author: LEAR, Judge.

text:
    ALLIED CHEMICAL CORPORATION and its Wholly-Owned Subsidiaries Allied Chemicals Company and Union Texas Petroleum Company v. IBERVILLE PARISH POLICE JURY and the Board of Commissioners of Iberville Parish Waterworks District Number Two.
    No. 14627.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 1982.
    Writ Granted July 2,1982.

      G. William Jarman and Richard A. Curry of Sanders, Downing, Kean & Cazedessus, Baton Rouge, for plaintiffs-appellants Allied Chemical Corp.
    Houston C. Gascon, III, Plaquemine, for defendant-appellee Iberville Parish Police Jury.
    J. Hugh Martin, Foley, Judell, Beck, Bewley & Martin, New Orleans, William L. Kimball, Port Allen, for defendant-appellee The Bd. of Com’rs of Iberville Parish Waterworks Dist. Number 2.
    Before LEAR, CARTER and CHIAS-SON, JJ.
   LEAR, Judge.

Allied Chemical Corporation, a New York corporation authorized to do and doing business in this state, and its wholly-owned subsidiaries, Allied Chemical Company and Union Texas Petroleum Company (hereinafter collectively referred to as “Allied”) own and operate a chemical manufacturing facility located in Iberville Parish within an industrial area created pursuant to LSA-R.S. 33:130.11, et seq. Allied claims a statutory exemption from taxation under the provisions of LSA-R.S. 33:130.18, and other industrial inducement statutes.

Allied claims its property is wholly within Waterworks District No. 2. On August 19, 1980, the police jury of Iberville Parish authorized Waterworks District No. 2 to incur debt and issue bonds to the amount of $1,500,000.00. The bonds were designated as general obligation bonds payable from ad valorem taxes to be levied and collected from all property within the waterworks district. They were approved by the voters of the district in a special election, and the results were properly promulgated on November 13, 1980. In order to protect and assert their exemption from taxation under the above mentioned statutory provision, plaintiffs filed suit against the waterworks district under the provisions of LSA-R.S. 18:1281, et seq., claiming that the ad valo-rem tax to be imposed in support of the bonds is illegal. The basis for plaintiffs’ claim is that the taxing resolution specifies that “all property” within the waterworks district will be taxed, that this violates their statutory exemption, and that the tax which supports the bonds is therefore invalid.

Defendants, Iberville Parish Police Jury and the Board of Commissioners of Iberville Parish Waterworks District No. 2, filed a peremptory exception of no right and no cause of action, arguing that the validity of the bonds and the supporting tax proposition at issue may be contested only under the provisions of LSA-R.S. 13:5121 through 5130. Defendants further claim that since plaintiffs have failed to utilize that procedure within the peremptive period of sixty days, they are forever barred from attacking the validity of the bonds by Article VI, Section 35(A), of the Louisiana Constitution of 1974.

The trial court, without written reasons, sustained the exception and dismissed plaintiffs’ suit. Plaintiffs then appealed. We affirm.

Although plaintiffs have specified a number of errors, in reality, the issue on appeal is whether plaintiffs have utilized the proper procedure in filing suit to invalidate the tax and/or assert their claimed exemption from the tax.

LSA-R.S. 13:5121, et seq., are contained in Part XVI, Chapter 32, Title 13, Louisiana Revised Statutes of 1950, as amended, and are titled “Suits to Determine Validity of Governmental Bonds”. R.S. 13:5122, which provides the applicable law and sets out the legislative intent, provides, in pertinent part, as follows:

“All suits, actions and proceedings of whatever nature affecting the validity of bonds of any governmental unit, or the interest thereon, or the sale thereof, or the election, if any, authorizing the issuance of said bonds, shall be brought only in accordance with the provisions of this title.” [Emphasis added.]

The remaining provisions of Part XVI provide the procedure which must be followed by persons or corporations desiring to contest the issuance of such bonds.

Plaintiffs’ original petition seeks to have the ad valorem tax declared illegal. Plaintiffs’ amended petition, in the alternative, seeks a judgment declaring that “the proposed ad valorem tax applies only to those areas of Iberville Water Works District No. 2 which are not included within an industrial area.”

We find that plaintiffs are not seeking to affect, contest or have declared illegal the issuance of the bonds themselves. We, therefore, hold that, because plaintiffs’ suit is not one “affecting the validity of bonds of any governmental unit, or the interest thereon, or the sale thereof, or the election, if any, authorizing the issuance of said bonds”, plaintiff is not required to proceed under the provisions of R.S. 13:5121, et seq.

Defendants caused general obligation Ijonds to be issued under the authority of and in conformance with the provisions of Article VI, Section 33(A) of the Louisiana Constitution of 1974. We find, therefore, that this tax is one levied under the authority granted to the parish by the constitution, rather than a tax authorized by an election.

We previously considered a similar situation in the case of Audubon Insurance Company v. Parish of East Baton Rouge, 366 So.2d 972 (La.App. 1st Cir. 1978). In Audubon, plaintiff sued for a refund of an ad valorem tax which it had paid under protest. In deciding Audubon, it was necessary for us to resolve the apparent conflict between the sixty day peremptive period contained in Article VI, Section 35(A), Louisiana Constitution of 1974, and R.S. 39:513 (now R.S. 18:1281 et seq.) and the thirty day jjeremptive period provided by R.S. 47:2110. After concluding that R.S. 39:513 (now R.S. 18:1281 et seq.) is applicable to tax elections, we stated that:

“The legislature certainly never intended to provide two separate and distinct peremptive statutes providing different time periods within which to attack the same tax. Obviously, these statutes were never intended to apply to the same tax; otherwise, havoc would reign and there would be no certainty as to which per-emptive period would apply. We, therefore, conclude that La.R.S. 47:2110 was intended to apply to those taxes levied under authority granted the state or political subdivision by the legislature or by the constitution. There is no mention made in La.R.S. 47:2110 of a tax authorized by an election, and thus we find a distinction.”

Since the tax in Audubon was authorized by an election, we held that the applicable peremptive period (and thus the appropriate remedy) is that provided by La.R.S. 39:513 (now R.S. 18:1281 et seq.). However, in this instant case, we find that the tax at issue is one authorized by the constitution, and therefore plaintiffs’ proper remedy is that contained in R.S. 47:2110. On this basis, defendants’ peremptory exception urging the objections of no right and no cause of action was well founded and the trial court was correct in sustaining their exception.

We note that plaintiffs’ amended petition seeks declaratory relief.

R.S. 47:2110 provides, in pertinent part, that:

“Any person resisting the payment of any amount of tax found due, or the enforcement of any provision of the tax laws in relation thereto, shall pay the amount found due to the officer designated by law for the collection of such tax.... ”

Based on this provision of the law, we find that plaintiffs’ exclusive remedy is that provided by R.S. 47:2110, and declaratory relief is therefore not available to plaintiffs.

In the consolidated cases of Giraud v. City of New Orleans and Decatur Realty Corporation v. City of New Orleans, 359 So.2d 294 (La.App. 4th Cir.), writ denied, 362 So.2d 579 (La.1978), plaintiffs sought a declaratory judgment decreeing that certain taxes were illegally assessed and illegally collected. In rejecting plaintiffs’ right to seek declaratory relief in resisting payment of the tax, the court stated that:

“. . . [T]he suit before us is governed by the case of Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407 (1943), where Act 330 of 1938 (the source of the present R.S. 47:2110) was considered vis á vis a claim that relief could be granted in federal court under the Federal Declaratory Judgments Act. In that case, the United States Supreme Court held that, as Louisiana provided a remedy for contesting and challenging a tax, an action for declaratory judgment was inappropriate. As the court stated:
“ ‘With due regard for these considerations, it is the court’s duty to withhold such relief [declaratory judgment] when, as in the present case it appears that the state legislature has provided that on payment of any challenged tax to the appropriate state officer, the taxpayer may maintain a suit to recover it back.’

“See also Ford Motor Credit Co. v. Louisiana Tax Commission, 321 F.Supp. 1365 (E.D.La.1971).”

For the foregoing reasons, the judgment of the trial court, sustaining defendants’ peremptory exception urging the objections of no right and no cause of action and dismissing plaintiffs’ suit, is hereby affirmed. The costs, both of trial and appeal, are to be paid by plaintiffs-appellants.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    CIBA-GEIGY CORPORATION v. IBERVILLE PARISH POLICE JURY, et al.
    No. 14650.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 1982.
    G. William Jarman and Richard A. Curry of Sanders, Downing, Kean & Cazedessus, Baton Rouge, for plaintiff-appellant Allied Chemical Corp. and Ciba-Geigy Corp.
    Houston C. Gascon, III, Dist. Atty., Plaquemine, for defendant-appellee Iber-ville Parish Police Jury.
    J. Hugh Martin, of Foley, Judell, Beck, Bewley and Martin, New Orleans, and William L. Kimball, Port Allen, for defendant-appellee Iberville Parish Waterworks Dist. No. 2.
    Before LEAR, CARTER and CHIAS-SON, JJ.
   LEAR, Judge.

This case is a companion to the case of Allied Chemical Corporation, et al v. Iberville Parish Police Jury, et al., 414 So.2d 409 (La.App.), which is presently before this panel of the court. Although these cases were not consolidated on appeal, they both involve the same factual and legal issues. Therefore, for the reasons assigned by the court in Allied Chemical Corporation, et al. v. Iberville Parish Police Jury, et al, we hereby affirm the judgment of the trial court. Plaintiffs are to pay all costs, at trial and on appeal.

AFFIRMED.


text:
    Raymond Carl HORN v. May SHORT (Horn).
    No. 53195.
    Supreme Court of Mississippi.
    Feb. 10, 1982.
    Rehearing Denied March 10, 1982.
    Blackmon, Smith & Nichols, Edward Blackmon, Jr., Canton, for appellant.
    Wilkins, Ellington & James, L. C. James, James 0. Nelson, II, Jackson, for appellee.
    Before SMITH, P. J., and ROY NOBLE LEE and BOWLING, JJ.
   Appeal from Chancery Court, Hinds County; Paul G. Alexander, Chancellor.

AFFIRMED.


text:
    Raymond Carl HORN v. May SHORT (Horn).
    No. 53059.
    Supreme Court of Mississippi.
    March 3, 1982.
    Blackmon, Smith & Nichols, Edward Blackmon, Jr., Canton, for appellant.
    Wilkins, Ellington & James, L. C. James, James 0. Nelson, II, Jackson, for appellee.
    Before SMITH, P. J.; and WALKER and DAN M. LEE/JJ.
   Appeal from Chancery Court, Hinds County; Paul Alexander, Chancellor.

AFFIRMED IN PART AND REVERSED IN PART AND REMANDED.

SUGG, P. J., and BROOM, ROY NOBLE LEE, BOWLING and HAWKINS, JJ., concur.

PATTERSON, C. J., took no part.


text:
    Johnny B. BILLS, et ux. v. MODERN EXTERIORS OF MISSISSIPPI, INC., etc.
    No. 53520.
    Supreme Court of Mississippi.
    May 26, 1982.
    Banks & Nichols, Coolidge C. Anderson, Jr., Jackson, for appellants.
    Bernard W. N. Chill, Sr., Bernard W. N. Chill, Jr., Luke M. Dove, Jr., Jackson, for appellee.
    Before WALKER, P. J., and BOWLING and HAWKINS, JJ.
   Ap|>eal from Chancery Court, Hinds County; Joe G. Moss, Chancellor.

AFFIRMED.


text:
    Lincoln COLEMAN, et al. v. Patsy Stevens HUDSON, et al.
    No. 53571.
    Supreme Court of Mississippi.
    May 26, 1982.
   Appeal from Chancery Court, Winston County; Edward C. Prisock, Chancellor.

R. W. Boydstun, Jr., Louisville, for appellants.

Hathorn & Hathorn, J. Hoy Hathorn, Louisville, for appellees.

Before SUGG, P. J., and ROY NOBLE LEE and DAN M. LEE, JJ.

AFFIRMED.


text:
    Willie James STEWART v. STATE of Mississippi.
    No. 53532.
    Supreme Court of Mississippi.
    May 26, 1982.
    Willie James Stewart, pro se.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SUGG, P. J., and BOWLING and HAWKINS, JJ.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

AFFIRMED.


text:
    William R. HILL v. Bettye B. HILL.
    No. 53221.
    Supreme Court of Mississippi.
    May 26, 1982.
    Beach, Luckett & Ross, Stephen L. Beach, Stephen L. Beach, III, Jackson, for appellant.
    Lee B. Agnew, Jackson, for appellee.
    Before WALKER, P. J., and BOWLING and HAWKINS, JJ.
   Ap¡>eal from Chancery Court, Hinds County; James Arden Barnett, Chancellor.

AFFIRMED.


text:
    Leroy PRYOR v. STATE of Mississippi.
    No. 53562.
    Supreme Court of Mississippi.
    May 26, 1982.
    Leon E. Provine, Grenada, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SUGG, P. J., and BOWLING and HAWKINS, JJ.
   Api>eal from Circuit Court, Grenada County; Niles McNeel, Judge.

AFFIRMED.


text:
    Donald FARMER v. STATE of Mississippi.
    No. 53251.
    Supreme Court of Mississippi.
    May 26, 1982.
    Fred M. Witty, Greenwood, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., SMITH, P. J., and BROOM, J.
   Appeal from Circuit Court, Leflore County; Webb Franklin, Judge.

AFFIRMED.


text:
    Charles Ray TINGLE v. Diane S. TINGLE (Roberts).
    No. 53539.
    Supreme Court of Mississippi.
    May 26, 1982.
    John Robbins, II, Brandon, for appellant.
    Lee & Grenfell, James B. Grenfell, Jackson, for appellee.
    Before WALKER, P. J., and BOWLING and HAWKINS, JJ.
   Appeal from Chancery Court, Rankin County; Billy G. Bridges, Chancellor.

AFFIRMED.


text:
    David C. WILLIAMS v. STATE of Mississippi.
    No. 53208.
    Supreme Court of Mississippi.
    May 26, 1982.
    Beach, Luckett & Ross, James J. Fouger-ousse, Jackson, for appellant.
    Bill Allain, Atty. Gen., by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SUGG, P. J., and ROY NOBLE LEE and DAN M. LEE, JJ.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

AFFIRMED.


text:
    Richard A. BOND, Sr. v. Cynthia Evelyn Miller BOND.
    No. 53242.
    Supreme Court of Mississippi.
    May 26, 1982.
    Parsons & Matthews, Jack Parsons, Eddy Parsons, Wiggins, for appellant.
    Lawrence D. Arrington, Hattiesburg, for appellee.
    Before PATTERSON, C. J., SMITH, P. J., and BROOM, J.
   Appeal from Chancery Court, Pearl River County; Sebe Dale, Jr., Chancellor.

AFFIRMED.


author: DARDEN, Justice, for the Court: ROY NOBLE LEE, Justice, DAN M. LEE, Justice,

text:
    In the Matter of the Adoption of a Minor Child: John Harold AINSWORTH and Elizabeth Anne Ainsworth v. NATURAL FATHER.
    No. 53167.
    Supreme Court of Mississippi.
    May 26, 1982.
    Thomas T. Buchanan, Billie J. Graham, Laurel, for appellants.
    McKenzie & Pickering, Franklin C. McKenzie, Jr., Laurel, for appellee.
   DARDEN, Justice, for the Court:

This is an adoption case that comes to us from the Chancery Court of Jones County. John and Elizabeth Anne Ainsworth filed a petition for Ainsworth to adopt M. D., Anne’s son of a former marriage. Anne’s former husband, M. D.’s father, is here called Roe, and he objects to the adoption.

The questions presented are whether Roe deserted or abandoned the infant M. D. within the meaning of Mississippi Code Annotated section 93-17-7 (Supp.1981), and the effect, if any, of the amendment of that statute in 1980 referring to the 1980 statute found as Mississippi Code Annotated section 93-15-103, subsections 3(a), (e) (Supp.1981).

The chancellor was of the opinion that the actions (or inactions) of Roe, as he found the facts, did not amount to an abandonment or desertion of the child, and that the amendment of 1980 had no effect in this case. We disagree with these conclusions of law, and reverse and remand the case.

Anne’s marriage with Roe ended in divorce in January, 1976, when their son, M. D., was about six months old. The divorce decree provided for monthly payments of child support. Roe had moved to Arkansas by the time the decree was rendered, but was furnished a copy. He made support payments directly to Anne until November, 1976, about the time he lost his job and moved in with his mother in Monroe, Louisiana.

During 1976 Roe saw M. D. about five times. On at least one of those occasions he was accompanied by his mother in trips to Laurel. He had relatives in the vicinity of Laurel, but once stayed at the Laurel Holiday Inn and visited with M. D., who was then about thirteen months old. This is the last time Roe saw M. D. He sent him no Christmas present in 1976 nor any Christmas, birthday or other present or card since then.

In March, 1977, Roe and a brother borrowed $15,000 and opened a clothing store in Tallulah, Louisiana. At some later time the brother left the business and Roe continued to operate it. Whether the brother was l>ought out, or how Roe acquired his interest is not shown.

On March 20, 1977 Roe sent Anne $200 for support money and medical bills and made one more payment in April, 1977. Since then he has contributed nothing to M. D.’s support. There is no indication that the decree for support and provisions for M. D.’s education has ever been modified. .

Roe undertakes to excuse his failure to make support payments on financial difficulties and the fact that he did not know where to send the money after Anne moved from an old address following her marriage to Ainsworth in July, 1977. The facts are he has repaid the initial loan of $15,000, established credit sufficient to build up an inventory he values at more than $50,000, and acquired a second clothing store in Orange Beach or Gulf Shores, Alabama. He has also supported himself and the new wife he married in August, 1978.

Anne did not leave Laurel after her remarriage. Roe knew of Anne’s parents’ address and met friends he and Anne had known in Laurel when he attended clothing markets in Dallas and elsewhere. He made no inquiry as to Anne’s whereabouts or M. D.’s condition. He knew the identity of Anne’s lawyer from October, 1978. His sole effort to communicate with Anne were unanswered telephone calls to Anne’s parents’ residence from Hattiesburg and the vicinity of Magee on an occasion when he was driving from Gulf Shores to Tallulah, and sent a letter in July, 1977, and “maybe two” more.

The chancellor found as a fact that Roe did not make a reasonable effort to see M. D. or provide for M. D.’s welfare. We have determined that this finding is supported by clear and convincing proof.

Adoption is a privilege unknown to the common law and exists in Mississippi solely by virtue of statute. Eggleston v. Landrum, 210 Miss. 645, 50 So.2d 364 (1951); Mayfield v. Braund, 217 Miss. 514, 64 So.2d 713, suggestion of error overruled, 217 Miss. 514, 65 So.2d 235 (1953); Brassiell v. Brassiell, 228 Miss. 243, 87 So.2d 699 (1956). In consequence we must look to the statute on the subject, Mississippi Code Annotated sections 93-17-3, et seq. (1972).

Section 93-17-7, dealing with adoption after objection by a parent, was amended effective July 1, 1980. This case was filed August 20, 1980, and was tried under the amended statute.

With the 1980 amendments emphasized, the statute reads as follows:

No infant shall be adopted to any person if either parent, after having been summoned to sign the petition for adoption, shall appear and object thereto before the making of a decree for adoption, unless it shall be made to appear to the court from evidence touching such matters that the parent so objecting had abandoned or deserted such infant or is mentally, or morally, or otherwise unfit to rear and train it, including, but not limited to, being within any of the grounds requiring termination of parental rights as set forth in subsections (2) and 3(a), (b), (d), or (e) of section 93-15-103 in either of which cases the adoption may be decreed notwithstanding the objection of such parent, first considering the welfare of the child, or children, sought to be adopted.. Provided, however, the parents shall not be summoned in the adoption proceedings nor have the right to object thereto if the parental rights of the parent or parents have been terminated by the procedure set forth in sections 93-15-101 through 93-15-111, and such termination shall be res judicata on the question of parental abandonment or unfitness in the adoption proceedings. (Emphasis added).

Section 93-15-103 provides in part:

(3) Grounds for termination of parental rights shall be based on one or more of the following factors:
(a) A parent has deserted without means of identification or abandoned and made no contact with a child under the age of three (3) for six (6) months or a child three (3) years of age or older for a period of one (1) year; or
(e) When there is an extreme and deepseated antipathy by the child toward the parent or when there is some other substantial erosion of the relationship between the parent and child which was caused at least in part by the parent’s serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or communicate, or prolonged imprisonment. .

There was no issue or showing made as to Roe’s mental or moral fitness or unfitness to rear and train M. D. and those statutory provisions are not involved here.

Section 93-17-7 provides that adoption may l>e had despite the objection of a parent who has abandoned or deserted an infant child. Evidently, the Legislature made a distinction between desertion and abandonment by the use of the disjunctive. The statute gives us no help in determining either that distinction or the meaning of either term. Turning to the decisions of this Court, we have neither found, nor had our attention called to one that makes a distinction, between the two terms.

The term “abandonment” imports any conduct on the part of the parent which evinces a settled purpose to forego all duties and relinquish all parental claims to the child. Wright v. Fitzgibbons, 198 Miss. 471, 21 So.2d 709 (1945).

The Oxford English Dictionary (The Clarendon Press, Oxford, 1933, Reprinted 1961) gives us this definition of abandon:

2. To give up the control or discretion of another; to leave to his disposal or mercy; to yield, cede, or surrender absolutely a thing to a person or agent.

Webster’s Third New International Dictionary (G. & C. Merriam Co., Springfield, Ma., 1967) has this as a definition of abandon:

1. To cease to assert or exercise an interest, right, or title to especially with the intent of never again resuming or reasserting it.

The O. E. D. (supra), gives us this as a definition of desert (as a verb):

2. To forsake (a person, institution, cause, etc. having moral or legal claims upon one).
3. To forsake one’s duty, one’s post or one’s party.

Webster (supra) has this definition of desert (as a verb):

3a. To break away from or break off associations with (some matter involving legal or moral obligation or some object of loyalty).

It would appear then, that abandonment has to do with the relinquishment of a right or claim, whereas desertion involves an avoidance of a duty or obligation. The definition of abandonment in Wright v. Fitzgibbons, supra, seems to include both avoidance of duty and relinquishment of right.

We believe, and now hold, that where there is a complete disregard for the welfare of a child of tender years over a period of more than three and a half years, and a contumacious refusal to abide by a valid decree of support, with no effort to have it modified, this amounts to desertion of the child. Such desertion, under the statute as we construe it, results in a forfeiture of parental rights whether or not there was an intent to relinquish them.

The appellants contend that the 1980 amendment of section 93-17-7 bringing portions of section 93-15-103 within the purview of the adoption statute had the effect of raising a presumption of abandonment when the time lapses set out in subsection 3(a) had expired. The chancellor held that subsection 3(a) did not undertake to define abandonment nor create any presumption, but, on the contrary, limited the finding of abandonment in certain cases. This holding is in accord with the decision in In Re: Adoption of a Female Child: Miller v. Arrington, and Arrington, 412 So.2d 1175 (Miss., 1982), in which the sole issue of abandonment was addressed.

Miller is distinguishable on the question of abandonment from this case. Furthermore, neither the Miller case, nor the opinion of the chancellor here considered desertion or speak to the effect of subsection 3(e) upon such termination of parental rights as to overcome an objection to adoption. We believe that this is a case where there has been “. . . some substantial erosion of the relationship between the parent and child which was caused at least in part by the parent’s serious neglect, ... prolonged and unreasonable absence [or] unreasonable failure to visit or communicate, ...”

Here there was certainly serious neglect and unreasonable failure to visit or communicate, as shown by the chancellor’s opinion and as established by the clear and convincing proof. Let us concede there was a proper parental relationship between Roe and M. D., in all the circumstances, until M. D. was thirteen months old. Since that time there has been no reasonable effort to visit or communicate and there has been absolute neglect of M. D. by Roe. M. D. does not know Roe as a father. The parental relationship has been so far eroded by Roe’s conduct that it no longer exists as far as M. D. is concerned. He thinks of the petitioner John Ainsworth as his daddy, as shown by the undisputed proof, and a fine father-son relationship exists between them.

The chancellor held that Roe’s objection to the adoption should be sustained and, therefore, never reached the matter of considering the welfare of the child. He did find that the petitioners have looked after and reared the child to his present age in a proper manner. However, the statute, as we view it, requires a definite adjudication that the welfare of the child will be promoted or enhanced by the proposed adoption, and the case should be remanded for a determination of.that question. See In Re Yarber, 341 So.2d 108 (Miss.1977).

In view of our holding on the question of the validity of Roe’s objection to the adoption, we find it unnecessary to discuss or act on the assignment of error regarding the denial of the petition for rehearing.

This cause is reversed and remanded for consideration of the child’s welfare if adopted to the petitioners, and such further action as to change of name and records as may be appropriate in the event of a decree of adoption after such consideration.

REVERSED AND REMANDED.

PATTERSON, C. J., SUGG and WALKER, P. JJ., and BROOM and HAWKINS, JJ., concur.

ROY NOBLE LEE, BOWLING and DAN M. LEE, JJ., dissent.

ROY NOBLE LEE, Justice,

dissenting:

I cannot agree with the majority opinion and, therefore, dissent.

In my view, the present case, on the facts and law, measures up to Yarbrough v. Dearman, 341 So.2d 108 (Miss.1977), and In Re: Adoption of a Female Child: Miller v. E. K. Arrington and Arrington, 412 So.2d 1175 (Miss.1982). The principle involved is identical.

The majority bases the decision on the following parts of Mississippi Code Annotated Section 93-15-103 (Supp.1980):

(3) Grounds for termination of parental rights shall be based on one or more of the following factors:
(a) A parent has deserted without means of identification or abandoned and made no contact with a child under the age of three (3) for six (6) months or a child three (3) years of age or older for a period of one (1) year; . ..

In my opinion, Section (3)(a) does not change the established law that there must be an abandonment or desertion of a child by the natural parent before that child can be taken away from the parent and adopted by another person. The phrase, “made no contact with a child under the age of three (3) for six (6) months or a child three (3) years of age or older for a period of one (1) year” is meaningless because as many explanations and excuses may be made to the reason for no contact within such short periods as there are broken homes.

The majority opinion states that Miller, supra, is distinguishable from the case at bar because it does not consider desertion or the effect of Subsection (3)(e) of the statute. I think the terms “abandonment” and “desertion” are tweedle-dee and tweedle-dum. The result of each is the same. As in tort cases, a person who negligently fails to perform a duty (act of omission) and a person who negligently commits an act (act of commission) are both guilty of negligence which permits an injured party to recover. The terms are different but the result is the same, and for practical purposes the terms mean the same.

The chancellor, in the case sub judice, heard conflicting evidence on the questions of abandonment and desertion and found that there was no abandonment of the child. It follows that he found there was no desertion of the child. In my opinion, the chancellor was not manifestly wrong in his finding of fact and he correctly applied the law. The term “manifestly wrong” in these cases, should be extended to proof beyond reasonable doubt that there was an abandonment or desertion, before a child could be taken from a parent and given to another person.

Since the beginning of jurisprudence in this state, the law and the courts have jealously guarded the rights of parents to their children and not to have them taken away by others. This is true whether the parents be high or low, rich or poor, educated or ignorant, wise or foolish. Now is not the time to change the law or to facilitate adoptions from objecting natural parents.

As was said in Yarbrough v. Dearman, supra, “In passing upon the adoption of children, the Court must first determine that one of the grounds for adoption exists, (1) abandonment or (2) moral or otherwise unfitness, and then what is for the best interest of the children.” [341 So.2d at 110]. The chancellor here found there was no abandonment of the minor child.

In my opinion, the majority has gone too far and I respectfully dissent therefrom.

BOWLING and DAN M. LEE, JJ., join this dissent.

DAN M. LEE, Justice,

dissenting:

I am unable to agree with the majority opinion reversing the chancellor and terminating the natural father’s parental rights, and therefore respectfully dissent. A recitation of the facts is unnecessary except as to the facts upon which the majority relies to establish abandonment of the child by his natural parent.

The evidence in the case sub judice was undisputed insofar as the natural parent ceased making support payments for the child as of April 1977. The last time the natural father visited with the child occurred sometime in 1976. Although the natural father sought visitation with the child in April 1977, visitation rights were refused by the mother due to the child’s illness. The mother admitted that she probably made a statement at this time to the effect that further visitation with the child would not be allowed until child support payments were made current.

The natural mother remarried in July 1977, moving into the residence of her new husband. Since this time, she has expressed her view that she desires no further contact with the natural father or his family. Although the natural father did not make efforts to locate his child after his former wife’s remarriage, any attempt to do so would have been futile as evidenced by the mother’s desire to sever all contact with the natural father.

The chancellor in finding that the father had not abandoned the child, relied upon Yarber v. Dearman, 341 So.2d 108 (Miss.1977), wherein we reiterated the definition of abandonment and desertion espoused in our previous decisions as importing any conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child. Moreover, we held that callous indifference to the welfare of a child did not constitute abandonment or desertion so as to sever the relationship of a child and his natural father. Subsequently, in In Re: Adoption of a Female Child: Miller v. Arrington and Arrington, 412 So.2d 1175 (Miss.,1982), Miller objected to the adoption of his natural child by his former wife and her new husband. The proof in that case showed that Miller was enjoined by the divorce decree from “bothering or molesting” either Mrs. Miller or the child in any manner whatsoever. Miller never made any support payments voluntarily, but only did so when under the compulsion of contempt proceedings, including periods of incarceration. Miller had not seen the child since she was one year old.

Reversing the chancellor’s findings that Miller had abandoned and deserted the child, this Court found that Mississippi Code Annotated section 93-17-7 (Supp.1981) setting forth the criteria for termination of unfit parents’ rights did not alter the previous requirement of the older statute, Mississippi Code Annotated section 1269-03 (1942) concerning abandonment and desertion. The Court further found there was no evidence of abandonment other than the constant arrearages in child support payments, some of which were explained by his inability to pay following injuries in an automobile accident. This Court simply found there was no evidence that Miller evinced a settled purpose to forego all parental duties and relinquish all parental claims to the child.

The chancellor, in the present case, made his finding of fact after having observed all the parties and witnesses following direct dictates from decisions of this Court. The majority now reverses him for following those decisions. In effect, the majority held in Miller (March 31, 1982) there must be a settled purpose or intention to relinquish parental rights and now holds there does not have to be a settled purpose or intention to relinquish parental rights. In my opinion, the chancellors of this state will be left in a state of confusion by the decision today which holds contrary to our decisions in Yarber and Miller. The majority seeks to distinguish Miller; however, in my opinion, the majority has failed to do so simply because Miller is indistinguishable from the case sub judice.

Today, one out of every two and one-half marriages ends in divorce. Innocent children are caught in the midst of their parents’ controversies and are often used as vehicles for their parents’ hostilities toward one another long after the divorce decree becomes final. In a majority of cases, the mother will be awarded the custody and care of the children. When the mother remarries, a third party is injected into the existing hostilities between the natural parents which often leads to violence as in Yarber. A stepparent is merely an addition to a family, not a replacement for a child’s natural parent. In many cases a child will have close ties to its noncustodial parent, and to deny that child and parent the privilege of companionship and love will not always be in the child’s best interest.

Adoption laws were passed to provide homes for destitute, homeless and neglected children. Yet ordinary adoption laws are still applied to cases such as this one where the custodial natural parent seeks to terminate the child’s relationship with its noncustodial natural parent.

Perhaps this Court in the future will find alternatives to adoption in cases such as this one where a natural parent’s relationship with his child is being severed forever. One alternative would be to award the stepparent equal legal custody of the minor child with the custodial parent, thereby establishing rights of the stepparent while preserving the natural parent’s relationship with the child. For a good discussion on this subject, see Aulik, Stepparent Custody: An Alternative to Stepparent Adoption, 12 UCD L.Rev. 604 (1979).

In my opinion, the forced adoption now being fostered upon the child has effectively denied his privilege of visitation with his father which is not in the child’s best interest. I would therefore affirm the chancellor’s findings.

BOWLING, J., joins this dissent.

      . Mississippi Code Annotated section 93-17-29 (1972) provides that the style of the cause recite only the names of the petitioners. For that reason the natural father is referred to by a fictitious name and the child by initials.

      . Between the time of adoption of this law as Chapter 268, Laws of 1935 and the statute as it now exists, the words “and/or” were dropped between abandoned and deserted and the simple disjunctive “or” replaced the conjunctive-disjunctive.

      . On conflicting evidence, the chancellor held there was no abandonment in the present case.


author: BROOM, Justice,

text:
    Edwin Lloyd PITTMAN, Secretary of State and Land Commissioner, State of Mississippi v. Jack T. CURRIE.
    No. 53235.
    Supreme Court of Mississippi.
    May 26, 1982.

      Bill Allain, Atty. Gen. by William Mack Cameron, Sp. Asst. Atty. Gen., Jackson, for appellant.
    Armstrong & Hoffman, John T. Armstrong, Jr., Hazlehurst, W. Roger Jones, Jr., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and DARDEN, JJ.
   BROOM, Justice,

for the Court:

Tax sale validity is the chief issue of this case tried in the Chancery Court of Copiah County, Judge Mike Carr presiding. Appel-lee Jack Currie sued to confirm his title to an undivided xh mineral interest in 80 acres. He sought cancellation of a 1948 tax sale to the state on the basis that the tax sale was void because the land was not sold in 40-acre tracts. The lower court upheld Cur-rie’s contention and the state appeals. We affirm.

On appeal, appellant Edwin Lloyd Pittman, Secretary of State, (the state herein), contends that the lower court committed reversible error in (1) allowing attorney John Armstrong to testify in violation of Canon 5 of the Code of Professional Responsibility; (2) allowing the law firm of Armstrong and Hoffman to represent Cur-rie in violation of Canon 5 of the Code of Professional Responsibility; (3) ruling that appellee met the burden of proof required to overcome the presumption that the tax collector performed his duty as required by law; (4) allowing Carroll Kemp to testify that he conducted the tax sale; and (5) ruling that the two-year statute of limitations set out in Mississippi Code Annotated § 15-1-17 (1972) did not bar appellee Cur-rie’s suit.

In 1980 this case came before us on the state’s demurrer to the appellee Currie’s plea that the tax sale was void. Pittman v. Currie, 391 So.2d 654 (Miss.1980). We held that the chancellor correctly overruled the state’s demurrer. Our opinion, authored by Justice Cofer, stated that the 1948 sale was invalid because the property had not first been offered in the statutorily required 40-acre tracts, and thereafter the state had never been in possession of the property. According to our opinion, inasmuch as the void tax sale did not convey to the state constructive possession of the property, the attempted conveyance to the state constituted a cloud on appellee’s title which should be canceled “assuming that, on a trial, the complainant [Currie] proves his case.” Accordingly, we remanded the case for trial and now it is here after trial on the merits.

The facts are stated as follows: In 1944 Belle D. McLehaney conveyed an undivided V2 interest in all oil, gas and minerals in an 80-acre tract of land in Copiah County to J. F. Currie. On September 20, 1948, the interest was sold to the state for delinquent taxes in the total sum of $2.18 for the year 1947. Since that time the state has not exercised any control or possession of the interest, and has done nothing to invade or disturb the interest.

Most of the trial testimony' relates to particulars of this 1948 sale. Amazingly, appellee Currie was able to call three of the participants in the sale to testify — all three were Hazlehurst attorneys: Carroll Kemp, Sr., Lena Zama, and John T. Armstrong. Kemp testified that at the sheriff’s request he conducted the 1948 sale, which he often did, and received a car tag for his services. Attorneys Zama and Armstrong both testified that they were present at the sale. Armstrong’s law firm, Armstrong and Hoffman, is one of the firms representing appellee Currie. Prior to Armstrong’s testimony the state objected, saying his testimony would violate Canon 5 of the Code of Professional Responsibility which prohibits an attorney from testifying except in certain circumstances. The trial court, ruling that Canon 5 is not a rule of evidence but a standard of professional conduct, allowed Armstrong to testify.

All three attorneys testified that the mineral interest was not bid in 40-acre tracts as required by Mississippi Code Annotated § 27-41-59 (1972). Incredibly all three attorneys testified that land at tax sales in Copiah County was never sold in 40-acre tracts as required by law.

Monroe James, a forester who managed the 80 acres for the McLehaneys, said he had never seen anyone other than the McLehaney family on the land and had never seen any evidence of oil or gas drilling.

In 1961 J. F. Currie conveyed the subject interest to appellee Jack Currie. In February of 1974 appellee Currie made application to redeem the interest (from the 1948 tax sale) after certifying that he had paid $135.13 in back taxes. After Currie paid the back taxes, the chancery clerk purportedly released the land, but the state failed to recognize the cancellation.

No witnesses were called by the state, and the chancellor noted the sole issue was whether the 1948 tax sale was void. He stated that even though the testimony required the witnesses to recall events which occurred some 32]/2 years earlier, such testimony was not unreasonable considering the status of the witnesses as prominent, longtime Copiah County residents. The chancellor noted that their testimony was un-contradicted and conclusively showed that the land was not offered in 40-acre tracts. Therefore he held that the sale was void and ruled that the state’s claim should be canceled. From this ruling the state has appealed.

First, the state argues that the trial court erred in allowing attorney Armstrong to testify because his testimony violated Canon 5 of the Code of Professional Responsibility which prohibits attorneys who are employed in a case from acting as a witness except in certain circumstances. Armstrong’s firm, Armstrong and Hoffman, was one of the firms representing appellee Currie.

Noting appellant’s (the state’s) objection at trial, the chancellor stated that this Canon was not a rule of evidence but a standard of professional conduct. After calling the Canon to Armstrong’s attention, the chancellor noted that the attorney’s testimony would be cumulative; then he let Armstrong testify.

Canon 5 of the Mississippi Code of Professional Responsibility provides, “A lawyer should exercise independent professional judgment on behalf of a client.” Ethical Consideration 5-9 explains the ethical conflict which may arise when a lawyer is called on to be a witness.

If a lawyer is both counsel and witness, he becomes more easily impeachable for interest and thus may be a less effective witness. Conversely, the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. The roles of an advocate and of a witness are inconsistent: the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.

Ethical Consideration 5-10 further expounds on the issue:

It is not objectionable for a lawyer who is a potential witness to be an advocate if it is unlikely that he will be called as a witness because his testimony would be merely cumulative or if his testimony will relate only to an uncontested issue. In the exceptional situation where it will be manifestly unfair to the client for the lawyer to refuse employment or to withdraw when he will likely be a witness on a contested issue, he may serve as advocate even though he may be a witness. In making such decision, he should determine the personal or financial sacrifice of the client that may result from his refusal of employment or withdrawal therefrom, the materiality of his testimony, and the effectiveness of his representation in view of his personal involvement. In weighing these factors, it should be clear that refusal or withdrawal will impose an unreasonable hardship upon the client before the lawyer accepts or continues the employment. Where the question arises, doubts should be resolved in favor of the lawyer testifying and against his becoming or continuing as an advocate.

The prohibition against attorneys testifying is brought forward in Disciplinary Rules 5 — 101(B) and 5-102.

Disciplinary Rule 5-101(B) states:

[B] A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify:
[1] If the testimony will relate solely to an uncontested matter.
[2] If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.
[3] If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client. '
[4] As to any matter, if refusal would work a substantial hardship on the client, because of the distinctive value of the lawyer or his firm as counsel in the particular case.

Disciplinary Rule 5-102(A) provides:

[A] If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5 — 101[B][1] through [4].

In Scott County Co-Op v. Brown, 187 So.2d 321 (Miss.1966), we noted the undesirability of attorneys testifying in cases wherein they are counsel, and said that the practice should be avoided whenever possible. We have said it is reversible error to allow a district attorney who is prosecuting a defendant to testify in the defendant’s case. Jenkins v. State, 242 Miss. 646, 136 So.2d 580 (1962); Adams v. State, 202 Miss. 68, 30 So.2d 593 (1947). However, in Gradsky v. State, 243 Miss. 379, 137 So.2d 820 (1962), we held that it was error not to allow the defendant to call his attorney as a witness in his favor. We based this decision on the constitutional guarantee of compulsory process.

The general rule concerning testimony by attorneys, as stated by the Minnesota Supreme Court, is that a lawyer should not testify unless circumstances arise which are not anticipated and unless his testimony is necessary to prevent a miscarriage of justice. In the rare case where the attorney’s testimony is needed to protect the client’s interest, not only may the attorney testify—justice requires that he do so. Schwartz v. Wenger, 267 Minn. 40, 124 N.W.2d 489 (1963). See also Adams v. Flora, 445 S.W.2d 420 (Ky.Ct. of App.1969); Connolly v. Straw, 53 Wis. 645, 11 N.W. 17 (1881); Cherniak, The Lawyer as a Witness for his Client, 17 Ala.L.Rev. 308 (1964-5).

Thus testimony by an attorney in a case in which he is involved is frowned upon. However, the majority of courts holds that the attorney’s testimony is not rendered inadmissible as evidence by the rules of ethics, and permitting his testimony at trial is not a ground for reversal. Universal Athletic Sales Co. v. American Gym, Recreational & Athletic Equipment Corp., 546 F.2d 530 (3rd Cir. 1976); Food Fair Stores, New Castle, Inc. v. Howard, 58 Del. 558, 212 A.2d 405 (1965); 6 Wigmore on Evidence § 1911 (Chadbourn Rev. 1976); 3 Jones on Evidence § 21:19 (6th Ed. 1972). The reason for this rule was stated by the Delaware Supreme Court in Food Fair Stores;

Canon 19 [predecessor of current Canon 5] is, of course, a rule of ethics governing conduct of attorneys, for the violation of which an attorney is punishable. It is not designed to penalize the litigant by depriving him of the benefit of testimony which may be vital to his case. Accordingly, the great weight of authority today holds that the attorney’s testimony is not rendered inadmissible by the ethics rule, because the client would otherwise suffer a punishment which ought to be imposed upon the lawyer. The threat of such sanctions is deemed “competent to suppress evils of this character.” [citation omitted]. 58 Del. at 563, 212 A.2d at 409.

We think, following the better practice, the chancellor should not have allowed attorney Armstrong to testify because, as we stated previously, such situations should be avoided when possible. The issue which the attorney testified about—the tax sale— was contested. His testimony on the point was cumulative because two other witnesses testified about the same sale. Nevertheless, upon this record, such testimony does not warrant reversal of the case. The majority of jurisdictions, with which we concur, holds that although testimony by the attorney is disfavored, such testimony is not inadmissible as evidence and a trial court should not be reversed for allowing such testimony.

Secondly, the state argues it was error to allow the firm of Armstrong and Hoffman to represent appellee Currie. This argument is also grounded on Canon 5 and does not warrant reversal for the same reasons set forth above.

Third argument of the state is that the chancellor erred in allowing Carroll Kemp to testify that he conducted the sale, inasmuch as the certificate for the tax sale states the sheriff and tax collector conducted the sale as required by law. The state argues that Kemp was neither the official to hold the sale nor had received the proper designation to conduct it. The state cites Parker v. Touliatos, 244 So.2d 7 (Miss.1971), and Leavenworth v. Claughton, 197 Miss. 606, 19 So.2d 815 (1944), in support of its argument. However, neither of these cases supports such a proposition. The question of who could testify concerning a tax sale was not discussed in Leavenworth, and Parker dealt with whether testimony of the tax collector is admissible. Parker held that the tax collector’s testimony was admissible since it merely explained how the sale was conducted. In Parker we reiterated the general rule that the recitation in the tax collector’s certificate to the list of land sold for taxes that the land was sold “according to the law” raises a presumption that the collector performed his duties as required by law; but we said this presumption may be rebutted by evidence on the face of the list or by other proof. In the instant case, appellee clearly offered other proof to rebut the presumption of adherence to the law. Appellee produced three witnesses, including Kemp who conducted the sale, and all agreed that the land was not offered in 40-acre tracts as required by law.

Next argument is that the chancellor failed to apply Mississippi Code Annotated § 15-1-17 (1972), a statute of limitation which provides that a person may file suit to cancel tax titles within two years after the period of redemption has expired. The state contends that appellee Currie brought suit some 31 years after the tax sale and thus should be prohibited by § 15-1-17 from bringing suit.

We have repeatedly held that this section is not applied when there is a void tax sale and the tax sale purchaser has not taken possession. Russell Inv. Corp. v. Russell, 182 Miss. 385, 182 So. 102 (1938), states that the two-year statute is:

purely a statute of limitation and does not take away any vested rights but fixes a reasonable period of time in which they may be asserted. It leaves the former owner the right to sue and have the sale declared void because of such defects, irregularities and illegalities.

Id. at 416, 182 So. at 106.

Leavenworth v. Claughton, 197 Miss. 606, 19 So.2d 815 (1944), reiterated the rule, stating that the two-year limitation does not begin to run until the possession of the land is invaded or disturbed by a claimant under the tax sale. The next year, State v. Butler, 197 Miss. 218, 21 So.2d 650 (1945), stated:

That the statute of limitations does not apply in this case is too well settled in this state to admit of argument, where, as here, the former owner remained in possession continuously from the time of the tax sale until 1940, when he sold the land to the appellees, who have remained in possession since that time. Russell Inv. Corporation v. Russell, 182 Miss. 385, 411, 178 So. 815, 182 So. 102; White v. Noblin, 183 Miss. 92, 183 So. 914; E. L. Bruce Co. v. Smallwood, 188 Miss. 771, 196 So. 227; Grant v. Montgomery, 193 Miss. 175, 5 So.(2d) 491; Leavenworth v. Claughton (Miss.), 19 So.(2d) 815, suggestion of error overruled.

Id. at 229-30, 21 So.2d at 653.

Thus the rule remains that the two-year limitation does not apply when the tax sale is void and the owner has remained in possession. That the 1948 tax sale was void in the instant case because the authorities failed to offer the land in 40-acre tracts as required by law is uncontradicted. Also uncontradicted is the fact that appellee Currie remained in possession of the interest. The state did nothing to exert dominion or control over the property, and, therefore, the chancellor was correct in not applying the two-year limitation to this suit. If a different rule should be applied because the state is a litigant, such a proposition is one to be addressed by the legislature. At oral argument state’s counsel argued that the state had neither manpower nor means to invade, disturb or possess the subject interest, but cited no evidence to that effect. We have found no such evidence and note that when Currie rested his case, the state also rested without offering any testimony.

Final argument of the state is that appel-lee Currie failed to meet the burden of proof required to render the tax sale void. Parker, supra, is cited for the proposition that the tax collector’s certificate that the land was sold according to the law creates a presumption of validity. Significantly, as stated previously Parker holds that the presumption of validity “may be rebutted by evidence on the face of the list or other proof." 244 So.2d at 8. (Emphasis added).

Here appellee Currie clearly went the extra mile and rebutted the presumption of adherence to the law. He produced three witnesses who attended the tax sale, one even being the person who conducted the sale, and all three testified that the land was not offered in 40-acre tracts. The reason that they could be so sure of this fact after some 30 years was that they had consistently attended tax sales in Copiah County and had never seen the land sold in 40-acre tracts. This testimony was not contradicted by the state which called no witnesses in its behalf.

We must conclude that the chancellor correctly found that the appellee rebutted the presumption of validity and proved that the tax sale was void. Accordingly, affirmance is required.

AFFIRMED.

PATTERSON, C. J., SUGG and WALKER, P. JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and DAR-DEN, JJ., concur.

      . Prior to January, 1972, the office of sheriff and tax collector were combined. However, the dual office was severed by 1968 Miss.Law ch. 369 § 19.


author: DARDEN, Justice, for the Court:

text:
    Amos RUSHING v. Virgie Louise RUSHING.
    No. 53215.
    Supreme Court of Mississippi.
    May 26, 1982.
    Gholson, Hicks & Nichols, Ralph E. Rood, Columbus, for appellant.
    Douglas C. Stone, Jack H. Hayes, Jr., Columbus, for appellee.
    Before PATTERSON, C. J., and BROOM and DARDEN, JJ.
   DARDEN, Justice, for the Court:

This is a case that was appealed from the Chancery Court of Lowndes County, Mississippi in which the chancellor dismissed a bill for partition of real estate. We affirm.

The complainant and defendant in this case were tenants in common in thirty-four acres of land with a residence situated on the property. They had previously been married and were divorced in June, 1979. The basis of the divorce was irreconcilable differences and an agreement was reached and entered into between the parties in reference to the disposition of property, child support and other matters that arose in connection with the marital relationship. The chancery court approved the settlement agreement and it was incorporated in the divorce decree.

Among the provisions of that agreement were the following:

(1) HUSBAND AND WIFE have heretofore divided all personal property between them and have no joint financial obligations. WIFE is presently residing in the house on the thirty four acres of land in Lowndes County, Mississippi, owned jointly by HUSBAND and WIFE as tenants in common. HUSBAND agrees that WIFE may retain possession of and reside in said house.
(2) HUSBAND agrees that he will not build a residence on the real property jointly owned by the parties except with the prior written consent of WIFE.
(6) The parties hereto do hereby separately relinquish and release against each other all demands, actions, and rights of action of every nature and kind, other than those created by this contract and agreement, which they may have or hereafter acquire against each other arising from the marital relationship including, but not limited to, the right of inheritance and the right to renounce or receive the benefits of statutory renouncement of the Will of the spouse.

In September of 1980 the appellant filed an original bill for partition of the thirty-four acres under the provisions of Mississippi Code Annotated section 11-21-3 (1972). The appellee responded admitting the tenancy in common in the thirty-four acres but pleading the provisions of the property settlement and agreement in the divorce case in bar of the right of appellant to partition the property.

On the hearing of the case the chancellor found that the provisions of the agreement in the divorce case amounted to a contract by the appellant, which in effect gave up the right to a partition of the property at his instance.

Appellant on appeal assigns as error the action of the chancery court in sustaining the plea in bar on the grounds that the appellant had voluntarily or otherwise relinquished his right to partition and says that the court was in error in finding that the house and thirty-four acres should be treated as one unit. On the trial and here, appellant relies upon the holding in the case of Welborn v. Welborn, 386 So.2d 722 (Miss.1980), as a basis for his contention that he has a right to partite the property. That case properly held that the chancery court in the divorce case could not divest title out of one of the parties and invest it in the other, and that to deny the wife the right to a partition of the commonly owned property would have that effect. We do not consider that that case is applicable in this situation and the chancellor was correct in so holding. Based upon our holding in Wiener v. Pierce, 203 So.2d 598 (Miss.1967), the chancellor held that a right to partition might be restricted or limited by a contract for a reasonable period of time. Although there was no decision as to what constituted a reasonable period of time in the Wiener case, the period of restriction was forty-nine years and that was deemed to be a reasonable time under the facts of that case.

Since the decision of this case by the chancellor, this Court has handed down two decisions involving similar situations. In Weeks v. Weeks, 403 So.2d 148 (Miss.1981), it was held that where a divorce settlement provided that the ex-husband had the exclusive use, possession and control of the house owned by the parties unless the same was sold, the ex-wife by the signing of the settlement agreement had given up any right to have the commonly owned property par-tited.

In the case of Sartin v. Sartin, 405 So.2d 84 (Miss.1981), a wife by divorce decree was awarded the exclusive right to the possession of the property which had been the marital home of the parties. Subsequently the ex-husband undertook to have the property which was owned by himself and his ex-wife as tenants in common partited. In that case the holding was that partition would not be permitted in derogation of the decree which gave a former spouse the right to have the exclusive possession of the property as long as she remained unmarried.

In the instant case there was no provision in the settlement agreement that the thirty-four acres would be occupied by the ex-wife to the exclusion of the ex-husband. She was, however, given the right to occupy the residence which was located on the real estate in question. The ex-husband now comes in with the request that the property be partited, stating that if the Court should hold that it could not be partited in kind that it be sold and a division made of the proceeds of the sale after the payment of expenses and attorney’s fees.

Our statutes in reference to the partition of real estate, after providing for partition by agreement and by voluntary arbitration, also give the right of partition by decree of the chancery court upon the application of any tenant in common or joint tenant. There are two methods by which property can be partited. One is by a division into various parcels to be allocated to the parties by lot. If the chancellor finds that it is to be the best interest of the parties or is satisfied that an equitable partition in kind cannot be made, the property can be sold at public auction and the proceeds of the sale divided on the basis of the respective shares of ownership.

In the instant case, of course, there could be no physical division of the residence and the only alternative would be for the chancellor to find that a fair and reasonable division could be made by allocating the residence and a lot on which it stands as one share and some other portion of the thirty-four acres as an equal share, or a share that could be made equal by the payment of owelty. In that event the two shares would be allocated by the drawing of lots, as provided in Mississippi Code Annotated section 11-21-21 (1972), and there would be an equal chance that the ex-wife would be deprived of the ownership and consequently of the right to occupy the residence.

On the other hand, if it were determined that no equitable division of the property could be made and it were ordered to be sold, then, in that event, unless the wife bid it in, which she might or might not be able to do, she would likewise be deprived of the right of occupancy as provided in the settlement agreement.

It therefore appears that it would be either a certainty or there would be a fifty-fifty chance that in the event of partition the provision of the settlement agreement providing for the wife’s occupancy of the residence would be nullified.

We do not reach the question as to whether or not paragraph six of the settlement agreement had the effect of preventing either of the parties from filing a bill for partition, because we believe that the provisions of paragraph one had the effect of preventing the husband from partiting the property which might annul the wife’s right to occupy the house.

The decision of the chancellor in sustaining the plea in bar to the partition suit is accordingly affirmed.

AFFIRMED.

PATTERSON, C. J., SUGG and WALKER, P. JJ., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.


text:
    Lizzie SIMS v. BOARD OF TRUSTEES, HOLLY SPRINGS MUNICIPAL SEPARATE SCHOOL DISTRICT.
    No. 53236.
    Supreme Court of Mississippi.
    May 26, 1982.

      Mayfield & Smith, C. Emanuel Smith, Tupelo, for appellant.
    Crutcher, Spencer & Brown, William C. Spencer, Holly Springs, for appellee.
    Before PATTERSON, C. J., and BROOM and DARDEN, JJ.
   DARDEN, Justice, for the Court:

This is an appeal from the Chancery Court of Marshall County affirming the action of the trustees of the Holly Springs Municipal Separate School District in terminating a teaching contract of appellant under Mississippi Code Annotated section 37-9-59 (Supp.1981). We affirm.

Appellant had taught in the Holly Springs Elementary School System for eleven years. In the spring of 1979 the preparation of the Uniform Teaching Contract was delayed beyond the April date provided for in Mississippi Code Annotated section 37-9-17 (Supp.1981) due to uncertainty in reference to the minimum education program. However, the teachers, including appellant, were timely notified by letter that they would be reemployed for the coming school year.

At that time the superintendent was preparing a new policy manual. He asked the trustees to permit him to attach certain segments of the manual in what is called an attachment to the Uniform Contract of Employment for teachers provided for in Mississippi Code Annotated section 37-9-23 (Supp.1981). His reason was that he wanted to be sure there would be no misunderstanding about the provisions of the new manual excerpts which were set out in the attachment. Additionally, the attachment provided that the teacher had checked the salary figures in the standard contract and found them correct. The trustees approved the superintendent’s request in May.

In August, before the school opened, the superintendent spoke to all the teachers and explained the meaning and purpose of the contract attachment. All of the teachers signed the uniform contract, paragraph 3 of which provided:

3. That said person agrees and obligates himself to perform such duties as required by law and such additional duties as may be prescribed under duly adopted policies, rules and regulations of the Board of Trustees of the district; provided however said employee shall be entitled at his request to a written copy of said policies, rules and regulations.

All of the teachers signed the attachment to the contract except the appellant. The superintendent requested her on several occasions to sign the attachment but she refused to do so. He then wrote her a letter telling her that if the supplement was not signed by her within a given period of time he would recommend that she be dismissed for insubordination. She still refused.

When the superintendent made his recommendation that appellant be discharged she asked for a hearing under the provisions of Mississippi Code Annotated section 37-9-111 (Supp.1981). A hearing was set and held before a hearing officer provided for in that section of the school law. On the hearing a considerable amount of testimony was offered by the school superintendent in regard to the uncooperative attitude of the appellant and of the problems that had been encountered by the administration in dealing with her over the past few years. Among other matters that were dealt with at some length at the hearing was the failure on the part of the appellant to properly gather and account for instructional materials which are referred to as Title IV-C materials. Additionally, the matter of the refusal of appellant to execute the attachment to the employment contract was dealt with at considerable length at the hearing.

It developed that the appellant had been charged with responsibility for the acquisition of some several thousand dollars worth of the Title IV-C instructional material and that at the end of the school year these had not been properly gathered or accounted for although some four or five requests were made of her to accomplish the proper disposition and handling of the materials involved. There was a writeup by the principal of the school in connection with the conferences that he held with the appellant in connection with the matter and she made certain written responses to the report that he formulated. Somewhat typical of the responses that the appellant made to the principal, in her written notations on the conference report, include the following:

On these occasions you were to pick up the materials. All of it was right there in your face. You stated I’ve blacked out T IV C and wrote my name on it, as I told you the very first time my own materials had been marked T IV C through mistake. I don’t want this material. You act as if I can eat it or something.
If you were a man enough to run this school like a concerned principal and stop letting two or three white females dictate to you, you will find it to be much easier and conducive for the school’s situation.

Apj>ellant’s testimony at the hearing was to the effect that she had properly boxed up all of the materials; that some of the Title IV-C material which had had that notation blacked out and her name or initials placed on it was her own and that it had been mislateled in the first instance, and that all of the material had been turned in to the principal.

It developed, however, that certain of the Title IV-C materials were discovered by the principal unaccounted for and in improper places in and about the appellant’s room after the close or about the time of the close of school in the late spring of 1980.

In respect to her failure and refusal to sign the attachment to the employment contract the appellant testified at the hearing as follows:

Q. Mrs. Sims, you did state a few minutes ago that you agreed that you were going to be bound by all school policies, is that correct?
A. Yes, I did.
Q. Hasn’t it come to you [sic] attention that this is part of school policy?
A. It is a part of school policy.
Q. Did you check to see whether it was school policy at the time you refused to sign it?
A. No, I didn’t. On the day of receiving this contract along with the attachment, meeting with Dr. Shelton and the teachers of the primary school system, we were not given any type reason as to why we should sign the attachment. There was never a statement given us that if we did not sign it, it would lead to the termination of our position. There was a question raised as to what reason we should sign this particular policy sheet when at the same time we are held responsible for abiding by the entire policy book. So when we are asked to sign this one sheet, the other policies relating to the book are just as equal as the one particular sheet. So I felt if we were to sign one policy sheet which is just as important as the other — the policy book is just as important as this one policy sheet — then why not sign it all? They are equally important. So we were not given any reason as to why we should. The question was raised. It was a female teacher that initiated the reason why we should sign it. It’s something like a certi-. fied letter to indicate that you have seen this. At the same time we are held responsible for the entire policy book.
Q. You have been given another opportunity to sign that, have you not?
A. Yes.
Q. And you were told at that time by letter that if you didn’t sign it would be considered insubordination and there would be a recommendation that you be dismissed?
A. Yes, I was.
Q. And you chose at that time not to sign it?
A. That is correct.

On the basis of the findings of the hearing officer the Board of Trustees terminated the appellant’s contract and assigned as reasons the failure to properly account for and handle the instructional materials and for insubordination in refusing to sign the attachment to the contract. Appellant then perfected an appeal to the Chancery Court of Marshall County as provided in Mississippi Code Annotated section 37-9-113 (Supp. 1981). The chancery court reviewed the actions of the Board of Trustees and sustained the Board in dismissing the appellant.

Ap|)ellant appeals here and assigns two errors. The first is that the chancellor’s review exceeded in scope the reasons assigned by the Board for dismissal and applied an incorrect rule in regard to the burden of proof. The second is that the Board’s action is not supported by substantial evidence, it is arbitrary and capricious and that neither of the acts assigned as a reason for discharge is sufficient to justify the dismissal.

The chancellor carefully reviewed the full testimony of the several witnesses and the exhibits that were introduced at the hearing. There was no error in the chancellor’s consideration of matters indicating an insubordinate, uncooperative course of conduct over a long period which culminated in the unjustified refusal to sign the attachment. The chancellor was not only justified, but required, to consider all of the facts in making a determination as to whether the Board’s action was arbitrary, capricious or not supported by the evidence submitted.

The chancellor referred to the decision of this Court in Calhoun County Board of Education v. Hamblin, 360 So.2d 1236 (Miss.1978), a case involving a refusal to employ under a separate and distinct statute from that involved in the present case, which has to do with the mid-term discharge. We do not understand that the reference of the chancellor meant that he applied a rule as to burden of proof contrary to any rule which would relieve the school administration of supporting the grounds for dismissal by substantial evidence. Even if the chancellor did so intend to rule, the record of the hearing demonstrates that the Board assumed and carried the burden to sustain the charges of insubordination and lack of cooperation.

As to the second assignment of error, the fact that the Board set out only two of the several matters considered at the hearing as a basis for dismissal does not mean that all actions and background matters were not considered. Certainly, it does not mean that appellant was exonerated as to other matters that might have formed the basis for discharge.

Even if the refusal to sign the attachment had been the sole reason for the discharge, we consider it sufficient. The attached supplement contained excerpts from the policy manual. The manual and the supplement were properly approved and adopted by the Board, and the requirement that it be signed was neither illegal nor unreasonable. Indeed the standard contract provided that a teacher was obliged to comply with the duly adopted rules and policies of the Board but could request that she be furnished them in writing.

We find no definition of insubordination in our cases under our statutes. Among the definitions we have found, and one which we approve, is contained in Ray v. Minneapolis Board of Ed., Spec. Sch. Dist. No. 1, 295 Minn. 13, 202 N.W.2d 375 (1972), and is:

A ‘constant or continuing intentional refusal to obey a direct or implied order, reasonable in nature, and given by and with proper authority.’

We are further of the opinion and hold that insubordination as so defined is “other good cause” within the meaning of Mississippi Code Annotated section 37-9-59 (Supp. 1981).

The chancellor, sitting as an appeal court, reviewed the whole matter, applied the test set out in section 37-9-113 (Supp.1981), and quite properly determined that the action of the Board was supported by substantial evidence, was not arbitrary, or capricious and did not violate any statutory or constitutional right of the appellant.

Both under the provisions of the statute and in keeping within the scope of appellate review by the chancery court as set out in Brantley v. Suries, 404 So.2d 1013 (Miss. 1981), the chancellor very properly sustained the action of the school board in discharging the appellant here. In consequence we affirm the case.

AFFIRMED.

PATTERSON, C. J., SUGG and WALKER, P. JJ., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.


author: DAN M. LEE, Justice, for the Court:

text:
    Moses I. LEWIS, Jr. v. STATE of Mississippi.
    No. 53546.
    Supreme Court of Mississippi.
    May 26, 1982.

      Moses I. Lewis, Jr., pro se.
    Bill Allain, Atty. Gen. by Frankie Walton White and Robert L. Gibbs, Sp. Asst. Attys. • Gen., Jackson, for appellee.
    Before SUGG, P. J., and ROY NOBLE LEE and DAN M. LEE, JJ.
   DAN M. LEE, Justice, for the Court:

Moses I. Lewis, Jr. appeals from the denial of his petition for writ of habeas corpus filed in the Circuit Court of Coahoma County. Lewis alleged illegal confinement in the Mississippi State Penitentiary at Parch-man after being transferred to that facility from the Leflore County Restitution Center by an order of the Circuit Judge of Coaho-ma County. We reverse.

Three indictments were returned against Moses I. Lewis, Jr. by a Coahoma County grand jury. These indictments were returned during the July 1980 term and charged Lewis with three counts of uttering forgery. Lewis initially entered a plea of not guilty at his arraignment. However, he subsequently pleaded guilty to all three counts. These pleas of guilty were accepted by the trial court after the court determined they were made voluntarily by Lewis.

Lewis received a sentence of fourteen years in an institution under the supervision and control of the Department of Corrections with nine years suspended after Lewis served five years on each charge. Lewis was also ordered to make restitution to the victims of his crimes. These sentences were to run concurrently. The trial court ordered Lewis to successfully complete the program at the Leflore County Restitution Center, a unit of the Department of Corrections, to which he was committed. The trial court attempted to retain jurisdiction in each of the three cases.

On June 9, 1981, Lewis was ordered transferred by the Circuit Judge of Coaho-ma County from the Leflore County Restitution Center to the Parchman facility due to his failure to comply with the rules, regulations and requirements of the Leflore County Restitution Center as contemplated by the trial court at the time of commitment to the center. Shortly thereafter, Lewis filed his petition for writ of habeas corpus, asserting he was denied due process of law and thus was illegally confined because he was not afforded a hearing before his transfer from the Leflore County Restitution Center to Parchman. The Circuit Court of Coahoma County denied Lewis’ petition on the ground he was not entitled to a hearing before being transferred from one facility under the supervision and control of the Department of Corrections to another.

Did the circuit court have the authority to order appellant’s transfer from one facility within the Mississippi Department of Corrections to another facility within the same department?

No authority has been brought to our attention whereby a circuit court judge is vested with the authority to transfer an inmate from one facility in the Department of Corrections to another facility within that same department. The state simply relies on the fact that the trial judge attempted to retain jurisdiction in each of appellant’s three cases.

Mississippi Code Annotated section 47-5-110 (1981) provides:

Commitment to any institution or facility within the jurisdiction of the department, shall be to the department, not to a particular institution or facility. The commissioner shall assign a newly committed offender to an appropriate facility consistent with public safety; provided, however, that any offender who, in the opinion of the sentencing judge, requires confinement in a maximum security unit shall be assigned, upon initial commitment, to the Parchman facility. He may transfer an offender from one institution to another, consistent with the commitment and in accordance with treatment, training and security needs. On the request of the chief executive officer of the affected unit of local government, the commissioner may transfer a person detained in a local facility to a state facility. The commissioner shall determine the cost of care for that person to be borne by the unit of local government, (emphasis added.)

This section clearly authorizes the Commissioner of Corrections to transfer an offender from one institution to another within that department. Moreover, Mississippi Code Annotated section 99-37-19 (Supp. 1981) grants the Department of Corrections sole jurisdiction over offenders housed in various restitution centers throughout the state, and provides in part as follows:

* * * * * *
It is the intent of this section that county and local governments contribute only to the establishment, renovation and maintenance of the physical plant of a restitution center and that the department of corrections support the operation of, and have sole jurisdiction over and responsibility for offenders in, such restitution program, (emphasis added.)

In our opinion, appellant could only be transferred from one institution within the Department of Corrections to another institution within that same department by order of the Commissioner of Corrections pursuant to section 47-5-110. Since the circuit court lacked authority to transfer appellant to the Mississippi State Penitentiary at Parchman, and the Commissioner of Corrections did not so transfer, appellant must be returned to the Leflore County Restitution Center and there dealt with by the Commissioner of Corrections to either leave him at the restitution center or assign him wherever the commissioner chooses pursuant to section 47-5-110.

Moreover, the jurisdiction in this case, insofar as the circuit court was concerned, was completely terminated with the limited power remaining in the court to determine at a later date whether or not any or all of the suspended sentence should be revoked. That was the sole authority remaining in the circuit court. Any such revocation could only have been entered following a due process hearing thereon. See Harrigill v. State, 403 So.2d 867 (Miss.1981); and Denton v. Maples, 394 So.2d 895 (Miss.1981).

Api>ellant’s petition for writ of habeas corpus is therefore granted and appellant ordered returned to the Leflore County Restitution Center subject to being transferred therefrom by the Commissioner of Corrections.

The remaining assignments of error need not be discussed since appellant’s petition for writ of habeas corpus is granted, and are specifically not decided herein.

DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS REVERSED.

PATTERSON, C. J., SUGG and WALKER, P. JJ., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS and DAR-DEN, JJ., concur.