equipment over the years by working in hi-fi stores in Oxford and Gulfport. He also did some recording of a professional nature. According to him, the items involved were a part of a recording studio which consisted of carefully matched parts, rather than a mere stereo set as contended by the defendant. The parts involved could not function alone, and could not be matched to just any standard stereo system. Cumbest testified that many of the integral parts of the system could no longer be replaced, e. g., the main reel to reel recorder; a stereo quadraphonic four channel logic decoder which, according to Cumbest, was originally on order for two years; a stereo three channel crossover preamplifier with base boost and turn over frequency control; some speaker components, and the particular diamond needle in the turntable system. Other equipment was personally designed and built by Cum-best himself. He testified that he purchased the parts and assembled the speakers to accommodate his particular system, and that the cabinets were designed and handmade by him after extensive study and research to meet the needs of his particular system.

I designed and built each one of the [7] speakers myself. I ordered each part and component and especially ordered the cross-over preamplifier and there isn’t another one like it, and the speakers I built.

In explaining construction of certain speaker systems, Cumbest testified:

I designed and read over 15 articles on midfrequency sound and quadrosonic sound and what would produce the best and I ordered the speakers and built the cabinets to match the speakers. I cut each piece of wood. They are covered with rosewood type material and made specially to place in each corner for quadraphonic sound.

In other testimony he pointed out that even those items which are still available are of the type which require special order purchases and that in obtaining them originally there were six months to two years waiting periods. As to sentimental value, Cumbest testified:

As far as the snetimental [sic] value of the equipment, it is very great, blood sweat and tears have gone into it, I spent 15 years acquiring it piece by piece and I would never seel [sic] it at any price

Defendant put on no witnesses to contradict Cumbest’s testimony.

As the chancellor recited in his order, the general rule is that, ordinarily, specific performance will not be decreed if the subject matter of the contract sought to be enforced is personalty. However, this general principle is subject to several well recognized exceptions, such as: (1) Where there is no adequate remedy at law; (2) Where the specific articles or property are of peculiar, sentimental or unique value; and (3) Where due to scarcity the chattel is not readily obtainable. 81 C.J.S. Specific Performance §§ 81-83 (1977). These exceptions are partly founded on the principle of the inadequacy of a remedy at law and the remedy may, in a proper case, be allowed where damages are not readily ascertainable.

“The tests to determine whether or not specific performance of a contract should be granted are the same in case of contracts for the sale of personalty as in the case of contracts for the sale of realty, namely, whether the damages for the breach are the equivalent of the promised performance, and whether the remedy at law is inadequate.” 81 C.J.S. Specific Performance § 80 (1977). Such equitable relief is justified by the fact that the legal reme dy of replevin is subject to defects of procedure which prevent the successful plaintiff from invariably recovering possession of the chattel. There is also considerable authority, old and new, showing liberality in the granting of an equitable remedy. 11 Williston Contracts § 1419 (3d ed. 1968); Miss. Code Ann. § 75-2-716 (1972).

In the present case, there was un-contradicted testimony that some components of the system were irreplaceable. Other components were replaceable but only with difficulty and long waiting periods. Additionally, Cumbest testified that the system was acquired over a fifteen-year span and that he personally designed and built parts of it specifically to match that particular system. Based on that testimony, we must conclude the property had both a unique value and falls into the category of property which is not readily obtainable due to scarcity.

For the above reasons, we hold that the chancellor erred in not finding that the property was sufficiently unique to justify the equitable jurisdiction of a chancery court. The cause will be remanded for a hearing on the merits.

REVERSED AND REMANDED FOR A HEARING ON THE MERITS.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and BROOM, LEE, BOWLING and COFER, JJ., concur.

SUGG, J., took no part.


author: ROBERTSON, Presiding Justice,

text:
    GULF GUARANTY LIFE INSURANCE COMPANY v. Lula THOMPSON.
    No. 50654.
    Supreme Court of Mississippi.
    Oct. 18, 1978.

      Butler, Snow, O’Mara, Stevens & Canna-da, W. Scott Welch, III, Christy D. Jones, Jackson, for appellant.
    James P. Cothren, Jackson, for Lula Thompson.
    Stennett, Wilkinson & Ward, Shelby R. Rogers, Jr., Jackson, for First Miss. Nat. Bank.
    Before ROBERTSON, P. J., and WALKER and BROOM, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

Gulf Guaranty Life Insurance Company appeals from a judgment entered against it by the Circuit Court of the First Judicial District of Hinds County (sitting without a jury) in favor of Lula Thompson, the widow of W. J. Thompson, on a certificate of credit life insurance for $20,000.

W. J. Thompson and his wife, Lula G. Thompson, renewed their $40,000 note to the First Mississippi National Bank on October 24, 1975. The note became due 52 days after its date, that is, December 15, 1975. On October 24, 1975, a certificate of credit life insurance for $20,000 on the life of W. J. Thompson was issued on a Gulf Guaranty form by an officer of First Mississippi, who was also the agent of Gulf Guaranty.

W. J. Thompson, 47 years of age, in the hospital for a toe infection, suddenly died on December 23,1975. When Gulf Guaranty refused to pay, First Mississippi, as the beneficiary in the certificate of insurance, brought suit against Gulf Guaranty. Later, Lula Thompson, widow of W. J. Thompson, brought suit against both Gulf Guaranty and First Mississippi.

The two suits were consolidated for trial, and after trial was begun First Mississippi took a non-suit against Gulf Guaranty. After a full trial, the lower court rendered judgment against Gulf Guaranty for $20,-000, plus interest, and dismissed Thompson’s suit against First Mississippi.

After Gulf Guaranty perfected its direct appeal, Lula Thompson filed a cross-appeal, requesting judgment against First Mississippi in the event this Court should find Gulf Guaranty not liable.

The single assignment of error of Gulf Guaranty is:

THE TRIAL COURT ERRED IN HOLDING THAT A CERTIFICATE OF CREDIT LIFE INSURANCE ON GULF GUARANTY LIFE INSURANCE COMPANY WAS IN FULL FORCE AND EFFECT ON THE LIFE OF W. J. THOMPSON ON DECEMBER 23, 1975.

Gulf Guaranty argues that the $20,000 certificate of credit life insurance issued on the life of W. J. Thompson on October 24, 1975, in favor of the creditor, First Mississippi, was level term insurance for exactly 52 days, no more and no less, and that upon the expiration of 52 days on December 15, 1975, the certificate of insurance lapsed. Gulf Guaranty contends that the grace period contained in the master policy issued by Gulf Guaranty to First Mississippi covers only insurance on an installment or “monthly reducing” loan, and not insurance on a “straight” or one-payment loan.

The master policy provides:

GRACE PERIOD
“13. In event of default in any payment of the principal of the loan or any part thereof when due on a monthly reducing loan, the company shall be considered on the risk to the same extent as if such defaulted payment were not then past due, provided no part of the unpaid balance of principal is more than sixty (60) days past due, but the company reserves the right to deduct from the proceeds of a death claim an additional pro-rata premium for such coverage. If more than sixty (60) days past due, the company’s liability shall be limited to what it would be if each payment due on the loan had been paid on or before its due date.”

Gulf Guaranty’s argument that this provision applies only to insurance on an installment loan, the premium for which is exactly V2 of the premium for insurance on a straight, or one-payment loan, flies in the teeth of the general rule.

14 Appleman, Insurance Law and Practice, (1944), § 7961, at page 203, says:

“The general rule seems to be, therefore, that if the insured dies during the grace period, his death is covered.”

45 C.J.S. Insurance § 625, at page 486, expresses it in this way:

“Where an extension of time by way of grace is allowed by the terms of a life insurance policy, by a custom of the insurance company, or by statute there can be no forfeiture for nonpayment until the period of grace has expired. The grace clause is not for the purpose of changing the period when the premium ought to be paid, but to provide a period within which default in payment may be corrected and retrieved without complete loss of the policy.”

See also, Bensinger v. California Life Insurance Co., 459 S.W.2d 511 (Mo.App. 1970); Iowa State Travelers Mutual Association v. Cadwell, 113 Ga.App. 128, 147 S.E.2d 461 (1966); American Heritage Life Insurance Co. v. Cook, 183 So.2d 751 (Fla.Dist.Ct.App. 1966); Blue Cross-Blue Shield of Alabama v. Colquitt, 42 Ala.App. 471, 168 So.2d 251 (1964), cert. denied, 277 Ala. 696, 168 So.2d 256 (1964).

The language of the “grace period” provision in the case at bar, to say the least, is capable of two reasonable interpretations. The one, most favorable to the insured, is that the language before the “or”, “In event of default in any payment of the principal of the loan”, makes the grace period applicable to any loan, and the language after the “or”, “any part thereof when due on a monthly reducing loan”, makes the grace period apply to a “monthly reducing loan” if any part whatsoever was in default.

This Court has said over and over again that doubtful or ambiguous language should be construed more strongly in favor of coverage. In Griffin v. Maryland Casualty Co., 213 Miss., 624, 57 So.2d 486 (1952), we said:

“Where it is susceptible of two reasonable interpretations, that one will be adopted which sustains the claim for indemnity. New York Life Insurance Company v. Blaylock, 144 Miss. 541, 110 So. 432.
“If ambiguous, it should be construed most strongly in favor of the insured. United States Fidelity and Guaranty Company v. Citizens State Bank of Moorhead, 150 Miss. 386, 116 So. 605; New York Life Insurance Company v. Nessossis, 189 Miss. 414, 196 So. 766.
“If the language is doubtful or ambiguous, a reasonable construction in favor of the insured follows. Great American Insurance Company v. Bass, 208 Miss. 436, 44 So.2d 532.” 213 Miss. at 632, 57 So.2d at 489.

We also affirmed this rule in Travelers Insurance Company v. General Refrigeration & Appliance Company, 218 So.2d 724 (Miss. 1969), and Aetna Life Insurance Company v. Evins, 199 So.2d 238 (Miss. 1967).

Since the .certificate of insurance issued on October 24, 1975, was still in effect, under the Grace Period provision of the master policy, on December 23, 1975, when W. J. Thompson passed away, the judgment against Gulf Guaranty Life Insurance Company is affirmed.

AFFIRMED ON DIRECT AND CROSS APPEALS.

PATTERSON, C. J., SMITH, P. J., and WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.

SUGG, J., took no part.


author: TORBERT, Chief Justice. BEATTY, Justice

text:
    J. Graydon HALL v. C. R. POLK and Sybil Polk.
    77-91.
    Supreme Court of Alabama.
    Sept. 29, 1978.
    Charles C. Partin, III, Bay Minette, for appellant.
    Robert A. Wills of Owen, Ball & Wills, Bay Minette, for appellees.
   TORBERT, Chief Justice.

This is an appeal by Graydon Hall, defendant below, from a decree of the Baldwin County Circuit Court declaring certain land to be a public road and enjoining Hall from obstructing the same.

The land at issue is a thirty-foot strip of property located in Baldwin County, Alabama, which lies between Lot 10 of the Steele Subdivision and Lot 1 of the Piney Woods Subdivision. Both subdivisions lie in a part of what is known as Lot 1 of the Marone Cook Division of the Lamey Grant.

On June 14, 1926, Thomas A. Steele conveyed the southern portion of Lot 1 of the Marone Cook Division to H. J. Champion. In this conveyance Steele reserved title to the thirty-foot strip in controversy for a “public road.” In 1932 Steele filed for record the plat of the Steele Subdivision. This plat shows the disputed roadway running from the west side of Lot 10 to the Bon Secour River.

Champion conveyed title to the acreage south of the Steele Subdivision to Claude Peteet. In 1949, Peteet conveyed this land and Lots 8, 9, and 10 of the Steele Subdivision to C. P. Taylor and John G. Evans, who later subdivided this property into Piney Woods Subdivision. The deed reflects the reservation of the thirty-foot strip for public road purposes as does the plat for Piney Woods Subdivision filed in 1953. Taylor and Evans attempted unsuccessfully to vacate the road in 1950. In 1967, they sold the property to Hubert Pair and gave him a quitclaim deed to the thirty-foot strip, because they were not sure whether they owned the road or not. Appellant Hall then purchased Lot 1 of Piney Woods and the thirty-foot strip from Pair in 1976. Hall maintains a barricade across the western end of the roadway which obstructs public access.

Appellees C. R. and Sybil Polk own land abutting Camellia Del Road west of the intersection of Camellia Del and the disputed roadway. They sought to enjoin Hall from obstructing their access to the Bon Secour River by way of this road. Appel-lees claim a special interest in the availability of access across the disputed strip due to the proximity of their property to the river. Without the road in question, the Polks will have to take a more circuitous route to reach the Bon Secour River.

After a careful consideration of the record, we affirm the decision of the court below.

Hall contends that the thirty-foot strip of property was not sufficiently dedicated as a public road. In Alabama, dedication of a public way may be accomplished by a statutory proceeding or common law dedication. Witherall v. Strane, 265 Ala. 218, 90 So.2d 251 (1956). A common law dedication consists of acts indicative of the intent of the owner to dedicate property to a public use and acceptance by the public. Trustees of Howard College v. McNabb, 288 Ala. 564, 263 So.2d 664 (1972); Moragne v. City of Gadsden, 170 Ala. 124, 54 So. 518 (1911); Smith v. City of Dothan, 211 Ala. 338, 100 So. 501 (1924); Manning v. House, 211 Ala. 570, 100 So. 772 (1924); Still v. Lovelady, 218 Ala. 19, 117 So. 481 (1928). The owner must unequivocally intend to create a public right exclusive of his own. O’Rorke v. City of Homewood, 286 Ala. 99, 237 So.2d 487 (1970). Further, intent to dedicate may be shown by a deed to an individual where the owner declares part of his land reserved to a public use. Davidson v. City of Birmingham, 212 Ala. 123, 101 So. 878 (1924).

The evidence below is sufficient to justify a finding of intent to dedicate on the part of the owner of land. Not only did Thomas A. Steele reserve the roadway for public use in his 1926 deed, but he included it on the plat of Steele Subdivision in 1932, although the surveyor’s certificate did not refer to it as such. The plat clearly shows the road which runs west from the river for the length of the waterfront lots.

In addition to a finding of intent to dedicate, public acceptance by use must be shown. McNabb, supra, Moragne, supra. There was testimony by Dwight Steele to the effect that the public had used the road to get to the river since 1906, and due to this, his father Thomas Steele reserved it for the public in a 1926 conveyance. Harry Weeks, a neighboring property owner testified that he had been familiar with the property since 1945 and that he was aware that the road was used by the public. Jasper Heaton and C. R. Polk stated that they had both used the road since the early 1950’s. The evidence shows that the public has used the thirty-foot strip as access to the Bon Secour River for well over fifty years. The evidence as to the reservation of the road for public use by deed and the actual use by the public, supports a finding of effective dedication.

An individual may bring an action to prevent the obstruction of a public road where he has suffered damages different in kind and degree from those suffered by the public in general. Holz v. Lyles, 287 Ala. 280, 251 So.2d 583 (1971); Ayers v. Stidham, 260 Ala. 390, 71 So.2d 95 (1954); Sandlin v. Blanchard, 250 Ala. 170, 33 So.2d 472 (1947). Hall claims that the Polks failed to prove special injury as a result of the obstruction of the thirty-foot strip that would entitle them to an injunction. The law clearly states that if an obstruction forces the owner of land abutting on the obstructed road into a circuitous route to the outside world or denies convenient access to a waterway, he has suffered special injury. Holz, supra; McPhillips v. Brodbeck, 289 Ala. 148, 266 So.2d 592 (1972); Purvis v. Busey, 260 Ala. 373, 71 So.2d 18 (1954). Hall maintains that since the Polks’ property does not abut the obstructed roadway, they have not suffered special injury, citing Ayers v. Stidham, supra. Ayers is distinguishable from our case on its facts. There plaintiff’s land did not abut on the obstructed road and was some distance from it. He was prevented from using a road as a means of getting to a cemetery where members of his family were buried. The evidence showed that the road was no longer used for access to the cemetery and further, that three other roads provided access. The court held that under the facts, the plaintiff failed to prove special injury.

There is evidence in the record that the Polks own and live on land that abuts some 1500 feet on the west side of a county road, known as Camellia Del Road, opposite the intersection of the west end of the roadway in dispute. The location of this land is shown by the following testimony:

Q. Okay. And approximately where on the Camellia Del Road in relationship to this strip do you live?
A. Well, this road here — this public access road runs east and west. When you come off of the river up through here on this access and cross the county road you enter my drive and continue on west about 300 feet exactly adjacent.

The Bon Secour River lies directly east of the Polks’ land, and there is evidence that the obstructed roadway is the only direct, convenient access from their property to the river. Without it they will be forced to use the nearest access which is four or five miles away. This access offers them a valuable right as landowners in close proximity to the river.

In Holz v. Lyles, supra, this court found special injury by obstruction of an aceéss to a waterway which entitled a property owner to an injunction. There, appel-lee owned two lots, one fronting on Magnolia Street in Baldwin County and one directly behind the front lot. Magnolia Street provided direct access for the two lots to Palmetto Creek although only one of the lots abutted the street. The court enjoined obstruction of Magnolia Street saying:

We do not think appellee or his occupants should be required to take a more circuitous route to reach the creek because of the arbitrary and unlawful acts of appellants. This inconvenience, we think, is peculiar and special to appellee in view of the proximity of his lots and premises to Palmetto Creek. He is entitled conveniently to enjoy the recreational advantages of his lots in their geographical proximity to Palmetto Creek.

This reasoning is applicable in our case. One of the lots in Holz did not abut the blocked roadway and another, though more circuitous, route to the creek existed. Nevertheless, the court found special injury to appellee, different from that of the general public. Similarly in our case, the Polks’ land does not directly abut the blocked roadway and a more circuitous route is available. However, in view of the proximity of the Polks’ land to the Bon Secour River and the lack of convenient access, we would not be justified in reversing the lower court’s finding of special injury-

Hall asserts that because part of the evidence was submitted to the trial court in the form of deposition, the usual rule that a verdict will not be disturbed unless plainly erroneous is not applicable. The rule has long been established to the contrary that where the trial court’s determination is based on evidence, part of which was offered orally, and part by deposition, its finding has the effect of a jury verdict and will not be disturbed on appeal unless plainly and palpably erroneous and contrary to the great weight of the evidence. Jones v. Moore, 295 Ala. 31, 322 So.2d 682 (1975); Kendall v. Kendall, 268 Ala. 383, 106 So.2d 653 (1958); St. Paul Fire & Marine Ins. Co. v. Johnson, 259 Ala. 627, 67 So.2d 896 (1953). In answer to Hall’s contention that the decision is against the great weight of the evidence, our examination of the record reveals that the evidence is sufficient to warrant a finding of dedication of the thirty-foot right of way as a public road.

Finally, Hall contends that the admission of certain hearsay statements made by Dwight Steele constitutes reversible error. Steele was asked the following question concerning his father’s intent in reserving the road for the public, which was objected to as calling for hearsay:

Q. All right. I’m going to ask you did your father ever inform you of the purpose of that right of way?

The trial court permitted the following response:

A. He said he was getting tired of folks coming into his house .
THE COURT: No, the purpose of it.
A. So people could get to the water without them coming in and waking him up in the morning. So he give it to the public, for a public road in there.

Even if the admission of a hearsay statement is technical error, the error is rendered harmless by other evidence to the same effect received without objection. Rosen v. Lawson, 281 Ala. 351, 202 So.2d 716 (1967); Schoen v. Sehoen, 271 Ala. 156, 123 So.2d 20 (1960); Randolph v. Kessler, 275 Ala. 73, 152 So.2d 138 (1963); Dillard v. Alexander, 277 Ala. 202, 168 So.2d 233 (1964). The reservation of a thirty-foot public road in his deed and the appearance of the road on the plat are competent evidence to the effect that Thomas Steele intended to dedicate a public road. The hearsay evidence was received elsewhere in this case, and unless the error complained of has injuriously affected the substantial rights of the parties, this court will not reverse a judgment on appeal.

The decision of the Baldwin County Circuit Court is hereby affirmed.

AFFIRMED.

BLOODWORTH, MADDOX, JONES, ALMON and SHORES, JJ., concur.

BEATTY, J., with whom FAULKNER, J., joins, dissents.

EMBRY, J., not sitting.

BEATTY, Justice

(dissenting):

The majority is correct in its initial statement of the law pertaining to special injury in obstructed roadway cases. In Ayers v. Stidham, 260 Ala. 390, 71 So.2d 95 (1954) it was stated:

When a road is shown to be a public road, a private individual is entitled to an injunction against . . . obstruction thereon when he has sustained special injury different, not merely in degree, but in kind from that suffered by the public at large, (emphasis added)

The reasoning behind this limitation is apparent. An obstruction to a public road is an injury to an infinite number of people; it is in effect a public nuisance which the government should initiate action against for the benefit of the public. To allow each individual who experienced inconvenience in access to a desired destination to successfully prosecute his own action would quite possibly lead to justice for no one. Only, then, when there is a special injury to an individual is that individual correct in bringing an action against such a nuisance.

Until today the cases have found the element of special injury satisfied only when the roadway abutting the complainant’s property was obstructed, and reasonable access to and from that property was denied as a result. These cases are correct because the owner of non-abutting property sustains an injury no different in kind from that of the general public. The majority, in fact, rely on these cases to show special injury, yet from its opinion it appears without dispute that the Polk property did not abut the obstructed road, and was not even within the same subdivision in which the obstruction occurred.

In Markstein v. City of Birmingham, 286 Ala. 551, 243 So.2d 661 (1971) an individual brought suit against the City of Birmingham for an obstruction to roadways serving her property. On demurrer her complaint was held bad in that she had not alleged that she was an abutting owner and that on its face her complaint showed she had reasonable access. We affirmed the trial court and in our discussion cited, among other cases, State ex rel. State Highway Commission v. Silva, 71 N.M. 350, 378 P.2d 595 (1963) which said:

If one has the same access to the road or highway upon which his property abuts as before the closing of a portion thereof and there remains a reasonable, even though more circuitous, access to the general highway system, his injury is the same in kind, even though greater in degree, as that suffered by the general public and is damnum absque injuria.

In the present case however the complainant’s property did not abut the obstructed road, hence the sole fact that they would have to take a more circuitous route to the river does not set them apart from the indefinite number of other individuals who may have likewise been inconvenienced. Therefore, complainants did not show the special injury which the law requires of an individual who brings an action against the obstruction of a public road. For this reason I am unable to agree with the majority and would reverse.

If it is the intent of the majority to change the law regarding special injury, and extend it beyond the boundary line our cases have previously marked, then it should squarely say so. But the effect of such a holding will be to allow any person who can show some inconvenience an action against a public nuisance. I do not believe that this is what the law has allowed up to now and. I find no reason in the majority opinion for changing the law at this time.

FAULKNER, J., concurs.


author: BEATTY, Justice.

text:
    BOARD OF WATER AND SEWER COMMISSIONERS OF the CITY OF MOBILE, a Public Corporation v. ALABAMA POWER COMPANY, a corporation.
    77-269.
    Supreme Court of Alabama.
    Sept. 29, 1978.

      Joe H. Little, Jr. and Christopher G. Hume, III, Mobile, for appellant.
    James J. Duffy, Jr., E. L. McCafferty, III and William C. Barclift, Mobile, for appel-lee.
   BEATTY, Justice.

This is an appeal by the Board of Water and Sewer Commissioners of the City of Mobile from a summary judgment against it and from a denial of its motion for reconsideration (59(e), ARCP) of that judgment. We reverse and remand.

On September 20, 1976 Alabama Power Company (APCO) filed a complaint against the Board of Water and Sewer Commissioners of the City of Mobile (the Board) seeking to recover $11,121.41 under the theory of unjust enrichment plus interest and penalties assessed against APCO by the Alabama Department of Revenue (the Department) for the period of September 1, 1969 to June 30,1972. This sum represented the liability of APCO to the Department under the Utility Gross Receipts Tax Act, Alabama Code of 1975, § 40-21-80 et seq.

That Act levies a direct tax upon each purchaser of utility services; however, all subject utilities are charged with the responsibility of receiving and remitting this tax to the Department by adding to each purchaser’s bill an amount equal to the tax imposed upon that purchaser. On the effective date of the Act, September 1, 1969, APCO began adding a charge, determined by a formula within the Act, to the monthly utility bill APCO sent to the Board. The Board, however, refused to pay the charge/tax, claiming to be exempt from September 1, 1969 to June 30, 1972 under certain exclusions within the Act, § 40-21-83(4). In response to APCO’s complaint the Board’s answer set forth this exemption, and also the statute of limitations and a general denial of APCO’s allegations. Later, on November 23, 1976 the Board moved for summary judgment based upon the statute of limitations found within the Act, § 40-23-18 (b). Summary judgment was denied. In due course the Board’s motion to dismiss the amended complaint was also denied. The Board then answered the amended complaint, realleging its original defenses and adding the defense of the Statute of Frauds. On August 31, 1977 APCO served upon the Board a written notice for summary judgment on its amended three-count complaint. This motion was filed with the circuit court register who then set a hearing for September 16, 1977. Meanwhile discovery proceeded under Rules 33, 34 and 36, ARCP. APCO’s answers to the Board’s interrogatories were filed September 7, 1977, the day of trial.

On September 7, 1977 the Board moved under Rule 37(a), ARCP to compel APCO to answer its Interrogatory No. 6. Although the trial court took the matter under submission, it never ruled on this motion. The court proceeded to hear argument on APCO’s motion for summary judgment. At this point APCO orally moved in open court to limit the theory of its previously filed written motion for summary judgment to the first count of its complaint. Apparently the trial court granted this oral motion. Summary judgment was ordered on this unjust enrichment count by written entry on September 23, 1977. The Board had previously filed and served on September 9, 1977 a Rule 59(e) Motion for Reconsideration. This motion was argued and taken under submission on October 21, 1977.

Notice of appeal from the summary judgment was filed January 13, 1978. APCO has moved this Court to dismiss the appeal as untimely in violation of Rule 4, ARCP. We disagree and hold the appeal was timely made.

This is the sequence of events central to our discussion of this motion:
September 7, 1977: APCO’s motion for summary judgment argued.
September 8-9, 1977: Board’s Motion for Reconsideration served, and filed in circuit court.
September 23,1977: Order granting summary judgment entered.
October 21, 1977; Oral argument heard on Board’s Motion for Reconsideration.
January 13, 1978: Notice of appeal filed by Board in circuit court.

APCO argues first that the Board’s Motion for Reconsideration filed September 9, 1977 was a nullity because at that point there was no order entered and thus nothing to reconsider, hence when judgment was entered on September 23, 1977 the Board had forty-two days in which to file notice of appeal and did not do so. While this argument has logical appeal it rests on the premise that the motion of September 9, 1977 was a nullity. In this they are mistaken. Rule 59(e) directs that:

[A] motion to alter, amend, or vacate a judgment shall be served not later than 30 days after entry of the judgment. (emphasis added)

It cannot then be argued successfully that the Board violated Rule 59(e) in serving the motion early. APCO itself admits in brief that the trial court displayed an inclination to grant its motion for summary judgment on September 7, 1977. A motion is timely even though made before the entry of an order if the court has previously indicated the order which it will make. 9 Moore’s Federal Practice, par. 204.12[4] at 962.

APCO cites Miller v. Shell Oil Co., 345 F.2d 891 (10th Cir. 1965), which held that a motion such as that filed here was not within the contemplation of any rule of procedure. However, the Tenth Circuit has reconsidered its position and now recognizes the validity of such a motion. See Director of Revenue, Colorado v. United States, 392 F.2d 307 (10th Cir. 1968).

Next APCO argues that even if it could have been viewed as a timely motion under Rule 59(e), the pending motion for reconsideration was impliedly denied when the written order was entered September 23, 1977. We find the order of September 23, 1977 granting summary judgment to APCO did not impliedly deny the Board’s 59(e) motion. On October 21, 1977 a hearing was held before the trial court at which both parties participated, at the conclusion of which the court took the motion under submission. Those events do not imply a denial of the motion. Cf. Director of Revenue, Colorado v. United States, supra; United States v. Pan American World Airways, Inc., 299 F.2d 74 (5th Cir. 1962); Partridge v. Presley, 88 U.S.App.D.C. 298, 189 F.2d 645 (1951) (motions for rehearings on new trials under 59(b)). Partridge, cited with approval in Director of Revenue, Colorado, supra, held that the entry of judg ment without more did not operate to overrule a motion, at least in the absence of a showing that a hearing was had on the motion or that the trial judge had consciously disposed of the matter raised by the premature motion. These cases are in keeping with the spirit of our rules. Rule 1, ARAP. Therefore, while we do not hold that an entry of final judgment cannot deny pending motions by appropriate language or actions of the trial court, we do hold that on these facts the motion was not denied by the September 23, 1977 entry of summary judgment. This result is consistent with the language of the rules. Rule 4(a)(3), ARAP assures that a timely Rule 59 motion will toll the time for making an appeal until denied by entry of an order in response to the motion or by operation of law pursuant to Rule 59.1. That rule provides:

No post-trial motion filed pursuant to Rules 50, 52 or 59 shall remain pending in the trial court for more than 90 days, unless with the express consent of all the parties, which consent shall appear of record, or unless extended by the appellate court to which an appeal of the judgment would lie, and such time may be further extended for good cause shown. A failure by the trial court to dispose of any pending post-trial motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period.
Rule 4(a)(3), ARAP provides that:
The filing of a post-trial motion pursuant to Rules 50, 52 and 59 of the Alabama Rules of Civil Procedure (ARCP) shall suspend the riinning of the time for filing a notice of appeal. ... If such post-trial motion is deemed denied because of its pendency in the trial court for more than 90 days, as provided in Rule 59.1 of the Alabama Rules of Civil Procedure, then the time for filing a notice of appeal shall be computed from the date of denial of such motion by operation of law, as provided for in Rule 59.1. . (emphasis added)

Unfortunately, neither side appropriately addressed the central issue of the date when the ninety-day period of Rule 59.1 began to run in this case. It appears that both sides assumed, erroneously, that the period began on the October 21, 1977 hearing date. This position ignores the obvious wording of the rules. It is plain that the Rule 59(e) motion was filed by defendant September 9, 1977 and it is the filing which tolls the time for taking the appeal. Thus, the ninety-day period of Rule 59.1 began the very next day on September 10, 1977 pursuant to Rule 6(a), ARCP.

The defendant’s novel argument that a new 59(e) motion was made at the October 21, 1977 hearing on the September 9th motion for reconsideration is unsupported by the record. Hence, on December 8, 1977, ninety days from September 9, 1977 (not including September 9) the defendant’s motion for reconsideration was denied by operation of law. The forty-two day period of Rule 4(a), ARAP thus began the next day, December 9, 1977, and ended January 20, 1978. As defendant filed notice of appeal January 13, 1978 his appeal was timely.

Summary judgment may be granted only when there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Studdard v. South Central Bell Telephone Co., 356 So.2d 139 (Ala.1978); Water Works, Gas & Sewer Board of the City of Oneonta v. Buchanan Construction Co., 294 Ala. 402, 318 So.2d 267 (1975); Birmingham Television Corp. v. Water Works, 292 Ala. 147, 290 So.2d 636 (1974).

At the hearing on the plaintiff’s motion for summary judgment the defendant admitted that there were no genuine issues of material fact as to Count One of the complaint. This is established by the trial court’s memorandum opinion:

[The Board] entered into able argument in opposition to the motion, but in so doing, admitted in open court that there were no genuine fact issues in connection with count one of the complaint.

Likewise, the plaintiff moved for summary judgment and therefore this Court on appeal is limited to deciding whether on the undisputed facts of this case the plaintiff was entitled to recover as a matter of law.

The heavy burden upon the movant in a motion for summary judgment is well settled. The Supreme Court in Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) and other courts in cases before and since instruct the trial court to look at the record on summary judgment in the light most favorable to the party opposing the motion. Additionally on a plaintiff’s motion for summary judgment based on the pleadings, allegations in the answer must be accepted as true. Day v. United Auto., Aerospace and Agr. Implement Workers of America, Local 36 of UMW, 466 F.2d 83 (6th Cir. 1972). Cf. McCombs v. West, 155 F.2d 601 (5th Cir. 1946) (unless by admissions, depositions, and other evidence introduced, it appears beyond genuine controversy otherwise).

The facts of this case show without dispute that APCO paid $14,482.68 to the Revenue Department in satisfaction of taxes allegedly incurred by the Board during the period of September 1,1969 to June 30, 1972, including interest. These taxes stemmed from the Utility Gross Receipts Act, Alabama Code of 1975, § 40-21-80 et seq.

Section 40-21-82 of that Act levies a tax against every utility in this state which is determined by the application of rates against gross sales or gross receipts from the furnishing of utility services and which is computed monthly with respect to each person to whom utility services are furnished. This tax, however, is not a direct tax upon the utility but in the plain wording of the statute: “. . . shall be conclusively presumed to be a direct tax on the purchaser precollected [by the utility] for the purpose of convenience and facility only.” Alabama Code of 1975, § 40-21-86. That same section prescribes the collection of the tax from the purchaser:

Every person engaged in or continuing within the state of Alabama in the furnishing of utility services subject to the tax herein levied shall add to the price or charge for such utility services to every purchaser thereof an amount equal to the prescribed percentage of the gross price or gross charge therefor and shall collect said amount from every purchaser of such utility services. . . . The provisions of this section that the tax herein levied shall be collected from the purchaser shall in no way relieve any utility of the tax herein levied; nor shall the inability, impracticability, refusal or failure so to collect from such purchaser the amounts provided herein relieve such utility of the tax herein levied.

It is clear that while these provisions levy a tax upon the purchaser of utility services, it is the utility which is looked to for the collection and payment of the tax. APCO claims that the Board was unjustly enriched when APCO was required to pay to the Department those taxes levied upon the Board. The Board, however, claims that it fell within one of the Act’s exclusions and therefore never owed the taxes APCO was required to pay to the Department. Specifically, the Board contends that it fell within Alabama Code of 1975, § 40-21-83(4):

There are hereby specifically excluded from the gross receipts or gross sales of a utility, upon which the tax herein levied is calculated, all portions thereof derived from the following:
(4) The furnishing of electricity, natural gas or domestic water for use or consumption by anyone, including any person or utility, engaged in the sale or resale of any such utility services in the regular course of business, in or for the direct production, generation, processing, storage, delivery or transmission of electricity, natural gas or domestic water, including but not limited to loss or waste of electricity, natural gas or domestic water thereby; .

The Board’s answer to APCO’s complaint further alleged that “[it] was and is a utility within the meaning of Section 1 of Act 21 [§ 40-21-80(a)(7)].” This definitional section defines a “utility” as:

Every person regularly engaged in furnishing utility services to another person or other persons in the state of Alabama, (emphasis added)

“Utility Services” as of September 1, 1969 was defined in § 188(1) of Tit. 51, Ala.Code (1973 Cum.Supp.) (§ 40-21-80(a)(8)) and includes “domestic water.”

Previously in its answer to APCO’s complaint the Board alleged:

All or part of the electricity furnished to this defendant . . . were used in the direct production, generation, processing, storage, delivery or transmission of domestic water .

Thus taking the allegations of the answer as true and finding nothing in the affidavits or discovery materials that alter our evaluation of those allegations we find that the Board was a utility which used the electricity furnished it in the production, etc. of domestic water and thus literally fell within the exclusion of § 40-21-83(4) which specifically excludes from the gross receipts or sales upon which the tax is levied the portions of the gross sales or receipts derived from:

The furnishing of electricity, for use or consumption by anyone, including any person or utility . . . in or for the direct production, generation, processing, storage, delivery or transmission of . domestic water .
(emphasis added)

This construction is strengthened by the presence within the section of exclusions of the immediately preceding provision which excludes wholesale sales, § 40-21-83(3). Wholesale sale is defined in § 40-21— 80(a)(9):

A sale or exchange of utility servicies by a utility to or with . . . any utility engaged in the resale of such utility services in the regular course of business ....

This, for example, would exclude sales of electricity (or other utility consummable) by a utility such as APCO, to a middleman, such as a rural cooperative, who then sells the electricity to the public. The presence of this provision stands in the way of an interpretation of the exclusion in § 4 as pertaining only to such a wholesale sale for resale transactions.

Therefore if no portion of the receipts derived from the Board should have been considered in the gross receipts upon which the tax is calculated, then those receipts could not be taxed. If that portion of receipts could not be taxed then there could be no tax for which the Board was or is liable. Thus when APCO paid to the Department an amount which it mistakenly believed discharged a tax upon the Board, it did not confer a benefit and unjustly enrich the Board because there was no tax to be paid by the Board. The trial court was mistaken when it granted summary judgment because on the undisputed facts of this case APCO could not recover as a matter of law.

We feel compelled to note that the complex nature of the record, briefs and even the trial court’s memorandum of decision may have stemmed from the complexity of the distinction between an issue of law and an issue of fact. In this instance the two are intertwined, in that while the Board’s falling within the exclusion is a question of law, the information necessary to determine that issue is a factual matter. By moving for summary judgment the plaintiff in effect said these facts do not show the exclusion to apply. We hold that they do.

We must further note that in the pleadings, the affidavits, and the trial court’s memorandum of decision there was a preoccupation with a declaratory judgment decree rendered in the circuit court. If APCO had intended to assert res judicata as an issue on this appeal it has not clearly done so. That there may have been a relationship between that judgment and the exclusion issue of this ease, appears in a portion of the trial court’s memorandum:

[0]n or about -November 3, 1972, the Board filed a declaratory judgment action against the State and other utilities seeking to have the Court declare it exempt from the provisions of the Alabama Utility Gross Receipts Tax Act. .
After the conclusion of the lawsuit brought by the Board, which terminated in a final judgment adverse to the Board, the State, on October 2, 1975, filed and served a final assessment on The Power Company ....

However, this statement does not enable us to decide what issues were disposed of there, or their relationship to the issues of this case. Nor does the record in this case supply the information missing in the trial court’s memorandum, although either party could have supplied the trial court, or this Court with a copy of the declaratory judgment. Therefore, we cannot determine whether the merits of that declaratory judgment proceeding as they pertained to the exclusion were resolved. Moreover, on this issue, the Board in response to APCO’s request for admissions, stated that the declaratory judgment never reached the merits of the exclusion. On a motion for summary judgment such an answer is presumed to be true. Cf. Day v. United Auto., supra. Hence the judgment of the trial court must be reversed because summary judgment on these facts was not correct as a matter of law.

REVERSED AND REMANDED.

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


author: WRIGHT, Presiding Judge.

text:
    Billy BLAKENEY v. Annie Ross DEE.
    Civ. 1300.
    Court of Civil Appeals of Alabama.
    Dec. 21, 1977.
    Rehearing Denied Jan. 25, 1978.

      Michael D. Smith, Tuscaloosa, for appellant.
    Keith Watkins of Strudwick & Watkins, Tuscaloosa, for appellee.
   WRIGHT, Presiding Judge.

This case began with the filing of an action of interpleader by the payor of a note to determine which of two claimants were due to be paid the sum interpleaded.

The matter was submitted to the court for judgment upon stipulation of facts. The issue was whether priority was to be determined by the Uniform Commercial Code or by pre-UCC statute. The trial court ruled that pre-UCC law was to be applied and that claimant Dee had priority. We affirm.

The facts are: On November 23, 1960, Warrior Acres, Inc., the interpleader here, executed a note payable to Marion Weston in the amount of $9,799.92. On September 19,1966, Weston executed a note payable to Velma Blakeney in the amount of $7,800. He also transferred to Blakeney, as security for payment of his note, the note of Warri- or Acres., Blakeney placed both notes in her safety deposit box where they remained until they were passed by assignment into the possession of Billy Blakeney on November 23, 1976. There remains due on the Weston note the original principal with some interest.

On April 1, 1969, claimant Dee recovered a judgment against Marion Weston in the Circuit Court of Tuscaloosa County in the amount of $21,753.90. Judgment certificate was recorded in the probate office of Tuscaloosa County. Weston died on October 28, 1976.

Claimant Dee filed garnishment against Warrior Acres, Inc. with Weston as defendant on January 4, 1977. With knowledge that both Dee and Billy Blakeney claimed rights to the balance due on the Warrior Acres note, Warrior Acres, Inc. filed inter-pleader as an innocent stakeholder.

Title 7, § 10-101, Code of Alabama (1975) (UCC) provides “This act shall become effective at midnight on December 31, 1966. It applies to transactions entered into and events occurring after that date.”

Section 10-102(2) provides:

“Transactions validly entered into before the effective date specified in section 10-101 and the rights, duties and interests flowing from them remain valid thereafter and may be terminated, completed, consummated or enforced as required or permitted by any statute or other law amended or repealed by this title as though such repeal or amendment had not occurred.”

We have shown that the transaction between Warrior Acres and Weston and the transaction between Weston and Velma Blakeney all occurred before the effective date of the UCC. Prior to the UCC a security interest in personal property, such as a note, given to secure a debt was not perfected as to creditors without notice, until recorded. Title 47, § 123, Code of Alabama (1940) (Recomp.1958). However, a security interest in notes under the UCC is perfected by the secured party’s taking possession of the collateral. Title 7, § 9-305, Code of Alabama (1975).

It is stipulated that the conveyance of the Warrior Acres note to Velma Blakeney as security for the debt of Weston was never recorded. However, it is the contention of claimant Blakeney that his transferor had possession of the collateral at the time the UCC became effective and repealed the pri- or law requiring recording; that such possession continued after the effective date of the UCC and was continuing at the time the judgment lien of claimant Dee came into existence. The conclusion is that at the time of the event creating the judgment lien in 1969, the UCC applied and the condition for perfecting the security interest of Blakeney in the note, possession, was then existing as to claimant Dee.

This contention, at first consideration, has seeming merit. It has some limited support in such cases as August v. Poznanski, 383 Mich. 151, 174 N.W.2d 807 (1970) and Humble Oil & Refining Co. v. Copley, 213 Va. 449, 192 S.E.2d 735 (Va. 1972). However, we find that the pre-code law applies to the transaction between Weston and Velma Blakeney wherein the Warrior Acres note was conveyed to secure a debt. Had that conveyance been recorded at that time, its security would have been perfected against the judgment lien of Dee even though that lien did not arise until three years later. Had such recording been done at that time, we would have held the security interest perfected even though the debt of Dee arose after the adoption of the UCC. The pre-code law required the doing of an affirmative act, recording, to perfect a security interest against rights of subsequent creditors. Velma Blakeney elected not to record and perfect a security interest in the Warrior Acres note at the time of the transaction with Weston, nor at any time prior to the enactment of the UCC. Her assignee may not now claim the benefit of the subsequent law which does not require any action to perfect such security interest. In re Palmer, 2 UCCR 646 (D.Ore.1964).

It is our opinion that Title 7, §§ 10 — 101 and 10 — 102(2) mean that transactions completed prior to the effective date of the UCC, and all of the rights, duties and interest flowing therefrom are to be terminated, completed, consummated and enforced as though the laws then applying had never been repealed. In re Glenwood Packing Co., 4 UCCR 884 (S.D.Iowa 1967).

The second contention of Blake-ney is that even if pre-code law applies, Dee was not entitled to judgment. The premise of that contention is that Title 47, § 123 did not require recordation of a security interest if the mortgagee took actual possession. In support of his contention, Blakeney cites the case of Union Bank & Trust Co. v. Azar, 316 F.2d 433 (5th Cir. 1963). That case at 434 does state that,

“Recording is constructive notice. So also is possession. Recording provides notice where the mortgagor retains possession. Recording is a substitute for possession and is neither needed nor required where possession is in the mortgagee.”

There is cited as authority for the quoted statement 10 Am.Jur. “Chattel Mortgages,” § 82 and several cases including some Alabama cases. Study of those cited cases does not furnish support for the statement. The statement that “recording is a substitute for possession” is taken from the case of Howell v. Carden, 99 Ala. 100, 10 So. 640 (1892). The issue being discussed in that case was whether a mortgage of personal property was void for fraud as against unsecured creditors when possession of the property was left with the mortgagor. The court said that because the statute requiring recording of such mortgages was a substitute for possession, the law permitted possession to remain with the mortgagor without raising a presumption of fraud. The other eases cited in Azar involved the same issue. Rike v. Ryan, 147 Ala. 497, 41 So. 959 (1906); Lehman, Durr & Co. v. Van Winkle & Co., 92 Ala. 443, 8 So. 870 (1890).

The court said in Howell v. Carden, supra, 99 Ala. at 108, 10 So. at 644,

“The owner of personal property has the right to mortgage it to secure the payment of debts. To protect creditors and purchasers without notice, the statutes provide for the record of such conveyances. — Code 188, §§ 1806-1814. These statutory provisions impliedly recognize the right of the mortgagor to stipulate in the instrument for his retention of possession of the mortgaged property . . . ”

We consider this quotation to support our opinion that taking possession by the mortgagee is not such notice as will remove the requirement of recording. If it were otherwise, the legislature had only to say that recording was necessary only if possession was to be retained by the mortgagor. It did not do so but stated that such mortgagees were inoperative against purchasers and creditors, without notice, until recording. The statute is in derogation of the common law and requires strict construction. Pappas v. City of Eufaula, 282 Ala. 242, 210 So.2d 802 (1968).

We find no error in the judgment below.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: TORBERT, Chief Justice.

text:
    In re Billy BLAKENEY v. Annie Ross DEE. Ex parte Billy Blakeney.
    77-312.
    Supreme Court of Alabama.
    Sept. 8, 1978.

      Michael D. Smith of Lee & Barrett, Tuscaloosa, for petitioner.
    Keith Watkins of Strudwick & Watkins, Tuscaloosa, for respondent.
   TORBERT, Chief Justice.

On January 11, 1977, Warrior Acres, Inc., filed an action of interpleader in the Circuit Court of Tuscaloosa County, naming the petitioner, Billy Blakeney, and the respondent, Annie Ross Dee, as defendants. Both the petitioner and the respondent claimed the funds paid into court by Warrior Acres. The dispute was submitted to the court on certain stipulated facts. The trial judge found that the respondent, Annie Ross Dee, was entitled to the funds. The Court of Civil Appeals, 363 So.2d 310 affirmed.

The funds awarded to the respondent were proceeds of a note executed by Warri- or Acres payable to Marion Weston. According to the stipulations of facts, on September 19,1966, Weston pledged the Warri- or Acres note to Velma Blakeney to secure the payment of a note Weston executed to Mrs. Blakeney. Weston delivered both the Warrior Acres note and his note payable to Velma Blakeney to Mrs. Blakeney at the same time on September 19, 1966. Mrs. Blakeney retained possession of the Warrier Acres note to Weston and the Weston note to her until November 23, 1976, when she transferred both notes to the petitioner, Billy Blakeney. The petitioner retained possession of both notes until the trial of this cause. The pledge of the Warrior Acres note to Mrs. Blakeney was never recorded.

The respondent, Annie Ross Dee, recovered a judgment against Weston in 1969. She then filed a garnishment against Warrior Acres in January, 1977, to obtain the funds due on the Warrior Acres note payable to Weston. The action of interpleader followed:

We find initially, as did the Court of Appeals, that the Alabama Uniform Commercial Code, which became effective after December 31, 1966, [see section 7-10-101, Code 1975], does not apply to the transactions involved in the instant case. The controlling events are the execution of the Warrior Acres note to Weston and Weston’s subsequent pledge of this note to Mrs. Blakeney as security for Weston’s personal note, both of which occurred prior to the UCC’s effective date. Therefore, section 7-10-102(2), Code 1975, requires that pre-UCC law govern in this case.

The Court of Civil Appeals held that the pre-UCC rule governing such transactions is found in Title 47, section 123, Code of Alabama 1940 (repealed when the UCC became effective), which provides that conveyances of personal property to secure debts must be recorded in order for them to be operative against creditors and purchasers without notice. The appellate court found that, because the transfer from Weston to Mrs. Blakeney was never recorded, Mrs. Blake-ney’s security interest in the Warrier Acres note was not properly perfected and that the respondent was entitled to the proceeds of the note as a creditor without notice. We cannot agree and therefore reverse the decision of the Court of Civil Appeals.

Initially we observe that the 1966 transaction between Weston and Mrs. Blakeney, in which Mrs. Blakeney took possession of the Warrior Acres note, involved a pledge of a negotiable instrument.

“A pledge is a kind of bailment and security. It is a contract for the delivery of personal property by the pledgor to the pledgee, to be retained by the pledgee as security for the performance of an obligation due him from the pledgor. The legal title remains in the pledgor. Only possession passes to the pledgee who has a special interest in the property pledged until the obligation secured by it is satisfied. Minge v. Clark, 193 Ala. 447, 69 So. 421 (1915). For the relationship of pledgor and pledgee to exist, possession of the personal property must be delivered to the pledgee as security for the performance of an obligation by the pled-gor due him. Lauderdale County Co-op., Inc. v. Lansdell, 260 Ala. 452, 71 So.2d 70 (1954). Delivery of the property may be made symbolically by the delivery of a warehouse receipt as delivery of the property, or by delivery of a note as the delivery of a debt represented by the note. Lauderdale County Co-op., Inc., supra. But as this court stated in Clanton Bank v. Robinson, 195 Ala. 194, 70 So. 270 (1915), the delivery of possession of the goods to the pledgee may be actual, constructive, or symbolical, but it must be clear, unequivocal, complete, and effective at all times so as to give notice to third parties of the pledgee’s rights.”

Bailes v. First National Bank of Mobile, 291 Ala. 385, 388-89, 281 So.2d 632, 635-36 (1973).

Stated somewhat differently, in cases involving a pledge, legal title to the property pledged remains in the pledgor, while the pledgee obtains a lien or special interest in the property. Lauderdale County Co-op., Inc. v. Lansdell, 260 Ala. 452, 71 So.2d 70 (1954); Wood v. Williams, 238 Ala. 580, 192 So. 421 (1939); Payne v. Kendall, 221 Ala. 478, 129 So. 40 (1930). On the other hand, a mortgage or conveyance of personal property to secure debts usually contemplates the transfer of legal title while possession of the property remains in the mortgagor. Since the pledgee acquires this special interest in the property itself, he acquires a superior right to the property and therefore its proceeds as against all subsequent creditors of the pledgor. Nobles v. Christian & Craft Grocery Co., 113 Ala. 220, 20 So. 961 (1896).

“The pledgee . . . has a special property in the thing pledged, and is entitled to the possession of it until the obligation secured is satisfied; he is entitled to this against the pledgor and the world, and may maintain appropriate actions for the protection of his possession and his security, of course according to the contract of the pledgee.”

Minge v. Clark, 193 Ala. 447, 453, 69 So. 421, 423 (1915). See also Stevan v. Union Trust Co. of the District of Columbia, 115 U.S.App.D.C. 36, 316 F.2d 687 (1963); T. A. Gaskin Lumber Co. v. Airline Lumber Co., 127 F.Supp. 461 (E.D.La.1953).

Applying these general principles to the present appeal, we find that the written transfer of the Warrior Acres note to Mrs. Blakeney together with delivery of possession of the note constituted a pledge by Weston of a negotiable instrument as security for the payment of Weston’s personal note due Mrs. Blakeney. By obtaining a valid pledge, Mrs. Blakeney acquired a special interest in the Warrior Acres note and its proceeds, which interest is superior to that of the respondent as a subsequent judgment creditor. This interest was then transferred to the petitioner, Billy Blake-ney, by the 1976 transaction in which Mrs. Blakeney assigned and transferred possession of Weston’s personal note and the Warrior Acres note to the petitioner. As a general rule, the transfer or assignment of the debt passes the rights of the pledgee in the pledged property to the transferee or assignee. First Nat. Bank of Gadsden v. Murphree, 218 Ala. 221, 118 So. 404 (1928); Folmar v. Beall, 204 Ala. 298, 85 So. 540 (1920); Folmar v. Lehman-Durr Co., 147 Ala. 472, 41 So. 750 (1906).

We finally note that Title 47, section 123 is inapplicable to this case. That statute provides relief only to creditors who deal with a debtor without notice of a prior conveyance of the debtor’s personal property to secure his debt. Mrs. Blakeney had possession of the pledged Warrier Acres note when the respondent obtained her judgment. Possession of pledged property by the pledgee is sufficient notice to the public of a pledge interest. American Pig Iron Storage Warrant Co. v. German, 126 Ala. 194, 28 So. 603 (1900). Therefore, the respondent did not qualify as a “creditor without notice” for purposes of Title 47, section 123.

Accordingly, the decision of the Court of Civil Appeals is reversed and the cause remanded to that court.

REVERSED AND REMANDED.

BLOODWORTH, MADDOX, FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

      . The written instrument actually characterizes the transaction as a “pledge.


text:
    Billy BLAKENEY v. Annie Ross DEE.
    Civ. 1300.
    Court of Civil Appeals of Alabama.
    Oct. 4, 1978.
   On Remand From Supreme Court

WRIGHT, Presiding Judge.

In accord with the decision of the Supreme Court entered on September 8, 1978, 363 So.2d 313, after grant of writ of certiorari, the judgment of the Circuit Court of Tuscaloosa County, Alabama, is hereby reversed and annulled and this cause is remanded to that court for entry of judgment in favor of Billy Blakeney and against Annie Ross Dee. Costs of this proceeding in this court are assessed against Annie Ross Dee, for which let execution issue.

REVERSED AND REMANDED FOR JUDGMENT IN ACCORDANCE WITH SUPREME COURT DECISION.

BRADLEY and HOLMES, JJ., concur.