author: SHORES, Justice.

text:
    Perry Albert HAND and Joan Hunt Hand v. Marilyn M. STANARD and A. C. McDonald. Marilyn M. STANARD v. A. C. McDONALD.
    79-428 & 79-507.
    Supreme Court of Alabama.
    Dec. 19, 1980.
    Rehearing Denied Jan. 23, 1981.

      J. Edward Thornton, Mobile, for appellant Perry Albert Hand and Joan Hunt Hand.
    Joel Thomas Daves, IV, of Stanard & Mills, Mobile, for appellant-appellee Marilyn M. Stanard.
    E. E. Ball of Owen & Ball, Bay Minette, for appellee A. C. McDonald.
   SHORES, Justice.

This is an appeal by plaintiffs Perry A. Hand and Joan H. Hand and a cross-appeal by defendant Marilyn M. Stanard from a final decree rendered in favor of defendant A. C. McDonald in an action for specific performance of a contract to convey property. We affirm the decree.

The subject property is an undeveloped beach front lot located on Fort Morgan Peninsula in Baldwin County. It was purchased in 1935 by Gulf Beach Land and Development Corporation. In 1957, the county tax' assessor erroneously assessed the lot as “owner unknown,” and it was sold for taxes to A. C. McDonald. He received a tax deed for the lot in 1960. In 1969, Gulf Beach Land and Development Corporation contracted to sell the lot to Perry and Joan Hand, the purchase price to be paid in installments, and to give a warranty deed and guaranty of title to the purchaser when the full purchase price of $4,500 was paid. In September, 1974, Gulf Beach conveyed its interest in this and other lots to Boykin Investments, Inc., subject to the grantor’s obligation “under various existing contracts of sale made by Grantor.” In October, 1974, Boykin Investments conveyed this lot and others to Marilyn Stanard subject to the same conditions as contained in the conveyance to it from Gulf Beach. Stanard was unaware of the tax sale to McDonald and paid the taxes on the lot during her ownership.

In 1976, the Hands tendered the balance of the purchase price to Stanard and requested conveyance of the property with warranty deed and guaranty of title. Sta-nard refused, stating that she had recently discovered McDonald’s tax deed; she offered to convey whatever interest she had in the property. The Hands commenced this action against Stanard and McDonald. They demanded specific performance of the contract and damages and a judgment ordering Stanard to redeem or buy back the lot from McDonald and convey it to them; the Hands claimed that McDonald had no interest in the lot. McDonald affirmatively asserted that the action to redeem was barred by Ala. Code 1975, § 40-10-82, as it was brought more than three years after the tax sale and that he had acquired title by adverse possession under Ala. Code 1975, § 6-5-200. The court rendered partial summary judgment against Stanard, requiring her to fulfill the contract of sale by reacquiring title or redeeming the suit property from McDonald, dependent on the nature of McDonald’s interest, which was to be determined at trial. The court granted partial summary judgment declaring the tax sale invalid.

At trial, the court, without a jury, heard, ore tenus, testimony concerning the quality of McDonald’s possession. McDonald introduced evidence that the lot had been assessed in his name and that he had paid taxes on it since 1957. He had it surveyed and the corners marked in 1959 and had visited it four or more times each year. He put up metal “No Trespassing” signs, which were subsequently removed by persons unknown. He gave permission for a friend to picnic on it and had done so himself with his family and friends. He cleared some trash from the lot and told teenage neighbors not to dump trash on it; In 1975, he sold an option on the lot and the vendee put a “For Sale” sign on the property. Stanard introduced evidence that the neighbors, who saw the lot on a daily basis, were unaware of McDonald’s claim and had never seen him on the property.

The court made no specific findings of fact but determined that “the plaintiffs are not entitled to relief against defendant McDonald but are entitled to a judgment against defendant Stanard.” The court decreed that “McDonald is the owner of the lot in question” and that, “as it is impossible for defendant Stanard to specifically perform the contract, the plaintiffs are hereby granted a money judgment against defendant Stanard in the amount of the payments made by them under the contract together with interest at the rate of 6% from the 15th day of July, 1969.”

The appellants assert that the court erred in holding that McDonald was the owner of the lot. We disagree. The question of adverse possession is one properly determined by the trier of fact. Butts v. Lancaster, 279 Ala. 589, 188 So.2d 548 (1966). When judgment is based on evidence taken by the trial court ore tenus, it will not be set aside unless clearly erroneous or unsupported by credible evidence under any reasonable aspect of that evidence. English v. Brantley, 361 So.2d 549, 551 (Ala.1978), Hill v. Delchamps, 294 Ala. 14, 310 So.2d 871 (1975). In the absence of specific findings of fact by the trial court, this Court will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous and against the great weight and preponderance of the evidence. O’Connor v. Rabren, 373 So.2d 302, 304 (Ala.1979).

The trial court’s decree is clearly not erroneous. The record supports its judgment that McDonald owned the lot. McDonald’s adverse possession was sufficient to establish his claim under Ala. Code 1975, § 6-5 200, and to bar redemption under Ala. Code 1975, § 40-10-82, and § 40-10-83.

McDonald satisfied the statutory requirements of § 6 5 200 as he had color of title in the 1960 recorded tax deed and had paid taxes on the land for the years 1957 until the present. He has, in addition, met all essential elements of adverse possession.

“. . . In order to establish adverse possession, as against the holder of the legal title, ‘the law is stringent in requiring clear proof of the requisite facts. There must be, first, an actual occupancy, clear, definite, positive, and notorious; second, it must be continued, adverse, and exclusive during the whole period described by the statute; third, it must be with an intention to claim title to the land occupied.’ — Washburn on Real Property (4th Ed.) pp. 135, 136. McDaniel v. Sloss-Sheffield Steel and Iron Co., 152 Ala. 414, 44 So. 705 (1907)...."
... [A] very strict burden of proof rests upon the party claiming title by [adverse possession],

Courtney v. Boykin, 356 So.2d 162 (Ala.1978).

It is not necessary to physically reside upon land to establish title by adverse possession. Moorer v. Malone, 248 Ala. 76, 26 So.2d 558 (1946). Land need only be used by an adverse possessor in a manner consistent with its nature and character— by such acts as would ordinarily be performed by the true owners of such land in such condition. Bell v. Denson, 56 Ala. 444 (1876); Ala. State Land Co. v. Matthews, 168 Ala. 200, 53 So. 174 (1910). The acts of ownership and dominion necessary for adverse possession of a vacant lot need not and cannot be the same as with respect to a lot covered with valuable improvements or on which there is a residence. 2 C.J.S. Adverse Possession § 38 (1972). McDonald’s acts of possession were those of a true owner of an undeveloped beach front lot. Thomas v. Rogers, 256 Ala. 53, 53 So.2d 736 (1951); Turnham v. Potter, 289 Ala. 685, 271 So.2d 246 (1972); O’Connor v. Rabren, 373 So.2d 302 (Ala.1979). He exercised dominion over the land for longer than the requisite ten-year period, and the record shows that he has maintained his burden of proof.

The appellants have stressed that the evidence in Courtney v. Boykin, supra, was infinitely stronger than that in this case and that this Court reversed that ore ten us holding. They, thus, contend that we should also reverse this decree. In Boykin, however, we reversed because the adverse possession was for an insufficient period and held that the trial court was clearly wrong in considering possessory acts prior to the date of the foreclosure deed. 356 So.2d at 166. We did not hold the possesso-ry acts themselves to be insufficient and that holding does not preclude this one.

We now turn to the issue of redemption. Ala. Code 1975, § 40-10-82, establishes a “short statute of limitations” for tax deed cases. The “short period” begins to run when the purchaser is entitled to demand a tax deed and is in adverse possession of the land. Grice v. Taylor, 273 Ala. 591, 143 So.2d 447 (1962). The invalidity of the tax sale is immaterial if adverse possession is proved for the three-year period. Van Meter v. Grice, 380 So.2d 274 (Ala.1980). As previously stated, we find the trial court’s implicit finding of adverse possession by McDonald to be correct. Appellant Standard’s action to redeem is, therefore, barred by § 40-10-82. The appellant asserts, however, that her right to redeem under § 40 10-83 is not barred.

The purpose of § 40-10-83 is to preserve the right of redemption without a time limit, if the owner of the land seeking to redeem has retained possession. This possession may be constructive or scrambling and, where there is no real occupancy of the land, constructive possession follows the title of the original owner and can only be cut off by the adverse possession of the tax purchaser, Tensaw Land and Timber Co. v. Rivers, 244 Ala. 657, 15 So.2d 411 (1943); O’Connor v. Rabren, 373 So.2d 302 (Ala.1979). As previously discussed, McDonald’s acts of possession were sufficient to constitute adverse possession of the vacant beach lot. Thus, the short statute of limitations of § 40-10-82 bars redemption under § 40-10-83 as McDonald, the tax purchaser, has been in continuous adverse possession for three years after his entitlement to demand a deed. O’Connor v. Rabren, supra.

We, thus, affirm the trial court’s decree that McDonald is the owner of the lot.

AFFIRMED.

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

      . “§ 6-5-200. When title to land conferred or defeated; ....
      “(a) Adverse possession cannot confer or defeat title to land unless;
      “(1) The party setting it up shall show that a deed or other color of title purporting to convey title to him has been duly recorded in the office of the judge of probate of the county in which the land lies for 10 years before the commencement of the action;
      “(2) He and those through whom he claims shall have annually listed the land for taxation in the proper county for 10 years prior to the commencement of the action if the land is subject to taxation; or
      “(3) He derives title by descent cast or devise from a predecessor in the title who was in possession of the land

      . “§ 40-10-82. Limitation of actions.
      “No action for the recovery of real estate sold for the payment of taxes shall lie unless the same is brought within three years from the date when the purchaser became entitled to demand a deed therefor; but if the owner of such real estate was, at the time of such sale, under the age of 19 years or insane, he, his heirs or legal representatives shall be allowed one year after such disability is removed to bring an action for the recovery thereof; but this section shall not apply to any action brought by the state, nor to cases in which the owner of the real estate sold had paid the taxes, for the payment of which such real estate was sold prior to such sale, nor shall they apply to cases in which the real estate sold was not, at the time of the assessment or of the sale, subject to taxation.”

      .“§ 40-10-83. Effect of payment by original owner or assignee.
      “When the action is against the person against whom the taxes were assessed or the owner of the land at the time of the sale, his heir, devisee, vendee or mortgagee, the court shall, on motion of the defendant made at any time before the trial of the action, ascertain the amount paid by the purchaser at the sale and of the taxes subsequently paid by the purchaser, together with six percent per annum thereon, and a reasonable attorney’s fee for the plaintiffs attorney for bringing the action, and shall enter judgment for the amount so ascertained in favor of the plaintiff against the defendant, and the judgment shall be a lien on the land sued for. Upon the payment into court of the amount of the judgment and costs, the court shall enter judgment for the defendant for the land, and all title and interest in the land shall by such judgment be divested out of the owner of the tax deed."


source: Caselaw Access Project

license: Public Domain

text:
    Maria K. BODNAR, Individually and as Widow and Administratrix of the Estate of Francis A. Bodnar, Deceased v. PIPER AIRCRAFT CORPORATION, a corporation et al.
    79-542.
    Supreme Court of Alabama.
    Dec. 19, 1980.
    Rehearing Denied Jan. 23, 1981.
    Warner R. Wilson, Jr. and N. Sandy Epstein of Skinner, Wilson & Strickland, Atlanta, Ga., and Richard W. Bell, Pelham, for appellant.
    Harold A. Bowron, Jr., C. William Gladden, Jr. & Steven F. Casey of Balch, Bing-ham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellee Piper Aircraft Corp.
    Robert S. Lamar, Jr. of Ball, Ball, Duke & Matthews, Montgomery, for appellee Montgomery Aviation Corp. and Avco-Ly-coming.
    Timothy M. Conway of Rives, Peterson, Pettus, Conway, Elliott & Small, Birmingham, for appellee Hangar One, Inc.
   SHORES, Justice.

This is an appeal by plaintiff, widow and administratrix of decedent Francis Bodnar, from a circuit court judgment dismissing Piper Aircraft Corporation, Avco-Lycoming Corporation, Montgomery Aviation Corporation, and Hangar One, Inc., as parties defendant. We reverse the judgment and remand the action for further proceedings consistent with this decision.

The facts in the case are those material facts alleged in the plaintiff’s original and amended complaint, which we take as true, as they were considered to be so for the purpose of ruling on defendants’ motion.

On September 7, 1977, Francis Bodnar, a Georgia resident, was a passenger on a Piper Cherokee aircraft which crashed and burned on approach to the Macon, Georgia, airport while en route to Birmingham, Alabama. The plaintiff alleges that the crash was due to a malfunction in the airplane’s defective exhaust system which allowed carbon monoxide to seep into the passenger compartment and overcome the pilot. The aircraft was put on the market in Alabama by Piper and was purchased in Birmingham, Alabama. The plaintiff alleges that the aircraft was in substantially the same condition at purchase as it was at the time of the crash and that it was negligently designed, engineered, manufactured, sold, and distributed by Piper. Plaintiff alleges that Avco-Lycoming, a corporation doing business in Alabama, negligently designed, engineered, manufactured, and sold the aircraft’s exhaust system. Plaintiff alleges that Montgomery Aviation and Hangar One negligently failed to inspect, observe, and repair defects and corrosion in the exhaust system.

Plaintiff brought suit under Georgia’s Wrongful Death Statute on September 5, 1979, against Piper, Avco-Lycoming, and other fictitious defendants. She amended her complaint to substitute Montgomery Aviation and Hangar One and to assert causes of action under Alabama’s Wrongful Death Statute and Alabama’s Extended Manufacturer’s Liability Doctrine.

Defendants’ motions to dismiss were based solely on the pleadings and stated as grounds that plaintiff’s action was barred by the statute of limitations, failed to state a claim on which relief could be granted and improperly substituted the nonfictitious defendants. The court granted the motions without specifying the grounds upon which it relied and, under Rule 54, ARCP, rendered a final judgment. Plaintiff appealed, asserting that the trial court erred in granting the motion to dismiss.

The first issue presented is whether an action based on the Georgia Wrongful Death Statute is barred by the applicable statute of limitations. The action was properly brought under the Georgia Wrongful Death Statute, Ga.Code Ann., § 105-1302, as the death occurred in Georgia. The traditional conflict of laws rule of lex loci delicti long followed in Alabama dictates that the substantive law of the state where the injury occurred is applied when suit is brought in Alabama. Alabama Great Southern R. R. Co. v. Carroll, 97 Ala. 126, 11 So. 803 (1892); Dawson v. Dawson, 224 Ala. 13, 138 So. 414 (1931); Mullins v. Alabama Great Southern R. R. Co., 239 Ala. 608, 195 So. 866 (1940).

The issue here is whether that reference to Georgia law includes the Georgia statute of limitations applicable to this action. It is conceded that, under Georgia law, a two-year limitation applies to Georgia wrongful death actions. Defendants contend that the Alabama general one-year statute of limitations, Ala.Code 1975, § 6-2-39, is applicable, and the plaintiff’s action is thus barred. They argue that because Georgia’s statute of limitations for wrongful death actions is not “built-in” to Georgia’s Wrongful Death Statute, Ga.Code Ann., § 105-1302, but is found in § 3-1004 of the Georgia Code, the Alabama conflict of laws rule does not include the statute of limitations. Instead they say that, under Battles v. Pierson Chevrolet, Inc., 290 Ala. 98, 274 So.2d 281 (1973), the statute of limitations is a procedural and not a substantive law, the procedural laws of the forum state apply and, thus, the action is governed by Alabama’s applicable statute of limitations. They further assert that, under Mullins v. Alabama Great Southern R. R. Co., supra, Alabama’s two-year period for wrongful death actions is expressly confined to actions brought under the Alabama Wrongful Death Statute and that Alabama’s general one-year, statute of limitations, found in Ala.Code 1975, § 6-2-39(a)(5), applies to this action, thereby barring it.

We disagree with defendants’ assertions and hold that the Georgia two-year statute applies and that, therefore, plaintiff’s action is not barred. The situation of this case is distinguishable from Battles. In that case, the court found that the plaintiff did not properly plead the limitations period under the Georgia law in her complaint, 290 Ala. at 105, 274 So.2d 281. She improperly and insufficiently pleaded that “there is a two-year limitation of action for wrongful death under Georgia law.” By contrast, the present plaintiff averred in her amended complaint of May 23, 1980, that this “action is timely filed within the two-year period provided for a wrongful death action brought under the law of Georgia as prescribed in Ga.Code Ann., § 3-1004.”

Additionally, in the years since Battles was decided, the Georgia Supreme Court has declared the two-year period stated in Ga.Code, § 3-1004, to be “the public policy” of that state. Taylor v. Murray, 231 Ga. 852, 204 S.E.2d 747 (1974).

We hold that the trial court erred in dismissing the claim founded on the Georgia Wrongful Death Act because it is not barred by the Georgia statute of limitations, which we hold is the applicable limitation period under our conflict of laws rule.

We further hold that it was not error to dismiss the claim founded on the Alabama Wrongful Death Act.

This Court has consistently adhered to the lex loci delicti rule to determine which substantive law to apply in multistate tort actions. Spencer v. Malone Freight Lines, Inc., 292 Ala. 582, 298 So.2d 20 (1974); Alabama Great Southern R. R. Co. v. Carroll, supra. It was the traditional rule embodied in the original Restatement of Conflicts of Laws § 384 (1935), and had its conceptual foundation in the vested rights doctrine which stated that a right to recover for a foreign tort owes its creation and scope to the law of the jurisdiction where the injury occurred. Beale, 2 Conflicts of Laws 1286-1292 (1935). We recognize that the vested rights doctrine and lex loci delicti have been frequently criticized because they sometimes do not take into account underlying policy considerations in weighing the significance of the situs of the injury. Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279, 281, note 3 (1963). Note, Choice of Law Considerations in Alabama, 7 Cumberland Law Review 89 (1976). Many authorities and courts have advocated abandoning lex loci delicti as a conflicts rule in products liability and other tort actions.

Some of the arguments advanced by the scholars and some courts in adopting a more flexible conflict of laws rule are compelling and may well find favor in this jurisdiction in the proper case, but the case before us is not such a case. Indeed, even if we were persuaded to do so, we would not necessarily apply the law of a state other than that compelled under the existing rule, because here the decedent was a citizen, a resident of Georgia, his death occurred there, and his widow remains there. Georgia law supplies a remedy for his death. Although there are several “significant” Alabama contacts, they do not outweigh the fact that the cause of action accrued in Georgia. Whether the Georgia courts would follow the Alabama Extended Manufacturer’s Liability Doctrine under the facts of this case, we cannot say, but it would be inappropriate for us to assume that they would.

We reverse the judgment dismissing the cause of action based upon the Georgia Wrongful Death Statute because we hold that the Georgia statute of limitations is applicable to that claim. In all other respects, the judgments of the trial court are affirmed.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

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

        Battles should be considered in light of the fact that it was decided under procedural rules of common law pleading no longer applicable in Alabama.

      . Note, Products Liability and the Choice of Law, 78 Harv.L.Rev. 1452 (1965); Kuhne, Choice of Law in Products Liability, 60 Calif.L. Rev. 1, 10-11 (1976); Ehrenzweig, Products Liability in the Confíict of Laws — Toward a Theory of Enterprise Liability under “Foreseeable and Insurable Laws”: II, 69 Yale L.J. 794 (1960); Guest Statutes in the Conflict of Laws: I, 69 Yale L.J. 595 (1960). For recent nationwide lists of state decisions abandoning or retaining the lex loci delicti rule, see Comment, Abandonment of Lex Loci Delicti in Texas: The Adoption of the Most Signiflcant Relationship Test, 33 Sw.L.J. 1221, note 4 (1980), and Gutierrez v. Collins, 583 S.W.2d 312, 316, note 2 (Tex.1979).
      There are many other recent choice of law theories which a court may apply. There are Currie’s “governmental interests” test; Von Mehren and Trantman's “functional approach”; Cavers’s “principles of preference”; Leflar’s “choice-influencing considerations” or “better law” theory; Ehrenzweig’s “lex fori” approach, and the Restatement Second’s “center of gravity” and “most significant relationship” analysis. Currie, Selected Essays on the Conflict of Laws (1963); Von Mehren and Trantman, The Law of Multistate Problems (1965); Cavers, The Choice of Law Process (1965); Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U.L.Rev. 267 (1966); Leflar, American Conflicts Law (3rd Ed. 1977); Ehrenzweig, Private International Law, Ch. 3 (1972); Restatement (Second) of Conflicts of Laws § 6 and § 145.
      In the area of products liability, there is the “combination of connecting factors” theory established by the Hague Conference on Private International Law at its 1972 Convention on International Products Liability Law. Fleming, Draft Convention on Products Liability (Council of Europe), 23 Am.J.Comp.L. 729 (1975); Lorenz, Some Comparative Aspects of the European Unification of the Law of Products Liability, 60 Cornell L.Rev. 1005 (1975); Park, International Products Liability Litigation: Choosing the Applicable Law, 12 Int’l Lawyer 845 (1974); Reese, The Hague Convention on the Law Applicable to Products Liability, 8 Int’l Lawyer 606 (1974).
      Each has its relative strengths and weaknesses, as well as its extremely vocal critics. Discussion of each of these would be inappropriate and overly lengthy here.


author: MADDOX, Justice.

text:
    JOHNSTON-CLARK APPRAISAL CO., Cole-Layer-Trumble Company, and the Ohio Casualty Insurance Company v. The STATE of Alabama, DEPARTMENT OF REVENUE and Ralph Eagerton, Commissioner of Revenue of the State of Alabama.
    79-318.
    Supreme Court of Alabama.
    Dec. 24, 1980.
    Rehearing Denied Jan. 23, 1981.

      Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellants.
    Charles A. Graddick, Atty. Gen. and Herbert I. Burson and Ron Bowden, Asst. At-tys. Gen. and Counsel and Asst. Counsel, Dept, of Revenue and Thomas B. Hill, Jr. and James J. Carter, Sp. Asst. Attys. Gen., for appellees.
   MADDOX, Justice.

This is an appeal from a judgment which construed certain terms of a contract. That contract and this litigation had their origin in the decision of the United States District Court for the Middle District of Alabama in Weissinger v. Boswell, 330 F.Supp. 615 (M.D.Ala.1974). That decision declared Alabama’s then existing property tax statutes unconstitutional and directed a statewide reappraisal program of all real property in Alabama.

The Alabama Legislature enacted legislation which delegated to the Revenue Department the authority to implement the reappraisal program, to employ qualified appraisers and to let any contract necessary to accomplish the reappraisal. Code 1975, § 40-7-60 et seq. Further, this legislation contained the following provision:

The department of the revenue may, with the approval of the governor, employ any appraisal firms employing a duly accredited member or members of the American Institute of Real Estate Appraisers as consultants to inspect the various systems of assessing in each county and to advise the department of revenue of the best procedures to be followed in the several counties so as to expedite the statewide reappraisal as required by law; provided, that any firms or appraisers hired by the state department of revenue or by local government shall be bona fide residents of the state of Alabama and shall have resided in the state for at least one year prior to January 19,1972. (Acts 1971, 3rd Ex.Sess., No. 160, p. 4404, § 6.) [Emphasis added.]

Code 1975, § 40-7-65.

At the Revenue Department’s direction, a uniform contract was prepared for use in each of the counties in the state m connection with the performance of the reappraisal. The uniform contract provided that compensation be paid to the contractor on a fixed-fee basis.

Problems were encountered by the Revenue Department and by the contractors throughout the state in performing the reappraisal work. Not a single reappraisal contract in the state was completed within the time specified in the agreements.

In 1977, the Revenue Department decided to take over the completion of the reappraisal work in Madison County and to enter into a new contract with a contractor to be selected. Bids were submitted by various contractors, including Johnston-Clark, an Alabama firm which was representing Cole-Layer-Trumble, an out-of-state firm. The bid was submitted by Johnston-Clark because of the language in Code 1975, § 40-7-65, which required the contract to be let to an Alabama appraiser. Nevertheless, the Revenue Department was fully aware that Cole-Layer-Trumble was to do the actual work; in fact, Cole-Layer-Trum-ble was engaged in reappraisal work in several Alabama counties.

The bid submitted by Johnston-Clark for complete mapping and reappraisal in Madison County provided for a fixed fee of $3,630,000, of which $1,780,000 was for the reappraisal work alone. Johnston-Clark was selected as the company with which the Revenue Department decided to negotiate a formal agreement; meetings were held between the representatives of the various parties involved. During these meetings, the Revenue Department advised the contractors that only reappraisal work would be required and that Johnston-Clark’s proposal of $1,780,000 for that work presented budgetary problems; therefore, discussions were held to determine if a method for compensation, other than fixed-fee, could be arranged.

An attorney for Cole-Layer-Trumble was instructed to draft a compensation provision in the new contract which would provide for an estimated fee not to exceed $1 million without the prior written approval of the Revenue Department. The final contract was entered into between Johnston-Clark and the Revenue Department on February 17,1978. Paragraph I-C of that contract, dealing with compensation, reads as follows:

In consideration of the Company’s furnishing the Department the services contracted for herein and such services meet the requirements of this contract and are approved by the Department, the Company shall receive from the Department an estimated fee not to exceed one million dollars ($1,000,000) without prior written approval of the Department. The Company will invoice in accordance with the Fee Schedule attached hereto and made a part hereof. All services performed under this contract will be charged in accordance with the Fee Schedule. Invoices will be rendered every four weeks to the Department and payable upon receipt. Department will have access to payroll records and all records related to billing at execution of this contract. [Emphasis added.]

Paragraph I-D of the agreement required a performance bond of $1 million. The bond was written in this amount, according to testimony by a representative of the surety, Ohio Casualty Insurance Company, based on the contract and because such performance bonds are always written with a specific amount stipulated, regardless of whether or not the contract is fixed-fee.

Shortly after the contract was executed, employees of Cole-Layer-Trumble began work in Madison County. The work progressed without substantial difficulty until the summer of 1978. Because of unexpected problems, additional time and work was necessitated which, of course, increased costs. In September or October of 1978, Cole-Layer-Trumble realized that there was a possibility that billings might exceed $1 million and immediately notified the Revenue Department of the possibility. This notification included a request to submit invoices in excess of $1 million.

The Revenue Department advised the contractors that it construed the contract as a “guaranteed maximum” fee of $1 million and refused to extend approval of a fee to exceed that amount. Johnston-Clark and Cole-Layer-Trumble, therefore, discontinued work under paragraph I-E--2 of the contract. At the time of cessation, Johnston-Clark/Cole-Layer-Trumble had incurred billings totaling $1,081,000. Subsequent to cessation, the Revenue Department completed the work in Madison County and, of course, incurred certain expenses as a result.

Johnston-Clark filed a declaratory judgment action against the Revenue Department asking the court to construe the contract and give approval to expenses in excess of $1 million. Johnston-Clark then amended its complaint seeking $172,571.82, plus interest, for unpaid invoices for work and services performed. Alleging a default, the Revenue Department counterclaimed and sought recovery of sums for completion of the work contracted for from Johnston-Clark, Cole-Layer-Trumble and Ohio Casualty Insurance Company.

In its final decree, the trial court found in favor of the Revenue Department and held that the compensation provision provided for a “cap” of $1 million. The court also found that Johnston-Clark’s refusal to complete work under the contract constituted a breach of the argument and awarded the Revenue Department judgment in the amount of $299,618.12 which represented the estimated cost of completion.

The appraisal company raises three issues on appeal: (1) whether the trial court erred in concluding, as a matter of law, that the contract provided for a guaranteed maximum fee of $1 million; (2) whether the trial court’s factual findings as to the intention of the parties were plainly and palpably erroneous; and (3) whether the trial court was in error in awarding judgment in favor of the Revenue Department on its counterclaim against the contractors.

The issue which is central to the disposition of this case is the construction of the following contractual language: “.. . the Company shall receive from the Department an estimated fee not to exceed one million dollars ($1,000,000) without prior written approval of the Department.”

Appellant argues that the words “estimated fee” are most significant and cites several decisions which appellant claims should be followed by this Court. Appellant relies heavily upon the decision in J. E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261 (Mo.1973), which was cited with approval by the Alabama Court of Civil Appeals in Vester J. Thompson, Jr., Inc. v. Citmoco Services, Inc., 371 So.2d 35 (Ala.Civ.App.1977), rev’d on other grounds, 371 So.2d 42 (Ala.1978).

Hathman held that the term “estimate” negates certainty and should be construed as indicative of a rough calculation. Other jurisdictions have reached a similar result. V. Mueller & Co. v. United States, 115 F.2d 354 (C.C.P.A.1940); Jones v. Pollock, 34 Cal.2d 863, 215 P.2d 733 (1950); Denniston & Partridge Co. v. Mingus, 179 N.W.2d 748 (Iowa 1970); State Highway Commission v. Board of Councilmen of City of Frankfort, 54 S.W.2d 315, 245 Ky. 799 (1932); and Syring-Workman, Inc. v. Colbert, 532 S.W.2d 708 (Tex.Civ.App.1976). These cases, relied upon by appellant, do stand for the proposition that the term “estimated fee” is unambiguous and should be construed as a mere estimate and nothing more.

The appellee, however, argues that to give such a construction would defeat the meaning of the term “not to exceed” which appears in conjunction with the term “estimated fee” in the contract. The United States Supreme Court, in Train v. City of New York, 420 U.S. 35, 95 S.Ct. 839, 43 L.Ed.2d 1 (1975), decided that the term “not to exceed” is a definite qualifying term and that since this “definite qualifying” language is used in conjunction with the term “estimated fee” what is intended is really a “guaranteed maximum” or “ceiling price.” This argument is in line with the general rule of construction that language in a contract must be interpreted in light of the surrounding circumstances. United States Fidelity and Guaranty Corporation v. Elba Wood Products, Inc., 337 So.2d 1305 (Ala.1976); Obermark v. Clark, 216 Ala. 564, 114 So. 135 (1927).

It is, therefore, important to examine the surrounding circumstances as well as the totality of the language to be construed. The language under interpretation contains not only the terms “estimated fee” and “not to exceed,” but also, the term “without prior written approval.” The term “without prior written approval” appears to have been inserted into the contract as an escape valve. If the appraisers ran into difficulty and had to exceed $1 million and if the State had the money, then the Department could approve payments in excess of $1 million. This, however, does not appear to have been the case.

The circumstances surrounding the formation of this contract are many and varied. First, the Revenue Department had encountered difficulty through the contractors it had hired in performing 'the reappraisal work. In fact, not one of the reappraisal contracts was completed within the time allotted. The specific county wherein this particular contract arose, Madison County, had experienced such problems that the Revenue Department decided to take over the completion of the contract and removed the reappraisal work from the original contract. Competitive bids were sought by the Department and bids were submitted by various contractors. The one submitted by Johnston-Clark was the most acceptable to the Department.

The bid submitted by the appellants within this competitive bid situation was $1.78 million for the reappraisal work alone. The Revenue Department advised the appellants that the amount of that bid created budgetary problems for the Department. Thereafter, extensive negotiations occurred between the parties. During the course of these negotiations, Mr. Trumble, a representative of the appellants, indicated that the work could be completed for an amount around $800,000. Mr. Trumble testified concerning these discussions and stated:

Q. Were there any discussions at that meeting on what would be the expected or possible cost if it were done on a time and material basis?
A. Okay. We discussed ranges of prices from Eight Hundred, Eight Hundred and Fifty Thousand up. The basis for the Eight Hundred, Eight Hundred and Fifty Thousand prices were pointed out that if everything went smoothly, if the records were as clean as we had, in some cases, been led to believe and that if the time frame we were able to schedule the people in such a manner that we could get through the program, that we could possibly make it for somewhere in the Eight-Fifty range.
Q. Did you ever tell any of them at this meeting that you were guaranteeing that the contract that you would propose would ever exceed some sum certain?
A. I absolutely did not.

The logical construction which should be given the contractual language, especially in light of the surrounding circumstances, is that $1 million was an estimate of what the contractor felt the maximum cost of the work would be. The contract was limited to $1 million because of fiscal constraints on the State. The appraisers agreed to complete the work within their estimate unless the State agreed to allow them to exceed it. The State did not so agree and refused approval to exceed the $1 million contract price. The trial court, therefore, did not err in construing the contractual language.

If payments were not made to the contractor for work performed then the contractor had the right, under paragraph I-E-2 of the contract, to discontinue the services and work that it was performing under the contract. The trial court did not err in finding under Paragraph I-E-2 that the Department was entitled to a judgment of $299,618.12 because the appraisers ceased work which entitled the State to complete the work. This amount was reduced by $172,571.82, representing unpaid expenses to the contractor which would have brought the total paid to the contractor to $1 million, leaving a net judgment of $127,046.30 against the contractor. This finding is apparently based on the expenses incurred by the Department in completing the work. This finding is, therefore, without error based on paragraph I-E-2.

Therefore, the judgment of the trial court is due to be affirmed.

AFFIRMED.

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

      . Paragraph I-E-2 of the contract reads as follows:
      Before the contract may be declared in default, the Company and the surety company must be notified in writing by the Department of the conditions which make default of the contract imminent. Ten (10) days after this notice is given, if a satisfactory effort has not been made by the Company to correct the conditions, the Department may declare the contract in default and notify the Company accordingly. In case the contract is declared in default as above or terminated by the Department in accordance with paragraph E of this contract, the right is reserved for the Department to take possession of all work completed, work in progress, material, equipment and supplies as specified in paragraph H hereof, or any other part of the work, to account for said work and material to the Company and to use the same to complete, or have completed, the project in accordance with the same standards of requirements and rules and regulations under which this contract was executed and in accordance with the same standards set out in the provisions and specifications of this contract. The Company shall be firmly bound by the terms hereof, except it may discontinue the services and work which devolve upon it in the event payments to it, at no fault of the Company, are not made when due and as provided in this contract.


author: BEATTY, Justice.

text:
    Larry Vance DEAN and Nancy H. Dean v. Ronald L. SNEED and Mary Sneed.
    79-136.
    Supreme Court of Alabama.
    Jan. 23, 1981.
    S. P. Keith, Jr. of Keith, Keith & Keith, Birmingham, for appellants.
    G. Houston Howard, II of Howard & Dunn, Wetumpka, for appellees.
   BEATTY, Justice.

This is an appeal from a decree ordering the defendants, Larry and Nancy Dean, to specifically perform a contract for the purchase of certain real property. We reverse and remand.

The plaintiffs, Ronald and Mary Sneed, listed their Elmore County home for sale with Tri-City Realty, Inc., and on October 12, 1978 the Deans agreed to purchase it. Prior to signing the contract, the purchasers had examined the property as fully as they desired. The purchasers paid a $500.00 binder, agreed to pay an additional $500.00 before December 15, 1978, agreed to pay $11,800.00 for the sellers’ equity, and agreed to assume an outstanding mortgage indebtedness of $48,760.00. Closing was to occur not later than January 10, 1979, and the agreement was to be approved by Johnson and Associates, the mortgagee. Although the purchasers were attempting to sell their house in Jefferson County, their agreement to purchase was not contingent upon sale of that house.

The contract also provided that the sellers were to provide the purchasers with an abstract of title within ten days of the contract date, i. e., by October 22, 1978. That clause also provided:

In the event abstract fails to show a good and merchantable title . . . the Seller shall have a reasonable time after receipt of written notice of defects from Purchaser, to cure such defects and make said title merchantable. .. . [I]f said title ... is made merchantable by the Seller within a reasonable time, and the Purchaser fails and refuses to carry out this contract in accordance with all of its terms . . . Seller may proceed with specific performance of this contract.. . .

A “move-in” clause was also provided in the contract:

Seller agrees to allow purchaser to move into his home on a move in agreement for a Max. 90 days (a) $445. per month, paying rent one month in advance....

A separate move-in agreement, although dated October 22,1978, apparently was executed between October 12, and October 14, 1978, and the purchasers then moved into the house. The agreed rent was paid for October, November and December, and the Deans lived in the home until January 20, 1979.

During the latter part of December, 1978, not having sold their Birmingham home, the Deans contacted their real estate agent, Hawn, to request an extension of the contract from the January 10, 1979 closing date. Hawn contacted the Sneeds, who agreed to an extension, although no specific length of time was fixed. On January 9, 1979, after they had been informed that the extension had been granted, the Deans delivered to Hawn a post-dated check in the amount of $500.00, which represented the second $500.00 payment contracted for earlier.

When a firm date for closing still had not been set, the Sneeds, the sellers, communicated with the Deans, the buyers, on January 18, 1979, and offered:

[ T]o extend the contract on an indefinite basis with one exception, that being that the rent monies that were paid [would be] increased by One Hundred Dollars ($100.00) to compensate [the Sneeds] for keeping [their] money tied up longer than the contracted time. . . .

According to Mr. Sneed, Mr. Dean responded by telling Sneed that he, Dean, could not close the transaction because he had not sold his Birmingham house. Several days later they had another telephone conversation during which Dean refused to close the sale because, according to him, the electric bills were high and the house was infested with wasps.

Ultimately the sellers brought suit for specific performance. Following the initial pleadings the defendants filed an amended answer alleging that the move-in agreement precluded the plaintiffs’ suit for specific performance. On August 7, 1979 the trial court took evidence ore tenus. The next day the defendants counterclaimed for a return of the $500.00 binder, alleging that the plaintiffs-sellers had breached the agreement by failing to provide an abstract of title and a written statement from the federal housing commissioner. This was followed by an amended complaint alleging that an oral contract existed under which part of the purchase price had been paid and the defendants had taken possession of the subject property.

On October 2, 1979 the trial court entered its decree, ordering the defendants to specifically perform the contact. The plaintiffs were ordered to execute a good and sufficient warranty deed conveying the property to the defendants and to file an abstract of title to the property in court within ten days. The defendants, the Deans, then appealed.

The appeal was first submitted to this Court on the briefs in May 1980. At that time the defendants advanced six factual contentions which they alleged required a reversal of the trial court’s order. In their reply brief, the defendants stated that the subject property had been sold to a third party by the plaintiffs and asked this Court for leave to file a Rule 60(b) motion in the trial court. On July 28, 1980 this Court withheld submission and granted the request of the Deans for leave to file a Rule 60(b) motion. This motion was filed with the circuit court and denied. Following that denial, the case was re-submitted to this Court, whereupon the plaintiffs-sellers moved to dismiss the appeal on the ground that the defendants-purchasers had not filed another notice of appeal. That position is untenable. It was not necessary for the defendants to file a new appeal since this Court merely withheld submission of this case until a hearing could be held on the Rule 60(b) motion. The matter was then properly re-submitted to this Court.

Defendants now contend that the trial court erred to reversal in denying the 60(b) motion based on the ground that there was newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial. Defendants urge that the new evidence proved that the plaintiffs-sellers had subsequently sold the land in question to a third party, and that the second sale precludes the specific performance of their contract.

The evidence at the hearing on the Rule 60(b) motion consisted of two exhibits presented by the defendants, and the testimony of Mr. Sneed and Mr. Dean. Exhibit A was a contract dated February 15, 1980, which showed the Sneeds as sellers and Donald Stroud as purchaser of the property in question. The contract was signed by all three parties to the contract. In this agreement the sellers agreed to sell and the purchaser agreed to purchase the premises for the price of $60,500.00 with the purchaser (Stroud) assuming the outstanding mortgage of $48,000.00 and agreeing to pay $12,-500.00 in a period of two years. Exhibit B was an undated addendum to the contract, which stated that purchaser was to lease the residence for the first year at $325.00 per month, and that the purchaser was to lease the property for the second year at $375.00 per month with 25% of the payment going toward a down payment. The sellers were to carry a balloon note for $12,500.00 for two years. This addendum did supplement the original contract in outlining how payments were to be made, but in no way did it change the fact that the plaintiffs-sellers had again contracted to sell this property to Mr. Stroud.

Mr. Sneed did not refute the existence of the second contract, but testified that he had not signed or executed any deed to Mr. Stroud. He said that the second contract was not fulfilled and that Stroud was not living on the property. He did, however, admit that Stroud had lived on the property for a period of two months and that he, Sneed, had received $325.00 from Stroud under this contract.

The trial judge, after hearing all the evidence, made the following order:

Appellants’ Motion under Rule 60(b) of the Alabama Rules of Civil Procedure having been presented to the Court and both parties being represented by their respective attorneys, the Court proceeded to hear the evidence ore tenus and is of the opinion that the allegations of the Motion are untrue and that Petitioner is not entitled to the relief prayed for. It is, therefore, the ORDER, JUDGMENT AND DECREE OF THE COURT that the Appellants be and they are hereby ORDERED to comply with the former Order of this Court requiring them to purchase the property involved in the lawsuit from the Appellees.

We note initially that the evidence presented at the hearing on the 60(b) motion was heard by the trial court ore tenus. Thus, the decision of the trial court is favored with a presumption of correctness, and will not be reversed unless palpably wrong, without supporting evidence, or manifestly unjust. Gertz v. Allen, Ala., 376 So.2d 695 (1979).

The issue, therefore, is whether the trial court’s decision that the allegations of petitioner’s 60(b) motion are untrue and that petitioner is not entitled to relief under the 60(b) motion is palpably wrong, without supporting evidence or manifestly unjust. We hold that it is and reverse.

The defendants’ position is that by entering into the second contract, the existence of which was undisputed, and even conceded by the Sneeds, sellers, the plaintiffs waived any right to specific performance which they otherwise might have obtained under the original contract.

We recognize the general rule that the right of a person to specific performance of his contract may be lost by his abandonment thereof, by his acquiescence in a breach of it, or by conduct inconsistent with the right to relief, which amounts to a waiver or an estoppel. 81 C.J.S. Specific Performance § 25. This rule was succinctly stated in Hamon v. Allen, 457 S.W.2d 384 (Tex.Civ.App.1970), quoting Kluck v. Leuschner, 70 S.W.2d 768 (Tex.Civ.App.1934), as follows:

The right to specific performance is one which may be waived or abandoned and abandonment may be inferred from the circumstances or the conduct of the parties showing an intention inconsistent with performance. Such vendor who intends to insist upon a specific performance must at all times deal with the property in a manner consistent with a sale thereof to his vendee. He cannot treat the property as his own and deal with it in a manner inconsistent with such sale and thus speculate on the improvement of his position and thereafter insist upon specific performance of the contract by the vendee. ... [457 S.W.2d at 392.]

This rule applies readily to the case at bar. Certainly the circumstances show an intention inconsistent with the performance of the initial contract. The sellers treated the property as their own and dealt with the property in a manner inconsistent with the first sale to the Deans by reselling it to Stroud. When the second sale failed, apparently they realized they would benefit from the specific performance of the first contract and resorted back to it. Surely the conduct of the Sneeds, in reselling the property in question to Stroud, constituted a waiver of their rights to specific performance of their first contract and they cannot be allowed to insist upon its specific performance now.

In Kosky v. Borowko, 224 App.Div. 764, 229 N.Y.S. 714 (1928), a vendor who had contracted to convey land to a buyer brought an action for specific performance against the buyer. The vendor, after commencement of the action, disposed of the property he was to convey under that contract. The court held that he had abandoned his rights under the contract since he could not himself comply with the terms of the contract. “It would be inequitable to enforce a contract at the instance of a party who voluntarily placed himself in such a position that he cannot himself comply with it.” Kosky v. Borowko, supra.

The situation in the instant case differs from that in Kosky, supra, only because the second contract here was not fulfilled and the second purchaser has vacated the premises. These differences are of no import, since the right to specific performance of the first contract was effectively abandoned by the plaintiffs-sellers when they began to treat the property in a manner inconsistent with the initial sale. Having voluntarily abandoned their right to specific performance by reselling the property, they cannot now revert back to the initial contract and demand its specific performance merely because their second contract failed.

We withhold any comment regarding the recovery of damages only.

The trial court’s finding that the allegations of the 60(b) motion were untrue is unclear. If by that statement the trial court meant that it found that there was no second sales contract, that finding is erroneous, since the existence and even the validity of that contract are not questioned. Thus, such a decision would be without supporting evidence and manifestly unjust. If, however, the trial court did recognize that the plaintiffs made a second contract to sell the property in question, then it necessarily follows that they abandoned any right they might have had to specific performance. For this reason, the finding of the trial court that the defendants were not entitled to relief under their 60(b) motion was clearly erroneous and without supporting evidence. Thus, the decision must be and is reversed and remanded to the trial court with directions to enter an order not inconsistent with this opinion.

REVERSED AND REMANDED.

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


text:
    Lorrain Barger REED et al. v. Ike W. DUNN et al.
    79-244.
    Supreme Court of Alabama.
    Jan. 23, 1981.

      Olin W. Zeanah and William J. Donald, III of Zeanah, Donald & Hust, Tuscaloosa, for appellants.
    James J. Jenkins and Eugene A. Beatty of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellees.
   SHORES, Justice.

This is an appeal by the defendants from a final decree in an action brought by the plaintiffs for sale for division of certain lands, which arose out of the following facts:

Wiley P. Dunn died intestate in 1936, leaving as his sole heirs his widow, Asma Dunn, and eight children. Of these eight children, five were adults and three were minors. At the time of his death, Wiley P. Dunn owned 250 acres of land, mortgaged to the Bank of Berry, Alabama. The land involved in this litigation was included in the total acreage mortgaged to the Bank of Berry.

There was evidence that after Wiley P. Dunn died, and in 1939, Ike Dunn, who along with his wife is a plaintiff in this ease; with Dennis Dunn, his brother; Mark Jacobs, the husband of an adult sister; and Talmadge Barger, also a husband of an adult sister, went to the bank and discussed the mortgage on Wiley P. Dunn’s property. Thereafter, the bank issued a notice of foreclosure subsequent to which a family meeting was held at the home of Asma Dunn Fields (the mother of the eight children involved herein) at which all members of the family were present. There was evidence that at this meeting, Ike Dunn and Dennis Dunn raised the question about satisfying the mortgage on their father’s property. There was some testimony that other members of the family indicated that they had no interest in contributing to the satisfaction of the mortgage. In any event, on October 25, 1939, the Bank of Berry conducted a foreclosure sale and became the purchaser of the property. On the same day, Ike Dunn and Dennis Dunn purchased the property from the bank. They received a deed from the bank and executed a mortgage to the bank for the balance of the purchase price. The mortgage and deed were duly recorded and the mortgage ultimately was paid in full by Ike and Dennis Dunn.

After they purchased the property in 1939, Ike and Dennis Dunn moved onto the property and lived there for approximately two years. While occupying the property they erected a fence, started a farm, and raised cattle. Later, in 1947, they sold 160 acres to Albert Holman Lumber Company. Later they sold timber from the remainder of the property.

There was evidence from which the trier of the facts could conclude that all family members knew that Ike and Dennis Dunn had purchased the land from the Bank of Berry after the foreclosure. It was not disputed that no family member offered to contribute any portion of the purchase price which Ike and Dennis' Dunn paid for the property to the Bank of Berry. No member of the family ever offered to contribute to the maintenance of the property, and no one offered to pay any portion of the taxes on the land. Ike and Dennis Dunn have’ paid taxes on the land since they purchased it.

Other family members did assert an interest in other property which Wiley P. Dunn owned at the time of his death, and other lands owned by him were sold for division between all the brothers and sisters.

The parties to this appeal are in agreement that when Wiley P. Dunn died intestate, the real property which he owned passed by operation of law to his heirs, who then became tenants in common. Each owned an undivided one-eighth interest, subject to the life estate in Dunn’s widow. They are in agreement that when the property was sold at the foreclosure sale by the mortgagee bank, the tenancy in common was destroyed.

They are also in agreement that when Ike and Dennis Dunn purchased the property from the bank, the title to the property became vested in Ike and Dennis Dunn, subject to the inchoate right in each of the other brothers and sisters to rehabilitate his or her respective interest as a tenant in common by contributing within a reasonable time to the purchase price paid by Ike and Dennis Dunn. The rule applicable to this case was stated succinctly in Salter v. Odom, 240 Ala. 462, 199 So. 687 (1940):

In this jurisdiction it is established by a long line of decisions, that a redemption of property by one cotenant from mortgage, or tax sales, or a purchase before the time of redemption has expired, and the discharge of other liens, will inure to the benefit of all the cotenants, who may, within a reasonable time, elect to avail themselves of the redemption, or of the purchase, by making, or offering to make, their proportionate contribution to the redemption of said property, or its purchase, with interest thereon. [Emphasis added.]

240 Ala. at 464.

To rehabilitate his interest, a non-purchasing cotenant. must contribute his share of the purchase price within a reasonable time after he learns of the purchase.

They are also in agreement that the right of a former tenant in common to rehabilitate his cotenancy interest arises whether the redemption is direct or through a succession of transactions. Chatman v. Hall, 246 Ala. 403, 20 So.2d 713 (1945). Therefore, the fact that Ike Dunn and Dennis Dunn did not make the purchase at the redemption sale, but instead purchased from the Bank of Berry, which itself had purchased at the foreclosure sale, is immaterial. The acquisition of title by Ike and Dennis Dunn was for the mutual benefit of themselves and for the benefit of the former cotenants, conditioned upon the right of each former cotenant to rehabilitate his or her cotenancy by contributing within a reasonable time his or her share of the sum paid for redemption with interest and lawful charges. Beavers v. Lanier, 373 So.2d 643 (Ala.1979); Lehman, Durr & Co. v. Moore, 93 Ala. 186, 9 So. 590 (1890).

Therefore, the issue is whether the trial court erred in holding that the former cotenants, both those who were adults at the time of the purchase by Ike and Dennis Dunn and the three minor children, whose right extended to their reaching majority, had failed to exercise their rights within a reasonable time. The time period within which a former cotenant must contribute to rehabilitate his interest does not commence until he has actual knowledge of the reacquisition or redemption. Draper v. Sewell, 263 Ala. 250, 82 So.2d 303 (1955).

There is evidence in this case from which the trial court could have concluded that the heirs of Wiley P. Dunn, who were adults at the time Ike and Dennis purchased the property, did have actual knowledge of the purchase. There was also evidence that at no time has either of the adult cotenants offered to contribute to the purchase price. We need not decide what constitutes a reasonable time in every case following actual knowledge. Suffice it to say that, in this case, the trial court was justified in finding that, inasmuch as no effort had been made since 1939 to rehabilitate their interest in the land, the adult cotenants had not acted within a reasonable time.

The parties are likewise in agreement that the time for contribution of the three minor heirs did not commence until they attained majority. Those three were Lyman L. Dunn, born March 16, 1933; McWayne Dunn, born August 3, 1930; and Edna Dunn Marcum, born March 2, 1925. Thus, Lyman Dunn attained majority in 1954, McWayne Dunn in 1951, and Edna Dunn Marcum in 1946. Again there was evidence that all three had actual knowledge of the purchase of the property by Ike and Dennis Dunn both before and after attaining their respective ages of majority. Lyman Dunn testified that he had known all of his life that Ike and Dennis Dunn had purchased the property. Edna Dunn Mar-cum testified likewise. In addition, there was evidence that all of the brothers and sisters, both adults and minors, knew both before and after all had reached majority that Ike and Dennis Dunn had purchased the property. Under these facts we cannot say that the minors acted within a reasonable time after reaching majority to rehabilitate their cotenancy interests by contributing to the purchase price. Whatever might be a reasonable time after attaining majority surely passed at some point prior to 1978, when this action was filed.

Again, Draper v. Sewell, supra, is disposi-tive on this issue. There the Court held that two minor cotenants had failed to make contribution to the redemption price within a reasonable time when a complaint was filed six and one-half years after one had attained the age of majority and eight and one-half years after the other. Here the lapse of time for the three minor coten-ants is twenty-four years, twenty-seven years, and thirty-two years, respectively.

The appellants also argue that when Ike and Dennis Dunn sold a portion of the land and received for that part an amount in excess of the total purchase price paid for the whole, they had then been made whole and, thus, at that point it was no longer necessary for the cotenants to make a contribution or that Ike and Dennis Dunn should be estopped from claiming a contribution from the other heirs. We cannot agree with this position. Neither Ike nor Dennis Dunn was under any obligation to account for the proceeds of the sales of the land or the timber until the former coten-ants had rehabilitated their interests.

We agree with the appellants that, generally, a purchase by a cotenant of an outstanding title is presumed to be for the benefit of all of the parties in interest, and that possession by one cotenant is presumed to be possession for the benefit of all. By affirming the trial court in this case, we do not intend to depart from that long-established rule. We simply hold that the trial court was justified in finding that after the cotenants received actual knowledge of the fact that Dennis and Ike Dunn had purchased the property and were claiming it for their own, they did not within a reasonable time elect to avail themselves of the benefit of the purchase of the outstanding interest by offering or tendering a contribution to the purchase price. Nothing held here conflicts with Gilb v. O’Neill, 225 Ala. 92, 142 So. 397 (1932). In that case, however, the offer to make a contribution was within a reasonable time, having been made one year after the plaintiffs learned of the purchase by their fellow cotenant at a tax sale. In this case, however, there is evidence that after the other brothers and sisters knew and had actually been told by Ike and Dennis Dunn that they, Ike and Dennis, were claiming the property as their own, more than thirty-nine years passed before any offer of contribution was made by any party. We think this supports the trial court’s conclusion that the former co-tenants did not act within a reasonable time as required by our cases.

The judgment appealed from is therefore affirmed.

AFFIRMED.

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


author: JONES, Justice.

text:
    COUGAR MINING COMPANY v. MINERAL LAND & MINING CONSULTANTS, INC.
    No. 79-617.
    Supreme Court of Alabama.
    Jan. 23, 1981.
    James A. Sullivan of Jackson & Sullivan, Haleyville, for appellant.
    Ann R. Downing, Haleyville, for appellee.
   JONES, Justice.

In May of 1978, Appellant Cougar Mining Company procured the services of Appellee Mineral Land and Mining Consultants, Inc. (MLMC), to perform drilling operations upon land on which Cougar Mining Company was mining coal. All such operations were performed solely by individuals employed by MLMC, and continued from May until September or October of 1978.

Sometime in August of 1978, Cougar Mining began questioning the legitimacy of MLMC’s billing procedures. Cougar’s specific contentions were that the invoices and drill logs of MLMC, from which Cougar was billed, did not accurately depict those services actually rendered by MLMC. Thereafter, Cougar withheld payment of all further MLMC invoice charges.

On December 6, 1978, a complaint was filed by MLMC in the Circuit Court of Winston County, Alabama, demanding judgment for MLMC as to its claims for payment against Cougar Mining. The case was tried to the court on June 25, 1979, at which time both parties stipulated that the amount clamed by MLMC from Cougar Mining was $12,915. On September 13, 1979, the Circuit Court entered a judgment for MLMC against Cougar Mining Company in the amount of $12,915. Cougar Mining Company’s motion for post-judgment relief was denied on April 3, 1980. We remand with instructions.

We note at the outset that Appellant’s only contention on this appeal is that the evidence adduced before the trial court was insufficient to support its judgment in favor of MLMC for the full amount claimed. Where evidence has been taken ore tenus, a presumption of correctness attends the trial court’s conclusion on issues of fact, and this Court will not disturb the trial court’s conclusions unless clearly erroneous and against the great weight of the evidence, but will affirm the judgment if, under any reasonable aspect, it is supported by credible evidence. Raidt v. Crane, 342 So.2d 358 (Ala.1977); Adams Supply Co. v. United States Fidelity & Guaranty Co., 269 Ala. 171, 176, 111 So.2d 906 (1959).

However, this presumption of correctness is rebuttable and may be overcome by the lack of evidence or where the evidence presented to the trial court is insufficient to sustain its judgment. Southeastern Properties, Inc. v. Lee, 368 So.2d 284 (Ala.1978). Unquestionably, the evidence of record adequately supports a judgment in favor of MLMC; we do question, however, whether the amount of the judgment is amply supported by the evidence. For example, our close reading of the record shows that while one employee of MLMC admitted charging Appellant for “travel time” in computing the total amount billed, another MLMC employee categorically stated that Appellant was never charged for “travel time.” It appears that travel time is listed in the invoices and constitutes an item “charged” in arriving at the sum of $12,915.

At one point, Appellee’s invoice showed an actual drill time of three and one-half (3V2) hours for a certain period. However, Appellant was billed for a total of six (6) hours during that same period (and not the four (4) hour minimum as per their agreement). Appellee’s explanation at trial, which is conclusory at best, was that the added hours represented time spent “waiting on Appellant.”

Close scrutiny of Appellee’s invoices reveals charges for “drilling time” on different occasions of seven and one-half (7'/2) hours and eight (8) hours. While this in itself cannot be deemed out of the ordinary, Appellee’s position that this represented continuous, uninterrupted work of one individual, whose total work day consists of one eight (8) hour shift, causes us to reflect upon such a statement with more than a casual glance.

While we are reluctant to reverse a judgment based on an ore tenus hearing, particularly where, as here, the evidence supports a substantial portion of the total amount claimed and awarded, the noted various discrepancies, along with the vagueness of certain of the evidence of record, are of a sufficient character to prevent us from affording propriety to the trial court’s judgment as presently postured.

Because the evidence of record does not support one or more of the items of charges encompassed in the judgment, we are left with no alternative but to reverse the judgment and remand the cause for a new trial.

REVERSED AND REMANDED.

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


text:
    The Honorable Fob JAMES, as Governor of the State of Alabama v. Charlie Will THOMPSON.
    79-943.
    Supreme Court of Alabama.
    Jan. 23, 1981.

      Charles A. Graddick, Atty. Gen., and Rosa G. Hamlett, Asst. Atty. Gen., for appellant.
    Lewis H. Hamner, Jr., Roanoke, for ap-pellee.
   JONES, Justice.

This appeal, by the Honorable Fob James, as Governor of the State of Alabama, challenges the order of the Montgomery Circuit Court directing him to issue to Appellee Charlie Will Thompson a commission as supernumerary sheriff of Randolph County under the provisions of Act 79-357, Acts 1979 (§ 36-22-60 et seq. Code 1975).

A single issue is presented: Whether Thompson, who meets the age and tenure in office requirements of § 36-22-60, but who stands convicted of a felony (voting fraud), is entitled to a commission as supernumerary sheriff. We resolve the question adversely to Thompson; thus, we reverse and render.

This case was submitted to the trial court upon a stipulation of facts, which states in pertinent parts:

“4. On and prior to September 13,1979, Plaintiff was Sheriff of Randolph County, Alabama, and had been elected to such position and served as such continuously since January, 1963, a period of more than 16 years.
“5. On September 13, 1979, Plaintiff filed with Defendant a written declaration of election to become a supernumerary sheriff under the provisions of Act No. 79 357, supra. . . .
“6. Prior to September 13, 1979, criminal proceedings were instituted against Plaintiff in the United States District Court for the Middle District of Alabama for conspiring to violate the election laws of the United States [42 U.S.C. § 1978i(c) and 18 U.S.C. § 2] in violation of 18 U.S.C. § 371, and knowingly and willfully paying or offering to pay voters to vote in an election in violation of 42 U.S.C. § 1973i(c), and 18 U.S.C. § 2. . . .
“7. ... [On September 14, 1979,] Plaintiff was found guilty by the jury, adjudged guilty by the trial court and was thereafter sentenced to serve a term in the federal penitentiary. . . .
“8. Based upon the said judgment of guilty and sentence . . . Defendant James refused to issue to Plaintiff a Commission as Supernumerary Sheriff.
“9. .. .
“10. Plaintiff appealed the aforementioned judgment of conviction to the United States Court of Appeals for the Fifth Circuit. Said Court reversed Count V and affirmed the judgment as to the other counts.”

Act No. 79 -357, Acts of Alabama 1979, the legislative enactment providing for the appointment and designation of supernumerary sheriffs, prescribes:

“Section 1. Any sheriff . . . may elect to participate in the supernumerary sheriff’s program provided by this act. . . .
“(b) who has had sixteen (16) years of service credit as a law enforcement officer, twelve (12) of which have been as a sheriff, and who has reached the age of fifty-five (55) years ... by filing a written declaration to that effect with the Governor....
“Section 6. Each supernumerary sheriff shall take the oath of office prescribed for sheriffs and shall be subject to call by the governor in the event of a vacancy in the office of the sheriff.”

The trial court, in ordering the Governor to issue the Commission, held that Thompson “is entitled as a matter of law to assume the office of supernumerary sheriff as set out in Act No. 79-357 of the Alabama legislature.” We hold that Thompson, upon his conviction of the infamous crime of voting fraud, became ineligible and disqualified from holding the office of supernumerary sheriff. Section 60 of the Constitution of Alabama 1901 provides:

“No person convicted of embezzlement of the public money, bribery, perjury, or other infamous crime, shall be eligible to the legislature, or capable of holding any office of trust or profit in this state.”

The error of the trial court’s ruling is implicit in the very wording of its order. That is, its reference to “the office of supernumerary sheriff holds the key to the appropriate resolution of the issue presented. The legislature, in creating a supernumerary program for elected sheriffs in Alabama, necessarily created the office of supernumerary sheriff. Although the duties of such office are limited in scope and the performance of such duties are contingent and narrowly defined, the statutorily prescribed position and function of a supernumerary sheriff is that of a public office — an “office of trust [and] profit.” Otherwise, the compensation provisions of the Act clearly would run afoul of § 98 of our State Constitution, which proscribes any legislative grant of retirement pay to public officers.

Moreover, our disposition of the instant appeal is aided by the literal meaning of the word “supernumerary.” The word is derived from two Latin words — super, above or beyond; and numerus, a number. Thus, these two words, when used in combination and translated, mean exceeding a prescribed number. The legislative employment of this term, as a means of providing compensation to public officials conditioned upon age and length of service, created an office of public trust with duties and responsibilities concomitant with its purpose and design. While its members are above and beyond the numbers prescribed for active sheriffs, and its duties are limited and contingent by its nature, its character is not reduced to something less than that of a public office. Indeed, the Act provides that each supernumerary sheriff shall take the oath of office prescribed for sheriffs.

REVERSED AND RENDERED.

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


text:
    R. A. OWENS CONSTRUCTION COMPANY, INC., a corporation et al. v. EMPLOYERS INSURANCE COMPANY OF ALABAMA, a corporation et al.
    80-37.
    Supreme Court of Alabama.
    Jan. 23, 1981.

      Nicholas S. Hare of Hare & Hare and Windell C. Owens, Monroeville, for appellants.
    Bruce N. Wilson of Adams & Adams, Grove Hill, for appellees.
   SHORES, Justice.

This case is a declaratory judgment action brought by R. A. Owens Construction Company, Inc. (Owens), against Employers Insurance Company of Alabama (Insurer) to determine the rights and liabilities of the parties under certain policies of insurance issued by Insurer to Owens.

In 1972 Owens built a house for a Mr. and Mrs. Ginwright, completing it in August of that year. In January of 1980, the Gin-wrights filed a suit against Owens alleging that Owens, through either breach of agreement, negligence, breach of warranty, or misrepresentation, failed to perform its contract with the Ginwrights to build a house with a front porch constructed on a four-inch concrete slab on fill. Instead, the Gin-wrights alleged that Owens built a suspended slab porch on a wooden frame. It was alleged by the Ginwrights that moisture, originating with the wooden frame, caused part of their house to rot and thereby damaged the house. The complaint also alleged that, as a result of the negligence or breach of agreement by a termite company (another party), their house had suffered termite damage. The complaint alleged that the damage was discovered in June, 1979, which was some seven years after Owens completed work on the house. When he was served with this complaint, Owens called upon the Insurer to defend the suit. When the Insurer refused to do so, Owens filed this action for declaratory judgment.

The trial court granted summary judgment in favor of the Insurer and Owens appealed. We affirm.

The record shows that Owens purchased from the Insurer “manufacturers’ and contractors’ liability insurance and premises medical payments insurance.” “Completed operations and products liability insurance” was offered by the Insurer but this coverage was not obtained by Owens. Both of the coverages which Owens did obtain specifically excluded “completed operations hazard.” The policies obligated the Insurer to pay for damages “caused by an occurrence.” An occurrence is defined in the policy as “an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” “Completed operations hazard,” which is excluded from the “manufacturers’ and contractors’ liability insurance and premises medical payments insurance,” which Owens bought, is defined in the policy as follows:

“Completed operations hazard” includes bodily injury and property damage arising out of operations or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs after such operations have been completed or abandoned and occurs away from premises owned by or rented to the named insured. “Operations” include materials, parts or equipment furnished in connection therewith. Operations shall be deemed completed at the earliest of the following times:
(1) when all operations to be performed by or on behalf of the named insured under the contract have been completed ....

Therefore, no occurrence as defined in the policy occurred within the policy period. Owens did not purchase the “completed operations hazard” coverage and, as that coverage is defined in the policy, it is expressly excluded from the coverage which he did purchase. It follows, therefore, that the Insurer is not obligated to defend the Ginwrights’ suit against Owens. Employers Insurance Company of Alabama, Inc. v. Rives, 38 Ala.App. 411, 87 So.2d 646 (1953). In that case, the Court of Appeals, faced with a policy similar to the one involved here, relied on Baker v. Maryland Casualty Co., 73 R.I. 411, 56 A.2d 920 (1948), which in turn involved similar provisions, and quoted with approval the following from Baker:

“The policy here definitely excludes coverage for accidents occurring after the plaintiff [insured] had ‘completed or abandoned’ her work on the Winklers’ [plaintiffs in the suit against the insured] premises. It is manifest from the evidence that plaintiff [insured] herself considered * * * that she had completed her work there after her employees had left the premises on March 24, 1944. Whether she had completed her work to the satisfaction of the Winklers so as to be entitled to payment therefor is of no importance in this litigation. For the purpose of this case, we have to consider only whether the plaintiff had completed her work on March 24, 1944, and had actually discontinued all further operations on the Winklers’ premises after that date.
“Under the exclusionary provision of division 3 of the policy ... an accident occurring after the premises are abandoned is not covered by division 1. There can be no question that plaintiff abandoned operations on the Winklers’ premises after she had. satisfied herself on March 24, 1944, that no further operations on her part were required to complete the work which she had contracted ' to do on such premises. The evidence on that question is undisputed. An accident occurring after that date would therefore not fall within the plaintiff’s contract of insurance.”

38 Ala.App. 411, at p. 416, 87 So.2d 646.

On appeal, Owens contends that because it filed an affidavit in opposition to the Insurer’s motion for summary judgment to the effect that the termite damage complained of in the Ginwrights’ complaint could have occurred during the construction of the house, a fact question is made so as to defeat summary judgment. We cannot agree. There is nothing set out in the Ginwrights’ complaint which constitutes an occurrence as defined in the policies before us. The Ginwrights’ complaint charges Owens with breach of contract and tort liability. The.Insurer insured Owens against an “occurrence” which is defined in the policy as an “accident .. . which results, during the policy period, in bodily injury or property damage . . .. ” The policy expressly excluded completed operations and, therefore, the policy does not cover the Ginwrights’ claim because the damage did not occur within the policy period. Mut v. Newark Insurance Co., 289 So.2d 237 (La.App.1973). In Mut, the Louisiana court noted that since 1966, insurers have employed the term “occurrence” instead of the term “accident” so as to expressly provide that coverage is extended to accidents resulting in loss or damage during the policy period. This Court has held that insurers have a right to do that. Utica Mutual Ins. Co. v. Tuscaloosa Motor Co., Inc., 295 Ala. 309, 329 So.2d 82 (1976).

The judgment appealed from is affirmed.

AFFIRMED.

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


author:
WRIGHT, Presiding Judge.
      BRADLEY, Judge HOLMES, Judge

text:
    STATE of Alabama ex rel. Pat SPEER v. Donald David HAYNES.
    No. Civ. 1892.
    Court of Civil Appeals of Alabama.
    Oct. 31, 1979.
    Rehearing Denied Nov. 28, 1979.

      Gordon F. Bailey, Jr. of Wilson, Propst, Isom, Jackson, Bailey & Bolt, Anniston, for appellant.
    Izas Bahakel, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

Appellee, Donald David Haynes, and Pat Speer were divorced in the State of Texas by decree of the Court of Domestic Relations of Harris County, Texas. On December 23, 1975, that court issued an order modifying the original decree. The decree as modified provided that Ms. Speer have custody of the parties’ minor child, David Scott Haynes; appellee have custody of the parties’ minor child, Tamberly Michele Haynes; and appellee pay “zero” child support to Ms. Speer.

Thereafter Ms. Speer and David moved to Calhoun County, Alabama, and appellee moved to Jefferson County, Alabama. Ms. Speer was awarded Aid to Dependent Children (A.D.C.) assistance in November 1977. At that time, Ms. Speer assigned to the State any rights to support for the child which she had against any other person. On November 28, 1978, the State filed a petition for child support in the Circuit Court of Calhoun County asking the court to order appellee to pay a reasonable sum toward the support of David. After a hearing the trial court found that the divorce decree as modified by the Texas court was a valid and binding decree; that under this decree Ms. Speer had no rights against ap-pellee for child support; and that there existed no emergency requiring the court to intervene in the matter. The trial court denied the petition for child support, stating that the parties could resolve their differences in the Texas court.

It is clear that the trial court denied the petition for child support on the basis of the Texas decree. The State argues that the court was in error in so doing. We agree and reverse.

It is well settled that where a child is physically present within the jurisdiction of an equity court of this state, such court has inherent authority to act to protect the welfare and best interest of such child. Any pleading which shows on its face that the welfare of a child requires an order with respect to its custody or support is sufficient to invoke the jurisdiction of the court. Gray v. Department of Pensions and Security, 53 Ala.App. 19, 296 So.2d 918 (1974). The issue of child support was raised by the State’s petition. The father’s obligation to pay child support was not extinguished by the Texas court’s order. The obligation of support cannot be permanently removed by agreement, release or judgment if circumstances require its re-invocation in the future. Moore v. Moore, 57 Ala.App. 735, 331 So.2d 742 (1976). All interested parties were before the Alabama court, including the father. Therefore, the issue of support was appropriate for determination by the trial court.

Apparently the trial court based its decision upon the principle of comity. We do not believe “comity” is involved here. Comity is nothing more than a principle of courtesy by which the courts of one jurisdiction will give effect to the laws and judicial decisions of another jurisdiction merely out of deference and respect. It is a matter resting in the judicial discretion of the court in which the enforcement or recognition of the foreign law or judgment -is sought. Brown v. Babbitt Ford, Inc., 571 P.2d 689, 695, 117 Ariz. 192 (1977). However, in considering comity, there should be due regard by the court to the duties, obligations, rights and convenience of its own citizens and of persons who are within the protection of its jurisdiction. Nowell v. Nowell, 408 S.W.2d 550, 553 (Tex.Civ.App.1966).

The courts of Alabama have recognized and applied the principle of comity. In matters relating to the welfare and protection of a child within its jurisdiction, we have said that relief will be given upon a showing of changed circumstances or upon peculiar circumstances which create an emergency as to the immediate welfare of the child. Watkins v. Brannon, 54 Ala.App. 424, 309 So.2d 464 (1974); Sappington v. Fort, 258 Ala. 528, 63 So.2d 591 (1953). The facts in this case clearly show a change of circumstances since the Texas judgment of 1975. It is further shown that the child is in need of aid and support which is presently being supplied by the taxpayers of this state. The facts further show that there is not involved in this case a request for the enforcement of a foreign judgment by the courts of this state, which invokes the extension of courtesy to the courts of Texas.

There is no effort in this proceeding to enforce, abrogate or set aside the Texas decree. It has no enforceable provisions. It merely vacated a previous order of support. The petition to the court says there is now a need of support for the child who is a dependent in this state from the father who is a resident of this state. To tell the parties to return to Texas for relief extends no courtesy to Texas. To refuse to exercise its jurisdiction in this ease because the Texas court entered a judgment four years ago is within neither the purpose nor the spirit of the principle of “comity.” It is rather an abdication of the responsibility and duty of that court as parens patriae of the child. In truth, it, at best, is an arbitrary abuse of discretion and is unjust.

The father argues that the mother had nothing to assign since the decree of the Texas court did not order him to pay child support to her. We do not agree. The issue of the support of a minor child is never closed. The mother had the right and duty to petition a court of equity for child support if the continued well-being of the child required it. It was the right which the mother assigned to the State. Any person, including the State of Alabama, could activate the jurisdiction of such court by petition showing need of the child.

It should be remembered that an order of support is for the benefit of the child even though paid to the mother or other custodian. As in any other case involving a minor child, the primary consideration is the best interest of the child.

We reverse the dismissal of the petition for child support and remand to the trial court for hearing and determination of support for the child according to his best interest.

REVERSED AND REMANDED.

BRADLEY, J., concurs specially.

HOLMES, J., dissents.

BRADLEY, Judge

(concurring specially):

I agree that the judgment of the trial court must be reversed but for a different reason than that expressed by Presiding Judge Wright. The trial court’s erroneous finding that no emergency existed is the basis for my conclusion that the judgment be reversed.

The evidence shows without contradiction that the child in question is receiving welfare aid from the State Department of Pensions and Security in Calhoun County, Alabama where he and his mother reside.

The evidence shows also that the father is financially able to contribute to the support of this child. The fact that the child is receiving aid from a state welfare agency amply supports a conclusion that it needs support from its father and that such need constitutes an emergency in Calhoun County, Alabama. For this reason I agree to the reversal of the trial court’s judgment.

HOLMES, Judge

(dissenting):

I respectfully dissent.

A competent court of the State of Texas determined that the father was not required to provide support for one of the party’s children.

The Circuit Court of Calhoun County, after an ore tenus hearing, found the following:

[ Tjhere exists no immediate emergency requiring this Court to intervene in this matter and that the parties may, if they so desire, resolve their differences before the Court of Domestic Relations Number Four of Harris County, Texas, the Court which divorced the parties and determined which party should have custody of each of the children as well as the rights and obligations of the parties with respect to child support.

It is my opinion that the trial court properly followed the law of this state.

In cases of this nature there may be concurrent jurisdiction with the court wherein the divorce decree was rendered. However, this concurrent jurisdiction arises only when the circumstances create an emergency as to the immediate welfare of the child. Ex parte Dunlap, 260 Ala. 52, 68 So.2d 533 (1953).

Our courts will give relief upon a showing of changed circumstances or upon peculiar circumstances which create an emergency as to the immediate welfare of the child. Sappington v. Fort, 258 Ala. 528, 63 So.2d 591 (1952).

The trial court, in this instance, determined that no such emergency existed which was sufficient to invoke the jurisdiction of an Alabama court. Whether such emergency in fact existed is a question of fact. Further, the trial court determined that any amending or changing of the divorce decree should be accomplished by the court which rendered the original divorce decree. The above finding of fact will not be disturbed unless it is palpably wrong. Lumpkin v. Meeks, 263 Ala. 395, 82 So.2d 535 (1955). That is, the question of whether there is an emergency is a matter within the sound discretion of the trial judge. Fawkes v. Fawkes, Ala.Civ.App., 360 So.2d 719 (1978).

In the case of Watkins v. Brannon, 54 Ala.App. 424, 309 So.2d 464 (1974), this court stated the rule which is applicable in the instant case. Where a foreign court has rightfully assumed jurisdiction over minor children, Alabama courts, as a matter of comity, may refuse to deal with the question of their future welfare. However, our courts should exercise jurisdiction upon a showing of changed circumstances or upon peculiar circumstances which create an emergency as to the immediate welfare of the child. If upon a hearing there are no changed circumstances or emergency condition existing, then, as a matter of comity, Alabama courts should refuse to exercise their jurisdiction.

This rule of law was recently stated in the case of Fawkes v. Fawkes, supra. In my opinion, this rule is still the law in Alabama.

The effect of the majority opinion is to completely ignore the decree of the Texas court and the doctrine of comity in cases of this nature.

To hold that the trial court must exercise its jurisdiction in the instant case upon facts falling short of any emergency as would necessitate involving the power of the equity court to protect the minor’s welfare with utter disregard of the Texas decree is, in my opinion, contrary to the law of this state. Sappington, supra.

I do not find that, in this instance, the trial court erred to reversal in refusing to exercise its jurisdiction and would affirm.