text:
    Trudy M. DANIEL, Plaintiff-Appellant, v. CAMBRIDGE MUTUAL FIRE INSURANCE COMPANY, ANDOVER, MASS., et al., Defendants-Appellants.
    No. 13807.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 1979.

      Love, Rigby, Dehan, Love & McDaniel by Kenneth Rigby, Shreveport, for plaintiff-appellant.
    Mayer, Smith & Roberts by Caldwell Roberts, Shreveport, for defendants-appellants, Cambridge Mut. Fire Ins. Co.
    Lunn, Irion, Switzer, Johnson & Salley by Richard H. Switzer, Shreveport, for defendant-appellee, United States Fire Ins. Co.
    Before BOLIN, PRICE and HALL, JJ.
   HALL, Judge.

Plaintiff, Trudy Daniel, was on a trail ride with her employer, Don Miller, and Miller’s eleven year old son, Eric. All three were experienced, capable riders. The three horses owned by Miller were well-trained, well-disciplined and of good dispositions. The trail, on which they had ridden together many times, crossed a dirt road. Miller, in the lead, rode his horse across the road. Eric, riding an Arabian mare named Whiskey, stopped close to the road to let a pick-up truck pass by. Miss Daniel, riding an Arabian stallion named Raffhelima, which she had ridden many times, stopped about nine feet behind Eric and slightly to his left. After the truck passed, Eric’s horse shied and backed up quickly under the head and neck of Miss Daniel’s horse. Whiskey may have shied because of the passing truck or because of a red truck door leaning against a nearby tree or for some other unknown reason. Eric took hold of the reins and urged the horse forward with his legs, which is the proper reaction when a horse shies. Miss Daniel’s horse reared up, she fell off, and the horse fell on top of her, causing severe injuries to her face.

Plaintiff brought suit for damages against Miller and his liability insurers alleging negligence and strict liability under LSA-C.C. Arts. 2318 and 2321. Plaintiff also sought recovery of penalties for the arbitrary failure of the insurance company to pay medical expenses under the $2500 medical payment provisions of its policy. Defendants denied negligence, pled contributory negligence and assumption of risk as affirmative defenses, and denied the allegation of unreasonable failure to pay medical expenses. After trial, the district court in a studious written opinion found no negligence on the part of Miller or Eric, but held there was strict liability under LSA-C.C. Art. 2321 and Holland v. Buckley, 305 So.2d 113 (La.1974). General damages of $22,500 and special damages of $3,347.61 were awarded. Neither the trial court’s opinion nor the judgment dealt with the medical payment penalty issue. After trial the insurance company paid the $2500 medical expenses, plus interest, without prejudice to plaintiff’s claim for penalties and attorney’s fees.

Defendants appealed, specifying that the district court erred in finding liability. Plaintiff also appealed, specifying that the trial court erred in not awarding penalties for failure to timely pay the medical expenses.

For reasons expressed in this opinion, we reverse the judgment of the district court awarding damages. We render judgment in favor of plaintiff for penalties and attorney’s fees for arbitrary failure to pay medical payments due under the policy.

The principal basis for recovery relied on by plaintiff is LSA-C.C. Art. 2321 imposing strict liability on the owner of a domesticated animal for the damage caused by the animal, as interpreted by Holland v. Buckley, supra, and subsequent cases. A secondary basis for recovery urged by plaintiff is LSA-C.C. Art. 2318, imposing strict liability on a parent for damages caused by the delict of his minor child, as interpreted by Turner v. Bucher, 308 So.2d 270 (La.1975). The principal defense urged by defendant is assumption of the risk.

In discussing the issue presented by this case, it should first be noted that the trial court was eminently correct in its finding that none of the parties involved, Miller, Eric or Miss Daniel, were guilty of any negligence. Although plaintiff argues that Eric was negligent in failing to be alert and in failing to keep his horse under control, the evidence is convincing that he did all that a competent rider could be expected to do when the horse unexpectedly shied. There is no contention that any of the participants were negligent in being too close to the road, which they and other riders regularly crossed in the presence of slow moving traffic without incident.

Holland v. Buckley held that the correct interpretation of Civil Code Article 2321 is as follows:

When a domesticated animal harms another, the master of the animal is presumed to be at fault. The fault so provided is in the nature of strict liability, as an exception to or in addition to any ground of recovery on the basis of negligence, Article 2316. The owner may exculpate himself from such presumed fault only by showing that the harm was caused by the fault of the victim, by the fault of a third person for whom he is not responsible, or by a fortuitous event.

The three exculpating defenses have been repeated in subsequent strict liability cases. Turner v. Bucher, supra, and Loescher v. Parr, 324 So.2d 441 (La.1975).

Plaintiff urges, and the trial court held, that none of the three defenses were established in this case. There was no fault of a third person for whom the owner of the horses was not responsible. There was no fortuitous event. The plaintiff was not at fault in the sense of having been negligent in any way. Hence, liability on the part of the owner of the horses.

This analysis and application of Article 2321 and Holland v. Buckley is overly simplistic. The underlying rationale of the duty imposed by Article 2321 is explained in Holland and in the later cases. In Holland the court said:

The underlying reasons for the owner’s liability is that, as between him who created the risk of harm and the innocent victim thereby injured, the risk-creator should bear the loss. He maintains the animal for his own use or pleasure.
Article 2321 places the master of the animal under a legal obligation to keep his animal under such guard that it does no damage to others. A fault in this obligation to control the animal and guard others from harm by it entitles the victim to recover damages thereby sustained.
. Under our present holding, the owner can exculpate himself from the fault of having his animal hurt someone only by proving that the harm resulted from some independent cause not imputable to the defendant, (emphasis supplied)

Loescher explained:

The fault of the person thus liable is based upon his failure to prevent the person or thing for whom he is responsible from causing such unreasonable risk of injury to others. Thus, the person to whom society allots the supervision, care, or guardianship (custody) of the risk-creating person or thing bears the loss resulting from creation of the risk, rather than some innocent third person harmed as a consequence of his failure to prevent the risk. His fault rests upon his failure to prevent the risk-creating harm and upon his obligation to guard against the condition or activity (by the person or thing for which he is responsible) which creates the unreasonable risk of harm to others, (emphasis supplied).

Animals, even domesticated ones, present a risk of injury or harm. It is the duty of an owner of a domesticated animal to protect others from harm by his animal. Thus, when a person is harmed by an animal, the owner is presumed to have breached his duty and is presumed to be at fault.

The owner’s liability is strict, but not absolute. There are defenses. The owner may be relieved of liability if the harm is caused by (1) the fault of the victim (2) the fault of a third person, or (3) a fortuitous event. If the harm resulted from an independent cause not imputable to the owner of the animal he is exculpated from fault. The independent cause must be a substantial factor in bringing about the harm.

Assumption of risk has been recognized as a defense in strict liability cases. It was recognized in Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971), which preceded Holland v. Buckley and was the first of the four Supreme Court cases clearly enunciating that there may be fault without negligence. In Langlois, an ultra hazardous activity case, the court held:

. Usually, the assumption of risk doctrine will apply where the nature of the relationship of the parties appears to exact consent from the one injured to be exposed to possible harm. In such situations the plaintiff understands the risk involved and accepts the risk as well as the inherent possibility of damage because of the risk. There is some authority for rejecting assumption of risk in cases which do not involve negligence, but the majority view is that assumption of risk is a defense to strict liability. A plaintiff who with full knowledge and appreciation of the danger voluntarily exposes himself to the risk and embraces the danger cannot recover damages for injury which may occur.

Assumption of risk has been recognized as a defense in several strict liability cases involving horseback riding decided by the Courts of Appeal after Holland v. Buckley. Stevens v. Zurich, Inc. Co., 357 So.2d 11, La.App. 3rd Cir. 1978, Fontenot v. Soileau, 336 So.2d 1006 (La.App. 3rd Cir. 1976); Alfonso v. Market Facilities of Houston, Inc., 356 So.2d 86 (La.App. 1st Cir. 1978) writ den. 357 So.2d 1169 (La.1978).

In Stevens the plaintiff remounted a horse which had thrown him and was again thrown, and injured. Recovery against the horse owner’s insurer was denied under Holland v. Buckley because the accident was caused by the fault of the victim in that he assumed the risk of injury.

In Fontenot, plaintiff was employed by defendant to exercise defendant’s horses. He was injured when the horse he was riding began to buck and threw him to the ground. The court denied recovery under Holland v. Buckley, holding that plaintiff was a consenting victim and not an innocent bystander, that the horse was under the care, custody and control of the victim and not the owner, and that plaintiff assumed the risk of exactly what occurred when he accepted employment.

In Alfonso, plaintiffs were injured while on a trail ride when they were thrown from rented horses which were frightened by a bolt of lightning and a clap of thunder. Recovery under strict liability was denied, with the court holding that since plaintiffs were active participants in the trail ride, they could not be considered as innocent third parties. Further, they were in control of the horses at the time of the accident.

The two classic tests of assumption of risk, recognized in Langlois, are present here: (1) there was full knowledge and appreciation of the danger — plaintiff was an experienced rider with knowledge and appreciation of the danger that even well-trained horses may shy or rear, and (2) there was a voluntary encountering of the danger — plaintiff voluntarily exposed herself to the risk and embraced the danger by participating in the trail ride with others. She assumed the risk of the horses shying, rearing and causing injury.

If it is necessary to fit assumption of risk into one of the three defenses listed in the triology of strict liability cases, it can be fitted into “fault of the victim”. If fault of the owner does not require negligence, then the fault of the victim which will operate as a bar to recovery, or will relieve the owner of fault, does not necessarily require negligence. If the owner is at fault simply because he exposes others to risk of harm by his animal, then others are at fault when they knowingly and voluntarily expose themselves to the same risk.

The harm here was caused as much by the victim’s fault (exposing herself to the horses) as by the owner’s fault (exposing the victim to the horses). Her fault was a substantial contributing factor in causing the harm.

Part of the rationale of strict liability is that the responsibility should fall on the risk-creator rather than on an innocent victim. In this case plaintiff’s conduct in voluntarily participating in a trail ride on a horse with other horses and riders created the risk of harm at least as much as did Miller’s conduct as owner of the horses in making them available for that purpose. Plaintiff was not an innocent bystander or victim.

Loescher makes it clear that the animal, person or thing for which one is responsible must pose an “unreasonable risk of harm”. A domestic animal poses such a risk to innocent bystanders. However, where the person harmed is not an innocent bystander but is acting in some manner related to the animal, an inquiry must be made into the degree of the risk of harm. Making that inquiry in this case leads to the conclusion that the well-trained horses with no dangerous propensities ridden by experienced and capable riders did not present an unreasonable risk of harm to the plaintiff who was herself an experienced rider and who voluntarily participated in the trail ride. There was a risk of harm, but not an unreasonable one.

Stated in terms of duty-risk, there is no breach of duty to protect others from the risk of harm by an animal if the other person voluntarily, knowingly and purposefully exposes himself to and assumes that same risk. Stated another way, there is no duty owed by the owner of an animal to one who voluntarily assumes the risk of injury by the animal.

Numerous cases involving sporting activities, while not dealing with strict liability situations, have recognized the principle that persons who participate in such activities assume the risks inherent in such activities. Bourque v. Duplechin, 331 So.2d 40 (La.App. 3rd Cir. 1976) writ ref. 334 So.2d 210 (La.1976); Carroll v. Aetna Casualty & Surety Company, 301 So.2d 406 (La.App. 2nd Cir. 1974); Richmond v. Employer’s Fire Insurance Company, 298 So.2d 118, (La.App. 1st Cir. 1974) writ ref. 302 So.2d 18 (La.1974); and Hyland v. Durr, 212 So.2d 158, (La.App. 4th Cir. 1968) writ ref. 252 La. 886, 214 So.2d 715 (1968).

Plaintiff’s alternative argument that defendant is responsible for the delict of his minor son under Article 2318 and Turner v. Bucher has already been answered by the finding that the son’s conduct was not delic-tual, deficient or sub-standard in any respect. Turner does not hold, and plaintiff does not contend, that a parent is responsible for harm to which a minor’s nondelictual conduct might contribute.

Defendant is exculpated from fault and liability by the fault of the victim, that is, her assumption of the risk. The judgment of the district court must be reversed and recovery of damages denied.

The remaining issue in the case is whether plaintiff is entitled to penalties and attorney’s fees under LSA-R.S. 22:658 because of the insurance company’s arbitrary and unreasonable failure to pay benefits under the medical payments provisions of its policy which had a limit of $2,500. The accident occurred July 13, 1976. Miss Daniel testified she made repeated demand, written and oral, on the insurance adjuster for payment of her medical expenses, to no avail. In evidence are letters to this effect written by her to the adjuster in August and October, 1976. Suit was filed demanding payment in July, 1977. Payment was not made until after trial and after judgment in September, 1978.

The insurance company’s only excuse for its failure to pay is that it was under the impression plaintiff preferred to settle the entire case at one time. Plaintiff, a legal secretary and paralegal employed by Miller, handled the case in proper person through the filing of suit. She conceded she was unsure about how to handle this part of her claim separate from her liability claim. Still, the evidence is clear that she expected payment, submitted all information the company needed to effect payment, and was told the medical expenses would be paid, but payment was not made until after trial more than two years after the accident and the bulk of the expenses were incurred. The evidence does not disclose that payment was ever tendered or that appropriate release or receipt forms were presented to plaintiff.

The failure to pay within 60 days was arbitrary, capricious and without probable cause, entitling plaintiff to damages of 12% of the $2,500 due, or $300, together with reasonable attorney’s fees. The legal work connected with this portion of plaintiff’s claim was not great, but the claim was urged at trial, evidence taken, and urged again on appeal. The fee is fixed at $500.

For the reasons assigned the judgment of the district court against Don Miller and Cambridge Mutual Fire Insurance Company is reversed and set aside. Judgment is rendered in favor of plaintiff, Trudy Margo Daniel, and against defendant, Cambridge Mutual Fire Insurance Company, in the sum of $800, together with legal interest from date of judicial demand until paid. The costs of these proceedings, including the costs of appeal, are assessed one-half to plaintiff and one-half to defendant Cambridge Mutual Fire Insurance Company.

Reversed and rendered.

      . C.C. Art. 2321: The owner of an animal is answerable for the damage he has caused; but if the animal had been lost, or had strayed more than a day, he may discharge himself from this responsibility, by abandoning him to the person who has sustained the injury; except where the master has turned loose a dangerous or noxious animal, for then he must pay for all the harm done, without being allowed to make the abandonment.

      . C.C. Art. 2318: The father, or after his decease, the mother, are responsible for the damage occasioned by their minor or unemanci-pated children, residing with them, or placed by them under the care of other persons, reserving to them recourse against those persons.
      The same responsibility attaches to the tutors of minors.


source: Caselaw Access Project

author: BOLIN, Judge.

license: Public Domain

text:
    LOUISIANA GAS PURCHASING CORPORATION, Plaintiff-Appellant, v. David Robert SINCOX et al., Defendants-Appellees.
    No. 13811.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 1979.

      Dawkins & Coyle by Michael S. Coyle, Ruston, Hargrove, Guyton, Ramey & Barlow, Shreveport, for plaintiff-appellant.
    David Robert Sincox, in pro. per.
    J. Rush Wimberly III, Arcadia, Court Appointed Atty., for defendant-appellee.
    Stewart & Stewart by Jonathan.M. Stewart, Arcadia, Court Appointed Atty., for Edwin W. Pugh, Trustee.
    Before BOLIN, PRICE and MARVIN, JJ.
   BOLIN, Judge.

In this expropriation proceeding plaintiff pipeline company was granted a right of way for the installation of a gas pipeline across land owned by defendants. The trial court awarded defendants $1,290 as the fair market value of the servitude taken, $250 severance damages, and assessed plaintiff with all costs except for the fee of a court appointed attorney. By this appeal plaintiff questions the amount of compensation and assessment of costs. We amend the judgment to reject the award for severance damages and otherwise it is affirmed.

The thirty-five foot right of way granted to plaintiff traverses a 40-acre tract of timberland owned by defendants in Bienville Parish. The owners, Mr. and Mrs. Sincox, reside in Texas. In February of 1978 plaintiff wrote Mr. Sincox a letter explaining its need for the right of way. In the letter plaintiff stated the value of the land sought amounted to $1,290. A draft for that amount and copies of a right of way agreement were enclosed. Mr. Sincox did not cash the draft.

At trial the only experts to testify concerning the value of the land and timber were those called by plaintiff. A timber appraiser testified the value of the timber lost due to the expropriation amounted to $746.80. A real estate appraiser testified the value of the 1.29 acres taken, minus the timber, amounted to $387.00.

Mr. Sincox appeared at trial and represented himself. In response to a question posed by Mr. Sincox as to how the pipeline company arrived at the $1,290 offered, plaintiff’s right of way supervisor testified the figure was based on “previous experience” with rights of way in that area.

In his reasons for judgment the trial judge stated the amount offered, $1,290, represented the fair market value of the land taken for the servitude. Although he noted there was no evidence concerning severance damages, he awarded $250 for such damages. All costs were assessed to plaintiff with the exception of the fee for Mr. Sincox’s court appointed attorney.

Plaintiff’s first contention on appeal is that the trial court erred in basing the award upon the amount offered ($1,290) instead of the fair market value established by the testimony of the expert witnesses ($1,133.80). Plaintiff argues the trial court cannot substitute its own opinion for that of experts as to the fair market value of the land.

Plaintiff’s assumption that the trial court is bound by the testimony given by the experts is incorrect. Such testimony does play a vital role in expropriation proceedings. Nevertheless, it is not conclusive. Its purpose is only to assist the trier of fact in determining the ultimate issues. State, Department of Highways v. McPherson, 261 La. 116, 259 So.2d 33 (1972). Accordingly, the trial court was not bound, as contended by plaintiff, to award the exact amount established by the testimony of the experts.

Although not argued by plaintiff, we are aware of the jurisprudence which holds that offers to purchase should ordinarily not be considered in expropriation cases as evidence of fair market value because they are highly susceptible to fabrication. State v. McDuffie, 240 La. 378, 123 So.2d 93 (1960) (criticized in 22 La.L.Rev. 399 (1962)); Central Louisiana Electric Co. v. Gamburg, 200 So.2d 733 (La.App. 3d Cir. 1967). Our research reveals, however, that in at least one case our supreme court has treated an offer by the expropriator as an admission or estimate that the property was worth not less than the amount the expropriator was willing to pay for the property. Housing Authority v. Gondolfo, 208 La. 1065, 24 So.2d 78 (1945). Moreover, sales to the expropriator may be considered in reaching an opinion as to the value of the property. Gulf States Utilities Co. v. Norman, 183 So.2d 421 (La.App. 3d Cir. 1966), and authorities cited therein. In the case at bar the pipeline company’s right of way supervisor testified that the $1,290 offer was derived from previous experiences with rights of way in that area. In effect this constituted not only the amount offered but also the supervisor’s estimate of the true value of the property.

We find no error in the trial court’s assessment of the fair market value of the 1.29 acre tract at $1,290. In addition to the reasons previously set forth, our decision is influenced by the fact that the difference between the amount offered and the amount established at trial by plaintiff’s experts is slight — $156.20.

Plaintiff’s second argument is that the trial court erred in awarding severance damages. We agree. The burden of proving severance damages is upon the landowner who must establish them with legal certainty by a preponderance of the evidence. State, Department of Highways v. Ross Continental Motor Lodge, Inc., 328 So.2d 883 (La.1976). Since the trial judge noted there was no testimony introduced concerning severance damages, the $250 awarded for this item is erroneous.

Plaintiff’s final argument is that defendants must pay costs under La.R.S. 19:12 which provides:

If a tender is made of the true value of the property to the owner thereof, before proceeding to a forced expropriation, the costs of the expropriation proceedings shall be paid by the owner.

Plaintiff contends it made a tender of the true value of the property in its letter to plaintiff dated February 3,1978, which contained the draft for $1,290. We are unable to find that the information contained in that letter and the accompanying draft constitute a tender within the contemplation of La.R.S. 19:12. The letter by itself appears to be nothing more than an offer to purchase a right of way by the pipeline company. The letter does not explain that plaintiff is vested with the power to expropriate the right of way if the landowner chooses not to accept the offer, or that the landowner faces the possibility of paying for the proceedings if the matter ultimately goes to court. While there is some vague evidence that Mr. Sincox had some later “negotiations” with plaintiff, there is no clear and convincing proof he or the other two defendants ever had reasonable grounds to believe they had been tendered $1,290 as payment for the right of way in lieu of expropriation proceedings.

Since the assessment of costs under La. R.S. 19:12 relates directly to the landowner’s guaranteed right to just and adequate compensation (La.Const. Art. 1, § 4), the statute must be strictly construed. Considering all the facts surrounding the offer to purchase in this case, we hold it was not a “tender” for the purpose of assessing costs.

The judgment is amended to delete the award to defendants of $250 as severance damages; otherwise, it is affirmed at plaintiff’s cost.

      . The trustee of a Texas bank holding a “Deed of Trust and Security Agreement” was also made a defendant.


author: SUGG, Justice, for the Court:

text:
    Jacob C. PONGETTI, Trustee in Bankruptcy of the Estate of H. Clint Sims, Bankrupt v. BANKERS TRUST SAVINGS AND LOAN ASSOCIATION et al.
    No. 50180.
    Supreme Court of Mississippi.
    Feb. 7, 1979.
    Rehearing Denied April 4, 1979.
    Parker, Averill, Funderburk and Butts, Paul S. Funderburk, Tupelo, for appellant.
    Mitchell, Rogers, Eskridge, Voge and Clayton, Claude F. Clayton, Jr., Tupelo, for appellees.
    Before ROBERTSON, SUGG and WALKER, JJ.
   SUGG, Justice, for the Court:

This appeal and cross-appeal is from a decree of the Chancery Court of Lee County applying the doctrine of marshaling of assets to a limited extent.

At the outset, it will be helpful in understanding the complicated facts of this case to set forth a summary followed by a detailed statement of the facts.

Miller owned two tracts of land which he mortgaged to Bankers Trust Savings and Loan Association. Miller sold all of the land at different times to different grantees. He mortgaged part of Tract I to Sims who released part of the land covered in his mortgage without consideration, retaining his junior mortgage on part of Tract I. After mortgaging part of Tract I to Sims, Miller sold Tract II which was later acquired by the present owners who erected an office building on Tract II. The present owners executed a deed of trust on Tract II. Mississippi Valley Title Insurance Company issued its title policy in the amount of $58,-200 on Tract II overlooking the senior mortgage of Bankers Trust which appeared of record. Mississippi Valley purchased the senior mortgage from Bankers Trust, released Tract II from the mortgage without consideration and proceeded with foreclosure against the remaining part of Tract I on which Sims held a junior mortgage.

On November 18, 1970 Jim Miller owned two parcels of land hereafter referred to as Tract I and Tract II. Miller and his wife executed a deed of trust on November 18, 1970 which secured a loan of $128,000 from Bankers Trust Savings and Loan Association. The deed of trust included both Tract I and Tract II.

On January 15, 1971 Miller conveyed by warranty deed part of Tract I to James Loyal Ransom and wife, Mary Nell Ransom, for $25,000. On May 26, 1971 Bankers Trust released the Ransom land from its deed of trust upon payment to it of $10,000 by Miller. The $10,000 was credited to the note secured by the deed of trust.

On April 28, 1971 Miller executed a deed of trust covering the remaining part of Tract I which secured a debt to H. Clint Sims in the amount of $21,349.98. The deed of trust recites: “This is a first lien on the above described property except deeds of trust to Bankers Trust and Dr. Robert Pe-gram.” The deed of trust was filed for record and recorded on June 8, 1971 and contains the following provision.

Also any other indebtedness heretofore, now or hereafter (within the period of four years from the date hereof) contracted with either said beneficiary or the holder of the above described note or notes by the grantor or grantors herein or either of them whether such other indebtedness be evidenced by note, open account, overdraft or any other manner whatsoever, including also any indebtedness of any grantor made as joint maker, surety, endorser, or grantor.

Without receiving any consideration, Sims released part of Tract I from his deed of trust on November 9, 1971. The land released was later sold by Miller to William R. Romito on December 30, 1971. Romito paid Miller $18,000 for the land and in turn Miller applied $15,000 on the debt due Bankers Trust. Bankers Trust then released the Romito land from its deed of trust on January 10, 1972.

On November 30,1971 Miller conveyed to Jim Miller Construction Co., Inc. the remaining part of Tract I by warranty deed. The deed was filed for record on February 14, 1972 and recites that the consideration was $10.00 cash and other good and valuable consideration, “including the assumption by the grantee herein of the indebtedness due Bankers Trust Savings and Loan Association, on the below described property

Sims filed suit against Miller on January 19, 1972 in the Circuit Court of Lee County, Cause No. 10,903, on a promissory note from Miller to Sims dated April 28, 1971 in the amount of $21,349.98. This is the same note secured by the 1971 deed of trust executed by Miller for the benefit of Sims. Sims averred that $14,500 plus accrued interest was due on the note. Judgment was rendered on May 18, 1972 in favor of Sims against Miller for $3,300 which sum included an attorney’s fee of $300.

Sims filed suit against Miller on January 19,1972 in the Circuit Court of Lee County, Cause No. 10,904, on a promissory note from Miller to Sims dated March 1, 1971 in the amount of $3,000. Judgment was rendered in Cause No. 10,904, on May 18, 1972 awarding Sims a judgment against Miller in the amount of $15,950, which included attorney’s fees in the amount of $1,450.

Judgments in the two suits were rendered on the same date and obviously the amounts were transposed. However, this error does not affect this suit because Sims released the judgments against Miller in consideration of Miller executing a note to him for $17,500 on February 1,1973 bearing interest at 8% per annum and due February 1, 1975.

By final decree rendered by the Chancery Court of Lee County on October 4, 1973, United States Fidelity & Guaranty Company was awarded a judgment against Jim Miller, Mrs. Arweeda Miller and H. Clint Sims, “jointly and severally,” in the amount of $14,726.21. Sims paid $14,855.98 for an assignment of the judgment to United States Fidelity & Guaranty Company. The chancellor found that amount was included in the deed of trust from Miller to Sims under the provisions of the “dragnet” clause quoted supra.

Miller conveyed Tract II to Cavalier Furniture Manufacturers, Inc. by warranty deed dated April 29, 1971. This deed was filed for record August 31, 1971, but does not mention the outstanding deed of trust to Bankers Trust. Several conveyances of Tract II were made to succeeding grantees, and on May 15, 1973, Corinth Machinery Company conveyed Tract II by warranty deed to Robert E. Anderson, et a. doing business under the partnership name of Corinth Machinery Land Company. None of the deeds conveying Tract II mentioned the outstanding deed of trust in favor of Bankers Trust.

Anderson and his partners executed a deed of trust on May 15, 1973 securing two notes in the total amount of $58,200 due C. G. Howell. - The parties stipulated that the deed of trust executed for the benefit of C. G. Howell had not been cancelled, the notes secured by the deed of trust had not been paid, and were outstanding on the date of the trial. Anderson and his partners erected an office building on Tract II after acquiring title to it.

Mississippi Valley Title Insurance Company issued a title insurance policy in the amount of $58,200 to Anderson and his partners on Tract II which policy of insurance, among other things, insured against loss which the insured might sustain because of any lien or encumbrance on the title to Tract II existing as of July 16,1972. The Bankers Trust deed of trust was not listed as an exception in the title insurance policy. After discovering the existence of the Bankers Trust deed of trust, Mississippi Valley paid Bankers Trust $88,912.55 on December 13,1974 for an assignment of the deed of trust. Mississippi Valley then released Tract II from the Bankers Trust deed of trust without consideration, and began foreclosure against the part of Tract I covered by the Sims deed of trust.

Sims filed a bill of complaint for a temporary and permanent injunction to enjoin Mississippi Valley from selling the part of Tract I covered by the Sims deed of trust, and prayed that Tract I be sold by order of the court and the proceeds, after payment of expenses, be applied first to satisfy his deed of trust on Tract I plus all damages sustained by him. Complainant also prayed for relief against Bankers Trust, none was granted, no appeal was taken from this finding, so the question of the liability of Bankers Trust to Sims has become final.

On final hearing the chancellor held that Bankers Trust had a first deed of trust on both Tracts I and II and could have foreclosed on both tracts when default occurred. The chancellor also held that Mississippi Valley had full knowledge of all the facts when it purchased the deed of trust; that it purchased the deed of trust to protect itself because it had issued its title policy having overlooked the deed of trust which appeared of record. The chancellor held that Tract II, exclusive of improvements, had a value of $40,000 and invoked the doctrine of marshalling of assets to a limited extent by directing that $40,000 should be credited against the deed of trust then held by Mississippi Valley. The chancellor directed a sale of that part of Tract I covered by the Sims deed of trust. The land was sold by the Commissioner for $54,501.22. The chancellor allowed a commission of $1,000, directed court costs and publication costs be paid, and the remaining balance be applied as follows: $48,912.55 (the amount of the Bankers Trust deed of trust less $40,000 credit) plus interest at 6% from December 13, 1974 to June 7, 1976, making a total of $53,278.42 to Mississippi Valley Title Insurance Company with the balance, if any, to be paid to H. Clint Sims, the complainant. The practical effect of this decree denied Sims any relief because there was no balance remaining to be paid to him.

The resolution of this case rests upon the principle of distributive justice; that of doing equal equity to Sims and Mississippi Valley. It involves the application of the equitable doctrine of the inverse order of alienation which is a part of the doctrine of marshaling of assets.

In Pallen v. The Agricultural Bank, 1 Freeman Chancery Reports, 419, The Agricultural Bank obtained a judgment against Thomas J. Randolph who owned several lots which were subject to the judgment. Before the judgment was satisfied Randolph sold one of the lots to Moses M. Pallen, and subsequently sold the other lots to other persons. Execution then issued on the judgment and was levied on the lots sold to Pallen. Pallen filed his bill, obtained an injunction and the Bank demurred to the bill. The chancellor overruled the demurrer and on appeal the case was affirmed. The Agricultural Bank of Mississippi v. Pallen, 16 Miss. 357, 8 S&M (1847). The High Court of Errors and Appeals stated:

. The view taken by the chancellor is regarded as correct.
The decision rests upon the principle, that where a judgment debtor has various pieces of property, affected by the judgment lien, if he alienate one piece, that is not to be charged, until the others, not alienated, have been subjected, provided they still remain within reach of the execution. If all be alienated, then each is liable to the satisfaction of the judgment, in the inverse order of alienation; the last alienated being first liable. But if all be necessary to satisfy the judgment, then all must be so applied. It is a question only as to the order of application.
(16 Miss, at 359).

The rule of inverse alienation announced in The Agricultural Bank v. Pallen, supra, has been reaffirmed in the following cases: Rollins, et al v. Thompson, 21 Miss. 522, 13 S&M (1850); Keaton, et al v. Miller, 38 Miss. 630 (1860) (extended to permit the administrator of a donee of personal property to invoke the doctrine of inverse alienation); Kausler, et al v. Ford, et al, 47 Miss. 289 (1872); Millsaps v. Bond, 64 Miss. 453, 1 So. 506 (1886) (extended to permit the holder of a junior mortgage to invoke the doctrine of inverse alienation).

In Kausler, supra, the Court stated:
The principle has received various applications, but it rests on the same essential reason. As where a creditor has a lien upon or an interest in two funds, and another has a lien upon but one of them, the latter has the right to drive the former to get his satisfaction out of that fund, to which he has an exclusive claim, where it will not prejudice him.
If the debtor, whether by judgment or mortgage, sell off, at different times, the encumbered property, the property will be liable to the creditor holding the lien, in the inverse order of the alienations. The first purchaser may, through the chancery court, remit the creditor to the property of purchasers subsequent to himself, and force him to obtain satisfaction, beginning with the last, and he cannot be touched except for a balance after the property of others has been exhausted. Guion v. Knapp, 6 Paige Ch. 35; Aural v. Wade, Lloyd & Gould, 252; Agricultural Bank v. Pallen, 8 S.&M. 359. (47 Miss, at 301, 302).

The above cases demonstrate that we adhere to the doctrine of inverse alienation where the property subject to the senior mortgage has been sold or mortgaged in separate parcels. In this case, Mississippi Valley, the holder of the senior mortgage, released Tract II from the senior mortgage without consideration. Tract II was sold by Miller after he executed a deed of trust to Sims on Tract I. The general rule governing the equitable rights of Sims and Mississippi Valley is stated in 110 A.L.R. 67 (1937) as follows:

It is the general rule, subject to certain qualifications set out in succeeding subdivisions, that where a mortgagor or other lienee has alienated a portion of the mortgaged premises, and the mortgagee or other lienor, having notice of such alienation, releases the mortgage or other lien as to the portion retained by the mortgagor or lienee, such mortgagee or lienor must deduct from the debt, before enforcing his lien against the property alienated, the value of the property released.

One of the cases cited in support of the rule is Dillon v. Bennett, 22 Miss. 171, 14 S&M (1850), 110 A.L.R. 67, 69 (1937). In that case, Dillon held a mortgage on certain land and slaves. After the slaves had been sold to Bennett, Dillon agreed to release the land from the mortgage. The Court held:

The question is, whether this agreement has the effect to release the slaves, purchased by Bennett, from the operation of the trust. On very plain principles we think it does.
In the Agricultural Bank v. Pallen, 8 S.&M. 357, it was decided, that where a judgment creditor had a lien upon several pieces of property, some of which had been alienated by the debtor, the property not sold must be first applied to the payment of the debt. If all have been sold, the last sold must be first applied. The same principle is recognized in Rollins v. Thompson, 13 S.&M. 524.
Perhaps it is unnecessary to declare, whether this rule'is applicable in its fullest extent to this case. Its object is the preservation of entire good faith between all parties interested. In this instance a great deal more property was embraced in the deed of trust, than was requisite to pay the debt. After the purchase by the defendant, there was enough left of the trust property to pay the debt. He had a right to require, that the creditor in the deed of trust should not release any of the residue of the encumbered estate, so as to throw any farther burden or risk on that which had been sold. Dillon subsequently released the land, and thereby gave up $12,500. As to Bennett, who had previously purchased and paid for these slaves, justice requires that they should be exempt from liability to the amount so released. Had the creditor, Dillon, been merely passive, we will not decide whether Bennett would be entitled to the same relief. But his active interference gives a right to the relief.
All the property in the deed of trust was originally liable to its satisfaction. A purchaser with notice, could not claim its absolute exemption. Bennett occupies that position. All he could have required, was to marshal the order of application. But when the creditor discharged a part of the property after this purchase, he interfered with this right of the purchaser. He took the hazard upon himself, and must be held to have discharged what had been previously alienated, and impliedly to have agreed to look only to what remained.
(22 Miss. 175, 176).

Applying the principle announced in Dillon, Sims, who had a junior mortgage only on Tract I, had a right to require Mississippi Valley, as holder of the senior mortgage covering both Tract I and Tract II, not to release its security on Tract II without crediting the value of Tract II on its senior mortgage. Without receiving any payment on its mortgage, Mississippi Valley released Tract II, which had a value of $115,000, and thereby imposed a greater burden on the junior mortgage of Sims on Tract I. Mississippi Valley prevented Sims from exercising his right to have Tract II first subjected to the lien of its senior mortgage under the doctrine of the inverse order of alienation. Consequently, as to Sims, Mississippi Valley’s senior mortgage stands discharged because the value of the land it released, without consideration, was sufficient to satisfy its mortgage, leaving Sims free to subject Tract I to payment of his junior mortgage.

Having determined that Sims is entitled to relief, we must determine the amount secured by his junior mortgage. The chancellor found that Sims’ deed of trust secured $17,500 with interest from February 1, 1973 plus the judgment Sims acquired from United States Fidelity & Guaranty Company in the amount of $14,-855.98 with interest at the legal rate from October 4, 1973.

With respect to the $17,500 the chancellor obviously overlooked the testimony of Sims that $375 had been paid on this note. Accordingly, the principal of the note will be reduced by $375.

We also hold that the principal amount due under Sims’ note should be reduced by $3,000 because Sims released part of Tract I which was later sold to Romito without receiving any consideration and without requiring that any part of the sale price be applied to the note secured by his deed of trust. Romito paid $18,000 for the land he bought from Miller and $15,000 was applied to the senior mortgage of Bankers Trust. Under the familiar maxim of equity, “He who seeks equity must do equity,” Sims is charged with the $3,000 difference between the purchase price of the Romito tract and the amount applied on the senior mortgage.

The court erred in holding that the “dragnet” clause of the Sims deed of trust covered the judgment which Sims procured from United States Fidelity & Guaranty Company. In Hudson v. Bank of Leakesville, 249 So.2d 371 (Miss.1971) we held that the “dragnet” clause of a deed of trust or mortgage does not extend to debts purchased or otherwise acquired by a mortgagee from third parties against a mortgagor.

Tract I sold at a commissioner’s sale to Mississippi Valley for $54,501.22. We affirm the decree confirming the sale on the condition that Mississippi Valley pay Sims’ trustee in bankruptcy $14,125 plus interest at 8% from February 1, 1973 within 30 days; otherwise, the commissioner’s sale is set aside, Sims’ deed of trust may be foreclosed against Tract I, with the proceeds being distributed as follows: (1) expense of foreclosure; (2) payment of Sims’ deed of trust in the amount of $14,125 plus 8% interest from February 1, 1973; (3) payment to Mississippi Valley of the balance due on the deed of trust held by it; and (4) the balance, if any, to Jim Miller Construction Co., Inc.

All court costs are taxed against appellee.

REVERSED ON DIRECT APPEAL, AFFIRMED IN PART ON CROSS APPEAL AND REMANDED.

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

      . The Pegram deed of trust is not involved in this litigation.

      . This appeal is prosecuted by the trustee in bankruptcy of the Estate of Sims.


author: WALKER, Justice, for the Court:

text:
    Willie Ray JOHNSON v. STATE of Mississippi.
    No. 51089.
    Supreme Court of Mississippi.
    March 7, 1979.

      John R. Poole, Jackson, for appellant.
    A. P. Summer, Atty. Gen., by Phillip H. Schwartz, Special Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, WALKER and LEE, JJ.
   WALKER, Justice, for the Court:

The defendant was indicted by the Circuit Court of the First Judicial District of Hinds County, Mississippi, for the crime of murder. He was tried and convicted of manslaughter and sentenced to serve twenty years in the custody of the Mississippi Department of Corrections.

The homicide occurred at an establishment in Jackson, that is both a cafe and a pool hall. It is also a place where homosexuals congregate and put on shows. On the night in question, they had a “snake dance” as part of the entertainment. This consisted, in part, of using live snakes, taking them into the crowd and scaring people with them.

The deceased was a male homosexual dressed as a woman. He was a big man, six feet tall and weighed around 250 pounds. The deceased and the defendant had met approximately two months prior to the killing and saw each other frequently during that period until the defendant decided to “break up with him.”

After midnight on the night in question, the defendant was in the cafe sitting at a table with another person. The deceased and another homosexual began arguing about “whose man the defendant was going to be.” The deceased walked over to the defendant’s table and a dispute arose resulting in this unnecessary death.

The evidence is in conflict as to just how the altercation started, but the jury was justified in believing that the defendant threatened to kill the deceased and that the deceased picked up a wooden drink box and hit the defendant over the head with it. A fight ensued during which the defendant stabbed the deceased some ten times until he collapsed to the floor and died.

The jury was amply instructed on the law as to self-defense but chose to reject it. The jury also rejected the state’s theory of murder but found the defendant guilty of manslaughter.

The appellant first assigns as error the verdict is against the overwhelming weight of the evidence. After carefully considering this assignment, we are of the opinion that the evidence presented a classic issue for the jury to decide, which they did contrary to the appellant’s contention.

The appellant next contends that the transcript of the testimony of a witness by the name of Ronald Bell, which was taken in a preliminary hearing, should have been admitted into evidence on the theory that he could not be found and was not available to testify.

The appellant correctly points out that evidence obtained at a preliminary hearing may be introduced into evidence upon the laying of a proper foundation. Peeples v. State, 218 So.2d 436 (Miss.1969). In that case, where the Court held that the witness had not been shown to be unavailable, the Court said:

“Generally testimony given in a former trial or proceeding is considered hearsay and is only admissible in evidence upon the laying of a proper foundation. The requisites of admissibility include identity of parties, identity of issues, and the unavailability of the witness.” (218 So.2d at 438).

However, it is not necessary for us to determine whether a proper foundation was laid so as to permit introduction of the transcribed testimony, because when the case was called for trial, the defendant announced ready for trial, as did the state. By announcing ready for trial, the defendant, in effect, announced to the court that all of his witnesses were available to him and that there was no cause for delay. He did not make known to the court that the witness, Ronald Bell, had not been served and was not present to testify until the state rested its case. This was too late. He cannot now successfully contend that the witness was unavailable to testify and thereby have a transcript of his former testimony introduced into evidence in lieu of the witness’ personal appearance. Therefore, the trial court was correct in sustaining the state’s objection to the introduction of the transcript of Ronald Bell’s testimony taken at the preliminary hearing.

For the above reasons, the judgment and sentence of the lower court are therefore affirmed.

AFFIRMED.

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


author: ROBERTSON, Presiding Justice,

text:
    S. B. GRESHAM and John C. Dunlap v. MISSISSIPPI STATE HIGHWAY COMMISSION.
    No. 50895.
    Supreme Court of Mississippi.
    March 7, 1979.
    Rehearing Denied April 4, 1979.

      Fant, Crutcher, Moore & Spencer, William C. Spencer, Holly Springs, for appellants.
    Dwight N. Ball, Oxford, for appellee.
    Before ROBERTSON, WALKER and LEE, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

S. B. Gresham and John C. Dunlap brought suit against the Mississippi State Highway Commission in the Circuit Court of Marshall County to recover attorneys’ fees and appraisers’ fees totaling $35,141.60, plus a like amount as punitive damages.

In their declaration, plaintiffs alleged that they had incurred $35,141.60 expenses in securing a $150,000 verdict in an eminent domain suit, and that under the provisions of Mississippi Code Annotated section 11-27-37 (1972) they were entitled to recover these expenses because the Commission hadn’t paid off in full the $150,000 judgment within 90 days after the judgment became final.

Mississippi Code Annotated section 11-27-37 (1972) provides:

“In case the petitioner shall fail to pay the damages and costs awarded to the defendant within ninety (90) days from the date of the rendering of the final judgment, if such judgment is not appealed from, or within ninety (90) days after the affirmance of such final judgment on appeal, or in case the suit shall be dismissed by the petitioner except pursuant to settlement, or the judgment be that the petitioner is not entitled to a judgment condemning the property, the defendant may recover of the petitioner in an action brought therefor, all reasonable expenses, including attorneys’ fees, incurred by him in defending the suit.”

On July 20, 1976, the following mandate of this Court was issued:

“This cause having been submitted at a former day of this Term on the record herein from the Special Court of Eminent Domain of Marshall County and this Court having sufficiently examined and considered the same and being of the opinion that there is no error therein doth order and adjudge that the judgment of said Special Court rendered in this cause on the 13th day of June, 1974, be and the same is hereby affirmed. Judgment is in favor of S. B. Gresham and John C. Dunlap against Mississippi State Highway Commission in the amount of $150,000.00 with interest thereon at the rate of 6% per annum from the date of the filing of the Petition until paid together with all costs taxed in the Court below and this Court adds the sum of $7,500.00 being damages at the rate of 5% as provided for by statute. It is further ordered and adjudged that the appellant do pay all of the costs of this appeal to be taxed.”

It was not until this Mandate was received by the Highway Commission that it knew the exact amount of the judgment and damages.

Having paid $68,200 into court back on May 26,1974, under the Quick-Take statute, the Commission, on August 26, 1976, paid Plaintiffs $100,782.48, and on September 22, 1976, the Commission paid the final balance of $1,942.32. So all except $1,942.32 of the final judgment was paid within 36 days of notification of the exact amount thereof.

It was not the intent of the statute (section 11-27-37) to cover a situation of this kind, and, even if it were, the final judgment was paid in full well within the 90 days mentioned in the statute.

Mississippi State Highway Commission v. Morgan, 254 Miss. 630, 181 So.2d 905 (1966), is in no wise applicable to this case. The situation in Morgan was that the defendant had successfully obtained a writ of prohibition forever restraining the Highway Commission from condemning a parcel of land as defectively described in the Commission’s original petition. All Morgan was trying to recover were expenses incurred in successfully securing a permanent writ of prohibition.

The circuit court was correct in denying recovery of any damages in this case.

We are reinforced in our opinion by the fact that the Mississippi Legislature, in 1978, amended section 11-27-37 to delete “or within ninety (90) days after the af-firmance of such final judgment on appeal”, thus making the amended statute to read:

“In case the petitioner shall fail to pay the damages and costs awarded to the defendant within ninety (90) days from the date of the rendering of the final judgment, if such judgment is not appealed from, or in case the suit shall be dismissed by the petitioner except pursuant to settlement, or the judgment be that the petitioner is not entitled to a judgment condemning property, the defendant may recover of the petitioner in an action brought therefor all reasonable expenses, including attorneys’ fees, incurred by him in defending the suit.” (Laws of Mississippi, 1978, Ch. 335, § 9, eff. July 1, 1978).

The judgment of the trial court, that the plaintiffs recover only court costs, is affirmed.

AFFIRMED.

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


text:
    Irene L. McKELPHIN v. John H. McKELPHIN.
    No. 50942.
    Supreme Court of Mississippi.
    March 7, 1979.
    Dyer, Dyer & Dyer, Howard Dyer, Green-ville, for appellant.
    William Thomas, Jr., Greenville, for ap-pellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   Appeal from Chancery Court, Washington County; Willard L. Mcllwain, Chancellor.

AFFIRMED AS MODIFIED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE and COFER, JJ., concur.


text:
    P. D. STRONG v. Chastain FLYNT, Earnest Jones, Jr., Walter Martin and Clayton Hodge.
    No. 50951.
    Supreme Court of Mississippi.
    March 7, 1979.
    John E. Gregg, Raymond, for appellant.
    McLaurin & McLaurin, John C. McLau-rin, Jr., Brandon, for appellees.
   Appeal from Circuit Court, Rankin County; Rufus H. Broome, Judge.

Before SMITH, P. J., and SUGG and COFER, JJ.

AFFIRMED.


text:
    Jack FOWLER v. ALLIED EQUIPMENT, INC.
    No. 50919.
    Supreme Court of Mississippi.
    March 7, 1979.
    Paul D. Snow, III, C. Greg Copeland, Jackson, for appellant.
    Butler, Snow, O’Mara, Stevens & Canna-da, Christy D. Jones, W. Scott Welch, III, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

Before ROBERTSON, P. J., and WALKER and LEE, JJ.

AFFIRMED.


text:
    Dr. Harry WALKER v. MISSISSIPPI STATE BOARD OF DENTAL EXAMINERS.
    No. 50868.
    Supreme Court of Mississippi.
    March 7, 1979.
    Pritchard, Myers & Gordon, Robert A. Pritchard, Mestayer, Edmundson & Watson, Pascagoula, for appellant.
    Wilkins, Ellington & James, Samuel H. Wilkins, Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   Appeal from Chancery Court, Hinds County; George William Haynes, Special Chancellor.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE and COFER, JJ., concur.


author: PATTERSON, Chief Justice,

text:
    The TRAVELERS INDEMNITY COMPANY, Defendant/Appellant, v. Carl W. WETHERBEE et ux, Plaintiffs/Appellees.
    No. 50769.
    Supreme Court of Mississippi.
    March 14, 1979.
    Rehearing Denied April 4, 1979.

      Megehee, Brown & Williams, John M. Kinard, Pascagoula, for defendant/appellant.
    C. R. McRae, Pascagoula, for plaintiffs/appellees.
    Before PATTERSON, SUGG and BOWLING, JJ.
   PATTERSON, Chief Justice,

for the Court:

Travelers Indemnity Company appeals from a judgment of the Circuit Court of Jackson County. The suit was based upon a fire insurance policy purchased by Carl and Lula Bell Wetherbee for coverage on their dwelling, its contents and additional living expenses. The judgment against Travelers resulted from a jury verdict of $50,000, compensatory damages, and $50,-000, punitive damages. The agency, Wort-man & Mann, which sold the insurance and held the Wetherbees’ mortgage, was also a defendant in the trial court but was non-suited at the conclusion of the evidence.

The Wetherbees purchased their home in early 1975 by assuming a loan of $17,500. At the time the dwelling was protected by a policy of Travelers which was renewed and the coverage increased in December 1975 at the suggestion of Travelers’ agent. The renewed policy limits were $20,000 upon the dwelling, $6,000 upon its contents and $2,000 additional living expense in case of loss.

The dwelling was severely damaged by fire on February 14, 1976, which was reported to Travelers on February 17, 1976, and a draft for $500 was promptly issued to the Wetherbees. On February 18, 1976, Barry Wallace, a claims representative of Travelers, inspected the burned dwelling with the Wetherbees to ascertain the extent of damage. While this investigation was under way, Fire Marshal Rivers arrived and requested Wallace to speak with him apart from the Wetherbees. They retired and Rivers advised Wallace that Wetherbee was “a prime suspect in the fire of his own house as well as at another place.” Wallace informed the Wetherbees of this report and after advising them of the provisions for their cooperation in the policy, sought information concerning their whereabouts and activities at the time of the fire. He also requested and received their consent to submit to a polygraph examination. Thereafter, his “Account Reevaluation Notice” was filed with Travelers who cancelled the policy on March 21,1976, and declined payment to the Wetherbees during the course of the fire marshal’s investigation.

Meanwhile, the Wetherbees resided in motels until their funds were exhausted and then moved into a low income housing project while they sought a more suitable place of abode. More recently they have lived with their five children in various apartments, none of which afforded the accommodations they had previously enjoyed in their dwelling. During this time they continued to make mortgage payments, with difficulty, on their burned dwelling to prevent its foreclosure. Faced with both dwelling and apartment payments and inconvenience, they engaged an attorney on March 31, 1976, to conclude their claim against Travelers.

During this interval Wallace had requested the Wetherbees to obtain an estimate of cost to repair the dwelling and when none was forthcoming engaged Waymon Clegg, a building contractor, on March 23, 1976, to make such. Shortly thereafter, Clegg’s estimate of $14,137.24 was submitted to Wallace.

Also during this interim Honorable Guy Faggard, the Wetherbees’ attorney, had written Wallace that his clients were anxious to cooperate with Travelers so they might bring their claim to an early conclusion. Wallace contacted Faggard in response and the claim was discussed and later, April 13, Faggard sent Wallace a list of the contents of the house which had been destroyed, as well as an estimate of repair of the dwelling which had been submitted by Patel Properties, a construction concern, at the request of his clients. This estimate was $23,889.38, a sum in excess of the policy limit. At this time Faggard also advised of the extra living expenses incurred by his clients because of their inability to occupy their residence and requested prompt payment.

On May 21,1976, Faggard wrote Wallace reminding him of his previous correspondence and again requested an early settlement which was not forthcoming.

Thereafter, on May 25, 1976, the fire marshal’s report exonerating the Wether-bees of arson terminated that investigation.

Two days later, May 27, 1976, Wallace attempted to settle the claim, but without success. Apparently, this offer of settlement was upon the basis of a communication from his superior which states in part: “Please try to compromise with attorney for buildings and contents only and eliminate any ADL . . . .” The “ADL” within the quotation was explained as a reference to additional living expenses. During the course of the trial, after acknowledging a dispute as to the repair of the building, Faggard testified concerning his request for payment of the destroyed contents as follows:

Q. Prior to obtaining this bid, had he ever made any objections to you?
A. I don’t know if he already had the bid from Clegg or not. In other words, he wouldn’t pay the Patel bid. I know that.
Q. Did you on any occasion ask him to pay the contents after you had a dispute with him on the other?
A. Oh, yeh.
Q. Did he pay the contents?
A. No, he did not.
Q. Did he agree with you that this company owed the $6,000 on contents?
A. No question about the value of the contents. The value of the contents, according to the list that they made up, is over $15,000. They had some $6,000 coverage on the contents.
Q. But he would never pay that?
A. He wanted to settle both the repair of the dwelling and the contents at the same time.
Q. Did he ever make the statement that that was a company policy not to separate the two?
A. That’s correct.
Q. Did you then have your clients, Mr. and Mrs. Wetherbee, to obtain another estimate?
A. Yes, sir.

Faggard went on to relate that within a month of May 21 when he had written Wallace, that Wallace responded with an offer of settlement based upon the repair estimate of approximately $14,000 and payment of $6,000 for loss of contents. Although this offer was unacceptable to the Wetherbees, it nevertheless led to further discussion and tentative agreement to arbitrate. To this end the Wetherbees obtained another estimate from a different concern which was submitted on June 22, 1976, in the sum of $23,537.85. Travelers also obtained an estimate from General Adjustment Bureau on August 30, 1976, in the sum of $14,196.14. General Adjustment Bureau, who was also agreed upon by the parties to arbitrate the difference, declined to do so.

Sometime in July 1976 the Wetherbees retained Honorable C. R. McRae to replace their previous attorney. On July 23 and again on September 1,1976, he wrote Travelers demanding prompt settlement of the claim or claims. An explication of this correspondence might be best portrayed by quoting the cross-examination of Witness Wallace by Attorney McRae:

Q. Now, you said you were never called upon to pay any additional living expenses. Mr. Faggard says he asked you to do it in his letters and talking to you. But disregarding that, just look over to the next page. After you have had the instructions from Mr. Watts to eliminate them, you had a certified letter from me, didn’t you? On July 23rd, 1976.
A. The letter was to me; right.
Q. Addressed to you, certified mail, and the date of that letter was what?
A. July 23, 1976.
Q. And in that letter did I not request that we are also calling on you to pay immediately the contents and additional amount of money for advanced living expenses? As you recalled, you advanced— and this is where I had gotten the understanding that that first $500.00 was advanced living, but it was contents as we found out — advanced within a week’s time $500.00 for the advanced living expenses. However, you have refused to forward any other money. As you know, this puts the insured in a position to force them to settle the case at a lower price. We therefore call upon you to immediately release the advanced living expenses as called upon in the policy — the contents money, as well as the money to fix the house.
A. But you didn’t send any receipts with the letter. There was no proof. There was just strictly a letter.
Q. Now you made some notations on my letter of July the 3rd, did you not, in your own handwriting at the bottom? Rent, $284.00 a month.
A. This is a figure I believe you mentioned.
Q. It’s not mentioned in the letter.
A. In our meeting of 9-1.
Q. Oh, so that was done in 9-1?
A. I made that entire notation on 9-1.
Q. Okay, let’s get on to my next letter in September. “You further advised that you would not pay the contents now or any more advanced payment until our client agreed to your terms — this was confirming our meeting of 9-1 — and accepted the offer that is being made by you. We advise you that our client is in dire financial circumstances due to the fact that as a result of the case being dragged out, it has caused a tremendous financial burden on them, and they are desirous of the $6,000.00 for contents and the cost of living money that should have been advanced to them some time ago. You stated that it is your company’s policy that they would not settle the case— not settle anything further or write any more checks until the case is settled in its entirety. We feel that this is very arbitrary and capricious position on your company’s part and we again call upon you to forthwith settle the contents and give the additional $1500.00 for advanced payments that they are due and owing to our clients, in particular since there is no dispute over these items.”
You stated the Clegg estimate. We go on here again about that. But in that letter we also go in to about the Regency — the apartment rent is $284; but you don’t make any notation on that. You made it on the July letter.
A. But you still didn’t sent any receipts, Mr. McRae.
Q. But we agreed that there was no dispute over those items, didn’t we?
A. There was no dispute in my mind over any of the claim. We were ready to pay it, and in fact, I note on my claim sheet in our meeting — “met with McRae, explained offers of the $14,000 and the $6,000.00.”

The disparity between the Wetherbees’ estimates of repair, both in excess of the policy limit of $20,000 on the dwelling, and Travelers’ estimates, each less than $15,000, produced a conflict that could not be resolved. The coverage of $2,000 for additional living expenses was likewise not resolved because Travelers had never been furnished receipts for the expenses. The loss of contents claim was apparently not paid, according to Travelers, because it was not requested separately from the other claims until Attorney McRae entered the proceedings, the demands of Attorney Fag-gard having been made within the interval of the arson investigation or very shortly thereafter.

Suit was filed by the Wetherbees on December 21, 1976, against Travelers and Wortman & Mann. The declaration as amended concluded with demands upon Travelers for the coverage under the policy, $20,000 for the dwelling, $6,000 for the contents and $2,000 for additional living expenses, as well as a demand of $100,000 actual damages for tortious breach of contract and $1,000,000 for punitive damages. By a second count Wortman & Mann, Inc. was alleged to be the insurance agent of Travelers as well as the holder of the Weth-erbees’ mortgage, and conspired with Travelers to wrongfully threaten foreclosure “to economically force the said plaintiffs to settle and agree to the demands of the said defendant Travelers; that said acts of the defendant constituted a bad faith departure from their duty of good faith and fair dealing owed to the said mortgagor and/or insured” for which they demanded actual damages of $50,000 and punitive damages of $200,000.

As mentioned, Wortman & Mann, Inc. was nonsuited at the conclusion of the evidence and the jury returned a verdict of $50,000 compensatory damages, and $50,000 punitive damages, and judgment in accord was entered.

Travelers assigns as error:

1. The trial court erred in permitting into evidence a list of extra living expenses by the appellees.

2. The evidence failed to support the granting of a punitive damage instruction.

3. The jury’s verdict for actual damages was against the overwhelming weight of the evidence and appellees’ instructions concerning these damages were erroneous.

4. The lower court erred in granting appellees’ Instruction No. 5.

5. The lower court committed error in allowing appellees’ “good faith” Instruction No. 13.

6. The lower court erred in allowing the appellees’ attorney to amend the declaration to seek a ten-fold greater demand the day prior to trial without notice to the appellant.

We need not address the first assignment of error because Travelers has offered to pay the additional living expenses even though it maintains the appellees did not submit the receipts required by the policy.

We are of the opinion the punitive damage instruction was properly granted. In discussing it, we need mention the continuing argument of the appellees that the great differences in the wealth of the litigants has created an extreme imbalance in their bargaining positions, favoring Travelers in prolonging settlement. In acknowledging this argument we do not say or infer that the appellant engaged in any wrongful action but we do so to point out that the opportunity for economic pressure does not imply the fact. A punitive damage instruction must be, as are other instructions, supported by the evidence. A brief resume of the evidence follows:

The Wetherbees’ house burned February 14, which was reported to Travelers February 17 and it promptly issued its draft for $500 to the insureds. Travelers’ agent was advised on February 18 that Wetherbee was suspected of arson. Payments under the policy were withheld during the arson investigation which terminated favorably to the insureds on May 25, 1976. On May 27 Travelers began negotiations to settle, using an estimate it had obtained during the interval. These negotiations failed on June 16 when Wallace declined to pay more than $14,087.24 for the dwelling and $6,000 for its contents. Nevertheless, negotiations continued with the insureds obtaining another estimate of repairs on June 22 and with Wallace seeking from General Adjustment Bureau an estimate for Travelers, hopefully, to the end the dispute might be terminated, probably through arbitration.

No later than July 23 another attorney began his representation of the appellees with a demand “to immediately release the advance living expenses as called upon in the policy — the contents money, as well as the money to fix the house.” Discussions followed and another demand on September 1 was made for the additional cost-of-living coverage and for the destroyed contents. This was confirmed by a self-serving letter of the attorney on September 2. Wallace testified that the first demand for the contents coverage, separate from the other coverages, was made by Attorney McRae. This conflicts with the testimony of Attorney Faggard who testified that he requested the contents coverage apart from the other protections. However, Faggard’s request seems to have occurred during the interim of the arson investigation or, at the latest, very shortly thereafter.

The deposition of Max Runnels, Travelers’ Supervisor of Property Claims, is in evidence. It provides in part:

BY MR. McRAE: (Continuing)
Q. Now, Mr. Runnels, you had Mr. Wallace issue his draft to the Wetherbees for the contents on February 4, 1977.
A. Yes.
Q. For $6,000, I believe.
A. That’s correct.
Q. That was about a year after the fire loss.
A. Yes.
Q. Why?
A. Why?
Q. Um-hum.
A. Well, the — of course, when I assumed the file, the insured had retained an attorney; the file reflected that an offer had been made to settle it for the entire amount on the — what estimate we had on dwelling plus the full amount of the contents. I didn’t know at that time why we had not paid the contents separate from the dwelling. I discussed this matter with John Kinard; he and I felt that we should go ahead and issue the contents check because I didn’t see any reason why we shouldn’t. We didn’t want to be in a position where it would appear that we were trying to deal in any type of bad faith. In my opinion, the contents check should have been issued a long time ago. Why it wasn’t, I don’t know.
Q. How often do you review these fire files?
A. It all depends; if it’s in a suit, it may be every 30 days or it may be every 60 days. It all depends on what activity is going on.
Q. Okay. You do not have a policy that you will not settle the dwelling without settling the contents at Travelers?
A. No, we do not.

The testimony discloses an interval from February 17, 1976, until May 25 when payments were withheld during the arson investigation although some negotiations were made during the time, an interval from May 27 until about September 17 when more serious negotiations were under way, an interval from September 17 until December 21 when negotiations were suspended because Travelers concluded a suit would be filed.

As stated, we are of the opinion the punitive damage instruction was properly granted. The primary reason for this conclusion is the delay reflected in the evidence outlined above. Our secondary reason, necessarily related to the above, is that the plain terms of the policy requiring payment within sixty days of the proof of loss were ignored. Granting reasonableness to Travelers in withholding all payments during the arson investigation, nevertheless this terminated on May 25, 1976, and the contents payment was not tendered until February 4, 1977, more than 190 days subsequent to the expiration of the sixty-day period, and this occurred when Travelers had certain knowledge of the loss and repeated demands for payment had been made. The only explanation for nonpayment, not plausible to our minds, is that the contents coverage was not separately requested until Attorney McRae entered the proceedings in July. Granting verity to the last statement, although it conflicts with other testimony, payment, without explanation, was still not made within sixty days thereafter.

Thirdly, we find no direct evidence of economic pressure upon the Wetherbees to settle these claims favorably to Travelers. We do find, however, evidence that each time Travelers responded to a request for payment it offered the contents coverage in conjunction with an offer to pay the dwelling coverage upon the low estimate for repair. This occurred when Travelers knew, at the very least, somewhat of the dire financial straits of the insureds because its agent, Wortman & Mann, Inc., the ap-pellees’ mortgagee, had threatened foreclosure.

In sum, we do not know why Travelers violated its contract by not paying the contents coverage, but it did, leaving a strong inference that it was for economic gain. We can fathom no other reason and none has been offered. The instruction was proper, in our opinion, provided our law permits the division of a policy so that various items of coverage may be considered as separate contracts although bound together in one policy.

In Claxton v. Fidelity & Guaranty Fire Corporation, 179 Miss. 556, 175 So. 210 (1937), we held an insurance policy covering a dwelling and its contents was divisible and enforceable to the dwelling although the coverage for the contents was denied because the insured had misrepresented the value of the contents. It logically follows, we think, that if a separate item of coverage in a multi-coverage policy may be unenforceable because of the misrepresentations of the insured, then surely nonpayment of a separate item of coverage by the insurer is likewise subject to penalty. Differently stated, an insured is penalized for misrepresentations through loss of coverage, whereas the insurer is penalized for wrongful acts through punitive damages. While it is true that Claxton, supra, and its progenitors, cited therein, do not address punitive damages, they do unequivocally establish the divisibility of policy coverages so they may be considered as separate contracts even though the premiums are paid in the entirety, not presently true as separate premiums were paid for the coverages. There are, inescapably, three distinct contracts in this one policy, each subject to separate consideration so that an insurer may be liable for punitive damages on one contract even though other contractual payments are delayed because of legitimate dispute.

We conclude the punitive damage instruction was proper and that the evidence was sufficient to support the verdict for damages thereunder arising from the intentional withholding of the contents coverage, a gross breach, the equivalent of an independent tort. Standard Life Ins. Co. of Indiana v. Veal, 354 So.2d 239 (Miss.1978); Progressive Casualty Ins. Co. v. Keys, 317 So.2d 396 (Miss.1975); D. L. Fair Lbr. Co. v. Weems, 196 Miss. 201, 16 So.2d 770 (1944); American Ry. Express Co. v. Bailey, 142 Miss. 622, 107 So. 761 (1926); and Hood v. Moffett, 109 Miss. 757, 69 So. 644 (1915).

However, the verdict for compensatory damages in the sum of $50,000 causes much concern. An instruction was granted the plaintiffs which directed the jury to award damages for all “detriment” suffered by the plaintiffs in the event the jury believed the plaintiffs were entitled to a verdict for compensatory damages. It follows:

If you believe from a preponderance of the evidence that the Plaintiffs are entitled to a verdict against the Defendants for compensatory damages, it then will be your duty to award the Plaintiffs such amount of damages as will completely compensate them reasonably for all detriment suffered by them and of which the Defendant’s conduct was a proximate cause. In arriving at the amount of the award you shall compensate them reasonably for any fears, anxiety and other mental and emotional distress and economic losses resulting therefrom, if any, suffered by them and proximately resulting from the conduct in question.

We think this permitted the jury to grant damages for fears, anxiety and emotional distress, not supported by competent evidence, and even during the interim when the investigation for arson was under way, a time when payments were not unreasonably withheld. This was error, necessitating a reversal or a reduction of the award.

Although we are cognizant of the distinction between compensatory damages for tortious breach of contract and a judgment for the proceeds of an insurance contract, we nevertheless believe the verdict for “compensatory damages at $50,000” included the coverages under the policy. We therefore affirm the judgment for compensatory damages but reduce it to the limits of the policy, specifically, $20,000 for the dwelling, $6,000 for its contents and $2,000 additional living expenses less $500 previously paid. The judgment in excess of this amount was erroneous, in our opinion, because there is no competent evidence to support actual damages arising from the breach of the contract. Since this is so, we do not reach the question of whether actual damages for tortious breach of contract may be properly awarded in addition to punitive damages arising from an independent tort and the proceeds of the policy. In Standard Life Insurance Co. of Indiana, supra, we upheld a judgment for punitive damages in conjunction with an award for the policy coverage. In our opinion this satisfied the requirement that punitive damages will not be awarded absent actual damages. We presently think it is fulfilled since the verdict for exemplary damages is in conjunction with compensatory damages including the policy proceeds.

AFFIRMED AS MODIFIED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.


text:
    The TRAVELERS INDEMNITY COMPANY v. FIRST NATIONAL BANK OF JACKSON and the Mississippi Bank.
    No. 51044.
    Supreme Court of Mississippi.
    March 14, 1979.

      Daniel, Coker, Horton, Bell & Dukes, Thomas H. Suttle, Jr., Jackson, for appellant.
    Cox & Dunn, Vardaman S. Dunn, Thompson, Alexander & Crews, Thomas R. Crews, Jackson, for appellees.
    Before SMITH, SUGG and COFER, JJ.
   SUGG, Justice, for the Court:

On June 22,1976 the First National Bank of Jackson filed a creditor’s bill against Neely Bros. Construction Corp. in the Chancery Court of the First Judicial District of Hinds County. The Travelers Indemnity Company and The Mississippi Bank were permitted to intervene. Travelers asserted its claim had priority over the claim of First National. The Mississippi Bank sought the same relief as First National.

The court appointed a receiver on the complaint of First National who liquidated the assets of Neely Bros, and filed his final account with a cash balance of $65,215.26 after provision for preference claims. The chancellor ruled that First National acquired a lien under section 11-5-75 on the date it filed its suit and was entitled to be paid first from the proceeds remaining in the hands of the receiver. The total claim of First National exceeded the balance held by the receiver so a final decree was entered in favor of First National for the balance held by the receiver.

On direct appeal Travelers contends that the court erred by not giving its claim priority over the claim of First National. In the alternative, Travelers contends that the funds held by the receiver should have been distributed pro rata to First National, Travelers, and The Mississippi Bank

On cross-appeal The Mississippi Bank agrees that Travelers’ claim was not entitled to priority, but it (The .Mississippi Bank) should share pro rata with First National in the funds held by the receiver. First National filed a cross-appeal, but we do not reach the question presented in its cross-appeal because we have concluded that the trial court properly held that its lien was effective from the date its bill of complaint was filed.

DID TRAVELERS HAVE A PRIORITY CLAIM?

Travelers bound itself as surety for Neely Bros. Construction Corp. to the Board of Supervisors of Hinds County in the amount of $4,491,392 on a performance bond and in the amount of $2,245,696 on a labor and material payment bond in connection with the construction by Neely Bros, of a detention facility for Hinds County. Travelers required Neely Bros, to execute a general agreement of indemnity as a prerequisite to the execution of the above bonds and based its claim to priority on a financing statement filed June 14,1976 with the indemnity agreement attached.

Travelers’ claim was not based on its right of subrogation as a surety because none of the funds held by the receiver represented funds to which Travelers would be subrogated. Travelers’ right of subrogation as a surety is not subject to the filing requirements of the Uniform Commercial Code. Travelers Indemnity Co. v. Clark, 254 So.2d 741 (Miss.1971). However, Travelers’ claim was a financing transaction subject to the filing requirements of the Uniform Commercial Code.

The trial court held that Travelers’ financing statement with its attachment was not signed as required by section 75-9-402(1) Mississippi Code Annotated (1972) which provides, in part:

A financing statement is sufficient if it is signed by the debtor and the secured party, gives an .address of the secured party from which information concerning the security interest may be obtained, gives a mailing address of the debtor and contains a statement indicating the types, or describing the items, of collateral .
A copy of the security agreement is sufficient as a financing statement if it contains the above information and is signed by both parties.

The financing statement filed by Travelers did not contain the signature of the debtor and the indemnity agreement filed as a security agreement did not contain the signature of the secured party. The signature of the debtor on the security agreement did not cure the deficiency of failing to have the debtor sign the financing statement, neither did the signature of the secured party on the financing statement cure the deficiency of the failure of the secured party to sign the security agreement. The deficiency in each of the documents was not cured by stapling them together and filing them as one instrument. We hold that the trial court was correct in its ruling that Travelers did not perfect its lien by filing the financing statement with the security agreement attached.

First National argues that the indemnity agreement was not sufficient to constitute a security agreement; however, we do not reach this question because the financing statement and security agreement were not signed as required by the Uniform Commercial Code. It is not necessary for a decision under the facts of this case to determine whether the indemnity agreement constituted a security agreement under the Uniform Commercial Code.

WERE TRAVELERS AND THE MISSISSIPPI BANK ENTITLED TO PRO RATA DISTRIBUTION?

Both Travelers and The Mississippi Bank argue that they were entitled to pro rata distribution of the funds in the hands of the receiver because they joined in the creditor’s suit originally filed by First National. In Kline v. Sims, 149 Miss. 154, 114 So. 871 (1928), we held:

We think the creditor who proceeds under this statute is entitled to the benefit of his diligence, and that, under the language of the statute, he has a lien upon the property sold on this sequestration. He is not required to bring suit on behalf of all the creditors, but may sue for his own demand and get the benefit of his diligence. Creditors who will not act, or who are not diligent in asserting their demands, are not entitled to participate equally with the man who is diligent, and who has incurred the risk and expense of proceeding to attack a fraudulent conveyance. If other creditors intervene in the suit, they may, by so doing, take their places in line with creditors according to the date of their proceedings, but they are not entitled to share in the proceeds of the first creditor’s diligence and activities, and such creditor is entitled to have his claim first paid. If other creditors desire, they may attack, or sue out writs of sequestration, or take any other appropriate action; but they must do so at their own risk, and they are not entitled to participate in the activities and diligence of the creditor who first takes action. (149 Miss, at 168, 164; 114 So. at 873). (Emphasis Supplied).

In Davis v. Polk Financial Service, 242 Miss. 419, 135 So.2d 175 (1961) we held that a creditor who files a suit to set aside a transfer in fraud of creditors, or an equivalent proceeding to impose a lien on property, under section 1327 Mississippi Code Annotated (1942) [now section 11-5-75 Mississippi Code Annotated (1972)], has a statutory equitable lien dating from the commencement of his suit.

The trial court correctly held that First National was entitled to be paid first from the funds in the hands of the receiver.

AFFIRMED ON DIRECT AND CROSS-APPEALS.

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

      . Creditors bills are authorized by section 11-5-75 Mississippi Code Annotated (1972) which follows:
      The chancery court shall have jurisdiction of bills exhibited by creditors who have not obtained judgments at law, or, having judgments, have not had executions returned unsatisfied, whether their debts be due or not, to set aside fraudulent conveyances of property, or other devices resorted to for the purpose of hindering, delaying or defrauding creditors; and may subject the property to the satisfaction of the demands of such creditors as if complainants had judgments and execution thereon returned ‘no property found.’ Upon such a bill, a writ of sequestration or injunction, or both, may be issued upon like terms and conditions as such writs may be issued in other cases, and subject to such proceedings and provisions thereafter as are applicable in other cases of such writs; and the chancellor of the proper district shall have power and authority to grant orders for receivers, in same manner as if the creditor had recovered judgment and had execution returned ‘no property found.’ The creditor in such case shall have a lien upon the property described therein from the filing of his bill, except as against bona fide purchasers before the service of process upon the defendant in such bill.

      . Section 75-9-402 was amended by Miss.Gen. Laws Ch. 452, § 25 (1977) to provide that a financing statement is sufficient if it is signed by the debtor, and that a security agreement is sufficient as a financing statement if it is signed by the debtor. The section contains other amendments not pertinent to this litigation.


text:
    ILLINOIS CENTRAL GULF RAILROAD COMPANY v. Blanche B. SANDERS.
    No. 51029.
    Supreme Court of Mississippi.
    March 14, 1979.
    Rehearing Denied April 4, 1979.
    Robert W. Brumfield, McComb, for appellant.
    Statham, Watkins, Starrett & Mitchell, Keith Starrett, Lem E. Mitchell, Magnolia, for appellee.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   Appeal from Chancery Court, Pike County; Bert H. Jones, Chancellor.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

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


text:
    Louise COOPER v. Faye GOREE and Phillip Duffell.
    No. 51113.
    Supreme Court of Mississippi.
    March 14, 1979.
    Laurel G. Weir, Philadelphia, for appellant.
    No brief filed on behalf of appellees.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   Appeal from Chancery Court, Winston County; Edward C. Prisock, Chancellor.

REVERSED AND RENDERED.

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


text:
    Earl SMITH, Deceased, Dependents of v. SUMNER GIN COMPANY and Fireman’s Fund American Insurance Company.
    No. 51042.
    Supreme Court of Mississippi.
    March 14, 1979.
    Farése, Farese & Farese, John Booth Farese, Ashland, for appellant.
    Daniel, Coker, Horton, Bell & Dukes, B. Stevens Hazard, Jackson, for appellees.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   Appeal from Circuit Court, Tallahatchie County; Dick R. Thomas, Judge.

AFFIRMED.


text:
    Troy L. WOOLEY, Sr. v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION.
    No. 50903.
    Supreme Court of Mississippi.
    March 14, 1979.
    Stanley L. Taylor, Jr., Wade M. Baine, Biloxi, for appellant.
    Fred J. Lotterhos, Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

AFFIRMED.


text:
    Walter KUPRYCZUK v. STATE of Mississippi.
    No. 51011.
    Supreme Court of Mississippi.
    March 14, 1979.
    J. Boyce Holleman, Gwen E. Seaquist, Gulfport, for appellant.
   Appeal from Circuit Court, Harrison County; Floyd J. Logan, Judge.

A. F. Summer, Atty. Gen., by Wayne Snuggs, Special Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, C. J., and BROOM and BOWLING, JJ.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE and COFER, JJ., concur.


text:
    A. W. BOUCHILLON v. NATIONAL MORTGAGE COMPANY.
    No. 50908.
    Supreme Court of Mississippi.
    March 14, 1979.
    Garner & Garner, David A. Gustafson, Hernando, for appellant.
    Joel P. Walker, Hernando, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   Appeal from Chancery Court, DeSoto County; Kermit R. Cofer, Chancellor.

AFFIRMED.

COFER, J., took no part.


text:
    MARKET INSURANCE COMPANY and Industrial Fire and Casualty Company v. GENERAL ELECTRIC CREDIT CORP.
    No. 51001.
    Supreme Court of Mississippi.
    March 14, 1979.
    Aultman & Aultman, Lawrence C. Gunn, Jr., Hattiesburg, for appellants.
    Powell & Sanford, Gary D. Thrash, Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   Appeal from Chancery Court, Hinds County; James Arden Barnett, Chancellor.

AFFIRMED.


text:
    Linda Darlene GABLE v. William Hurley GABLE, Jr.
    No. 51038.
    Supreme Court of Mississippi.
    March 14, 1979.
    Johnny L. Williams, Biloxi, for appellant.
    Ransom P. Jones, III, Pascagoula, for ap-pellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   Appeal from Chancery Court, Jackson County; Rex Gordon, Chancellor.

AFFIRMED.


text:
    Shirley A. MONK v. SID’S, INC., d/b/a Sid’s Department Store, and Sidney A. Cox, a/k/a Sid Cox.
    No. 50915.
    Supreme Court of Mississippi.
    March 14, 1979.
    Kellis L. Madison, R. L. Houston, Jackson, Miss., for appellant.
    Johnston & Adams, Jerry T. Johnston, Brandon, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   Appeal from Circuit Court, Rankin County; Rufus H. Broome, Judge.

AFFIRMED.


text:
    Jesse AMOS v. Robert E. COX, Superintendent of the Madison County Board of Education, the Madison County Board of Education and James Goodloe.
    No. 50990.
    Supreme Court of Mississippi.
    March 14, 1979.
    Blackmon, Smith & Nichols, Edward Blackmon, Jr., Canton, for appellant.
    John W. Christopher, Canton, for appel-lee.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   Appeal from Chancery Court, Madison County; E. G. Cortright, Chancellor.

AFFIRMED.


text:
    Alan Ray BARHONOVICH v. STATE of Mississippi.
    No. 51022.
    Supreme Court of Mississippi.
    March 14, 1979.
    Halat & Pisarich, Keith Pisarich, Biloxi, for appellant.
    A. F. Summer, Atty. Gen. by Calvin Coolidge Williams, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

AFFIRMED.