author: JONES, Justice. TORBERT, Chief Justice

text:
    Lillie WILLIAMS v. FNBC ACCEPTANCE CORPORATION.
    81-664.
    Supreme Court of Alabama.
    Sept. 17, 1982.

      David S. Yen, for Legal Services Corp. of Alabama, Opelika, for appellant.
    Larry W. Roney, Phenix City, for appel-lee.
   JONES, Justice.

Plaintiff/Appellant Lillie Williams, an 81-year-old widow, instituted this action, seeking, inter alia: (1) rescission of a deed, pursuant to Code 1975, § 8-9-12, by which she had conveyed all interest in her home-place to Curtis Walton, a material portion of the consideration being Walton’s pledge to support and care for her during her lifetime; and (2) declaratory relief to the effect that a mortgage purportedly executed by Mrs. Williams and Walton to Builders Supply of Georgia, Inc. (later assigned to FNBC), was void because Mrs. Williams had rescinded it pursuant to the Federal Truth In Lending Act and/or her purported signature thereon was a forgery.

A portion of the trial court’s order recites the following pertinent facts:

“Upon consideration thereof, the Court finds as follows:
“1. That the plaintiff conveyed her home to the defendant, Curtis Walton, by warranty deed on October 9, 1979. That a material part of the consideration of this conveyance was an agreement on the part of Curtis Walton to support plaintiff for the remainder of her life, which he did not do.
“2. That on December 5, 1979, Builders Supply of Georgia, Inc., contracted with the defendant, Curtis Walton, to make home improvements on the property conveyed to him by the plaintiff, and the defendant, Curtis Walton, executed a mortgage and other instruments securing a loan of $18,774.00 made on the property. That the plaintiff was named on the mortgage but denies that she. executed any mortgage or that she had direct dealing with Builders Supply of Georgia, Inc.
“3. That Builders Supply of Georgia, Inc., performed the improvements contracted for, including the pay off of a first mortgage then outstanding on said property made by the plaintiff to First Federal Savings and Loan Association of Russell County, Alabama.
“4. That on or about December 14, 1979, Builders Supply of Georgia, Inc., assigned their interest in the home improvement contract and mortgage to the defendant, FNBC Acceptance Corporation.”

Walton vacated Mrs. Williams’s home in the early part of 1980, leaving her with the outstanding mortgage held by FNBC. Walton has since failed to return or to contact Mrs. Williams.

In October and November of 1980, FNBC published a notice of mortgage foreclosure sale of Mrs. Williams’s home. Thereafter, Mrs. Williams sought to rescind the home improvement transaction pursuant to provisions of the Federal Truth In Lending Act. FNBC objected to any rescission efforts; whereupon, Mrs. Williams sought a temporary restraining order forbidding the foreclosure sale. This relief was denied, and the sale was held on December 2, 1980.

The decree then makes certain conclu-sionary findings:

“5. That the defendant, Curtis Walton, who had been taken into the care of the plaintiff when he was four years old, had the authority of the plaintiff, after she made the warranty deed conveyance to him, to do ‘whatever he wanted to do, he could do.’
“6. [Herein the court recites its earlier order denying Mrs. Williams’s motion for T.R.O.]
“7. That notices by Builders Supply of Georgia, Inc., through the defendant, Curtis Walton, required under the Federal Truth in Lending Act was sufficient compliance with statutory requirements against the defendants herein.”

The trial court’s ultimate holding, following a nonjury trial, is expressed in the following portion of the final decree:

“It is, therefore,
“ORDERED, ADJUDGED, AND DECREED BY THE COURT AS FOLLOWS:
“1. That the conveyance from Lillie Williams ... to Curtis Walton ... as shown by deed recorded in Volume 576, Page 70 in the office of the Judge of Probate of Russell County, Alabama, is void and is the property of [Lillie Williams] subject, however, to the intervening rights of the assignee of the original mortgage [FNBC].
“2. That [Lillie Williams’s] prayer for actual damages, statutory damages, plaintiff’s costs, reasonable attorneys fees, and other relief prayed for is denied by the Court, the Court finding for the defendant in these regards.
“3. That [Lillie Williams] is entitled to such statutory redemption as may be allowed under the laws of the State of Alabama.”

Mrs. Williams’s statement of the issues presented may be divided into two broad categories:

1. Given the invalidity of the Williams-to-Walton deed, the propriety of the court’s order declaring FNBC a bona fide purchaser for value within the exception of § 8 -9-12, where FNBC did not rely upon Walton’s status as the sole mortgagor, but, instead, treated Mrs. Williams as a co-owner of the mortgaged property; and

2. The propriety of the court’s order declining to declare Mrs. Williams’s status as one entitled to “Truth-In-Lending” protection, where FNBC and its assignor treated her as one to whom credit was extended despite the forgery of her name on the security document.

We pretermit resolution of issue number 1, and reverse and remand as to issue number 2.

Although our holding of reversal as to issue number 2 renders our answer to issue number 1 unnecessary, we will summarize Appellant’s contentions with respect thereto because of their relationship, factually and legally, to the truth-in-lending issue. For the sake of clarity, we have taken the liberty of adding the names of the parties in the following excerpt from Appellant’s brief:

“The exception in Code of Ala. (1975) § 8-9-12 is for the protection of [Builders Supply and FNBC] who gave value to [Curtis Walton], in reliance on [Walton’s] interest in the realty conveyed, as shown by the deed, regular on its face and duly recorded, without notice that the deed is voidable because a material consideration for the deed was a promise to support [Mrs. Williams] during [her] life. FNBC had no [actual] knowledge of the deed [to Curtis] and did not rely on the deed in deciding to purchase the contract from Builders Supply. Since FNBC had no knowledge of the deed, it is not . .. entitled to the protection due to a bona fide purchaser.
“FNBC can not claim protected status for its mortgage based on a lack of knowledge of the voidability of the deed [because it] believed that it had a mortgage signed by the owners of the property, Lillie Williams and Curtis Walton. [FNBC] did not believe that it had a valid mortgage solely because its mortgage was signed by Curtis Walton, as it believed that he was not the sole owner of the property.”

Initially, in aid of our understanding of Appellant’s first contention, we need to examine FNBC’s insistence that, notwithstanding the trial court’s setting aside of the Williams-to-Walton deed for failure of consideration pursuant to § 8-9-12, FNBC, having no notice of the continuing support element of the consideration, falls within the bona fide purchaser for value exception. Because Walton, in fact, was the record title holder, says FNBC, only his signature on the mortgage (as well as the truth-in-lending documents) was essential to the passing of title; and neither the subsequent voiding of the Williams-to-Walton deed nor Walton’s forgery of Mrs. Williams’s name to the mortgage altered FNBC’s status as a bona fide purchaser for value.

Appellant counters by pointing out that FNBC accepted Mrs. Williams’s signature as both genuine and essential to the mortgage conveyance. FNBC did not treat Walton as the sole owner as contemplated by the bona fide purchaser for value statutory exception. Appellant insists that FNBC, not having relied upon Walton’s sole ownership, can not now invoke a statute which has as its purpose the protection of a grantee who, without notice, deals with the record title holder whose title is subsequently defeated for failure of consideration. (Mrs. Williams is correct in her assertion that the evidence is without dispute that both Builders Supply and FNBC believed Williams and Walton owned the property jointly, thus requiring both signatures on the mortgage as well as on the truth-in-lending documents.)

As pointed out earlier, our capsule of the parties’ contentions with respect to FNBC’s status as a bona fide purchaser for value is not for the purpose of our disposition of that issue; rather, we have set out their respective contentions, because of their relationship to, as well as their aid to our understanding of, the truth-in-lending issue.

While, in many aspects, the two issues differ materially (one dealing with a state property statute and the other with a federal disclosure statute), there is a thread of commonality running through Appellant’s challenge to the trial court’s adverse rulings on both issues. This common element finds its source in Appellant’s contention that FNBC, in effect, is taking inconsistent positions. That is, FNBC, on the one hand, treats Mrs. Williams as a grantor and obli-gor; while, on the other hand, FNBC says that she is neither grantor nor obligor. The essence of Appellant’s argument is that FNBC can not have it both ways.

Focusing specifically on the truth-in-lending issue, Mrs. Williams says, in effect, that she was “the person to whom credit is extended” — one of the coverage clauses of the federal legislation. Having treated Mrs. Williams as one who occupied truth in lending status, FNBC, she says, cannot stand behind the invalidity of her signature as the basis for its changed position that she was not one to whom this protection was due.

Here, again, our understanding of Appellant’s second contention is enhanced by our examination of FNBC’s position with respect to the truth in lending issue.

FNBC does not claim, nor will the record support a contention, that its assignee status abrogated its duty of direct compliance with the mandates of the Truth In Lending Act. FNBC’s only reference in brief to this issue is contained in its “Statement of Facts,” reciting the trial court’s conclusion-ary finding that:

“[Njotices by Builders Supply of Georgia, Inc., through the Defendant, Curtis Walton, required under the Federal Truth In Lending Act was sufficient compliance with statutory requirements against the Defendant herein.”

We do not understand this to mean either that the truth in lending obligation was solely upon Builders Supply or that the single copy furnished to Walton met the truth in lending requirement in the event Mrs. Williams was entitled to a copy of the documents. Rather, we accept this statement from Appellee’s brief, consistent with the record, in furtherance of FNBC’s contention that Mrs. Williams, because of the forgery, was not a party in fact to the loan transaction, and, thus, not entitled to the protection of the truth in lending provisions.

Implicit in Appellant’s argument is a twofold attack on the trial court’s denial of her truth in lending claim: Either 1) the circumstances of FNBC’s conduct toward Mrs. Williams (treating her as an obligor) created an affirmative duty upon FNBC for truth in lending compliance, even though she had not, in fact, signed the contract; or 2) FNBC’s insistence and reliance upon the necessity of Mrs. Williams’s signature on the mortgage, as well as the truth in lending documents, estops FNBC from now denying that she was one to whom truth in lending compliance was due.

Although the affirmative duty argument is a compelling one, we reject it as unsound. As a matter of law, Mrs. Williams was either an obligated party under the mortgage and mortgage note or she was not. FNBC’s perception of her rights and obligations, with regard to the mortgage indebtedness, could not, and did not, change her legal status. Thus, we hold that FNBC, through its conduct, did not affirmatively assume the status of a “creditor” with respect to Mrs. Williams, because she was not an obligated party pursuant to the mortgage bearing her forged signature.

The doctrine of estoppel, on the other hand, is an entirely different matter. It is a principle of equity that operates not to create a right nor to impose an obligation, but to prevent an otherwise unjust result. Indeed, it proceeds on the absence of such right or obligation, and comes into play where a party takes a position in one instance inconsistent with that party’s position in another instance, to another’s prejudice. U.S. Fidelity & Guaranty Co. v. McKinnon, 356 So.2d 600 (Ala.1978); Carolina Casualty Insurance Co. v. Tisdale, 46 Ala.App. 50, 237 So.2d 855 (1970).

“The purpose of equitable estoppel is to promote equity and justice in an individual case by preventing a party from asserting rights under a general rule of law when his own conduct renders [that assertion] contrary to equity and good conscience. Mazer v. Jackson Ins. Agency, 340 So.2d 770 (Ala.1976); First National Bank of Opp v. Boles, 231 Ala. 473, 165 So. 586 (1936).” Draughon v. General Finance Credit Corporation, 362 So.2d 880, 884 (Ala.1978).

We hold that the very facts which prevent the creation of an affirmative legal duty on the part of FNBC to comply with the Truth In Lending Act invoke the doctrine of equitable estoppel, barring FNBC’s assertion that Mrs. Williams was not one to whom it owed truth in lending compliance.

The rationale for our estoppel holding finds its roots in the beneficient purpose of 15 U.S.C. § 1601, et seq., and implementing regulations, as applied to the peculiar facts of this case. At some risk of over-simplification, we summarize this body of remedial law: The Truth In Lending Act provides that disclosure statements and notice of right of rescission, in a multi-customer, re-scindable transaction, must be given to a 11 customers having the right to rescind. It is without contest in the record that Mrs. Williams was not furnished either a disclosure statement or notice of right of rescission, both being furnished only to Walton.

As to who has the right to rescind, 15 U.S.C. § 1635 (1970), expressly provides:

“Except as otherwise provided in this section, in the case of any consumer credit transaction including opening or increasing the credit limit for an open end credit plan in which a security interest, including any such interest arising by operation of law, is or will be retained or acquired in any property which is used as the principal dwelling of the person to whom credit is extended, the obligor shall have the right to rescind the transaction until midnight of the third business day following the consummation of the transaction or the delivery of the information and rescission forms required under this section together with a statement containing the material disclosures required under this subchapter, whichever is later, by notifying the creditor, in accordance with regulations of the Board, of his intention to do so. The creditor shall clearly and conspicuously disclose, in accordance with regulations of the Board, to any obligor in a transaction subject to this section the rights of the obligor under this section. The creditor shall also provide, in accordance with regulations of the Board, appropriate forms for the obli-gor to exercise his right to rescind any transaction subject to this section.”

Except for the forgery of Mrs. Williams’s signature, then, the Truth In Lending Act mandates that she be furnished disclosure statements and notice of right of rescission. FNBC says, however, that because of the forgery (or, given the forgery), the entire transaction may now be treated as though Mrs. Williams was not involved.- The trial court obviously agreed; and pursuant to such finding, the trial court implicitly held that because FNBC could have dealt only with Walton as the sole owner of the pledged property, once the forgery of Mrs. Williams’s signature was established, no further consideration need be given to her truth-in-lending rights.

The flaw in FNBC’s reasoning is dramatized in the following excerpt from its vice-president’s testimony:

“Q. Tell us the nature of a transaction with a home builder. What happens in these type arrangements?
“A. We have the home improvement dealer fill out an application and an agreement which basically states— which I could give you a copy of— that all of the paper work and transactions that they present to us are legitimate. It is just an agreement type situation. We check out their — some of their sources that they do business with, run a personal credit check, and then we set them up as a dealer.
Now, did FNBC have such an arrangement or agreement with Builders Supply, Incorporated? ©*
Yes, sir. >■
Back in November of 1979? <0
Yes, sir.
Prior to loaning any money on any piece of property on a second mortgage type arrangement what steps does FNBC go to? What do they do with regards to the property? cÓ
The dealer calls in a credit application and we check his credit. We verify his credit worthiness. We require them to provide us with a title and a binder stating who the property is listed in, and of course, we give all the documentation that is required by the law of Alabama, because we couldn’t leave it up to each dealer to get his own documents so we provide him with the forms to be used. Once a loan is approved, subject to this criteria, and then when the work is finished, the dealer brings in all of the documentation for us to review and make sure, that it is properly notarized and so forth.
Now, in this particular case involving the transaction between Mrs. Lillie Williams and Curtis Walton, also known as Curtis Walton Williams, was there a title search prepared by some legal firm? ¿o
Yes, sir. <1
I show you what has been marked Defendant’s Exhibit 1 and ask you if this is a copy of the title binder which FNBC obtained on this particular piece of property? <y
Yes. >
Who does the examiner of this particular title list as the owner? jo
Lillie Williams and Curtis Walton, also known as Curtis Walton Williams.
And what date does this title binder indicate? o*
“A. December 13, 1979.”

It is evident that, from the outset, FNBC directed the entire transaction from the standpoint of whether to extend credit, to whom credit was extended, and upon what terms. Apparently, the title company issued its “binder” reflecting joint ownership of the property (notwithstanding the Williams-to-Walton deed) because of the First Federal outstanding mortgage, pursuant to which Mrs. Williams retained certain interests and obligations. For whatever reason, FNBC obviously directed that Mrs. Williams, along with Walton, execute the mortgage conveyance and note.

In view of the Williams-to-Walton deed and its pay off of the outstanding indebtedness to First Federal, FNBC could have elected to deal exclusively with Walton. Instead, it chose to require Mrs. Williams’s signature as a condition to its extension of credit. It made this requirement without any personal contact with Mrs. Williams and in recognition that whatever interest, if any, she retained in the property, used by her as her home, was being obligated or surrendered by her execution of the credit transaction documents.

In view of the invalidity of the forged documents as to Mrs. Williams, one question remains: Because she was not in fact obligated to FNBC, did she rely upon FNBC’s former position, so as to suffer prejudice as a consequence of its subsequently altered position? The answer lies in the proper understanding of the reliance element of the doctrine. Although some of the eases speak in terms of detrimental reliance, this resultant injury element need not be manifested in a conscious, affirmative course of action.

Reliance may be present in a negative sense; that is, where, as here, FNBC, as an affirmative requisite to its extension of credit, included Mrs. Williams as its obligor, though unknown to her, the law will infer her reliance upon a continuing course of conduct consistent with FNBC’s original position. In other words, reliance may consist in following a given course of action; or it may be in the failure to pursue a given course of action. The ultimate test is whether Mrs. Williams’s interest as a debtor —FNBC’s original position — is adversely affected by FNBC’s subsequent inconsistent position. If the resultant injury to Mrs. Williams is naturally and consequentially traceable to FNBC’s inconsistent positions, the detrimental reliance element is satisfied.

FNBC’s contention, in support of the trial court’s ruling, stripped of its legalistic sophistication, is a telling one: It says, in effect, if Mrs. Williams executed the loan documents as we intended and as we believed that she had, we owed her the duty of truth-in-lending compliance; but our breach of this duty is excused, because we are the fortuitous beneficiary of Walton’s criminal act of forgery.

This “leave us where you find us” contention overlooks one important element — it does not restore Mrs. Williams to her original unprejudiced position. To this argument we can only observe: If the doctrine of equitable estoppel had not heretofore come into being, surely, the facts before us would compel its creation and application. A review of the instant circumstances does not require a hindsight perspective to determine that a continuing course of conduct on behalf of FNBC concomitant with its original position would have protected Mrs. Williams’s interests consistent with the consumer-oriented spirit, and beneficient purpose, of the truth-in-lending legislation.

We hold, then, that FNBC, having treated Mrs. Williams as an obligor, is now es-topped from asserting that it was exempt from compliance with the Federal Truth in Lending Act. The judgment is reversed and this cause is remanded for an order consistent with this opinion.

REVERSED AND REMANDED.

FAULKNER, EMBRY and ADAMS, JJ., concur.

SHORES, J., concurs in the result.

TORBERT, C. J., and ALMON and BEATTY, JJ., dissent.

MADDOX, J., not sitting.

TORBERT, Chief Justice

(dissenting).

I dissent. The majority fails to recognize that appellant had no interest in the property at the time it was mortgaged by Curtis Walton. Additionally, the theory of estop-pel is not applicable under the facts in this case.

An analysis of the legal status of the parties to this transaction supports the trial court’s holding. When Lillie Williams executed the deed to Curtis Walton, the property was subject to a mortgage to First Federal Savings and Loan Association of Russell County. At that time, the Savings and Loan Association had legal title to the property and the deed conveyed Mrs. Williams’s equity of redemption to Curtis Walton. Thereafter, she had no legal or equitable interest in the property and therefore she was unable to obligate an interest under the FNBC mortgage. The majority opinion is unable to identify what interest Mrs. Williams is obligating under the mortgage: “[Wjhatever interest [she had], if any, . . . was being obligated” under the FNBC mortgage. (Emphasis added). However, since she had no identifiable legal or equitable interest, I maintain that she was unable to obligate herself under the mortgage and was, therefore, not entitled to notification.

Further, the opinion states that FNBC should not be the “fortuitous beneficiary of Walton’s criminal act of forgery.” This distorts the facts; FNBC is the “fortuitous beneficiary” of the fact that Mrs. Williams had no legal or equitable interest in the property requiring notification under the Truth-in-Lending Act. In fact, the forgery is irrelevant to whether or not she was an obligor on the mortgage. Even if she had signed the mortgage, she had no interest in the property to convey to FNBC.

The majority also attempts to use the theory of estoppel to prevent FNBC from denying that Mrs. Williams is an obligor entitled to notification. It is clear that reliance is an essential element of estoppel. Traders & Farmers Bank of Haleyville v. Central Bank of Alabama, 294 Ala. 622, 320 So.2d 638 (1975). In the case before us, the majority attempts to infer Mrs. Williams’s reliance on FNBC’s responsibility to notify obligors. I fail to see that there is any element of reliance in this case. The majority identifies her failure to pursue the right of rescission as the requisite reliance. Even if she had been notified, she was not an obligor under the mortgage and she would not have been able to rescind the transaction.

When Mrs. Williams subsequently voided the deed to Curtis Walton for failure of consideration, she took back only the equity of redemption, since Curtis Walton had conveyed the legal title to the intervening mortgagee. Thus, on failure to repay the indebtedness, a foreclosure sale was proper. It is well settled that any proceeds from the sale over and above the amount of the principal, any interest to the date of sale, plus the amount of the first mortgage paid off by FNBC, would be returned to Mrs. Williams as her equity in the property.

While the facts of this case present a very difficult situation, I would hold that the trial court did not commit error in its order, and I would affirm its holding.

ALMON and BEATTY, JJ., concur.

      . This finding recognizes the controlling statute, § 8 9 12, which provides:
      “Any conveyance of realty wherein a material part of the consideration is the agreement of the grantee to support the grantor during life is void at the option of the grant- or, except as to bona fide purchasers for value, lienees and mortgagees without notice, if during the life of the grantor, he takes proceedings to annul such conveyance.”

      . For convenience, our use of the term “bona fide purchaser for value” throughout this opinion includes “mortgagees without notice.” We further note that the “without notice” requisite refers not to lack of notice of the deed, but to lack of notice of the contingency of consideration of support.

      . 12 C.F.R. §§ 226.6(e), 226.9(b), 226.603, 226.-902 (1981); Gerasta v. Hibernia National Bank, 575 F.2d 580 (5th Cir. 1978).

      . The Williams-to-Walton deed was recorded in October, 1979.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jessie Sue BYNUM and Lucy Scott Bynum, Individually and as Trustees of the H. O. Bynum, Sr. Trust and H. O. Bynum, Jr. v. W. Loy CAMPBELL.
    80-501.
    Supreme Court of Alabama.
    Sept. 24, 1982.

      See also, Ala., 406 So.2d 834.
    Frank K. Noojin, Charles E. Richardson and Frank K. Noojin, Jr. of Watts, Salmon, Roberts, Manning & Noojin, Huntsville, for appellants.
    R. Dale Wallace and Ben L. Zarzaur of Denaburg, Schoel, Meyerson, Ogle, Zarzaur & Max, Birmingham, for appellee.
   PER CURIAM.

This is an appeal from a summary judgment which declared the interest of H. 0. Bynum, Jr., in the H. 0. Bynum, Sr. trust subject to levy by W. Loy Campbell (Campbell), a judgment creditor of H. 0. Bynum, Jr. We reverse.

On November 27,1953, H. 0. Bynum, Sr., executed a trust document conveying certain real property to his daughters, Lucy Scott Bynum and Jessie Sue Bynum, as trustees. They were to hold the property in trust for themselves and their brother, H. 0. Bynum, Jr. (Bynum). The trust agreement read, in pertinent part, as follows:

“1. For and in consideration of the love and affection which I, the undersigned, H. 0. Bynum, Sr. have for my beloved son, H. 0. Bynum, Jr., and for my beloved daughter, Lucy Scott Bynum, and for my beloved daughter, Jessie Sue Bynum, and for certain other good and valuable consideration, the receipt whereof is hereby acknowledged, I have transferred, assigned, and conveyed, and by these presents do hereby transfer, assign, set-over, grant, bargain, sell and convey unto Lucy Scott Bynum and Jessie Sue Bynum and to the survivor of them as trustees for H. 0. Bynum, Jr., Lucy Scott Bynum and Jessie Sue Bynum and to their successors in interest the following described property, to-wit: ... To have and to hold the same unto the said Lucy Scott Bynum and Jessie Sue Bynum as Trustees for said beneficiaries and to their successors in interest, but in trust, nevertheless, upon the terms and conditions and with the powers and duties hereinafter set out.
“2. For and in consideration of the love and affection which I, the undersigned H. 0. Bynum, Sr., have for my said three children and for certain other good and valuable consideration, the receipt whereof is hereby acknowledged, I have transferred, assigned and conveyed and by these presents do hereby transfer, assign, set over, grant, bargain, sell and convey unto Lucy Scott Bynum and Jessie Sue Bynum, as Trustees for H. 0. Bynum, Jr., Lucy Scott Bynum and Jessie Sue By-num, each, an undivided one-third interest in and to the property described herein above.
“3. All of the property herein conveyed which will herein for convenience be referred to as the ‘Trust Estate’, shall be kept, divided, and held by the said Trustees, and their successors in ' trust, in three equal parts, each of which shall be held and administered as a separate trust for the benefit of the respective beneficiary above named, subject, however, to the conditions, limitations, and provisions hereinafter set out. A separate account shall be kept by the said Trustees of each of said trusts and the investments of each of the said separate trusts shall at all times be kept the same, both in kind and quantity, as nearly as conveniently may be, and to that end joint investments may be made by the said trustees on behalf of the said separate trusts contributing an equal amount of the funds used in making such joint investments. And all additions to the Trust Estates held to this declaration of trust shall be divided among the said three separate trust estates in equal parts or shares except and unless the instrument making the additional conveyances to said trust estates shall otherwise provide or direct.
“7. The trustees of each of the said trusts or for each of said beneficiaries shall during the lifetime of each of said beneficiaries pay over each year to each beneficiary one-third of the net income from said trust estate or to accumulate the same for the benefit of the beneficiaries as the trustees in their sole discretion think best. That upon the death of either of said beneficiaries, being survived by a child, children or descendants of a child or children, the trustees shall thereafter pay to such child, children or descendants of a child or children per stirpes the income from said estate which such beneficiary would have received if living. Upon the death of one or more of said beneficiaries, not being survived by a child, children nor their descendants, the income from said trust estate shall thereafter be divided equally between the survivors of my said three children and when there is only one surviving, if the other two have died without a child, children, or their descendants, the Trustees shall thereafter pay the entire income of said estate to such last surviving child.
“8. These trusts shall continue during the lifetime of the last surviving of my said three children — that is to say, after the death of the last surviving of my said three children, each of these trusts shall terminate, and the Trustee at that time acting, or the personal representative of the last surviving of my said three children, if said child be at the time acting as Trustee hereunder, shall pay over to the beneficiaries of each trust the entire principal of such trust estate, together with any accumulations that may be added thereto, if any.
“9. In the event of the death of either of my said three children, the beneficiary named in any one or more of these trusts, then the beneficiaries under the Last Will and Testament of such deceased beneficiary, or in the event that such beneficiary leaves no Last Will and Testament, such persons as would be entitled to inherit the property constituting the trust estate shall be substituted for such deceased beneficiary and shall take such deceased beneficiary’s interest in and to the trust estate of such deceased beneficiary, and in case of the death of the beneficiary intestate, those who shall take hereunder shall take in proportion to which they would be entitled to inherit the same had the beneficiaries died at said time a resident of Alabama, intestate and the owner of said property.
“14. Where the grantor has herein described that funds shall be paid over to any beneficiaries, the Trustees may in their discretion use and apply such sums for the benefit of such beneficiary, or may pay over such sums to other persons for the benefit of either of said beneficiaries.
“15. In no event shall the trustees of these trusts be liable to honor any transfer or assignment which may be made by any beneficiary either as to income nor [sic] corpus of the trust.

On May 25, 1978, the Circuit Court of Jefferson County entered judgment on a jury verdict for $2,000,000 against Bynum in favor of Campbell. Campbell brought this suit and another against Bynum and other parties to recover on this judgment. The disposition of the appeal of the other collection suit by Campbell may be found in J. C. Jacobs Banking Co. v. Campbell, 406 So.2d 834 (Ala.1981).

Campbell’s complaint in this action sought both a declaration that Bynum’s interest in the trust property was subject to Campbell’s claim and an order that the property be sold and Campbell’s judgment satisfied from the proceeds. The parties filed various pleadings and conducted discovery; the cause was transferred from Jackson County to DeKalb County.

On May 10,1980, Bynum died, and Campbell moved to have Mark Scott Skelton, as administrator of Bynum’s estate, substituted as a party defendant. The court granted this motion and ruled as follows on the parties’ motions for summary judgment:

“The plaintiff’s first contention is that the power of appointment given to H. O. Bynum, Jr. by Paragraph 9 of the trust instrument, coupled with his interest for life in the trust income, creates in H. O. Bynum, Jr. a fee absolute in the trust property against which creditors can levy. At common law, one who took an estate less than a fee simple absolute in realty and who was also given an absolute power of disposition over such property was held to possess an absolute fee simple interest. See Robertson v. United States, 199 F.Supp. 78 (N.D.Ala.1961). Because the application of this common law rule frequently frustrated the intent of the grantor by defeating the interests of re-maindermen, the rule has been modified by statute in this state. . . .
“When this rule [Code 1975, § 35-4-292(a)] is applied to the interests acquired by H. 0. Bynum, Jr. under the provisions of the trust instrument, the result is that his interest thereunder is changed into a fee absolute as to the rights of creditors, for the following reasons:
“1. H. 0. Bynum, Jr. acquired by the trust instrument an absolute power of disposition in that he could devise without limitation his interest in the trust property. Moreover, upon his default in making such a devise, his interest would descend to his heirs.
“2. The absolute power of disposition is not accompanied by any trust. Although H. 0. Bynum, Jr.’s interest in the subject property was created by a trust instrument, his power of disposition is absolute with no fiduciary duty owed to anyone in its exercise.
“3. H. 0. Bynum, Jr. acquired by the trust instrument a particular estate for life, such estate being the right to the income of the trust property. Although the trustees had the authority to allow the income to accumulate, H. 0. Bynum, Jr. nevertheless possessed an interest in such income for life. “It is the judgment of this court that
as to the rights of creditors, H. 0. By-num, Jr. at the time of his death was the owner in fee simple absolute of one-third of the trust property, and that the plaintiff is entitled to levy upon such property and accumulated income therefrom in satisfaction of his judgment.”

Jessie Sue Bynum and Lucy Scott By-num, individually and as trustees of the H. 0. Bynum trust, appeal from this final judgment and from the order denying their motion for new trial. They argue, in substance, that the trial court erred in holding that Code 1975, § 35-4-292(a), applied so as to subject Bynum’s interest in the trust to Campbell's claim. They contend that-three tests must be met before § 35-4-292(a) converts a power into a fee simple as to creditors. First, the debtor must have an absolute power of disposition; second, the power must not be accompanied by any trust; third, the power must be given to the owner of a particular estate for life or years. Because we find that Bynum’s power was not absolute within the meaning of applicable law we pretermit discussion of the second and third tests.

Section 35-4-292 must be read in pari materia with § 35-4-291. These two sections read in full as follows:

“§ 35 — 4-291. Powers deemed absolute.
“Every power of disposition is deemed absolute, by means of which the donee of such power is enabled in his lifetime to dispose of the entire fee for his own benefit; and, where a general and beneficial power to devise the inheritance is given to a tenant for years or for life, it is absolute within the meaning of subsections (b) and (c) of section 35-4-292. “§ 35-4-292. Effect of grant of absolute power.
“(a) When an absolute power of disposition, not accompanied by any trust, is given to the owner of a particular estate for life or years, such estate is changed into a fee absolute, as to the rights of creditors and purchasers, but subject to any future estates limited thereon, in case the power is not executed or the lands sold for the satisfaction of debts during the continuance of such particular estate.
“(b) When a like power of disposition is given to any person to whom no particular estate is limited, such person also takes a fee, subject to any future estate which may be limited thereon; but absolute in respect to creditors and purchasers.
“(c) In all cases where such absolute power of disposition is given, not accompanied by any trust, and no remainder is limited on the estate of the donee of the power, he has an absolute fee.

(Emphasis added.)

Inspection of these sections shows that a testamentary power is not absolute with respect to § 35 — 4-292(a). The Alabama legislature copied these statutes, which first appeared in the Code of 1852, from statutes passed in New York in 1828. See, Note, Powers of Appointment in Alabama—A Plea for Reform, 26 Ala.L.Rev. 355 (1974). In the New York statutes, the provision found in our Code as the second clause of § 35-4-291 referred to all three of the subsections of § 35 — 4—292. This Court has called the Alabama legislature’s deletion of subsection (a) from the purview of the second clause of § 291 “an act of considerable significance.” Nabors v. Woolsey, 174 Ala. 289, 293, 56 So. 533 (1911).

Thus, because Bynum’s power of disposition of his interest in the trust could be exercised by devise only, the trial court erred in holding that Bynum owned a fee simple absolute as to creditors due to the operation of § 35-4-292(a).

Nor do we find that subsection (b) or (c) governs this situation. The words in subsection (b), “to whom no particular estate is limited,” do not apply because By-num’s interest was limited to a one-third interest in the income for life, whether distributed or accumulated, together with a power to devise his share of the corpus and any accumulated income. Even this power of disposition is limited by the provision that the trust was not to terminate until the death of H. 0. Bynum, Sr.’s last surviving child, so Bynum’s appointee could not take possession until that event. Subsection (c) does not apply because a remainder is limited to Bynum’s heirs should he fail to exercise his power of disposition. Such a remainder is valid in Alabama under Code 1975, § 35-4-230.

In adopting the New York statutory scheme, the Alabama legislature did not include the provision which abolished powers as they existed at common law. See Code 1975, §§ 35-4-290 through -306; Code 1852, §§ 1324-1342; N.Y.Rev.Stat. ch. 46, § 110 (1896); Cutting v. Cutting, 86 N.Y. 522 (1881); Note, supra, 26 Ala.L.Rev. at 359; Note, Powers of Appointment — The New York Revision, 65 Colum.L.Rev. 1289 (1965). To some extent the statute repeals the common law by necessary implication, and we do not find that this situation falls into a category where the common law would allow levy even though the statute does not.

The common law in Alabama was that an executory interest could not follow an absolute power of disposition because of repug-nancy between the two. Allen v. White, 16 Ala. 181 (1849); Flinn v. Davis, 18 Ala. 132 (1850). The donee of the power took a fee simple absolute. The common law in many states as to a life estate with a power of disposition was that a creditor could attach the assets only if the power was actually exercised, and only to the extent the do-nee’s other assets were insufficient to satisfy the debt. See, Note, Creditors’Ability to Reach Assets Under a General Power of Appointment, 24 Vand.L.Rev. 367, 371 (1971).

The statutes we are dealing with, however, were passed to protect the interests of remaindermen in default of exercise of a power. Alford’s Adm’r v. Alford’s Adm’r, 56 Ala. 350, 353 (1876). We do not think the common law protection of creditors and purchasers applies in this case because this power is not absolute under common law terms. It could not be exercised inter vivos. See Flinn v. Davis, supra; Alford’s Adm’r v. Alford’s Adm’r, supra. Furthermore, Bynum could not even transfer the property free of the trust at his death unless he survived his two sisters, which he did not.

Commentators have criticized the system of powers created by these statutes. See the law review notes cited above and Whiteside and Edelstein, Life Estates With Power to Consume: Rights of Creditors, Purchasers and Remaindermen: A Study of New York Real Property Law Sections 149— 153,16 Cornell L.Q. 447 (1931). We do find needless complexity and ambiguity in these statutes. Indeed, New York has repealed its own pioneering statutes and substituted a new system of powers — which, incidentally, does not subject testamentary powers to levy by creditors. N.Y.Est., Powers & Trusts Law §§ 10-10.1 to 10-10.8 (McKinney 1967).

Other modern statutes might subject By-num’s power of appointment to Campbell’s claim. Cal.Civil Code §§ 1380.1 — 92.1 (West Supp.1982); Mich.Comp.Laws Ann. §§ 556.111 — .133 (1982 Supp.); Minn.Stat. Ann. § 502.70 (West 1980); Wis.Stat.Ann. § 702.01 — .21 (West 1977). Such a change in the law of Alabama must be left to the legislature.

Because Bynum was not granted an “absolute power of disposition” within the meaning of our statutes, Campbell cannot levy on Bynum’s interest in the trust estate.

The judgment of the trial court is therefore reversed and a judgment is hereby rendered in favor of appellants.

REVERSED AND RENDERED.

TORBERT, C. J., and FAULKNER, AL-MON, EMBRY and ADAMS, JJ., concur.


author: EMBRY, Justice.

text:
    Catherine Parker PITTMAN, as Executrix of the Estate of James Bradford Pittman, Deceased v. Jennifer Bradford PITTMAN, a minor, who sues by and through her next friend, mother and legal guardian, Linda Pittman Johnson, et al. Jennifer Bradford PITTMAN, etc., et al. v. Catherine Parker PITTMAN, as Executrix of the Estate of James Bradford Pittman, Deceased.
    81-116, 81-280.
    Supreme Court of Alabama.
    Sept. 24, 1982.

      Prank McRight and Donald J. Stewart of McRight, Rowe & Stewart, Mobile, for appellants.
    Taylor D. Wilkins, Jr. of Wilkins, Bankes-ter & Biles, Bay Minette, and Edward L. Hardin, Jr. and Robert J. Hayes, Birmingham, for appellees.
   EMBRY, Justice.

The appeal in 81-116 is by Catherine Parker Pittman from a judgment entered in a breach of contract action filed by Linda Pittman Johnson in behalf of her minor children seeking relief on account of the terms of a decree entered in a divorce action between her and her former husband James Bradford Pittman, now deceased.

The appeal in 81-280 is by Linda Pittman Johnson in behalf of her minor children from the judgment dismissing an action by her seeking payment by the executrix of her former husband’s last will and testament, from his estate, of postmortem child support together with liquidated damages, provided for by the terms of the modified decree of divorce upon the happening of certain contingencies.

On 30 October 1978, James Bradford Pittman was killed in a plane crash. His will was probated in Baldwin County and letters testamentary issued to his widow, Catherine Parker Pittman, as executrix. Pittman’s former wife, Mrs. Johnson, filed two sworn claims against the estate demanding monies she contended were owed her and her two minor children under the terms of decrees entered in the divorce action to which we have alluded. The claims were denied. Mrs. Johnson then filed a three count complaint against Mrs. Pittman, as executrix, in the Circuit Court of Jefferson County. On motion of the executrix the action was transferred to the Circuit Court of Baldwin County, the proper forum for same.

The original complaint contained three claims: Count I alleged the decedent breached one provision of the divorce decree requiring that each of the minor children be made the beneficiary of a $25,000 life insurance policy; $50,000 in damages was demanded.

Count II claimed postmortem child support payments under other provisions of that decree; $38,775 was claimed due in that regard.

Count III alleged that Mrs. Johnson was entitled to $1,000 liquidated damages because of a provision incorporated in the decree relating to child support. Counts II and III were dismissed by the trial court on motion of Mrs. Pittman.

Mrs. Johnson amended her complaint to add as a defendant Maryon Pittman Allen, in her capacity as trustee of two trusts created by decedent during his lifetime. Subsequently, Mrs. Johnson amended Count I of her original complaint, making reference to the two insurance policies insuring the life of her former husband, the decedent. The proceeds of those policies have been paid to decedent’s sister, Maryon Pittman Allen, as trustee under the trust indentures established for the benefit of Pittman and Mrs. Johnson’s minor children.

The case was submitted to the trial court upon stipulations of fact and briefs in support of the respective contentions of the parties. There was no ore terms trial.

Thereafter, the trial court entered judgment awarding each of the minor daughters the sum of $25,000 together with interest from the date of decedent’s death. The court further found that no order to alter, amend, or modify the existing trusts was warranted.

The executrix appeals from that judgment (No. 81-116) and Mrs. Johnson cross-appeals from the judgment dismissing Counts II and III of her original complaint (No. 81-280). For the sake of simplicity and clarity, we address each appeal separately.

Mrs. Pittman’s Appeal

A summary of the facts pertinent to this appeal is: Linda Pittman Johnson, and the decedent, James Bradford Pittman, were married in 1963. Two children were born of that marriage: Jennifer Bradford Pittman and Catherine Aubrey Pittman. In September 1969, a decree was entered dissolving the marriage between decedent and Mrs. Johnson. That decree incorporated an agreement of the parties which provided:

“3. Respondent [James Pittman] shall make each minor child of the parties an irrevocable beneficiary of a $25,000.00 life insurance policy on the life of the respondent and respondent shall pay and become liable for such premiums thereof.”

After that judgment was entered, James Pittman caused an existing policy insuring his life for the sum of $50,000 to be converted into separate policies for the sum of $25,000 each, issued and naming as the irrevocable beneficiary of each, his sister, Maryon Pittman Allen, as trustee of the two trusts previously mentioned, for the benefit of Jennifer and Catherine Pittman. Later, the divorce decree was modified but left paragraph 3 of the original decree, supra, unchanged. Pittman died with the two $25,000 insurance policies in full force and effect. The proceeds of those policies were paid to the trustee subject to disposition according to the terms of those trusts.

We note, as indicated above, the ore ten-us rule does not apply to this case. This being true, we review the evidence de novo. Stiles v. Brown, 380 So.2d 792 (Ala.1980).

The dispositive issue in Mrs. Pittman’s appeal is whether the indentures of trust established by James Pittman for the benefit of his daughters complied with, or substantially so, the insurance requirements of the original decree of divorce. We opine that the trust indentures did substantially comply with the terms of the decree regarding the required insurance policies.

We find appropriate to this question the maxim that “equity looks through form to substance, and [an] equity court is interested in substantive justice rather than mere technicalities of procedure,” United States Finance Co. v. Jones, 288 Ala. 238, 259 So.2d 264 (1972). The decedent, Pittman, on 13 January 1970, established two indentures of trust with his two daughters as beneficiaries, and his sister, Maryon Pittman Allen, as trustee. On 14 January 1970, the next day, Pittman converted the $50,000 insurance policy into two $25,000 policies and designated his sister, Mrs. Allen, as trustee, the beneficiary of each policy, the proceeds of each to be disposed of according to terms of trust instruments executed the day before. The deposition of Frederick E. Miller, as insurance agent, admitted as evidence under stipulation, shows that Pittman’s reason for converting the life insurance policy, to make two of one, was to effectuate compliance with the divorce decree. That evidence creates a strong presumption that Pittman established the trusts and divided the insurance policy for the express purpose of complying with the agreement incorporated in the decree. There is no evidence in the record to the contrary anywise rebutting that presumption. Such an interpretation of, and conclusion from, that evidence is both logical as well as reasonable.

Mrs. Johnson contends the trustee holding proceeds of the policies and title thereto, in trust for the benefit of the minor children, defeats the purpose of the insurance provision of the divorce decree by delaying time for payment of such proceeds to the children.

The patent purpose for requiring Pittman to make each of his daughters irrevocable beneficiaries of life insurance policies was to ensure that in the event he suffered an untimely death, as he in fact did, the children would, in any event, be protected to the fullest extent possible with the proceeds of the insurance policies.

Strict compliance with a literal reading of the insurance provision in the decree is not necessary if there is substantial compliance that effectuates the underlying purpose of that provision and the intent evidenced by it. “Substantial compliance” may be defined as “actual compliance in respect to substance essential to every reasonable objective,” of a decree giving effect to equitable principles — equity—in the true meaning of that word. Application of Santore, 28 Wash.App. 319, 623 P.2d 702 (1981). Substantial compliance means compliance which substantially, essentially, in the main, for the most part, satisfies the means of accomplishing the objectives sought to be effected by the decree and at the same time does complete equity. See North Carolina Nat’l Bank v. Burnette, 297 N.C. 524, 256 S.E.2d 388 (1979). What constitutes substantial compliance is a matter dependent upon the particular facts of each case, none ever quite a clone of any other. See Trussell v. Fish, 202 Ark. 956, 154 S.W.2d 587 (1941).

What greater protection could be provided than a trust administered by a trustee; a fiduciary circumscribed by law severely restricting waste, mismanagement or dissipation, of income and corpus of those trusts as opposed to immediate and full payment to their guardian or custodian?

In the event the proceeds of the policies had been paid to the minor children, one would encounter a variety of troublesome statutorily required procedures, costly and time consuming. The beneficiaries, minors under eighteen years of age, may not be paid death benefits by a life insurer. § 27-14-25, Code 1975. Payment could be made only to the guardian, Mrs. Johnson. She, in order to receive the funds, would be required to increase the amount of her bond to the extent of $100,000, at a not inconsiderable additional premium. See § 26-3-1, Code 1975. She could only place those life insurance death benefits in investments authorized by statute or at her own peril except in very limited exceptional instances. See § 26-4-3, Code 1975. She would be required to provide an accounting of her management of the insurance proceeds in her wards’ estates, “at least once in three years,” requiring a hearing in the court of probate, necessitating the appointment of a guardian ad litem, with the attendant fees, costs incident to all of these proceedings. See § 26-5-2, Code 1975, and Rule 17, ARCP. Should circumstances require invasion of the corpus of the wards’ estates, it could only be done upon application to the court of probate; action of that court effective only after appointment of a guardian ad litem and a hearing. § 26-4-63, Code 1975. Final distribution to the wards of the entire estate of each is required when each attains full age (19) years), or upon the happening of contingencies stated in § 26-5-7, Code 1975.

The details and requirements of guardianship proceedings contrast to the flexibility of those available to a trustee. Directions to the trustee are contained in paragraph 6A of the trusts. It provides:

“. .. During the term of this trust, the Trustee shall spend such amount as she may in her sole wisdom, judgment and discretion deem to be for the best interest of said Beneficiary in the manner of supporting, maintaining, caring for and educating the said Beneficiary. The amount to be expended on the education of the Beneficiary is to be determined by the Trustee, she having due regard for the desire and aptitude of said Beneficiary for an education. Her judgment in this regard shall be definite and final.”

There is no prohibition against invasion of principal, should that become necessary, nor is there any requirement for judicial proceedings with their attendant costs and legal fees.

Additionally, paragraph 7 of the instruments of trust establishes the trustee’s powers and provides for investment of the trust estate without regard to statutes limiting the nature and kind of investment; subject only to the rules of law regarding prudence, and fiduciary responsibilities and liabilities.

In light of all of these considerations Mr. Pittman is to be commended for exercising sound, protective judgment and foresight. The same conclusion was reached by the Civil Appeals Court of Texas in a case involving an analogous set of facts. Gray v. Bush, 430 S.W.2d 258, 265 (Tex.Civ.App.1968). Analyzing the former wife’s claim, in that case, that she was entitled to the trust established by the decedent, that court said:

“. .. By the same token and as applied to the instant controversy, it would seem that where before his death Dr. Gray had provided for the separate estate of the Trust to fulfill the very obligation which was the objective to be accomplished by his original covenant in the property settlement agreement, such trust estate would under equitable principles properly be treated as having been created to fully accomplish and discharge the obligation which, but for the creation of the trust, would otherwise have continued to be that of his estate. What was done seems to have been the result of sound judgment on the part of the deceased, and that obviously was the conclusion of the trial court.”

Under the cited authorities, our review of the evidence de novo, and the rationale here employed, this court finds that James Pittman substantially complied with the agreement embodied in the divorce decree and therefore we are constrained to reverse the judgment in 81-116 and here enter judgment in that case in accord with this opinion.

Mrs. Johnson’s Cross-Appeal

According to the terms of the decree of modification, James Pittman was obligated to pay for the benefit of each of his minor daughters the sum of $275 per month continuing beyond the age of nineteen years so long as she was enrolled in an institution of higher learning, provided in no event would he be obligated to pay child support for that child after she attained the age of twenty-three years.

Upon the bases of those terms of the decree of modification, Mrs. Johnson contends that Pittman’s estate is liable for postmortem child support payments. Further, that the trial court erred in granting Mrs. Pittman’s motion to dismiss and strike Count II of Mrs. Johnson’s complaint seeking payment of postmortem child support.

At common law, child support obligations terminate at death in the absence of an express provision having the effect of requiring continued payment after death. That must be found in the decree of divorce. E.g., Bailey v. Bailey, 86 Nev. 483, 471 P.2d 220 (1970).

In Alabama, a distinction is made between alimony or support “in gross” and mere periodic payments for current and continuous support.

Periodic payments are modifiable by the court, unless clearly denominated otherwise, based on the contingencies of a change in circumstances of the parties. Therefore, a provision in a divorce decree for a monthly allowance for future maintenance and support does not charge the estate with those payments, but terminates upon the death of the husband, the event upon the happening of which the obligation of support would have ended had there been no divorce. LeMaistre v. Baker, 268 Ala. 295, 105 So.2d 867 (1958); See also, Jenkins v. Jenkins, 406 So.2d 976 (Ala.Civ.App.1981). On the other hand, alimony or support payments “in gross” are not to be changed or modified, without jurisdiction being expressly retained after expiration of thirty days from the date of the decree; payments of the latter kind become vested at the time of divorce. McEntire v. McEntire, 345 So.2d 316 (Ala.Civ.App.1977); Jenkins, supra. As a result, payments “in gross” survive the death of the husband and are chargeable against his estate. Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974).

We have carefully reviewed the provisions regarding child support in the original decree here under examination as well as those provisions respecting the same in the decree of modification. It is clear that these provisions do not effectuate a vested right, but merely provide periodic allowances for current and continuous support until terminated. Furthermore, this is in harmony with the rule in Mahaffey v. First Nat’l Bank, 231 Miss. 798, 824, 97 So.2d 756, 766 (1957), with which we agree. It states:

“... Where an agreement approved by the divorce decree requires that the father maintain a life insurance policy for the benefit of the child, this tends to show that the parties thought that the child support ceased at the father’s death.”

We opine that the trial court acted properly and was not in error when it dismissed the claim for postmortem child support.

By the terms of the decree of modification Pittman agreed to make all child support payments when due and in the event of noncompliance further agreed to pay Mrs. Johnson, formerly Mrs. Pittman, liquidated damages in the amount of $1000 in excess of those sums which were delinquent together with attorneys’ fees incurred in compelling compliance with the terms of payment. Mrs. Johnson contends the trial court erred in dismissing her claim seeking payment of the liquidated damages and attorneys’ fees. She claims entitlement to this because Pittman failed to comply with the decree of modification. She asserts he defaulted when he failed to make their minor children irrevocable beneficiaries of the $25,000 life insurance policies. Because this court has determined that Pittman did substantially comply with the original and the modified decree of divorce, Mrs. Johnson’s claim is due to be denied. Therefore, we find no error in the action of the trial court in dismissing her claim for liquidated damages and attorneys’ fees.

It follows that the judgment in No. 81-820 is due to be and is hereby affirmed.

JUDGMENT IN NO. 81-116 IS HEREBY REVERSED AND RENDERED.

JUDGMENT IN NO. 81-280 IS HEREBY AFFIRMED.

TORBERT, C. J., and FAULKNER, AL-MON and ADAMS, JJ., concur.


author: TORBERT, Chief Justice.

text:
    Robert Cecil WEEKS v. ALABAMA ELECTRIC COOPERATIVE, INC. ALABAMA ELECTRIC COOPERATIVE, INC. v. SULLIVAN, LONG & HAGERTY, INC.
    81-249, 81-267.
    Supreme Court of Alabama.
    Sept. 24, 1982.

      Stephen R. Windom of McDermott, Slepi-an, Windom & Reed, Mobile, for appellant Robert Cecil Weeks.
    Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, Montgomery, for ap-pellee-appellant Alabama Electric Coop.
    Victor T. Hudson & Fred W. Killion, III of Reams, Wood, Vollmer, Phillips, Killion & Brooks, Mobile, for appellee Sullivan, Long & Hagerty.
    Cooper C. Thurber and J.P. Courtney, III of Lyons, Pipes & Cook, Mobile, for appellee Burns & McDonnell Engineering Co., Inc.
   TORBERT, Chief Justice.

On June 8, 1977, Appellant Weeks was injured when a scaffold on which he was standing collapsed, causing him to fall to the concrete floor below. Appellant was employed as an electrician by Howard P. Foley Company during the construction of the Tombigbee Power Plant in Leroy, Alabama. Alabama Electric Cooperative, Inc. (AEC) was the owner of the Tombigbee Power Plant. The plans and specifications for the power plant were prepared by Burns & McDonnell Engineering Company, Inc. (Burns & McDonnell).

Weeks filed suit on April 25,1978, against AEC as owner of the premises; Specialty Contractors, Inc., as owners of the scaffold; National Union Insurance Co., the workmen’s compensation carrier; and several fictitious parties defendant.

AEC filed a third-party complaint on September 19, 1978, alleging that Sullivan, Long & Hagerty, Inc. (SL&H), as a subcontractor of AEC, agreed to hold AEC harmless for all claims and losses relating to injuries to any person occurring by reason of Sullivan, Long & Hagerty’s negligence.

On May 24, 1979, Weeks amended his complaint, identifying fictitious party “X” as Burns & McDonnell. AEC filed a cross-claim against Burns & McDonnell, alleging breach of contract and claiming that Burns & McDonnell should indemnify AEC for any damages assessed against AEC caused by the negligence of Burns & McDonnell.

Summary judgments were granted in favor of AEC against Weeks; in favor of Burns & McDonnell against Weeks; and in favor of Sullivan, Long & Hagerty against AEC. Each summary judgment was certified pursuant to Rule 54(b), Alabama Rules of Civil Procedure. Weeks filed notice of appeal on December 8, 1981. AEC filed notice of appeal on December 16, 1981.

The issues presented on appeal are:

(1) Whether there are sufficient facts to find that an employer-employee relationship existed between AEC and Weeks, thereby imposing the duty on AEC to provide Weeks with a safe place to work.

(2) Whether the substitution of Burns & McDonnell for fictitious party “X” was proper.

(3) In addition, if Weeks’s appeal results in reversal of the judgment entered in favor of AEC, the following issue is presented: Whether it was proper for the trial court to dismiss AEC’s third-party complaint against SL&H.

Appellant contends that there are sufficient facts to find that an employer-employee relationship existed between AEC and Weeks, thereby creating a duty to Weeks by AEC to provide him with a safe place to work.

The principles regarding the legal duty of a premises owner to provide a safe place to work for employees of an independent contractor are well settled. See, c.g., Alabama Power Co. v. Smith, 409 So.2d 760 (Ala.1981); Thompson v. City of Bayou La Batre, 399 So.2d 292 (Ala.1981); Pate v. United States Steel Corp., 393 So.2d 992 (Ala.1981); Hughes v. Hughes, 367 So.2d 1384 (Ala.1979); Evans v. Kendred, 362 So.2d 206 (Ala.1978); Chrysler Corp. v. Wells, 358 So.2d 426 (Ala.1978).

These cases firmly establish the general rule that a premises owner owes no duty of care to employees of an independent contractor with respect to working conditions arising during the progress of the work on the contract. “The general rule does not apply, however, if the premises owner retains or reserves the right to control the manner in which the independent contractor performs its work.” Thompson v. City of Bayou La Batre, 399 So.2d at 294; Hughes v. Hughes, 367 So.2d at 1386. “When the right of control is reserved, the relationship changes from one of premises owner and independent contractor to that of master and servant.” 399 So.2d at 294.

A master-servant relationship is not created, however, when the owner merely retains the right to supervise or inspect work of an independent contractor as it progresses for the purpose of determining whether it is completed according to plans and specifications, and retains the right to stop work that is not properly done. Pate v. United States States Steel Corp., 393 So.2d at 995.

In face of AEC’s proof denying any retained right of control, Weeks, as the non-moving party, must proffer some proof which creates a genuine issue of material fact; that is, he must offer some evidence on the factual issue as to whether AEC retained the right to direct the manner in which Weeks’s employer, Howard P. Foley Company, or Specialty Contractors, the owner of the scaffold, performed its work. Any evidence tending to establish that AEC retained this control, either by contract or by its actions, will meet this burden of proof.

Weeks offers the following as evidence of AEC’s retention or reservation of control over the manner in which the independent contractors performed their work:

(1) Article III, Section 1, of the contract between Burns & McDonnell and AEC provides:

“The Engineer [Burns & McDonnell] shall also supervise the manner of the incorporation of the material and equipment in the Project and the workmanship with which such materials shall be incorporated. The Engineer, as representative of the Owner, shall have sole responsibility for requiring the Contractor to perform the Construction Contract in accordance with its terms and the Plans and Specifications; ...”

(2) Article II, Section 5, of the contract between Sullivan, Long & Hagerty and AEC provides that the premises owner, AEC, “shall have the right to change the amounts or kinds of tools and equipment if at any time the progress of the work is unsatisfactory.” Paragraph (c) of Section 5 provides that “The manner of construction of the project and all materials and equipment used therein shall be subject to the inspection, tests and approval of owner

(3) A memorandum by an AEC employee regarding a meeting on July 21, 1977.

(4) The deposition of AEC employee John B. Howard is offered to show that Howard attended a weekly safety meeting held by the various contractors.

After this Court’s examination of the contracts, the memorandum and the deposition of John B. Howard, we conclude that there is no evidence to support Weeks’s claim of reserved control by AEC over the employees of the various contractors.

First, examining the contract between AEC and Burns & McDonnell, we quote Article III, Section 1:

“The Engineer shall supervise all details of the construction of the Project and shall make a diligent effort to insure the expeditious and economical construction thereof in accordance with the Plans and Specifications and the terms of the Construction Contract and equipment or material contracts and the loan contract (hereinafter called the ‘Loan Contract’) entered into between the Owner and the Government or any other lenders specifying the terms upon which the Project shall be constructed and financed. The Engineer shall carefully inspect all materials and equipment prior to their incorporation in the Project and shall promptly reject those not in compliance with the Specifications. The Engineer shall also supervise the manner of the incorporation of the materials and equipment in the Project and the workmanship with which such materials shall be incorporated. The Engineer, as representative of the Owner, shall have sole responsibility for requiring the Contractor to perform the Construction Contract in accordance with its terms and the Plans and Specifications; and, in performing the duties incident to such responsibility, the Engineer shall issue to the Contractor such directives and impose such restrictions as may be required to obtain reasonable and proper compliance by the Contractor with the terms of the Construction Contract and the Plans and Specifications in the construction of the Project; provided that the Engineer shall not be required to exercise any actual control over employees of the Contractor. The obligations of the Engineer hereunder run to and are for the benefit of only the Owner and the Administrator.” (Emphasis added.)

The plans and specifications of the power plant were prepared by Burns & McDonnell. The contract between AEC and Burns & McDonnell required Burns & McDonnell to ensure that the plant was built according to the plans and specifications, but this responsibility did not include control over the employees of the individual contractors. This contractual provision, as well as the next one, only provides for assurances that the work would be completed according to the plans and specifications of the contract.

Second, Article II, Section 5, paragraphs a, b, and c, of the contract between AEC and Sullivan, Long & Hagerty, provides:

“a. The Bidder will give sufficient supervision to the work, using its best skill and attention. The Bidder will carefully study and compare all drawings, specifications and other instructions and will at once report to the Owner any error, inconsistency or omission which it may discover. The Bidder shall cause the construction work on the Project to receive constant supervision by a competent superintendent (hereinafter called the ‘Superintendent’) who shall be present at all times during working hours where construction is being carried on. The Bidder shall also employ, in connection with the construction of the Project, capable, experienced and reliable foremen and such skilled workmen as may be required for the various classes of work to be performed. Directions and instructions given to the Superintendent shall be binding upon the Bidder.
“b. The Owner reserves the right to require the removal from the Project of any employee of the Bidder if in the judgment of the Owner such removal shall be necessary in order to protect the interest of the Owner. The Owner or the Supervisor, if any, shall have the right to require the Bidder to increase the number of its employees and to increase or change the amount or kinds of tools and equipment if at any time the progress of the work shall be unsatisfactory to the Owner or Supervisor; but the failure of the Owner or Supervisor to give any such directions shall not relieve the Bidder of its obligations to complete the work within the time and in the manner specified in this Proposal.
“c. The manner of construction of the Project, and all materials and equipment used therein, shall be subject to the inspection, tests and approval of the Owner and the Administrator, and the Bidder shall furnish all information required by the Owner or by the Administrator concerning the nature or source of any materials incorporated or to be incorporated in the Project. The Owner and the Administrator shall have the right to inspect all payrolls, invoices of materials, and other data and records of the Bidder and of any subcontractor, relevant to the construction of the Project. The Bidder shall provide all reasonable facilities necessary for such inspection and tests and shall maintain an office at the site of the Project, with telephone service where obtainable and at least one office employee to whom directions and instructions of the Owner may be delivered. Delivery of such directions or instructions in writing to the employee of the Bidder at such office shall constitute delivery to the Bidder. The Bidder shall have an authorized agent accompany the Engineer when final inspection is made and, if requested by the Owner, when any other inspection is made.”

Further, Article IV, Section 1, of the same contract provides:

“Section 1. Protection to Persons and Property. The Bidder shall at all times exercise reasonable precautions for the safety of employees on the work and of the public, and shall comply with all applicable provisions of Federal, State and Municipal safety laws and building and construction codes. All machinery and equipment and other physical hazards shall be guarded in accordance with the ‘Manual of Accident Prevention in Construction’ of the Associated General Contractors of America, unless such instructions are incompatible with Federal, State or Municipal laws or regulations.”

We cannot conclude that these provisions reserved in AEC the power to control the manner in which the various contractors performed their work. AEC merely retained the right to supervise or inspect the work of each independent contractor as it progressed for the purpose of determining whether it was being completed according to plans and specifications.

Thus, the contracts offered by appellant do not support his theory. This is not conclusive, however, because “[i]n Alabama, agency is determined by the facts, and not by how the parties may characterize the relationship.” Semo Aviation, Inc. v. Southeastern Airways Corp., 360 So.2d 936, 940 (Ala.1978). Weeks may, therefore, offer proof that AEC through its actions retained the right to direct the manner in which the contractors performed this work. Pate v. United States Steel Corp., 393 So.2d at 994-95.

The evidence offered by Weeks fails to show that such control existed. The memorandum of July 21, 1977, states in pertinent part:

“Graham reviewed for those present the Engineer’s [Burns & McDonnell] role on this project as follows:
1. The Engineer is not the prime contractor on site.
2. Each contract is between AEC and the representative construction company.
3. The Engineer is the Owner’s agent to monitor contract compliance.
Graham further stated the Engineer does not employ any construction workmen, nor give instructions to construction workmen employed on site.”

This memorandum does not show AEC’s control over the manner of the work performed by the various contractors.

Finally, we examined the deposition of John B. Howard. Howard was employed by AEC as a project engineer. He was principally assigned to the Tombigbee project as AEC’s representative. He primarily coordinated the activities of Burns & McDonnell with AEC. Howard stated that each individual contractor was responsible for the safety of its employees and for the work which the contractor was to perform. According to Howard, AEC made no formal safety inspection, but he did say that if he had observed a dangerous situation, he would have tried to get the situation remedied. He did not, however, find it necessary to do this on the Tombigbee project.

Howard also attended weekly “coordination meetings.” Safety on the worksite was one topic discussed. Howard’s only input was to ask contractors to keep the worksite clean. There is no evidence in Howard’s deposition which shows that AEC exercised any control over the manner of the contractors’ work. Specifically, there is no evidence that AEC retained the right to direct the manner in which Weeks’s employer, the Howard P. Foley Co., or the owner of the scaffold, Specialty Contractors, performed its work.

AEC, as the party moving for summary judgment, had the initial burden of clearly showing there is no genuine issue as to any material fact. Missildine v. Avondale Mills, Inc., 415 So.2d 1040 (Ala.1981). AEC met this burden. Weeks, as the non-moving party then had to counter AEC’s proof with evidence sufficient to give rise to a genuine issue of material fact. We find no evidence in the record to support Weeks’s position. AEC was entitled to a summary judgment.

The next issue concerns the summary judgment granted in favor of Burns & McDonnell and against Weeks. Weeks contends his substitution of Burns & McDonnell for fictitious party “X” was proper. We do not agree.

Fictitious party “X” was described in appellant’s original complaint as the “Person, firm or corporation who was the owner or party in control of the premises where the accident described in the complaint occurred.”

In amending his complaint to substitute Burns & McDonnell for “X,” appellant identified “X” as “Burns and McDonnell Engineering Company, Inc., a corporation, the alter ego, servant, agent, or employee of Alabama Electric Cooperative, Inc., the owner of the real property and party in control of the premises where the accident described in the complaint occurred.”

Rule 9(h), Alabama Rules of Civil Procedure, provides:

“When a party is ignorant of the name of an opposing party and so alleges in his pleading, the opposing party may be designated by any name, and when his true name is discovered, the process and all pleadings and proceedings in the action may be amended by substituting the true name.”

For Burns & McDonnell to have been properly substituted for “X,” Burns & McDonnell would have to be either owner of the premises or the party in control of the premises.

In his amendment to the complaint, Weeks characterizes AEC as owner or party in control of the premises and Burns & McDonnell as the alter ego, servant, agent or employee of AEC. Burns & McDonnell was an independent contractor. Burns & McDonnell prepared the design and specifications for the Tombigbee project. It contracted to ensure that the plant was built according to this design and these specifications. There is no evidence that Burns & McDonnell was the alter ego, servant, agent or employee of AEC. Therefore, Burns & McDonnell could not be “X.” See, Minton v. Whisenant, 402 So.2d 971 (Ala.1981).

The trial court was correct in granting summary judgment. The amendment adding Burns & McDonnell as a party does not relate back to the original complaint and thus, the statute of limitations is a bar to this claim. See Walden v. Mineral Equipment Co., 406 So.2d 385 (Ala.1981); Minton v. Whisenant, 402 So.2d 971 (Ala.1981); Fowlkes v. Liberty Mutual Ins. Co., 392 So.2d 803 (Ala.1980); Roth v. Scruggs, 214 Ala. 32, 106 So. 182 (1925). Burns & McDonnell was entitled to summary judgment. The order of the trial court was correct, and the judgment is due to be affirmed.

Because we affirm the judgment in favor of AEC, it is not necessary to reach the issues in the appeal of AEC as to the summary judgment entered in favor of the third-party defendant, Sullivan, Long & Hagerty.

AFFIRMED.

All Justices concur.

      . Graham was a resident engineer for Burns & McDonnell.


text:
    James WADE v. Freddy WADE.
    81-576.
    Supreme Court of Alabama.
    Sept. 24, 1982.
    . Ralph L. Armstrong, Bessemer, for appellant.
    C. Crawford Williams, Birmingham, for appellee.
   EMBRY, Justice.

James Wade appeals from a final judgment granting Freddy Wade an easement by necessity (the right of ingress and egress) over James Wade’s property.

James Wade contends the issue here is whether the trial court correctly held that an implied easement by necessity existed under the facts of this case.

Because there is no transcript of the evidence before us, although it is evident the trial court had before it evidence adduced ore tenus, we cannot review the trial court’s findings of fact. Furthermore, there is no .statement in lieu of the transcript as provided for in Rule 10(d), ARAP. See Smith v. Haynes, 364 So.2d 1168 (Ala.1978). The judgment below is due to be and is hereby affirmed.

AFFIRMED.

TORBERT, C. J., and FAULKNER, AL-MON and ADAMS, JJ., concur.


author: ADAMS, Justice.

text:
    Ex parte George S. RUSH, d/b/a Rush Engineers. (In re JACKSONVILLE STATE UNIVERSITY v. George S. RUSH, d/b/a Rush Engineers).
    81-439.
    Supreme Court of Alabama.
    Oct. 1, 1982.
    Thomas J. Knight, Anniston, for petitioner.
    Walter J. Merrill of Merrill, Porch, Doster & Dillon, Anniston, for respondent.
   ADAMS, Justice.

This petition for a writ of mandamus involves the right to a jury trial in a declaratory judgment action. Defendant, George S. Rush, d/b/a Rush Engineers, seeks to compel the Honorable Robert M. Parker, Circuit Judge, to grant his request for a jury trial made in his answer and counterclaim to the complaint. Plaintiff, Jacksonville State University, did not request a jury trial, and moved to strike defendant’s request. Judge Parker granted plaintiff’s motion. Defendant then sought review of the trial judge’s action by this petition.

The dispositive issue on this appeal is: Did Judge Parker err in granting plaintiff’s motion to strike defendant’s request for a jury trial? We hold that he did, and we award the writ conditionally.

Plaintiff brought a declaratory judgment action against defendant in the Circuit Court for Calhoun County. It alleged that the parties entered into a contract on August 16, 1977, for the construction of a military science building on plaintiff’s property. According to the complaint, plaintiff was to withhold a 10 percent retainage from payments due defendant for materials furnished and work completed, until the value of the in-place construction reached 50 percent of the contract value. Thereafter, no additional retainage was to be withheld from the progress payments. Plaintiff alleges that it withheld $36,042.73, which it deposited in an escrow account. A certificate of deposit was issued jointly in that amount to plaintiff and defendant. A dispute over the contract arose, which apparently resulted in the entrance into the dispute of the insurance carrier which wrote defendant’s performance bond. Plaintiff contends that a settlement was reached and that defendant is owed nothing more as a result of the agreement. Its complaint alleges that the certificate of deposit should have been issued only in its name, and that it rightfully owns the $36,042.73. The defendant disagrees, and by way of an amended answer and counterclaim, asserts that he is the rightful owner of the certificate of deposit or, in the alternative, at least $5,000.00 of it. Because the bank issuing the certificate would not pay the money to plaintiff without defendant’s endorsement, plaintiff commenced a declaratory judgment action.

In addition to the parties’ pleadings, the following transpired in the trial court. Defendant moved to dismiss the complaint under Rule 12(b)(6), Alabama Rules of Civil Procedure, contending it failed to state a claim upon which relief could be granted. Judge Parker denied that motion. Both parties requested the production of documents pursuant to Rule 34, A.R.C.P. Plaintiff moved to strike defendant’s request for a jury trial and demanded a speedy hearing. After a hearing, Judge Parker granted plaintiff’s motion and scheduled a hearing on the merits of the action. Defendant then petitioned this court for the requested writ of mandamus. After receiving the answer of Judge Parker and plaintiff, and the parties’ briefs, we took this matter under submission and stayed all proceedings in the trial court.

At the outset, we note the well established rule regarding a party’s right to a jury trial in a declaratory judgment action:

[A] party to a bill seeking a declaratory judgment is entitled to a jury trial as a matter of right if he would have had such a right in the cause of action for which the declaratory relief may be considered a substitute. Tuscaloosa County v. Shamblin, 233 Ala. 6, 169 So. 234; Annotation, 13 A.L.R.2d 777.

Reed v. Hill, 262 Ala. 662 at 663, 80 So.2d 728 at 729 (1955); quoted with approval in Sherer v. Burton, 393 So.2d 991 (Ala.1981), and Hanks v. Hanks, 281 Ala. 92, 199 So.2d 169 (1967). The same principle is recognized in Code 1975, § 6-6-228, part of Alabama’s version of the Uniform Declaratory Judgment Act:

When a proceeding under this article involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.

The cause underlying plaintiff’s declaratory judgment action is a contract dispute with attendant issues which would be tria-ble in a common law action. Porter v. Alabama Farm Bureau Mutual Casualty Insurance Company, 279 Ala. 499, 187 So.2d 254 (1966); Major v. Standard Accident Insurance Company, 272 Ala. 22, 128 So.2d 105 (1961). Indeed, it has been noted that a right to a jury trial exists as to “all issues of fact presented in declaratory judgment proceedings on the equity side if the same issues would be so triable when presented in common-law actions.” Major v. Standard Accident Insurance Company, 272 Ala. at 24, 128 So.2d at 107. Thus, unquestionably, defendant is entitled to assert his right to a jury trial on the issues of fact involved in the instant proceeding.

In their response to defendant’s petition, Judge Parker and plaintiff enumerate and explain various facts, apparently the result of the parties’ efforts at pre-trial discovery, to justify their position that only legal, and not factual, issues remain for resolution. That may, or may not, be the situation. Under the present posture of this case we will not venture a conclusion on that matter. We agree with defendant that the trial court, in effect, allowed plaintiff’s motion to strike to be used as a substitute for the summary judgment procedure provided in Rule 56, A.R.C.P.

The Uniform Declaratory Judgment Act is contained in Code 1975, § 6-6-220, et seq. Rule 57, A.R.C.P., provides, in pertinent part, that the rules of civil procedure apply to a declaratory judgment action. Discussing the similar federal rule of civil procedure, Rule 56, one commentator states: “There is no doubt as to the applicability of the summary procedure to a proceeding for declaratory relief.” 6 J. Moore, Moore’s Federal Practice ¶ 56.17[19] (2d ed. 1982) (footnote omitted). Even before the present rules of civil procedure were adopted, this Court recognized the principle that the usual rules of procedure and pleading apply to declaratory judgment actions:

Though actions for declaratory judgment are statutory in nature there has been no special statutory procedure established for them and our conventional rules of procedure and pleadings have been applied in such cases.

Campbell v. Shell, 289 Ala. 115 at 119, 266 So.2d 272 at 275 (1972).

Applying the principles applicable to summary judgment, we opine that it was improper for the trial court to have denied defendant a jury trial on issues of fact unless they were not in dispute:

In determining whether a summary judgment is proper, the ultimate question is whether there remains a genuine issue of material fact, and if there is one, summary judgment is inappropriate. Rule 56(e) ARCP; 6 Moore’s Fed.Prac., par. 56.15 (2nd ed. 1971). Put in another way, “[Wjhere the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented.”

First National Bank of Birmingham v. Culberson, 342 So.2d 347 at 351 (Ala.1977), quoted with approval in Harold Brown Builders, Inc. v. Jordan Company, 401 So.2d 36 at 37 (Ala.1981). This court has applied the scintilla evidence rule in determining the propriety of submitting a case to the jury in a declaratory judgment action. Stonewall Insurance Company v. Lowe, 291 Ala. 548, 284 So.2d 254 (1973). In the instant case, the trial court should not have removed the case from the jury absent a finding, arrived at through the procedure for summary judgment contained in Rule 56, that no issues of material fact existed. Thus far, no such finding has been made. Therefore, the trial court erred in striking defendant’s request for a jury trial.

Judge Parker and plaintiff cite Alabama Electric Cooperative, Inc. v. City of Luverne, 282 Ala. 616, 213 So.2d 676 (1968), (Alabama Electric), in support of their position that in the absence of an issue of fact, the trial court may strike a party’s request for a jury trial. That case does support Judge Parker’s action. Alabama Electric involved a declaratory judgment action brought by the City of Luverne on the issue of the right of termination of a contract between it and Alabama Electric Cooperative, Inc. No issue of the appropriateness of summary judgment was raised in that case, which pre-dates our present rules of civil procedure. Alabama Electric Cooperative, Inc., answered the city’s complaint and demanded a jury trial. The trial court struck the utility’s request. This court gave the following reasoning in upholding the trial court’s action:

Appellant contends that the trial court was in error because the “material allegations of the bill of complaint such as execution of the contract, and the giving of notice, would certainly be issues triable by a jury in a common law action for breach of contract.”
But these points were not issues in the trial. The bill alleged the existence and execution of the contract and the contract was attached as an exhibit to the bill; and appellant, in its answer, admitted these allegations. And in paragraph 6 of its answer, appellant stated “ * * * that Complainant attempted to terminate the agreement between the City of Lu-verne and Alabama Electric Co-Operative, Inc. allegedly in conformity with paragraphs 3 and 19 of said agreement, by notifying this Respondent in writing of such action by the Complainant. This Respondent, however, denies that said notice terminated said agreement * * *. That said notice to terminate given by the Complainant to this Respondent under paragraph 3 of said agreement is premature and ineffectual ... . ”

Alabama Electric, 282 Ala. at 618, 213 So.2d at 677.

This court then cited Reed v. Hill, supra, in support of its reasoning:

There were no facts required to be determined by a jury. The only issue left was a construction of the contract and in the instant ease, that was a question of law. See Reed v. Hill, 262 Ala. 662, 80 So.2d 728. The trial court did not err in denying a trial by jury.

Alabama Electric, 282 Ala. at 618, 213 So.2d at 678.

Reed v. Hill does not support the decision arrived at in Alabama Electric. This court, in Reed v. Hill, also upheld the trial court’s denial of a request for a jury trial in a declaratory judgment action:

The question then in this case is whether or not the issues presented by the bill for declaratory judgment and the answer thereto are legal ones on which but for the bill petitioner could have demanded a jury trial at law.

Reed v. Hill, 262 Ala. at 663, 80 So.2d at 729. However, it upheld the denial by noting that the only right Reed, who demanded a jury trial, had was in the nature of an equitable lien, and that he had no legal cause of action. Therefore, even if there were disputed issues of fact, Reed would not have been entitled to a jury trial because he had no such right at common law. Porter v. Alabama Farm Bureau Mutual Casualty Insurance Company, supra; Major v. Standard Accident Insurance Company, supra; Tuscaloosa County v. Shamblin, 233 Ala. 6, 169 So. 234 (1936). Prom the part of the opinion quoted above, we discern that a breach of contract issue, triable at common law, existed on the question of whether Alabama Electric Cooperative, Inc., received notice of termination pursuant to the terms of the contract. In any event, the decision in Alabama Electric is incompatible with the dictates of Rules 57 and 56, A.R. C.P. To the extent it is inconsistent with our opinion today, it is expressly overruled.

A writ of mandamus will lie to compel the granting of a trial by jury. Whitman v. Mashburn, 286 Ala. 209, 238 So.2d 709 (1970); Ex parte Merchants Nat. Bank of Mobile, 257 Ala. 663, 60 So.2d 684 (1952); Ex parte Smith, 395 So.2d 94 (Ala.Civ.App.1981). Noting the requirements for granting a writ of mandamus, this court said:

Mandamus is a drastic and extraordinary writ. Folmar v. Brantley, 238 Ala. 681, 193 So. 122 (1939). To grant an individual a writ of mandamus, there must be (a) a clear legal right in petitioner to the order sought, (b) an imperative duty upon the respondent to perform accompanied by a refusal to do so, (c) a lack of another adequate remedy, and (d) the jurisdiction of the court must be properly invoked. Ex parte Sykes, 44 Ala.App. 473, 213 So.2d 413 (1968).

Martin v. Loeb and Company, 349 So.2d 9 at 10 (Ala.1977). Here, we are of the opinion that defendant meets all four requirements for the writ.

If, upon receipt of this Court’s judgment, the trial court does not vacate its order striking defendant’s request for a jury trial, a writ of mandamus will issue upon request of defendant.

WRIT AWARDED CONDITIONALLY.

TORBERT, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.