author: LEE, Justice, for the Court: BROOM, Justice,

text:
    Dale BOYINGTON, or Dale Boykin v. STATE of Mississippi.
    No. 52000.
    Supreme Court of Mississippi.
    Sept. 10, 1980.
    Rehearing Denied Nov. 12, 1980.

      Broom, J., dissented and filed opinion in which Walker, J., joined.

      Lester F. Williamson, Jr., Hamilton & Williamson, Meridian, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SUGG, BROOM and LEE, JJ.
   LEE, Justice, for the Court:

Dale Boyington, or Dale Boykin, was convicted in the Circuit Court of Newton County on a charge of selling marijuana in a quantity less than one (1) kilogram, and was sentenced to a term of eight (8) years in the state penitentiary. He has appealed and assigned seven (7) errors in the trial below.

The State called two (2) witnesses: Bill Marshall, an agent for the Mississippi Bureau of Narcotics, and Mickey Williams, a toxicologist for the Mississippi State Crime Laboratory. The appellant rested without presenting any evidence.

The evidence for the State, which was undisputed, reflected that on April 26,1978, Bill Marshall met with two (2) informants in the Chunky community of Newton County for the purpose of making a marijuana buy. He was taken to a residence about 2:00 in the afternoon, where appellant arrived and was introduced to Agent Marshall. Appellant went into the residence and returned with a brown paper bag containing approximately seven (7) ounces of marijuana. Appellant agreed to sell the marijuana to Agent Marshall for twenty dollars ($20.00) per ounce. Marshall requested an additional three (3) ounces, which were procured by appellant from the residence, and Marshall paid him two hundred dollars ($200.00). After obtaining the contraband from appellant, Marshall delivered it to Mickey Williams, toxicologist at the Mississippi State Crime Laboratory. Williams testified for the State and identified the substance as marijuana.

I.

Appellant first contends that there was prosecutorial interference with his right to counsel, which requires the dismissal of the indictment.

An evidentiary hearing was held on the motion to dismiss, and Agent Robert Pierce testified that, after appellant’s indictment, he was apprehended in the State of Pennsylvania. Pierce went there for the purpose of returning him to Mississippi for prosecution. Appellant waived extradition and, en route to Mississippi, stated to Pierce he would like to “help himself.” Pierce told appellant that, if he would help the Bureau and serve as an informant, he would recommend probation for him. Appellant made bond, and he worked as an undercover informant with the Mississippi Narcotics Bureau for approximately six (6) months, developing ten (10) cases during that time.

The Newton County Circuit Court and the District Attorney’s Office knew that appellant was working in such capacity. Appellant was arraigned on March 19,1979, at which time he requested, and the court appointed, an attorney to represent him. The court, being aware of the defendant’s work with the Mississippi Bureau of Narcotics, granted a continuance of the case on March 26, 1979, until the August 1979 Term of court. Prior to that term, Agent Pierce requested the district attorney to recommend that appellant be placed on probation and the district attorney agreed to make the recommendation. However, the circuit judge declined to accept the recommendation and, as next best, the district attorney recommended a sentence of two (2) years in the state penitentiary, which the trial judge agreed to accept. The appellant declined that sentence and requested that his court- - appointed attorney be discharged. His family then employed other attorneys to represent him.

At the evidentiary hearing, appellant testified that he agreed to work with the Mississippi Bureau of Narcotics only after receiving a promise of leniency and probation from Agent Pierce. Also, that Pierce led him to believe that he could get out of the charge, if he worked for the Bureau of Narcotics, and that Pierce told him there was no need to pay for a lawyer because the court would appoint one for him. Pierce did not rebut that testimony. Appellant contends there was prosecutorial interference with his right to counsel which denied him effective counsel, and he complains that his attorney was ineffective because he failed to obtain probation for him. Appellant cites People v. Mason, 97 Misc.2d 706, 411 N.Y.S.2d 970 (1978); Commonwealth v. Manning, 373 Mass. 438, 367 N.E.2d 635 (Mass.1977); People v. Moore, 57 Cal.App.3d 437, 129 Cal.Rptr. 279 (1976); and United States v. Morrison, 602 F.2d 529 (3d Cir. 1979). However, the above cases deal with the willful interference with a defendant’s right to counsel and are not authority for the present question.

We can understand how appellant honestly believed he would receive probation for his cooperation with the State as an undercover informant. It is unfortunate that the actions of the agent and district attorney, upon which appellant relied, did not result in what he understood would occur upon entry of a guilty plea (probation). However, this assignment is not well taken.

II.

Appellant contends that his employment as an undercover agent, after his arrest, violated his Thirteenth Amendment rights and 42 U.S.C. § 1994 (1974), the anti-peonage statute.

As stated before, appellant freely and .voluntarily entered into the arrangement with the Bureau of Narcotics, the agent did recommend to the district attorney that appellant be placed on probation, the district attorney made the same recommendation to the trial judge, which was not accepted by him. Cases cited by appellant are not authority on this point, and the argument is not persuasive.

III.

Appellant insists that the trial court erred in failing to grant his continuance, after employing another attorney, and in setting his case on Friday for the following Monday, since his attorney could not properly prepare his defense in that time period.

Six (6) days prior to the trial, appellant discharged his court-appointed attorney and employed another attorney. At the hearing on the suppression motion, appellant requested a continuance in order that his new attorney could have additional time to prepare his defense. The following discussion was held between Mr. Hamilton, new counsel for appellant, and the trial judge, concerning the continuance:

“BY MR. HAMILTON:
. I understand we are set for trial first out Monday morning. Am I correct?
BY THE COURT:
Mr. Hamilton, I am going to give you a little leeway. You have asked for a continuance.
BY MR. HAMILTON:
Your Honor, Monday will be fine with me, if we are going to try it next week.”

It is noted that the court offered to give appellant’s attorney additional time to prepare his case, but the attorney told the court that Monday would be fine with him to try the case. There is no merit in this assignment. The discussion on Assignments I and III cover and dispose of Assignment VI.

IV.

Appellant argues that the trial court committed reversible error in discussing the disposition of appellant’s case with the district attorney in the absence of the defendant and without his knowledge.

The narcotics agent and the district attorney did no more than the appellant had requested that they do in recommending to the trial judge that he place the appellant on probation. This did not constitute one of those crucial areas of a trial where the defendant is entitled to be present at all times. Furthermore, the point was not raised in, or presented to, the trial court for consideration, and was not preserved for error in this Court. Howell v. State, 354 So.2d 1124 (Miss.1978); Ponder v. State, 335 So.2d 885 (Miss.1976).

V.

Appellant contends that the action of the trial judge in offering to accept the recommendation of two years in the penitentiary, and, after conviction, sentencing the appellant to eight (8) years violated his constitutional right to a jury trial.

There was no violation of appellant’s constitutional right to a jury trial. The trial judge offered to accept a two-year recommendation and he did not indicate that, if appellant demanded a jury trial, and was convicted, he would impose a more severe sentence. There is no basis here for the contention that the court did not consider legitimate factors in pronouncing the sentence and that the heavier sentence resulted because appellant demanded a jury trial. See Fermo v. State, 370 So.2d 930 (Miss. 1979).

However, we note that after appellant had discharged his court appointed attorney and his family had employed other attorneys (Hamilton and Williamson) to represent him on the trial, when the suppression hearing was held, the following discussion occurred between Attorney Hamilton and the trial judge:

“BY THE COURT:
Now, Mr. Hamilton, when was this Defendant arraigned and indicted, August or March?
BY MR. HAMILTON:
March the 19th. He was indicted in August.
BY THE COURT:
Upon being presented to the Court and being questioned, I established he was an indigent person, and I appointed him counsel, Mr. McMillan who represented him at that term of Court, and appeared at this term of Court to represent him. The case is set for call today and trial next week. Mr. McMillan announced to me first thing this morning that you had been employed. Now, I don’t like this, on these Court appointments. I am not going to permit this Defendant, or any other Defendant, to come into this Courtroom and ask for a Court appointed attorney and then turn around and hire an attorney. Mr. McMillan has represented this fellow, and he is going to be paid, and the county is not going to pay it. If it should develop this Defendant has lied to me as a reason for appointment, I am going to be hard to get along with.
BY MR. HAMILTON:
Yes, sir, I understand.
******
BY THE COURT:
What do I normally allow Court appointed attorneys as fee for appointment if there is disposition before trial?
BY THE COURT REPORTER:
$100.00
BY THE COURT:
That will be the fee he will pay to the county, and that will be the fee I will allow Mr. Rusty McMillan. Now, I want an understanding. Will that be paid?
BY MR. HAMILTON:
Yes, Your Honor. I have not been-paid anything yet. I have a promise from his mother. I have every intention of getting with Mr. McMillan and seeing that he is compensated. I have every intention of seeing he is paid for his work.
BY THE COURT:
We will proceed with that understanding. Otherwise, if it is not paid by Monday at 9:00 o’clock, I will hold him and confine him in the jail until it is paid to the county. The county incurred expenses, and they will be reimbursed for the amount. All right.” (Emphasis added)

The record further reflects that after the guilty verdict was returned, and, in pronouncing sentence, the court said:

“Dale Boyington, you were found guilty by a jury for the unlawful sale of marijuana. There is a difference, in my view, of the sale of marijuana and the possession of marijuana. ... I recognize that you were not of assistance until you were caught and arrested. I have been a practicing attorney for a great number of years, as well as a State prosecuting attorney, and I have been confronted many times with situations where persons who are involved with the law, they will assist in certain matters for their own benefit. You had been indicted. You had been picked up in the State of Pennsylvania, and it was necessary for the officers of this county to go to Pennsylvania and return you to the State of Mississippi, and it was only after you were taken into custody that you decided that you would be of assistance. Are you staring at me ?
BY THE DEFENDANT:
No, sir.
BY THE COURT:
The maximum punishment, if I recall correctly, is something like twenty years and a stiff fine. It is the sentence of this Court you serve a term of eight years in the Mississippi State Penitentiary. You are given credit for your jail time. Take charge of him, Sheriff.” (Emphasis added)
In Fermo, supra, we also said:
“While a trial judge must control the sentencing phase of a criminal trial and has the responsibility and duty of approving or disapproving a recommendation by the prosecutor, he should never become involved, or participate, in the plea bargaining process. He must remain aloof from such negotiations. The trial judge always must be circumspect and unbiased, at all times displaying neutrality and fairness in the trial, and consideration for the constitutional rights of the accused.” 370 So.2d at 933.

Most courts recognize that plea bargaining is an essential part of the criminal justice system. Salter v. State, 387 So.2d 81, Nos. 51,773 and 51,786, handed down July 30, 1980 [Not yet reported]; Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977); Santobello v. New York, 404 U.S 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). While, as stated above, the trial judge must control the sentencing phase of a criminal trial, it is common knowledge among courts, prosecutors, attorneys and even laymen, that a prosecutor, who represents the State, is, or should be, fully informed and knowledgeable about the case which he will present to the court, its strength or weakness, and its effect on similar cases, more so than the trial judge himself. With that in view, trial judges, as a rule, follow the recommendations of the prosecutor, unless they are patently contrary to the interest of the State and the people, or are unfair and unjust.

Although no plea was entered here, in Salter, supra, quoting from Santobello, supra, the Court said:

“ ‘[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.’ ” 404 U.S. at 262, 92 S.Ct. at 499, 30 L.Ed.2d at 433.

In the present case, the district attorney had functioned as such in the Eighth Circuit Court District for more than three and one half (3V2) years. The record does not reflect that either he or Agent Pierce had any doubt but that the recommendation of probation by the district attorney would be approved by the court. The appellant certainly had every reason to believe that he would be given probation and he did all he agreed to do with the agents and officials of the State of Mississippi, which resulted in developing ten cases of narcotics violations in the state.

This Court is required to review money judgments in civil cases to determine their adequacy or excessiveness, and has the power to enter additurs and remitti-turs. We are also required to review sentences in capital murder cases to make sure that the death penalty is not wantonly or freakishly imposed and that it is inflicted in a consistent and evenhanded manner. It may become inevitable that justice will require appellate courts to review sentences less than capital.

We do not revoke or disturb the principle that the imposition of sentence is within the sound discretion of the trial court, and that this Court will not reverse the sentence so imposed, if it is within the limits of the statute. Anderson v. State, 381 So.2d 1019 (Miss.1980); Yazzie v. State, 366 So.2d 240 (Miss.1979); Ainsworth v. State, 304 So.2d 656 (Miss.1975); Clanton v. State, 279 So.2d 599 (Miss.1973).

However, under the peculiar facts of this case, where we do not find error which requires reversal for a new trial, but where the appellant, with the knowledge of the trial court, worked for the Mississippi Bureau of Narcotics as an undercover informant, and was promised by the Bureau and district attorney that they would recommend probation, which led appellant to believe he would be placed on probation, we hold justice requires that the judgment of the lower court sentencing appellant to eight (8) years in the Mississippi State Penitentiary be vacated and that the case be remanded to the lower court, with instructions that appellant be placed on probation under such terms and conditions as the lower court may prescribe.

This case was considered by a conference of the justices en banc.

AFFIRMED AND REMANDED.

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

BROOM and WALKER, JJ., dissent.

BROOM, Justice,

dissenting:

With deference I must dissent to that part of the majority opinion remanding the case with instructions that the appellant be placed on probation. The opinion correctly says, (1) “there is no basis here for the contention that the court did not consider legitimate factors in pronouncing the sentence” and (2) “we do not find” reversible error.

Appellant’s argument might have some merit if the record demonstrated any indication that the state or any of its representatives or agents reneged after initiating or setting in motion the events leading up to any “deal” whereby appellant was induced or misled to work for the state. The peculiar scenario depicted in this case developed by means of a chain of events set in motion by the appellant himself. Without his being offered any inducement, while en route from Pennsylvania to Mississippi after waiving extradition, the appellant first broached the subject of a “deal” and stated to Agent Pierce that he would like to “help himself.” This is clearly shown by the following excerpt from the record:

Q. Now, as you returned by the airline, did you have some conversation with Mr. Boykin regarding his doing some work for the department?
A. Yes, sir, he mentioned he would like to help us, to help himself on his case. I told him if he did that, what I could do is make a recommendation to the D.A. for a lighter sentence, as far as my part is concerned, or some type of probation, which I did talk to the District Attorney about it later on after I got back and we started working Dale. • (Emphasis added).

It was only after this overture by the appellant himself that he was promised anything. The promise made by Pierce to appellant was alternative: that is, Pierce would recommend to the “D.A. for a lighter sentence . or some type of probation. . . ” This was corroborated by Deputy Sheriff Dean who testified that he was on the airplane en route to Mississippi and heard Pierce say in return for the appellant’s undercover work, Pierce would recommend “to the D.A. for a lighter sentence or whatever.” Subsequent to appellant’s overture, Agent Pierce requested the district attorney to recommend probation for the appellant. The district attorney agreed to make such a request and completely fulfilled his promise, but unfortunately (for the appellant) the trial judge rejected the recommendation.

The majority opinion correctly holds that there was “no violation of appellant’s constitutional right to a jury trial.” Acknowledgment is made in the opinion that under our rule this Court will not “revoke or disturb” the action of a trial judge in meting out a sentence if done within statutory limits. Yet we are intruding into the function of the sentencing judge here in a situation where obviously everything promised the appellant was done. Agent Pierce actually did more than he promised in recommending probation (his promise was to recommend a light sentence or probation) to the district attorney who in turn discharged his promise in recommending probation to the sentencing judge.

In justifying the action of the .majority, some sort of analogy is drawn between the present situation and that having to do with adequacy or excessiveness of money judgments in civil cases, that is, the matter of additurs and remittiturs. Of course, we review many judgments in these situations but we do so by virtue of statutory authority: Mississippi Code Annotated § 11-1-55 (Supp.1979). The majority points out that we are also “required to review sentence in capital murder cases . . . Again, we review such sentences under statutory authority. Mississippi Code Annotated § 99 19 105 (Supp.1979). In my opinion, we should not vacate the sentence in the present case where admittedly there is no statutory authority for us to do so. As found by the majority, the sentencing judge considered legitimate factors and imposed a sentence much less than the maximum of twenty years which he could have had imposed. In reviewing the appellant’s sentence, we are usurping the function of a circuit judge who, exclusive of all others, has the duty of imposing a sentence. The sentence (as compared to twenty years maximum) is undeniably light and within the scope of what Agent Pierce told appellant he would recommend as an alternative.

It may be true that the appellant in his own mind thought that in return for doing undercover work he would be given probation. Can a defendant under criminal charge bind the sentencing judge by what the defendant in his mind thought? If we hold that he can, we are setting a dangerous precedent: one which will tend to paralyze and otherwise impair the functions of those servants who preside over trials of criminal cases, and who know much better than we what sentence would be proper.

Here Agent Pierce made no promise to the appellant until the appellant himself (not anyone representing the state) set in motion the chain of events which culminated in the judgment appealed from. Only after the appellant made known to Agent Pierce he wanted to “help himself” did Pierce state he would recommend to the D.A. a light sentence or probation. When the matter came on for final disposition, the circuit judge offered a sentence of two years (one-tenth of the maximum sentence), but appellant chose to proceed with the trial which he had a right to do. Nevertheless, when he made the decision to proceed with the trial, it was he (not the judge or any state agent) who was rejecting a light (two years) sentence. After being found guilty, he was even then sentenced to only eight years imprisonment when he could have been given twenty years.

Upon such a record, and absent any reversible error being shown on the part of the lower court, I am not willing that we should for the first time ever, absent any statutory authority, where no reversible error is found, vacate a trial judge’s order and tell him he must place on probation one found guilty by a jury. My feelings are accentuated by the fact that (1) the appellant himself initiated the plea bargaining process, (2) in return he was alternatively promised a “recommendation” for either a light sentence or probation, (3) no one reneged on any promise, (4) the appellant rejected a light two-year sentence when offered, and (5) even after being found guilty by a jury, he received less than half the maximum sentence.

For these reasons, my feeling is that we should leave undisturbed the lower court’s judgment and sentence.

WALKER, J., joins this dissent.

      . However, see Frank v. Blackburn, 605 F.2d 910 (5th Cir. 1979).

      . It is undisputed that Agent Robert Pierce, Mississippi Bureau of Narcotics, advised appellant that he should not employ an attorney, that the court would appoint one for him.

      . Fermo opinion was written by Justice Lee for the Court.


source: Caselaw Access Project

license: Public Domain

text:
    Jerry GOODNIGHT, Betty Goodnight and the Mayor and Board of Aldermen of the City of Sardis, Mississippi v. Jessie DEAN et al.
    No. 52080.
    Supreme Court of Mississippi.
    Sept. 10, 1980.
    Rehearing Denied Nov. 12, 1980.
    Larry R. Jennings, Corr, Carlson & Fleming, James McClure, Jr., McClure & Mitchell, Sardis, for appellants.
    Briggs Smith, Smith & Phillips, Bates-ville, for appellees.
   Appeal from Circuit Court, Panola County; Andrew C. Baker, Judge.

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

AFFIRMED.


text:
    Lee GREEN v. JACKSON COUNTY, Jackson County Board of Supervisors, et al.
    No. 52129.
    Supreme Court of Mississippi.
    Sept. 10, 1980.
    Rehearing Denied Nov. 12, 1980.
   Appeal from Circuit Court, Jackson County; Merle F. Palmer, Judge.

Floyd J. Logan, Hopkins & Logan, Gulf-port, Jerry L. Hutcherson, Pascagoula, for appellant.

Raymond L. Brown, Megehee, Brown, Williams & Mestayer, Pascagoula, Paul J. Delcambre, Jr., Page, Mannino & Peresich, Biloxi, John G. Corlew, Pascagoula, for ap-pellees.

Before SMITH, P. J., and BROOM and LEE, JJ.

AFFIRMED.


author: LEE, Justice,

text:
    Thomas L. JAMES and Louise M. James v. JACKSON PRODUCTION CREDIT ASSOCIATION and Jim Tohill, Substituted Trustee.
    No. 52084.
    Supreme Court of Mississippi.
    Sept. 17, 1980.
    Rehearing Denied Nov. 12, 1980.
    C. R. Montgomery, S. F. Stater, III, Montgomery, Smith-Vaniz & Stater, Canton, for appellants.
    Robert H. Weaver, Allan P. Bennett, Watkins, Pyle, Ludlam & Stennis, Jackson, for appellees.
    Before SMITH, P. J., and BROOM and LEE, JJ.
   LEE, Justice,

for the Court:

Thomas L. James and Louise M. James filed a bill of complaint in the Chancery Court of Madison County, Honorable Mike Carr, Special Chancellor, presiding, against Jackson Production Credit Association [JPCA] and Jim B. Tohill, Substituted Trustee, praying for an injunction to enjoin the foreclosure of a deed of trust on certain lands in Madison County, and for other relief. JPCA filed an answer and cross-bill, the chancellor rendered an opinion and decree, dismissed the bill of complaint and dissolved the temporary injunction; stated the indebtedness against the James to be the sum of two hundred eighty--four thousand four hundred forty-six dollars sixty five cents ($284,446.65), together with fifteen percent (15%) attorney’s fees; and authorized and directed the substituted trustee, Jim Tohill, to proceed with the foreclosure of the trust deed. The chancellor declined to allow five percent (5%) damages upon dissolution of the injunction. The James’ have appealed and JPCA has cross appealed.

I.

Does the statute of limitations bar the claim of JPCA and Jim Tohill, Substituted Trustee, on the notes and deed of trust involved here, and has the indebtedness on same been extinguished?

A number of sub-points were argued and briefed on this question, but we will address only the broad general assignment.

On December 11, 1968, appellant(s) executed a promissory note to JPCA in the sum of one hundred ninety-four thousand one hundred sixty-three dollars ($194,163.00) due on demand after October 1, 1969. The note was secured by appellants’ deed of trust bearing the same date. That deed of trust gives rise to the litigation here.

The deed of trust is in standard form and provides security for payment of the said indebtedness and any future or additional advances made to the James, and any other indebtedness of debtors to the beneficiary, incurred or acknowledged within thirty-six (36) months from the date of the instrument. On January 19, 1970, appellant(s) executed a note to JPCA for one hundred ninety nine thousand five hundred eighty-three dollars ($199,583.00) due on demand after October 1, 1970, which note recited that it was a renewal and an extension of the December 11, 1968 note, and, that it was not a cancellation.

On January 20, 1971, appellants executed a promissory note due on demand after October 1, 1971, in favor of JPCA, reciting that it was a renewal and extension of the note of January 19, 1970. It was secured by the future advance provision of the December 11, 1968 deed of trust. Marginal entries were made on the deed of trust record indicating the renewals, in accordance with the statute.

Thereafter, the matters became involved in litigation and have been since 1974. The trustee advertised foreclosure of the deed of trust for the first time on October 6, 1975, which foreclosure was enjoined. On May 8, 1979, a preliminary writ of injunction was issued, enjoining foreclosure of the deed of trust by JPCA and Jim Tohill, substituted trustee, and, after a trial on the merits, the preliminary injunction was dissolved, from which action this appeal is prosecuted.

In Temples v. First National Bank of Laurel, 239 Miss. 446, 123 So.2d 852, 854 (1960), the Court said:

“In other words, it is their contention that in any event the indebtedness was extended to December 15, 1936, and that this date marked the expiration of the period of limitation. Therefore, they say that the foreclosure sale was void because action on both the note and deed of trust was then barred by the statutes of limitation. They would be correct in their contention that the foreclosure sale was void because the bar of the statutes of limitation had already run on the debt and on the deed of trust but for the fact that the indebtedness from its original maturity date was renewed from time to time by new notes. Of course, if the statutes of limitation had run at the time of the sale both the right and the remedy on the note and deed of trust would have been extinguished and the sale would therefore have been void. The proof, however, does not support this contention. All of the renewal notes were executed prior to the running of the statutes of limitation. The acknowledgement of the indebtedness, executed and entered on the margin of the record of the deed of trust under date of October 15, 1936, was effective to start the running of the statutes of limitation anew from this day forward.
In 54 C.J.S. Limitations of Actions § 320a, it is said: ‘An acknowledgment or new promise fixes a point of time from which limitations begin to run anew, and an action commenced within the statutory time thereafter is not barred by limitations. If such acknowledgment or promise is made before the bar of the statute has become complete, it starts the statute anew from the date of the promise or acknowledgment and against the original claim, unless the new promise is intended by the parties to take the place of the original liability, in which case the period of limitation is determined by the character of the new promise.’ ” (Emphasis added). 239 Miss, at 453, 123 So.2d at 854 ■ 855.

In the present case, the January 20, 1971 note recited that “This is a renewal and an extension and not a cancellation . . .

The appellants cite the Missouri case of Ottenad v. Mount Hope Cemetery & Mausoleum Co., 176 S.W.2d 62 (Mo.App.1943) which states the principle that, where a mortgagee induced, provoked and promoted litigation, the statute of limitations was not tolled. In our view, the appellees have not conducted themselves in such manner as to invoke that principle of law against them.

We have studied the chronology of events surrounding the foreclosures and litigation involving the appellants and appel-lees and conclude that the indebtedness incurred by appellants and the claim founded on the deed of trust are not barred by the statute of limitations and that the indebtedness has not been extinguished.

II.

Did the court err in its determination that JPCA has been a mortgagee in possession of the property since July 25, 1977?

Mississippi Code Annotated Section 89-1-43 (1972) provides, in part, as follows:

“[Bjefore a sale under a mortgage or deed of trust, the mortgagor or grantor shall be deemed the owner of the legal title of the property conveyed in such mortgage or deed of trust, except as against the mortgagee and his assigns, or the trustee after breach of the condition of such mortgage or deed of trust.”

Appellees proceeded to foreclose the deed of trust and a trustee’s deed was executed and delivered on July 25, 1977, conveying the property to JPCA. JPCA immediately went into possession of same and exercised possession and ownership over it by inspecting the land and the crops; negotiating with tenants for the lease of the land, for the crop year 1978; leasing tracts of the land to two (2) tenants; receiving rentals from the leases as they became due; paying amounts due the Federal Land Bank under deeds of trust to it; negotiating leases for the year 1979; paying ad valorem taxes on said lands; executing a subordination agreement in order to permit one of the tenants to acquire crop loans; requiring its tenants to exercise good husbandry over the lands; by legal action, causing purported leases executed by other persons to be set aside and cancelled; and receiving all income produced by and on the property.

In Wirtz v. Gordon, 187 Miss. 866, 184 So. 798 (1938), the Court said:

“[WJhere a mortgagee obtains possession in a suit, or under an irregular, or voidable, or void, foreclosure, after breach of the condition of the mortgage, he has a right to hold possession until the mortgage is paid. The mortgagor cannot deprive the possession without paying the debt. . . This rule, that the mortgagee cannot be deprived of possession by the mortgagor until the debt is paid is applied in cases where the debt secured by the mortgage is barred by the statute of limitations.” 187 Miss, at 877, 184 So. at 802.

The chancellor held that JPCA was a mortgagee in possession of the property and that it could not be dispossessed until the indebtedness owing it was paid, or until a different party acquired the land under a valid foreclosure sale. We cannot say that the chancellor was manifestly wrong in his finding of fact, nor can we say that he misapplied the law.

The other contentions advanced by appellants have been carefully considered and it is our conclusion that they are without merit. Therefore, we affirm the lower court on direct appeal.

CROSS-APPEAL

Did the special chancellor commit error in refusing to allow five percent (5%) damages to cross-appellant JPCA, upon dissolution of the temporary injunction?

Mississippi Code Annotated Section 11 ■ 13-35 (1972) provides the following:

“When an injunction, obtained to stay proceedings on a judgment at law for money, shall be dissolved, in whole or in part, damages at the rate of five per centum shall be added to the judgment enjoined, or to so much thereof as shall be found due, including the costs; and the clerk of the chancery court shall certify such dissolution to the clerk of the court in which the judgment was rendered, who shall thereupon issue execution for the damages as well as for the original debt and costs. Damages at the same rate shall be allowed upon the dissolution of injunctions to stay sales under deeds of trust, or mortgages with power of sale; and such damages may be added to the debt, and collected by the sale of the property, or execution may issue from the chancery court for the same, together with the costs of suit, unless the value of the property, the sale of which was restrained, be less than the amount of the debt, in which case the damages shall be computed on the value of the property, to be ascertained and determined by the chancellor. In all cases upon the dissolution of an injunction, the damages may be ascertained by the court or chancellor, or upon reference to a master, and proof, if necessary, and decree therefor be made, and execution be issued thereon.”

The chancellor gave no reason for denying five percent (5%) damages upon dissolving the injunction. In Haines v. Wiesenburg, 237 Miss. 351, 114 So.2d 849 (1959), a case similar to the present one, the chancellor dissolved an injunction, allowed attorney’s fees, fixed the amount of the debt and trustee’s fees, but denied the five percent (5%) damages. In reversing and allowing the damages, this Court said:

“On the cross appeal by Dobbs, he claims that he is entitled to damages upon the dissolution of the injunction to stay the sale under the deed of trust in the amount of 5 percent of the amount realized from the sale of the property. We think that Section 1352 of the 1942 Code [now Miss. Code Ann. § 11-13-35 (1972)] so provides and that the contention in the cross appeal should be sustained.” 237 Miss, at 355, 114 So.2d at 851.

The case of Barcroft v. Armstrong, 198 Miss. 565, 21 So.2d 817 (1945), where five percent (5%) damages were not allowed, is distinguished from the present case in that there, the injunction was dissolved as to lands of the mortgagor but was retained as to lands not owned by the mortgagor.

We are of the opinion that the lower court erred in denying the 5% damages as provided by statute, that the judgment should be reversed and rendered thereasto, and that the case should be remanded to the chancellor for determination of the statutory damages.

AFFIRMED ON DIRECT APPEAL; REVERSED AND RENDERED ON CROSS-APPEAL; AND REMANDED FOR DETERMINATION OF STATUTORY DAMAGES.

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

PATTERSON, C. J., took no part.

      . A temporary injunction was issued.

      . The trustee’s deed subsequently was set aside because of irregularities in the foreclosure, following suit for that purpose by appellants.


text:
    Jewel Smith COPELAND v. Rex SMITH, Sr. et al.
    No. 52150.
    Supreme Court of Mississippi.
    Sept. 17, 1980.
    Rehearing Denied Nov. 12, 1980.
    David 0. Butts, Jr., Roy 0. Parker, Roy 0. Parker & Associates, Tupelo, for appellant.
    Frank A. Riley, Riley & Weir, Tupelo, for appellees.
   Appeal from Chancery Court, Lee County; Fred P. Wright, Chancellor.

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

AFFIRMED.


text:
    John R. HARVEY and Sheila G. Harvey Lancaster v. Leva HARVEY et al.
    No. 52152.
    Supreme Court of Mississippi.
    Sept. 17, 1980.
    Rehearing Denied Nov. 12, 1980.
    William L. Colbert, Jr., Satterfield, Allred & Colbert, Jackson, for appellants.
    Tom Tullos and Eugene C. Tullos, Bay Springs, for appellees.
   Appeal from Chancery Court, Covington County; J. W. Walker, Chancellor.

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

AFFIRMED.


author: BROOM, Justice,

text:
    GEORGIA PACIFIC CORPORATION et al. v. Billy BLALOCK et al.
    No. 52154.
    Supreme Court of Mississippi.
    Oct. 1, 1980.
    Rehearing Denied Nov. 12, 1980.

      O. B. Triplett, Jr., Forest, John C. McLau-rin, Jr., McLaurin & McLaurin, Brandon, W. Major Holifield, Laurel, for appellants.
    Leon Mangum, Decatur, Thomas D. Lee, Forest, for appellees.
    Before WALKER, BROOM and BOWLING, JJ.
   BROOM, Justice,

for the Court:

Adverse possession is the basis upon which the Chancery Court of Newton County decreed a land title to be vested in the appellees (complainants below): Billy Bla-lock, “Young” Bunyan Blalock, Zula Blalock, Lucy Leake, Lottie Hall and Ruby Furdge. Their bill to quiet title named as individual defendants (appellants here): Camellia Bas-kin, Mable Blalock and Otis Blalock; Georgia Pacific Corporation is the sole corporate defendant. In addition to decreeing title in favor of appellees, the lower court awarded them a $96,006 money decree for the value of the timber the individual defendants sold to Georgia Pacific which Georgia Pacific cut off the controversial land. We reverse.

Common source of title to the disputed 120 acre tract was Singleton Blalock, now deceased, who acquired record title in the early 1900’s. Singleton was the grandfather of the individual litigants. For his failure to pay taxes (sometime between 1905 and 1919), Singleton lost his title which became vested in McMullan and Son. In 1919, McMullan and Son conveyed this land to Singleton’s son, Bunyan Blalock (now deceased), who thereafter resided in Laurel, Mississippi, until he died intestate in 1960. His heirs are the individual appellants herein.

Another of Singleton’s sons was Acquilla (Quilla), who just after World War I (about 1919 or 1920) moved upon the property where he continued to reside until his death in 1963. After Singleton lost his property and Bunyan acquired it, Quilla cared for his father there until Singleton died in 1922. Quilla’s descendants assert, and the lower court found, that Quilla, by adverse possession against his brother Bunyan, gained title to which the appellees succeeded upon Quilla’s death. Appellants take the position that when Quilla began occupying the property about 1920, his occupation was permissive pursuant to an understanding with Bunyan (record title holder) that Quilla might live there and have what he made provided he would take care of their parents, Singleton and Lucy Blalock, and an “afflicted” sister. Other facts and testimony will be stated where appropriate in this opinion.

The dispositive issue is: Did Quilla’s occupation and acts with reference to the disputed lands' ripen into title by adverse possession?

According to the record, Quilla continuously occupied the land after about 1920, farmed it until he died in 1963, and reared his family there. Most of the time, Quilla and his heirs (appellees) paid taxes on the property. All the while, the tax assessment was in Bunyan’s name until his death after which the land was assessed to his heirs (appellants). In 1933, Quilla acquired title to and claimed homestead exemption on a 160 acre tract adjacent to the subject land. After Quilla’s death his survivors continued to claim homestead exemption on the tract purchased in 1933. In his lifetime Quilla performed the following significant acts consistent with a claim of ownership: put up fences; built and repaired the house there; pastured cows; raised row crops; cut trees for posts, firewood and cash; planted trees; built outbuildings and added a bathroom to the house; raised truck crops; dug a pond and stocked it with fish; made a well; and paid taxes. Quilla received all profits from the land.

Subsequent to Quilla’s death, his heirs continued to perform similar acts regarding their use of the disputed land. According to the testimony of several elderly residents of the community, it was the general reputation there that the land in controversy was part of the “Quilla Blalock place.” Based upon the evidence submitted on behalf of the appellees, the chanOellor ruled that Quilla (though he had no color of title) gained title by adverse possession prior to his death and prior to the death of Bunyan Blalock.

The appellants presented testimony indicating that Quilla’s occupation and acts upon the land were permissive and in recognition of the fact that title belonged to his brother Bunyan. It is not contradicted that taxes on the disputed property were assessed in the name of Bunyan Blalock throughout all the years in question. Especially significant is the fact that when he paid the ad valorem taxes on the property in Bunyan’s name, Quilla forwarded the tax receipts to Bunyan who then deducted the amount from his income tax returns. Homestead exemption on the subject property was never claimed by Quilla or appel-lees, but they claimed it on adjacent property. In 1971 the appellees executed an oil lease to Mr. George May on their 160 acre adjacent tract but did not lease the disputed property. They told Mr. May that Bunyan Blalock held record title to the land in controversy. A recital in the lease executed by the appellees on their adjacent land states:

This lease also covers and includes all land owned or claimed by Lessor adjacent or contiguous to the land particularly described above, whether the same be in said section or sections, grant or grants, or in adjacent sections or grants, although not included within the boundaries of the land particularly described above. For the purpose of calculating the rental payments hereinafter provided for, said land is estimated to comprise 160 acres, whether it actually comprises more or less.

According to Camellia Baskin, appellant daughter of Bunyan Blalock, a year or two after Quilla died, Quilla’s son Billy (appel-lee) came to Laurel and sought out appellants in an attempt to buy one acre of land out of the controversial subject property for a homesite. Camellia stated that they refused to sell him any of their land but told him he could stay there and take care of the place. Billy recalled the incident and testified, “I wanted them to deed me the land so I could get a loan on it.”

Appellants presented other testimony from people who live in the area to the effect that Quilla had told them in his lifetime that the land belonged to Bunyan who gave him permission to live on the land. Other testimony was to the effect that one Walter Williams had knowledge that Bunyan paid for the house constructed on the controversial property. Williams stated that he saw Bunyan deliver payment to the two builders who constructed the house. Arthur Blalock, another witness (nephew of Quilla and Bunyan), saw his Uncle Bunyan pay for a water well and pump which were installed on the place.

Attorney Major Holifield of Laurel testified that in May 1978 he went to see appel-lee Billy Blalock who was living on the disputed property. Hollifield’s purpose was to present a lease to Billy Blalock which provided that Billy would pay annual rentals of $100 if he desired to continue occupying the land. Hollifield stated that Billy considered the rent too high but would agree to pay taxes on the property. According to Hollifield, after a new lease was drawn Billy stated he would not sign it until he consulted his attorney.

Appellants offered to sell the timber on the property to Georgia Pacific in 1977. After having the timber cruised, Georgia Pacific offered appellants $96,006 for the timber, which they accepted. Appellee Billy Blalock stated to the court at the trial that when Georgia Pacific’s engineers came out to stake the property, he understood what they were doing and imagined that Bunyan’s heirs were selling the timber although he made no statement that day that the appellees owned the land. After Georgia Pacific paid the appellants for the timber in September 1978 and began to cut the timber, appellees objected, and this suit ensued with the appellees asserting title by adverse possession.

We think a significant and distinguishing feature of this case regards the payment of taxes on the subject land. Quilla and his successors (appellees), by paying the taxes in Bunyan’s name and then mailing the tax receipts to him so that he and later his family could claim credit on their income tax returns, in effect, recognized title in Bunyan Blalock. In doing so, they negated any hostile aspect of their claim or any claim of a parol gift. It is inconsistent to say on the one hand that Quilla was openly and notoriously claiming title adverse to the record owner (his brother, Bunyan) and the whole world when at the same time he was sending tax receipts to Bunyan and allowing Bunyan to obtain income tax credits. Claiming title adversely while at the same time sending tax receipts to the record owner has aspects of secret or surreptitious possession and is contrary to our decisional law on adverse possession. Berry v. Houston, 195 So.2d 515 (Miss.1967).

It is true that the appellees’ occupation of the land, in a number of respects, was consistent with adverse possession. The lower court’s opinion, however, correctly noted that certain testimony was

[T]o the effect that old Bunyan Blalock permitted his brother, Quilla, to reside thereon, on condition that Quilla would take care of their father, Singleton Bla-lock and their mother, Lucy, during their lifetimes, which was fully complied with.

Absent color of title, parol gift, or some special circumstances not here present, where the parties are closely related to each other, proof of adverse possession is not ordinarily as easily established as when the parties are strangers. Stronger evidence is desirable in such cases. 3 Am. Jur.2d 139 and 229, Adverse Possession, §§ 49 and 147 (1962). The appellees conceded at oral argument that when Quilla first began to occupy the land, his occupation was permissive rather than hostile. Presented here is a case significantly different from Thomas v. Collins, 253 So.2d 824 (Miss.1971) where it was held that the litigant asserting adverse possession had color of title from the beginning by means of a parol gift. After Quilla’s occupancy of the land immediately after World War I, taxes were always paid in Bunyan’s name, and tax receipts were furnished to Bunyan for his benefit. During this time, Bunyan was the record owner, but Quilla paid taxes for most of the years. Neither Quilla nor his successors ever claimed homestead exemption on this disputed land but did claim homestead exemption on adjacent property which he purchased in 1933, some 13 years after his occupancy of the disputed land began. After Quilla’s death in 1963, his successors’ possession was no more adverse than was his possession in his lifetime. As was true in Geoghegan v. Krauss, 228 Miss. 231, 87 So.2d 461 (1956), taxes against the land were never assessed in the name of any adverse claimant. It is true that here Quilla and his successors (appellees) paid the taxes most of the time, but sending the tax receipts to the record title holder Bunyan and his heirs was a recognition of their title.

The rule is that one asserting title by adverse possession has the burden of proof which the appellees failed to meet in this case. Their (and Quilla’s) possession was permissive in the beginning, and the proof does not sufficiently establish subsequent adverse possession as to appellants and their predecessor, the record title holder, Bunyan. Upon this record, the lower court’s decree that Quilla and his successors (appellees) gained title by adverse possession was contrary to the overwhelming weight of the evidence, manifestly wrong, and cannot be upheld.

REVERSED AND RENDERED.

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

PATTERSON, C. J., and LEE, J., take no part.

      . Appellees’ bill in this cause avers “that there is a presumption of a lost grant” but does not aver to whom or by whom such a “lost grant” was executed. Their bill makes no mention whatever of any “parol gift” of the land, but both the lower court’s opinion and final decree are without any finding of “lost grant” or “pa-rol gift.”


text:
    Oliver D. WALKER v. Dempsie C. WALKER.
    No. 52189.
    Supreme Court of Mississippi.
    Oct. 1, 1980.
    As Corrected On Denial of Rehearing Nov. 12, 1980.
    Ransom P. Jones, III, Pascagoula, for appellant. ■
    J. Russell Reed, Jr., Ocean Springs, for appellee.
    Before ROBERTSON, P. J., and WALKER and BROOM, JJ.
   BROOM, Justice,

for the Court:

Constitutionality of the Mississippi alimony statute, as it existed prior to the 1979 amendment, is raised on this appeal from the Chancery Court of Jackson County. By decree dated August 6, 1979, the lower court, without assessing any penalty or punishment, found appellant Oliver D. Walker in contempt of court for failure to pay medical bills previously decreed by the court. The decree ordered him to continue paying alimony of $60 weekly. We affirm.

The original divorce decree, entered in this cause on March 7, 1972, after over thirty years of marriage, ordered appellant to pay his wife, appellee Dempsie C. Walker, $60 per week alimony as per an agreement of the parties (no appeal was taken). At that time, our alimony statute, Mississippi Code Annotated § 93-5-23 (1972), provided that chancery courts may enter decrees providing “alimony for the wife ...” but made no provision for alimony payable to a husband. Appellant, now remarried, relies upon Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979) which held unconstitutional the Alabama alimony statute based upon gender.

As pointed out by appellee who is now about sixty years of age, since entry of the original decree providing her alimony, the matter has been brought before the lower court in several subsequent proceedings in which the appellant has attempted to defeat or reduce the alimony award. In these sübsequent proceedings (contempt and modification hearings) he failed to aver the unconstitutionality of § 93-5 -23 until July 28, 1979, when he answered his former wife’s (appellee’s) petition to cite him for contempt on account of his failure to comply with the lower court’s orders. At that time he charged that § 93-5-23 “violates the equal protection clause of the fourteenth amendment” to the U.S. Constitution. Not only did the appellant, in his pleadings related to the original decree and several subsequent proceedings based thereon, fail to attack the constitutionality of our alimony statute, but he also sought no alimony or support for himself.

After careful study of the record and briefs before us, we conclude that appellant’s challenge to § 93-5-23, as it existed prior to its amendment in 1979 on constitutional grounds, is untimely. This is true because he voluntarily consented to the decree, made no constitutional challenge when the decree was rendered, took no appeal from the decree, and made no challenge until years later when his wife sought to have him held in contempt for failure to pay medical bills previously ordered. We hold that he lacks standing to assert the constitutionality issue where (as here) he agreed to the decree, acquiesced in it, and took no appeal when it was rendered. The appellant had ample opportunity to raise the constitutional issue during the trial in 1972 when the alimony was ordered rather than wait until years later.

Our ruling here is not contrary to Orr, supra, because in it the U.S. Supreme Court made it clear that we might hold, as we do, that the constitutional issue is not properly before us. The following language of Justice Brennan excerpted from Orr, supra, at 440 U.S. 274-5, 99 S.Ct. 1109, 59 L.Ed.2d 315-6, clearly recognizes that our present decision is within Orr’s rationale:

A second preliminary question concerns the timeliness of appellant’s challenge to the constitutionality of the statutes. No constitutional challenge was made at the time of the original divorce decree; Mr. Orr did not interpose the Constitution until his ex ■ wife sought a contempt judgment against him for his failure to abide by the terms of the decree. This unexcused tardiness might well have constituted a procedural default under state law, and if Alabama had refused to hear Mr. Orr’s constitutional objection on that ground, we might have been without jurisdiction to consider it here. (Reference omitted).
But in this case neither Mrs. Orr nor the Alabama courts at any time objected to the timeliness of the presentation of the constitutional issue. Instead, the Alabama Circuit and Civil Appeals Courts both considered the issue to be properly presented and decided it on the merits. See 351 So.2d [904] at 905; App to Juris Statement 22a. In such circumstances, the objection that Mr. Orr’s complaint “ ‘comes too late’ ... is clearly untenable. .. . [SJince the state court deemed the federal constitutional question to be before it, we could not treat the decision below as resting upon an adequate and independent state ground even if we were to conclude that the state court might properly have relied upon such a ground to avoid deciding the federal question.” Beecher v. Alabama, 389 U.S. 35, 37 n. 3, 88 S.Ct. 189, 19 L.Ed.2d 35 (1967). This is merely an application of the “elementary rule that it is irrelevant to inquire . .. when a Federal question was raised in a court below when it appears that such question was actually considered and decided.” Manhattan Life Ins. Co. v. Cohen, 234 U.S. 123, 134, 34 S.Ct. 874, 58 L.Ed. 1245 (1914). Accord, Harlin v. Missouri, 439 U.S. 459, 99 S.Ct. 709, 58 L.Ed.2d 733 (1979); Jenkins v. Georgia, 418 U.S. 153, 157, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974); Raley v. Ohio, 360 U.S. 423, 436, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959). (Reference omitted).

Justice Brennan in Orr cites Charles Alan Wright’s Law of Federal Courts to support this position. Apposite language of § 107. Law of Federal Courts, pp. 541 -542 (3d ed. 1976) reads:

The timeliness with which the federal question is raised in the state court is critical. This is largely a matter for the state to regulate by its own procedural rules. Failure to raise the question at the stage of the proceedings required by state law will preclude review, unless the state rule is regarded as an attempt to evade decision of the federal question or permits no fair opportunity to assert the question.

Accordingly, we do not reach the constitutional issue which is so untimely asserted by the appellant. Even if we were required under Orr to hold § 93-5-23 unconstitutional, our decision would not be retrospectively applied, and we would affirm. Harrell v. State, 386 So.2d 390 (Miss.1980).

It appearing that the appellee has applied to this Court for reasonable attorney’s fees, and the record showing that the lower court allowed her $150 attorney’s fees, one-half that sum will be allowed her here in connection with this appeal.

AFFIRMED.

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

PATTERSON, C. J., takes no part.


text:
    George W. WASHINGTON and Jerry White v. STATE of Mississippi.
    No. 52164.
    Supreme Court of Mississippi.
    Oct. 1, 1980.
    Rehearing Denied Nov. 12, 1980.
    Milford A. Weaver, William T. Bailey, Lucedale, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, George County; Darwin M. Maples, Judge.

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

Affirmed.


text:
    David M. COX v. Jimmie CLUCK, et ux.
    No. 52182.
    Supreme Court of Mississippi.
    Oct. 1, 1980.
    Rehearing Denied Nov. 12, 1980.
    R. M. Sullivan, William Harold Jones, Petal, for appellant.
    Dudley W. Conner, Hattiesburg, for ap-pellees.
   Appeal from Chancery Court, Forrest County; Howard L. Patterson, Jr., Chancellor.

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

AFFIRMED.


author:
TORBERT, Chief Justice.
      FAULKNER, Justice

text:
    Gary Wayne FULLER v. ASSOCIATES COMMERCIAL CORPORATION.
    79-34.
    Supreme Court of Alabama.
    April 11, 1980.
    J. Doyle Fuller and Richard A. Lawrence of Fuller & Lawrence, Montgomery, for appellant.
    William B. Hairston, Jr., of Engel, Hair-ston, Moses & Johanson, Birmingham, William 0. Walton, Jr., LaFayette, for appel-lee.
    D. Paul Jones, Jr., H. Hampton Boles and Stanley M. Brock of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for Central Bank of Birmingham.
    George F. Maynard, of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for First National Bank of Birmingham, amicus curiae.
   TORBERT, Chief Justice.

This is an appeal from a partial summary judgment on the issue of usury in favor of the plaintiff and counterclaim defendant, Associates Commercial Corporation. This case arose when Associates brought a deti-nue action against Fuller in the Circuit Court of Chambers County to secure possession of a tractor-trailer rig purchased by Fuller from Carroll Kenworth Truck Sales, Inc., and financed by Associates. Mr. Fuller was a trucker by profession and had purchased the tractor for the specific purpose of interstate trucking. Fuller brought a class action counterclaim on behalf of all legal entities who had paid Associates a greater rate of interest for non-consumer loans than that allowed by Code 1975, § 8-8-1. Fuller also answered Associates’ complaint by alleging that the finance charges authorized by the Mini-Code did not apply to non-consumer loans such as the loan he obtained in financing his tractor-trailer rig, or in the alternative that the Mini-Code was unconstitutional as violative of §§ 1, 6, 10, 13, 22, 35, 45, and 252 of the Constitution of Alabama of 1901 and the Fourteenth Amendment of the United States Constitution. The security agreement which is the subject of Associates’ claim and Fuller’s counterclaim provided that Associates would receive a yield on the money loaned to Fuller to finance his tractor-trailer rig computed at a rate in excess of the 8% simple interest allowed by Code 1975, § 8-8-1, but not in excess of permissible finance charges under Code 1975, § 5-19-3. By way of partial summary judgment, the trial court held: “The Mini-Code and the finance charges (interest rates) authorized thereby apply to commercial transactions such as the transaction which is the basis of this suit.”

ISSUE I

Whether the maximum finance charge section of the Mini-Code, Code 1975, § 5-19-3(a), applies only to consumer loans.

The intent of the Alabama Legislature must be determined primarily from the language of the statute. Katz v. State Board of Medical Examiners, 351 So.2d 890 (Ala.1977); Tillman v. Sibbles, 341 So.2d 686 (Ala.1977); Fletcher v. Tuscaloosa Federal Savings and Loan Assoc., 294 Ala. 173, 314 So.2d 51 (1975). This rule of law is necessitated by the absence of any published transcripts of the proceedings of the Alabama House of Representatives or Senate. In determining legislative intent this Court will give words and phrases the same meaning they have in ordinary, everyday usage. Adams v. Mathis, 350 So.2d 381 (Ala.1977); State v. International Paper Co., 276 Ala. 448, 163 So.2d 607 (1964). Code 1975, § 5-19-3(a), the primary section of the Mini-Code which is subject to interpretation in the instant appeal, provides:

(a) The maximum finance charge for any loan or forbearance and for any credit sale, except under open-end credit plans, may equal but may not exceed the greater of the following:
(1) The total of:
a.Fifteen dollars per $100.00 per year for the first $500.00 of the original principal amount of the loan or amount financed;
b. Ten dollars per $100.00 per year for that portion of the original principal amount of the loan or original amount financed exceeding $500.00 and not exceeding $1,000.00; and
c. Eight dollars per $100.00 per year for that portion of the original principal amount of the loan or original amount financed exceeding $1,000.00, but not exceeding $2,000.00; or
(2) If the original principal amount of the loan or original amount financed exceeds $2,000.00, $8.00 per $100.00 per year of the original principal amount of the loan or amount financed.

Code 1975, § 5-19-3(a) (emphasis added).

We hold that the legislature, by employing the adjective any to specify the loans to which § 5-19-3(a) applies, intended that the Mini-Code maximum rate section apply to non-consumer as well as consumer loans.

Our interpretation of § 5-19-3(a) is supported by comparing that section to the maximum finance charge section of the 1968 draft of the Uniform Consumer Credit Code which the legislature had available as a model for the Alabama Mini-Code.

(1) With respect to a consumer loan other than a supervised loan (Section 3.501), a lender may contract for and receive a loan finance charge, calculated according to the actuarial method, not exceeding 18 per cent per year on the unpaid balances of the principal.

U.C.C.C., § 3.201 (1968 version) (emphasis supplied).

It is significant that the Alabama Legislature rejected that portion of the language of the model Act approved by the National Conference of Commissioners on Uniform State Laws which limits the application of the maximum finance charge section to consumer loans (i. e., “With respect to a consumer loan”) and chose instead the all inclusive word “any” to establish the parameters for the Act’s application. Had the legislature intended to limit the application of the maximum finance charge section of the Mini-Code to consumer loans, it could have simply used a modifying clause similar to the model Act as it was drafted (i. e., “With respect to a consumer loan”). To the contrary, however, our legislative body opted for the adjective “any” to delineate the loans to which the section was to apply.

In the recent case of Falkner v. Bank of the Southeast, 383 So.2d 177 (Ala.Civ.App. 1979), the Alabama Court of Civil Appeals held that Code 1975, § 5-19-3, applies to non-consumer as well as consumer loans.

It does not matter whether the debt is for business purposes or personal use. Therefore, defendant’s contention is without merit. It is well settled that where statutory language is plain and unambiguous, the statute should be given the meaning therein plainly expressed. See, Mobile County Republican Executive Committee v. Mandeville, Ala., 363 So.2d 754 (1978).
Some sections of the Mini-Code are expressly limited to what can be termed consumer or non-business transactions. On the other hand, a number of its sections, in addition to § 5-19-3, are not so limited. Had the legislature intended for § 5-19-3 to be limited to consumer transactions, it would have so stated.

Falkner v. Bank of the Southeast, 383 So.2d 177 at 178 (Ala.Civ.App.1979).

The appellant argues that § 5-19-3(a) applies only to consumer loans, relying on the title of the original act (i. e., “Alabama Consumer Credit Act of 1971”), Acts of Alabama of 1971, Act No. 2052. This is the same type of argument that was advanced by the appellees, but rejected by the Court, in Cole v. Sloss-Sheffield Steel and Iron Co., 186 Ala. 192, 65 So. 177 (1914). In that case the appellees argued that because Code 1907, § 1035 was contained in a chapter of the Code subtitled “An act to regulate the mining of coal in Alabama,” the term “any” in § 1035 did not mean any mine, but any coal mine. In rejecting the appellee’s argument, the Court said the following of the term “any”:

As employed in sections 2933 and 1035, any must be given its usual, ordinary signification in such circumstances. It means all, every, as there used....
Any has been the object of much judicial consideration. In 3 Cyc. L. & P. p. 1463 et seq., exhaustive treatment has been accorded the word. Upon occasions it has been accorded a narrower meaning and effect than that we have stated it must here receive. Our own court has several times interpreted it as importing, in the concrete cases under view, that wide signification — that it meant all, every, in the relation found. These are our cases referred to: Taylor v. Hutchinson, 145 Ala. 202, 205, 40 So. 108; County of Dallas v. Timberlake, 54 Ala. 403, 412; Gandy v. State, 82 Ala. 61, 2 So. 465; Wilson v. Taylor, 89 Ala. 368, 370, 8 So. 149; Millard’s Adm’rs v. Hall, 24 Ala. 209, 229, 232. In Gandy’s Case, supra, it was affirmed that the expression any election comprehended in ipsis verbis all elections, special or general, of the character defined in the statute there considered. To the like direct and comprehensive effect was the statement of the court in interpreting the words any contract in question in Wilson v. Taylor, supra.
It is urged in brief that, because the codifications were of the act of 1897, which by its title and context was confined to coal mines, the irrefragable implication is that coal mines only were intended to be subjected to the inhibition of Code 1896, § 2933, and Code 1907, § 1035.
This contention is, of course, worthy of presentation — an argument that should be and has been considered and carefully weighed — but our conclusion is that, though according a fair influence thereto, it is not sufficient to overcome the clear effect of the very comprehensive and unequivocal term any mine as employed in the codifications. To conclude to the contrary would require the court to ascribe to the word any no more comprehensive significance than to the word the — an interpretation that cannot be justified or approved.
... If there are provisions in the chapter mentioned that are restricted to coal mines for their operation, as doubtless there are, they neither depend upon section 1035 nor reflect upon the stated application of section 1035. That section (1035) is independent of any other in our positive law on the subject. . . .

Cole v. Sloss-Sheffield Steel and Iron Co., 186 Ala. 192, 65 So. 177 (1914) (emphasis added).

This Court must give effect to the legislature’s choice of the word “any” rather than judicially rewriting the statute so that it applies only to consumer loans.

ISSUE II

Whether the Mini-Code is unconstitutional as violative of §§ 1, 6, 10, 13, 22, 35, 45 and 252 of the Constitution of Alabama of 1901, or Amendment Fourteen of the United States Constitution.

Appellant aggregates his constitutional challenges under §§ 1, 6,10,13, 22 and 35 of the Constitution of Alabama of 1901, arguing that those sections “relate to the equal protection and due process of the laws.” Some of those sections of the Constitution of Alabama of 1901 are irrelevant to the instant case (e. g., § 6 deals with the rights of persons in criminal prosecutions and § 10 guarantees all persons the right to prosecute or defend a civil cause of action). The remaining sections of the Constitution of Alabama of 1901 which appellant combined in his equal protection challenge, as well as Amendment Fourteen of the United States Constitution, would be relevant to a determination of the constitutionality of the Mini-Code if this Court had adopted the dissent’s interpretation of the Mini-Code which would treat similarly situated lenders differently. However, this Court’s holding as to Issue I, i. e., that the maximum finance charge section of the Mini-Code applies to non-consumer as well as to consumer loans, has rendered these constitutional challenges moot. Our holding in Centennial Associates, Ltd. v. Clark, 384 So.2d 616 (Ala. 1980), released the same day as this opinion, that Mini-Code rates are applicable to lenders who regularly extend credit, as well as to individual lenders who extend credit only on a casual basis, renders moot appellant’s constitutional challenge under § 252, which states that no bank may receive a greater rate of interest than is allowed to individuals.

Appellant also argues that the Mini-Code violates § 45 of the Constitution of Alabama of 1901, which requires the title of acts to contain but one subject which is clearly expressed in its title. All infirmities of legislative procedure in enacting an original act are cured when that act is incorporated into a code and the code adopted by the legislature. Bluthenthal v. I. Trager and Company, 131 Ala. 639, 31 So. 622 (1901); Bales v. State, 63 Ala. 30 (1879). Even if this were not so, we believe that the title of the act (the first two lines of which read: “To provide maximum finance charges for loans and credit sales; to regulate extensions of credit . . . ”) does contain but one subject, which is clearly expressed in the title of the act, i. e., the regulation of the extensions of credit. We hold the act passes constitutional muster under the instant challenges.

In conclusion, all but one of appellant’s constitutional challenges were premised on the dissent’s interpretation of the Mini-Code maximum finance charge section as applicable only to consumer loans made by lenders who regularly extend credit. In Centennial, supra, and the instant case, this Court has held that the maximum finance charge rates are applicable to non-consumer loans made on a casual basis as well as consumer loans made by “creditors” as defined in the act. In so holding, this Court has merely given effect to the plain meaning of the statutory language: “The maximum finance charge for any loan ....” Code 1975, § 5-19-3.

AFFIRMED.

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

FAULKNER, J., with whom EMBRY, J., concurs, dissents.

BLOODWORTH, J., not sitting.

FAULKNER, Justice

(dissenting).

For this case, I adopt my dissent as written in Centennial Associates, Ltd. v. Clark, 384 So.2d 616 (Ala.1980), as to Issue I.

As to Issue II, I am of the opinion that Fuller has standing to test the constitutionality of the Act. But, I would agree that the Court cannot consider that issue because it does not appear that the Attorney General was served with a copy of the complaint, or that he was given notice, and he did not participate in the case in any way. See Jones v. Sears Roebuck & Co., 342 So.2d 16 (Ala.1977); § 6-6-227, Code of Alabama, 1975.

EMBRY, J., concurs.


author: BRADLEY, Judge.

text:
    STATE of Alabama, DEPARTMENT OF REVENUE v. MONTGOMERY WOODWORKS, INC.
    Civ. 2125.
    Court of Civil Appeals of Alabama.
    July 9, 1980.
    Rehearing Denied Aug. 6, 1980.

      Charles A. Graddick, Atty. Gen., Herbert I. Burson, Jr. and B. Frank Loeb, Asst. Attys. Gen., for Dept, of Revenue.
    George S. Wright and J. Sydney Cook, III of Rosen, Wright, Harwood, Albright & Cook, Tuscaloosa, for appellee.
   BRADLEY, Judge.

This is an appeal by the State Department of Revenue from a judgment declaring invalid a final assessment of sales tax against a taxpayer, Montgomery Wood-works, Inc., in the amount of $24,963.19.

The taxpayer is primarily engaged in the business of custom cabinet-making, although it also contracts other custom woodwork. The work is done in the taxpayer’s shop according to job plans and specifications. The taxpayer performs a large volume of work in its shop and maintains a stock of material which is used to fabricate cabinets and woodwork. These materials are purchased at wholesale.

After cabinets and woodwork for a job are fabricated in the taxpayer’s shop, the work is delivered to the jobsite by the taxpayer’s employees when the contractor is ready for the items to be installed. Sometimes the taxpayer contracts to install the cabinets, and, at other times, the general contractor does the actual installation of the cabinets. However, when the contractor installs the cabinets, taxpayer assists in the installation should a problem arise. Even in those instances where the general contractor has the responsibility for installation of the cabinets, the taxpayer supervises the installation to assure that the cabinets are properly installed and that the cabinets conform to the plans and specifications for that particular job.

During the tax period involved in the present case, the taxpayer reported and paid sales tax based upon the cost of materials consumed by it in the fabrication of cabinets and other woodwork. Thereafter the State Department of Revenue imposed a sales tax assessment upon the taxpayer contending that a sales tax based upon the full charge for the cabinets and woodwork was due if the taxpayer did not actually install the completed product. The taxpayer argued that it should be liable for the sales tax based only upon the cost of materials used in the fabrication process regardless of who installed the work. The trial court found for the taxpayer and this appeal followed.

The only issue presented by this appeal is whether the taxpayer, as a custom fabricator of cabinets and woodwork, is liable for sales tax based upon the full amount received by it from the customer pursuant to § 40-23-1(a)(6), Code of Alabama 1975 or based upon the cost of the materials to the taxpayer pursuant to § 40-23-l(a)(10), Code of Alabama 1975.

The taxpayer contends that its withdrawal of building materials from inventory to fabricate cabinets and woodwork for a specific job is a “retail sale” under § 40-23-l(a)(10) which provides in pertinent part:

Sales of building materials to contractors, builders or landowners for resale or use in the form of real estate are retail sales in whatever quantity sold.

In Department of Revenue v. James A. Head & Co., 54 Ala.App. 136, 306 So.2d 5 (1974), cert. den., 293 Ala. 751, 306 So.2d 12 (1975), this court held that three requirements must be met for the provisions of § 40-23-l(a)(10) to apply: (1) the taxpayer must be a “contractor;” (2) the raw materials involved must be “building materials;” (3) the building materials must be sufficiently attached to the buildings to become part of the real estate.

As for the first requirement; we have previously defined the term “contractor” as: (1) one who formally undertakes to do anything for another; (2) one who contracts to furnish a product or service to another; or (3) one who undertakes to supply labor and materials for specific improvements under a contract with an owner or principal. Department of Revenue v. James A. Head & Co., supra. In the instant case, the taxpayer is contracted by others to fabricate cabinets and woodwork. Sometimes the actual installation of the cabinets is not performed by the taxpayer but by the general contractor or someone employed by the general contractor. However, in these instances the installation of the cabinets is supervised by the taxpayer to assure that the cabinets are properly installed in order to conform to the particular location and building needs which the specifications required. Therefore the failure of the taxpayer to actually install the cabinets after they have been fabricated does not prevent the taxpayer from being a “contractor” within the meaning of § 40-23-l(a)(10). Especially is this so where taxpayer supervises the installation of the cabinets to assure conformance with the plans and specifications to which the cabinets were built.

The second requirement is that the raw materials used by the contractor be building materials. “Building material” has been defined as material used in construction work and is not limited to materials used in constructing a building with sides and covering. Department of Revenue v. James A. Head, supra. In the instant case we conclude that the wood products used by the taxpayer in the fabrication of cabinets and woodwork are “building materials” as defined in the statute.

The final requirement is that the cabinets and other woodwork must be so attached to the buildings as to become part of the real estate. The three criteria used to determine when an object becomes part of the realty are cited in Department of Revenue v. James A. Head & Co., supra:

“. .. First, annexation to the realty, either actual or constructive; second, adaptation or application to the use or purpose to which that part of the realty to which it is connected is appropriated; and, third, intention to make the article a permanent accession to the freehold.” Patterson v. Chaney, 24 N.M. 156, 173 P. 859, 6 A.L.R. 90 [1918].

In the case at bar the cabinets and woodwork were annexed to the realty, they were used for the purpose installed, and they were intended to be permanently attached to the wall or place so attached. Therefore we find that the cabinets and woodwork became a part of the realty.

We conclude that the taxpayer in the instant case is to be taxed based upon the cost of materials purchased as provided by § 40-23-l(a)(10).

The Department argues that § 40-23-l(a)(10) does not cover the facts in the case at bar because the taxpayer did not install the cabinets and woodwork. The Department cites this court to State v. Acker, 45 Ala.App. 574, 233 So.2d 514 (1970); State v. Air Conditioning Engineers, Inc., 277 Ala. 675, 174 So.2d 315 (1965); and Department of Revenue v. James A. Head & Co., supra, which were situations held to be covered by § 40-23-l(a)(10), wherein the taxpayer installed the product.

It is important to note that the application of a taxing statute must be bottomed upon and considered in the light of each particular situation. State v. Air Conditioning Engineers, Inc., supra.

We find that nowhere in § 40-23-l(a)(10) is there a requirement that the taxpayer install the building materials before a retail sale can occur. The cases cited by the Department were decided upon the facts in each instance and we view the present case in light of its particular facts. We hold that the facts in the instant case bring it within the purview of § 40-23-l(a)(10).

The Department has also argued that the sales tax imposed upon the taxpayer should be based upon the amount the taxpayer receives from the customer for the cabinets and woodwork fabricated. The Department argues that § 40-23-l(a)(6), which is a tax upon tangible personal property, governs the present situation. The Department says that the taxpayer’s sale of cabinets and woodwork is a sale of tangible personal property. However, we have previously held that until such products are completely integrated and affixed to the realty, they have little if any retail sales value because they were built for a particular location. It would, in all probability, be an isolated instance for a member of the general public to walk in off the street and find previously constructed cabinets that would meet his requirements. The testimony showed that taxpayer had in storage many cabinets that had failed to meet the design needs of a particular job, and, unless some parts of the cabinets could be fitted into other jobs, they were valueless. State v. Air Conditioning Engineers, Inc., supra; State v. Acker, supra. In addition, the Department stipulated that the products fabricated by the taxpayer were eventually installed for use as part of the real estate. We hold that the cabinets and woodwork fabricated by the taxpayer are not tangible personal property. Therefore the taxpayer in the instant case is liable for the sales tax under § 40-23-l(a)(10) and not under § 40-23-l(a)(6) as urged by the Department. This case is due to be affirmed.

AFFIRMED.

WRIGHT, P. J,, and HOLMES, J., concur.


author: EMBRY, Justice.

text:
    Ex Parte STATE of Alabama. (Re STATE of Alabama, DEPARTMENT OF REVENUE v. MONTGOMERY WOODWORKS, INC.).
    79-866.
    Supreme Court of Alabama.
    Oct. 31, 1980.
   Certiorari to the Court of Civil Appeals, 389 So.2d 510.

EMBRY, Justice.

WRIT DENIED-NO OPINION.

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


author: WRIGHT, Presiding Judge.

text:
    Eva AGEE v. Emma GRIFFIN & Ozie Lockett.
    Civ. 2160.
    Court of Civil Appeals of Alabama.
    Aug. 6, 1980.
    Rehearing Denied Sept. 10, 1980.

      W. W. Dinning of Lloyd, Dinning & Boggs, Demopolis, for appellant.
    V. Wylynn Gilmore of Gilmore & Keahey, Grove Hill, for appellees.
   WRIGHT, Presiding Judge.

The plaintiff filed suit for damages for trespass and for cutting timber on land claimed to be owned by and in the possession of plaintiff. Jury verdict and judgment was in favor of the defendants.

The plaintiff appeals contending that the trial court committed reversible error in refusing to admit certain documents and testimony into evidence at the trial. We affirm.

The record reveals that one Grady Griffin was the owner of a tract of land adjoining the tract in possession of the plaintiff. Grady Griffin contacted the defendant Lockett about cutting the timber on Griffin’s land. Lockett required that the land be surveyed and marked before he would cut the timber. The defendant Emma Griffin, the daughter of Grady Griffin, contacted a surveyor who surveyed the property and marked off what the survey showed to be Griffin’s land. Subsequently, the defendant Lockett cut timber on the marked land.

Thereafter, the plaintiff had her land surveyed. The plaintiff’s survey revealed that timber had been cut on the plaintiff’s land. Subsequently, the plaintiff filed suit for damages for trespass and for cutting the timber.

Plaintiff contends the trial court erred in refusing to admit a statement of the plaintiff’s surveyor which was written on the survey certificate. The statement was that at the time of the suryey the surveyor found that the majority of the merchantable timber on the surveyed property had been cut and removed.

The plaintiff contends that this statement was admissible under Rule 44(b), ARCP, as a memorandum of a transaction or occurrence made in the regular course of business. That is, the statement was based upon notes made by the surveyor while he was surveying the plaintiff’s land.

Without conceding error, we note that error in excluding evidence is harmless where the same matter is established by other evidence. Harper v. Baptist Medical Center-Princeton, 341 So.2d 133 (Ala.1976); 2A Ala.Dig. Appeal & Error, Key No. 1057(1).

The surveyor testified to the same facts as those contained in the document sought to be introduced, i.e., that his personal observation was that most of the merchantable trees had been cut from the land he surveyed. Thus, we find no error.

The plaintiff next contends that the trial court erred in refusing to allow the plaintiff to testify as to the value of the trees which the plaintiff claimed were cut from her property.

The specific question asked of the plaintiff is as follows:

“Q. Do you have any idea what they were worth?”

It is evident that the question is defective and objectionable in form if for no other reason. There was no effort to correctly state a question as to the fair market value of the trees alleged to have been cut by defendants. Testimony of the witness as to the number of trees cut was permitted, without objection, but there was no further effort to question the witness as to her knowledge of their fair market value, nor of the before and after value of the land.

In any event, if it were the purpose of the court to prohibit testimony of the value of the trees cut as a measure of damages, it was without error. Such is not the measure of damages in an action for damages for trespass to land. Our supreme court in the case of Hammond v. Stephens, 269 Ala. 210, 112 So.2d 324 (1959) fully supports the action of the trial court. Thus we find no error.

We last consider the charge of error in the refusal of the trial court to admit into evidence a tax deed to plaintiff’s mother offered to prove ownership of the property where the alleged trespass occurred. Objection was made upon the ground that the offered deed did not describe the property but rather contained an incorrect description. There was testimony from the tax collector as to the property which he sold at public sale and which plaintiff’s mother purchased. There was testimony from surveyors as to the location and proper description of the property and that a mistake had occurred in the advertisement for sale and the drawing of the deed. The beginning point was correct but there had been an error in the direction of a side. After such unchallenged explanation the deed should have been admissible as the beginning of plaintiff’s claim of title and possession. It clearly provided color of title sufficient to support adverse possession. Pierson v. Case, 272 Ala. 527, 133 So.2d 239 (1961); Bonner v. Lockhart, 224 Ala. 29, 138 So. 541 (1931). However, after the initial offer of the deed to show title, we find no further effort to introduce the deed to establish title by adverse possession.

The action of trespass is a possessory action. Vasko v. Jardine, 346 So.2d 962 (Ala.1977); § 6-5-213 (Code of Alabama 1975). Plaintiff was permitted to present testimony as to the purchase of land by her mother at the tax sale in 1966 and her continuous possession and payment of taxes for more than the statutory ten years. § 6-5-200 (Code of Alabama 1975). There was really little contest of her possession. The affirmative defense of defendants was that the trees were not cut from the property in the possession of plaintiff. The jury was charged that one in possession of land, with or without title, has the right to sue and recover damages for trespass and damage to the property. Considering the state of the evidence, the theory of trial and the charge to the jury, we find the denial of introduction of the tax deed into evidence, even if error, did not materially injure plaintiff’s case. It appears the jury determined that defendants did not trespass upon and cut trees from plaintiff’s land. We, therefore, deny reversal on all issues and affirm the judgment. ARAP 45.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: FAULKNER, Justice.

text:
    Ex Parte Eva AGEE. (re Eva AGEE v. Emma GRIFFIN and Ozie Lockett).
    79-957.
    Supreme Court of Alabama.
    Oct. 31, 1980.
   Certiorari to the Court of Civil Appeals, 389 So.2d 513.

FAULKNER, Justice.

WRIT DENIED-NO OPINION.

TORBERT, C. J., and ALMON, EMBRY and ADAMS, JJ., concur.


author: HOLMES, Judge.

text:
    John HEAD v. GADSDEN CIVIL SERVICE BOARD, etc.
    Civ. 2283.
    Court of Civil Appeals of Alabama.
    Aug. 6, 1980.
    Rehearing Denied Sept. 3, 1980.

      Charles Y. Boyd of Rhea, Boyd & Rhea and James F. Hinton, Gadsden, for appellant.
    Roger W. Kirby, Gadsden, for appellees.
   HOLMES, Judge.

The Circuit Court of Etowah County granted the defendant’s Rule 56, ARCP, motion for summary judgment. The plaintiff appeals. The dispositive issue is whether there exists a genuine issue of a material fact so as to bar the granting of summary judgment.

The record reveals the following: The plaintiff instituted proceedings before the Civil Service Board of the City of Gadsden seeking reinstatement to his position as a police officer. He alleged that he had been “wrongfully discharged” from the Gadsden Police Department. The civil service board found it did not have jurisdiction and denied plaintiff relief.

The plaintiff appealed to the Circuit Court of Etowah County.

In plaintiff’s petition before the circuit court he alleged that he had been wrongfully forced to resign his position with the Gadsden Police Department. The plaintiff sought reinstatement to his job and back pay and benefits. The defendant filed a motion for summary judgment with accompanying affidavits. The plaintiff filed a counter affidavit. Thereafter, the learned trial judge granted defendant’s motion for summary judgment. The trial court’s order granting summary judgment was entered on August 21, 1979.

On August 20,1979, one day prior to the trial court’s order granting summary judgment in favor of defendant, the plaintiff filed a “motion for rehearing” on the summary judgment. Among other items, this motion alleged there were questions of fact concerning the condition surrounding the “resignation” of plaintiff. On the 21st day of August, 1979, the trial court set for hearing the plaintiff’s “rehearing motion.” This hearing was held on September 4, 1979.

At the September 4 hearing, oral testimony was taken. Thereafter, on September 6, 1979, the trial court again granted summary judgment. The trial court’s September 6 order states that the plaintiff testified that he was forced to decide between resigning or having termination proceedings instituted against him. The court found that as a matter of law the resignation under the instant circumstances was not brought about by duress.

It is from this September 6, 1979, order that plaintiff appeals.

At the outset, we note that’our review of the record reveals that the trial court’s action on August 21, 1979, was correct. That is to say, based on the affidavits presented by defendant and the counter affidavit of plaintiff, the trial court did not at that point err in granting summary judgment.

The defendant presented an extensive affidavit of the police chief who allegedly was responsible for the duress in this instance and the affidavits of other city personnel. The plaintiff’s counter affidavit merely stated that these other personnel were not present when the plaintiff was “forced” to resign by the police chief. Thus, the counter affidavit did not contradict any of the statements made in the chief’s affidavit. Under such circumstances, the trial court must consider the chief’s affidavit uncon-troverted. Donald v. City Nat. Bank of Dothan, 295 Ala. 320, 329 So.2d 92 (1976).

The chiefs affidavit clearly stated that the plaintiff voluntarily submitted his resignation without any coercion or duress. In view of the above, as indicated earlier, the trial court did not at this stage of the proceedings commit reversible error in granting plaintiff’s ihotion for summary judgment.

However, as indicated above, the summary judgment proceeding did not conclude at this juncture. Quite frankly, from a reading of the record before this court we do not fully understand the entire sequence of events. Apparently, the oral testimony was presented pursuant to Rule 43(e), ARCP. In any event, there was no objection from either party regarding the trial court’s action. It is clear, however, that the proceedings on the motion for summary judgment were reopened and sworn testimony was taken and considered.

The plaintiff’s testimony at the hearing is as follows:

Q. ... What was the substance of your conversation with Chief Cary?
A. Well, he told me if I didn’t resign he was going to run me off.
Q. Are those the exact words he used or just tell me exactly what he said.
A. He said he was going to run me off. He’s going to fire me if I didn’t resign, didn’t retire.

The plaintiff testified that the police chief told him this on at least two occasions.

In addition, the plaintiff testified that the chief told him that criminal charges were going to be brought against the plaintiff in connection with a theft of property. He was told that if he resigned, it would “probably go easy” on him. Apparently, the plaintiff contends that this “threat” of criminal charges prefaced the demand that he resign or be fired.

Furthermore, the plaintiff testified he thought at the time that the only way to save his pension was to resign. That is to say, he believed that if he was discharged, he would lose his pension benefits.

Contrary to the learned trial judge, we believe the testimony and other evidence before the trial court presents an issue of fact concerning the alleged forced resignation of plaintiff.

We note that a summary judgment motion may be granted only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56, ARCP; Green v. Blue Cross-Blue Shield of Alabama, Ala. Civ.App., 358 So.2d 466 (1978).

In addition, the burden is upon the moving party to clearly establish that the other party could not recover under any discernible circumstances. Bledsoe v. Cargill, Inc., Ala.Civ.App., 376 So.2d 735 (1979).

In this instance, if there is a scintilla of evidence supporting the plaintiff’s position, so that at trial he would be entitled to present issues of fact to be decided by the jury, the granting of the motion for summary judgment is reversible error. Stated differently, if the evidence, or reasonable inferences therefrom, furnish a mere gleam, glimmer, spark, the least bit, the smallest trace, in support of the plaintiff’s complaint, summary judgment is not proper. Wilson v. Liberty Nat. Life Ins. Co., Ala., 331 So.2d 617 (1976).

In determining whether there is a scintilla of evidence to establish a genuine issue of fact, the record must be viewed in light most favorable to the party opposing the motion for summary judgment. Bledsoe, supra.

With these general propositions of law in mind, we turn to the evidence presented to the trial court.

In this instance, the plaintiff seeks his job back and other relief. He contends that but for the duress of the police chief he would not have resigned his position.

The record, as indicated above, indicates that the plaintiff was faced with criminal charges. Then, he was told to resign and if he didn’t he would be “run off.” These statements were repeated to the plaintiff on at least two occasions.

Under the statutory framework involved, the police chief could not have unilaterally fired the plaintiff. The law requires a number of procedural steps precedent to termination, including civil service board approval and a right of appeal to the circuit court. At this point, a jury trial is authorized. See Act No. 671, Acts of Alabama 1951. The record indicates that the plaintiff was not familiar with these procedures and thought the chief could in fact “run him off.”

In addition, the plaintiff’s testimony is that his emotional state at the time of resignation was one of disorientation. He feared the imminent loss of his pension if he did not resign. Furthermore, he was faced with criminal charges and then with repeated threats of firing if he did not resign. The plaintiff contends that the above facts and circumstances present a jury question of whether the plaintiff resigned under duress. We agree. See, McPherson v. Mims, 385 So.2d 44 (Ala.1980).

Duress is defined as subjecting a person to improper pressure which overcomes his will and coerces him to comply with demands to which he would not yield if acting as a free agent. See, 17 C.J.S. Contracts § 168.

In this instance, the alleged remarks of the police chief were improper since the police chief had no authority to “run the plaintiff off.” Given the emotional state of the plaintiff, with special emphasis on his concerns over his pension, it could be reasonably inferred that the alleged improper pressure of the police chief overcame the will of the plaintiff and coerced the plaintiff into resigning.

We find that the above in the context and framework of a summary judgment proceeding, established a scintilla of evidence that the plaintiff yielded to the improper pressure of the police chief and resigned as a result of duress.

We likewise reject the contention that the choice of either resigning or being fired in this instance was not duress as a matter of law. That is, the defendant points out that there is authority for the proposition that offering resignation as an alternative to dismissal when one has the legal right to dismiss the person is not duress. See, 25 Am.Jur.2d Duress and Undue Infíuence §§ 14, 18.

However, this rule is not applicable in this instance. The statutory framework, as indicated above, gives the plaintiff numerous rights in regards to his employment status. Before the plaintiff could have been fired, cause must have been shown, civil service board approval obtained, and notice and a hearing given to the plaintiff. In addition, an appeal from any such decision to the circuit court would have been afforded to the plaintiff with the right to a jury trial. Act No. 671, Acts of Alabama 1951. Therefore, the chief had “no legal right to fire the plaintiff.”

If the plaintiff was forced to resign in the manner in which he claims, thereby relinquishing the above procedural rights, it cannot be said at this stage of the proceedings that as a matter of law there was no duress involved. This is especially so in view of the facts, as indicated above, concerning the plaintiff’s mental state at the time of the “resignation” and the police chief’s alleged statements which were tantamount to a command that the plaintiff resign.

In view of the above, the trial court erred in granting summary judgment.

This case should be reversed and remanded.

REVERSED AND REMANDED.

WRIGHT, P. J., and BRADLEY, J., concur.


author: JONES, Justice.

text:
    Ex Parte GADSDEN CIVIL SERVICE BOARD, The City of Gadsden and Charles G. Cary. (Re: John HEAD v. GADSDEN CIVIL SERVICE BOARD, etc.).
    79-953.
    Supreme Court of Alabama.
    Oct. 31, 1980.
   Certiorari to the Court of Civil Appeals, 389 So.2d 516.

JONES, Justice.

WRIT DENIED-NO OPINION

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