author: JASPER E. JONES, Judge. MARVIN, Judge,

text:
    Ralph L. HARMON et al., Plaintiffs-Appellees, v. Leon H. WHITTEN et al., Defendants-Appellants.
    No. 14321.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 1980.
    En Banc Rehearing Denied Dec. 8, 1980.
    Writ Refused Jan. 26, 1981.
    Shaw & Shaw by William M. Shaw, Jr., Homer, for plaintiffs-appellees.
    Whitten & Blake by John C. Blake, Jonesboro, for defendants-appellants.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

This is a suit to determine the ownership of a Vfeth mineral interest in 120 acres of land situated in Claiborne Parish, Louisiana and the proceeds from the production of minerals from it. The plaintiffs are Ralph L. Harmon and William Gordon Still, Jr., who acquired the property at a judicial sale held to partition the property by licitation (though the property was actually bid in the name of Harmon, it was established at trial that Still was a silent partner in the transaction and Harmon conveyed Still a Vi interest in the property). These plaintiffs contend they own the disputed V6th mineral interest and the funds derived from it. The defendants are Leon H. Whitten and his father, H. L. Whitten. The trial court awarded the disputed mineral interest and monies from the production of said interest to plaintiffs who had purchased the 120 acres at a partition sale. Defendants-appellants contend that the Veth mineral interest belongs to appellant Leon H. Whitten, and that he was properly entitled to the funds received by him from the production of said interest. We affirm.

We quote from the reasons for judgment of the trial judge as they correctly set forth the facts, the contentions of the parties, and substantially set forth the correct legal reasons for determining that the Vfcth mineral interest in the dispute belongs to the plaintiffs.

“The following basic facts are not seriously in dispute:

1. On May 8, 1975, defendant, Leon H. Whitten, acquired an undivided one-sixth interest in the surface and minerals in the 120 acres of land in question.

2. On June 13, 1975, Leon Whitten filed a partition suit, Suit No. 24,945, in Claiborne Parish seeking to partition the 120 acres by licitation. No notice of lis pendens was filed.

3. On September 24,1975, while the partition suit was pending, Leon Whitten sold a one-sixth mineral interest in the 120 acres of land to his father, H. L. Whitten, who is the other defendant in this suit.

4. On March 2, 1976, a judgment was rendered in the partition suit ordering the sale of the 120 acres in question.

5. On August 4, 1976 the 120 acres was sold at a partition sale, and plaintiff, Ralph Harmon, was the purchaser.

6. On August 5, 1976 Ralph Harmon conveyed to Leon Whitten a one-third interest in the 120 acres, including surface and minerals.

7. On August 11, 1976, H. L. Whitten executed a royalty deed conveying a one-eighth royalty in and to his one-sixth mineral interest to Richard L. Shaw.

8. On September 16,1976, Leon Whitten executed a mineral deed in favor of H. L. Whitten for a one-sixth interest in the 120 acres, and that instrument contained the following provision:

‘The vendor and vendee agree and acknowledge that the mineral servitude created on September 24, 1975, by Leon H. Whitten in favor of H. L. Whitten covering the above described property (File No. 271785, Book 415, Page 154, Conveyance Records, Claiborne Parish, Louisiana) was extinguished by a partition by licitation suit styled Leon H. Whitten vs. Annie Baily Beasley, et al, No. 24,945, Second Judicial District Court, Claiborne Parish, Louisiana, in which the above described property was sold to Ralph L. Harmon on August 9, 1976 (File No. 276085, Book 427, Page 902, Conveyance Records, Claiborne Parish, Louisiana) and this is a reconveyance of the same mineral interest for the same consideration paid in the first mineral deed.’

9. On November 5, 1976, Leon Whitten filed a rule to show cause in the partition suit, alleging that certain transactions involving the 120 acres had been made prior to the sale and subsequent to the judgment of partition, and ruling the parties to show cause why the purchasers of these subsequently transferred interests should not be recognized as the owners of those interests in the distribution of the sale proceeds. That rule to show cause did not mention the sale by Leon Whitten to H. L. Whitten on September 24, 1975, which was made prior to the sale and prior to the judgment of partition. After the hearing on the rule to show cause, a judgment was rendered on November 16, 1976 ordering that the funds be distributed in accordance with the proces verbal prepared by Leon H. Whitten and filed by the Clerk of Court, which proces verbal recognized Leon Whitten as the owner of a full one-sixth interest in his own right.

10. On December 10, 1976, Ralph Harmon conveyed to the other plaintiff in this suit, William Gordon Still, Jr., one-half of all his interest in the 120 acres.

11. On January 1, 1977, Leon Whitten conveyed to plaintiffs, Ralph Harmon and William Gordon Still, Jr., the one-third interest in the 120 acres which he then owned, but reserved unto himself ‘all minerals and mineral rights he now owns in the entirety of the above described property.’

12. On September 20, 1977, Leon Whit-ten conveyed to H. L. Whitten a one-sixth mineral interest in the 120 acres of land.

Subsequently there was mineral production on the 120 acres, and the operator of the unit circulated a division order in which Leon Whitten was recognized as the owner of a one-sixth interest in the minerals, and certain royalties were paid to him prior to this suit being filed. There were other transactions involving small interests in the 120 acres, but these other transactions appear to be collateral in nature to the question presented in this suit. The basic question presented in this suit is whether Leon Whitten owns a one-sixth mineral interest in the tract in question. Plaintiffs contend that they own two-thirds mineral interest and H. L. Whitten was conveyed a one-third mineral interest. Defendants contend that plaintiffs own a one-half mineral interest, H. L. Whitten was conveyed one-third mineral interest, and Leon Whitten owns one-sixth mineral interest.

The basic contention of the defendant is that Leon Whitten transferred a one-sixth mineral interest to H. L. Whitten on September 24, 1975; that Leon Whitten thereafter acquired a one-third interest in the minerals and surface from Ralph Harmon on August 5, 1976 (after the partition sale); that Leon Whitten affirmed the one-sixth mineral interest to H. L. Whitten by the instrument dated September 16, 1976; and that Leon Whitten then conveyed a one-sixth mineral interest to H. L. Whitten on September 20, 1977; with the result being that H. L. Whitten acquired a total of one-third mineral interest and Leon Whitten retained a one-sixth mineral interest.

On the other hand, plaintiffs contend that the September 24, 1975 sale of one-sixth mineral interest from Leon Whitten to H. L. Whitten was void or was extinguished by the partition sale on August 4, 1976. They further contend that the September 16, 1976 instrument acknowledged that the September 24, 1975 conveyance from Leon Whitten to H. L. Whitten was extinguished by the partition sale or it was rescinded by mutual agreement of the parties, so that the effect of the September 16, 1976 instrument was to convey to H. L. Whitten a one-sixth mineral interest to replace the one-sixth mineral interest that the parties had attempted to convey on September 24, 1975. Plaintiffs contend that at the time of the September 16, 1976 instrument, Leon Whitten had acquired a one-third interest from Ralph Harmon after the partition sale, and that one-half of his one-third mineral interest, or a one-sixth mineral interest, was thereby conveyed to H. L. Whit-ten, leaving H. L. and Leon Whitten with a one-sixth mineral interest each. Plaintiffs then contend that the subsequent transfer of a one-sixth mineral interest by Leon Whitten to H. L. Whitten on September 20, 1977, left Leon Whitten with no mineral interest in the tract in question.

This Court does not find it necessary to determine whether the May 24, 1975 sale from Leon Whitten to H. L. Whitten was a nullity because of the close father-son relationship between the parties and because of their mutual participation in the events leading up to and including the filing of the partition suit; nor does the Court find it necessary to determine whether the September 24, 1975 sale of one-sixth mineral interest from Leon Whitten to H. L. Whit-ten was extinguished by the partition sale on August 4, 1976 as a matter of law.

The Court views the key to this case to be the September 16,1976 instrument between Leon Whitten and his father, H. L. Whit-ten. That instrument arose because on August 11, 1976 H. L. Whitten had sold a one-eighth royalty interest to Richard L. Shaw. Mr. Shaw employed an attorney to examine the title to his purchase, and the attorney questioned the validity of his title because of the possibility that the one-sixth interest of H. L. Whitten had been extinguished by the partition sale. In order to cure any possible defect in the title acquired by Mr. Shaw, his attorney prepared the September 16, 1976 instrument as a corrective instrument to eliminate that question. This Court is convinced and finds that the intent of the September 16,1976 instrument was to put to rest the question whether the mineral servitude in favor of H. L. Whitten had been extinguished by the partition sale. By the provision in that instrument which is quoted above, the parties agreed the the mineral servitude was in fact extinguished by the partition sale, and the parties acknowledged that the September 16, 1976 instrument was to convey the same (a one-sixth) mineral interest for the same consideration paid in the first mineral deed. The extinguishment of the prior mineral servitude meant that the one-sixth mineral interest went to Ralph Harmon, who had purchased it at the judicial sale. Actually, Leon Whitten conveyed a one-sixth mineral interest to H. L. Whitten to replace the prior servitude, then extinguished.

The Court believes the intent of the parties was to place on the public record an instrument indicating to all that the original conveyance of the one-sixth mineral interest to H. L. Whitten on September 24, 1975 was rescinded either by the partition sale or by the instrument itself, and to show that Leon Whitten was now conveying a one-sixth interest to H. L. Whitten to replace the prior one-sixth mineral interest that was then extinguished. Certainly the parties are now estopped from denying that result.

Since Leon Whitten had acquired a one-third interest in the property from Ralph Harmon prior to the September 16, 1976 instrument, the effect of that latter instrument was to leave Leon Whitten with one-sixth mineral interest and to establish one-sixth mineral interest in H. L. Whitten. This also had the effect of validating the transfer of the royalty interest by H. L. Whitten to Mr. Shaw on August 11, 1976. This is further shown by the fact that the September 16, 1976 instrument contained an additional provision that it was to be effective August 10, 1976, although it was executed on September 16, 1976. That intention was to make the effective date prior to the August 11, 1976 transfer to Mr. Shaw.

Louisiana Revised Statute 31:27 provides the modes of extinction of mineral servi-tudes.

‘27. Extinction of minera] servitudes A mineral servitude is extinguished by:
******
(3) renunciation of the servitude on the part of him to whom it is due, or the express remission of his right; * * * ’

The September 26,1976 instrument was a renunciation of the servitude on the part of H. L. Whitten and an express remission of his right to that servitude. That instrument then conveyed a one-sixth mineral servitude to H. L. Whitten to replace the servitude which had then become extinct. At any rate, by the doctrine of estoppel, H. L. Whitten and Leon Whitten are now es-topped to deny that the September 16,1976 instrument had this effect.

Another key to this case is the November 5,1976 rule to show cause which established the distribution of the proceeds of the partition sale. In that rule filed by Leon Whit-ten no mention was made of the May 24, 1975 conveyance from Leon Whitten to H. L. Whitten of one-sixth mineral interest, nor was any mention made of the transactions after the partition sale, including the September 16, 1976 transaction between Leon and H. L. Whitten. Defendants now claim that Harmon raised no objection at the hearing on the rule to show cause why the proces verbal should not be homologat-ed. However, this argument overlooks the fact that the September 16, 1976 instrument had been recorded prior to the rule to show cause, and since that instrument indicated that the one-sixth mineral interest of H. L. Whitten was extinguished by the partition sale or by the instrument itself, Ralph Harmon had no reason to object to the recognition of Leon Whitten as the owner of a full one-sixth interest in the sale proceeds as of the date of the judicial sale. In fact, the recognition of Leon Whitten as the owner of a full one-sixth interest, without any separate appraisal or deduction of the one-sixth mineral interest he had attempted to transfer to H. L. Whitten, was in accordance with the present contention of plaintiffs in this suit. As a matter of fact, the fact that Leon Whitten represented himself to be the owner of a full one-sixth interest in the sale proceeds, after the September 16,1976 instrument, can be taken as an acknowledgement on his part that he actually owned a full one-sixth interest at the time of the partition sale. The proces verbal of the partition sale recognized the ownership interests as of the date of the sale, and it did not recognize any subsequent transfer. Therefore, the September 16, 1976 instrument would seem to have been treated as any other subsequent transfer after the partition sale, since it was not recognized in the distribution schedule. Its effective date was August 10, 1976, which was after the partition sale. This is a further indication that the parties did not contemplate that the instrument had the effect of reinstating or affirming the September 24, 1975 mineral interest in H. L. Whitten.

For these reasons, the Court concludes that Leon H. Whitten is not the owner of a one-sixth interest in the minerals under the tract in question. Therefore, plaintiffs are entitled to be recognized as the owner of that one-sixth mineral interest, and defendant, Leon Whitten, should make an accounting to plaintiff for any royalties he received as a result of alleged ownership of that one-sixth mineral interest, and he should further be ordered to repay to plaintiffs any sums he has received from that interest.”

Appellants assign as error the trial court’s interpretation of the provisions of the September 16, 1976 mineral deed (second deed) as extinguishing the mineral servitude created September 24, 1975 (first deed). They contend that they never intended for the following language contained in the second deed to have the effect of extinguishing the servitude created in the first deed:

“The vendor and vendee agree and acknowledge that the mineral servitude created on September 24, 1975, by Leon H. Whitten in favor of H. L. Whitten covering the above described property (File No. 271785, Book 415, Page 154, Conveyance Records, Claiborne Parish, Louisiana) was extinguished by a partition by licitation suit styled Leon H. Whitten vs. Annie Baily Beasley, et al, No. 24,945, Second Judicial District Court, Claiborne Parish, Louisiana, in which the above described property was sold to Ralph L. Harmon on August 9, 1976 (File No. 276085, Book 427, Page 902, Conveyance Records, Claiborne Parish, Louisiana) and this is a re-conveyance of the same mineral interest for the same consideration paid in the first mineral deed.”

They further contend that the second deed should not have been given the effect attributed to it by the trial judge because though the document was required by Attorney Meadors in connection with H. L.’s royalty sale to Meadors’ client, Shaw, that the document was unnecessary in order to assure Shaw a good royalty title and for this reason it should be given no effect. Appellants also assert that the quoted language from the second deed which extinguishes the servitude created by the first deed can have no effect because it is contrary to the provisions of LSA-R.S. 31:179.

Attorney Meadors examined H. L.’s title to determine if his client could obtain a good and valid title to one-eighth royalty based upon the mineral servitude acquired by H. L. on September 24, 1975. Meadors concluded that because the servitude was created while the partition suit was pending that it may have been extinguished by the partition sale of August 4, 1976. Because his client was paying a very substantial amount to H. L. for this royalty interest Meadors required H. L. and Leon to execute the new mineral sale of September 16,1976. Meadors did this in order to be certain that his client would receive a good title to the royalty purchased.

The above quoted language from the mineral deed prepared by Meadors is clear and unambiguous to the effect that the initial H. L.-Leon servitude was extinguished. The following quoted language from the deposition of Meadors leaves no doubt that the exact purpose he sought to accomplish was to extinguish the first servitude and to create a new one:

“Q. Right.- What curative work did you require in connection with this particular transaction?
A. Well, I was concerned about a previous mineral deed. Mr. H. L. Whitten’s interest at that time was dependent upon a mineral sale from Leon H. Whitten which I don’t have a copy of that before me here. It was dated September 24, 1975, and it’s filed for record under File No. 271758-excuse me-271785, Book 415, page 154 of the Conveyance Records of Claiborne Parish. This is a mineral deed from Leon H. Whitten to H. L. Whitten and this is the same mineral interest which Mr. H. L. Whitten was conveying-he was conveying the royalty from this mineral servitude to my client, Mr. Shaw, and that was the basis for his title. At that time, there was pending at that time of the mineral transaction from Mr. Whitten-Leon H. Whitten to H. L. Whit-ten in ’75 there was pending a suit for partition by licitation of properties covered by the mineral transaction, and I considered it questionable as to whether this mineral sale did become extinguished by the eventual sale resulting from the partition by licitation suit, * * *. (Id. Tr. p. 114-115.)
Q. Now, the purpose of that instrument, in order to make Mr. Shaw’s royalty interest-royalty purchase good, was (1) that these parties, the father and son, Leon and H. L., acknowledge and declare that the previous mineral sale made while this partition suit was pending was extinguished, and that this particular mineral sale which you prepared was to be a substitute in place of that, isn’t that right?
A. That’s right, that’s expressed in the-
Q. That’s clearly expressed in the deed-in the mineral sale itself, it is not?
A. Yes.
Q. And there’s no-can you see any ambiguity in there about that purpose?
A. I can’t now, and I certainly didn’t then.” Id. Tr. 117-118.

The following quote from the testimony of Leon Whitten establishes that he understood the document Meadors was requiring him to sign extinguished the first servitude:

“Q. That’s right, after that paragraph. Now Mr. Whitten, as. an attorney, don’t you recognize that that paragraph clearly sets forth that the mineral sale from yourself to your father made during the pendency of this suit, was extinguished and that this instrument was being given to replace that mineral sale?
A. Yes, sir, I think that has that effect. In my opinion, it wasn’t necessary, though.
Q. I understand, but that was what the purpose of that instrument was, do you understand that?
A. No, the purpose of the instrument and my execution was to satisfy a requirement of Mr. Bud Meadors had made before H. L. Whitten could convey the one-sixth interest which had previously conveyed him on September 24, 1975.
Q. I understand that that was your motive, but you recognize that that instrument-as a lawyer, you read the instrument before you signed it, didn’t you?
A. I did, sir.”

The clear provisions of the second deed and the testimony of the attorney who prepared it and the attorney who was the grantor on it conclusively establish that the purpose of the document was to extinguish the first servitude by the partition sale and to create a new servitude in favor of H. L. to serve as a sound basis for his royalty sale to Shaw.

LSA-R.S. 31:179 provides:

“The owner of a mineral right or interest therein is a necessary party to an action for partition of the land subject to his right. If the owner of a mineral right or interest therein is not made a party to such an action, the partition is not invalid, but the right or interest therein is not extinguished or otherwise affected.”

Appellants contend the provisions of the cited section of the mineral code to the effect that a mineral right is not extinguished in a partition proceeding where its owner is not made a party establish that the September 24, 1975 servitude was not extinguished by the partition because H. L. was not made a party to the partition action, and for that reason it supported a good and valid title for the royalty conveyance from H. L. to Meadors’ client, Shaw. They then assert that Meadors’ required second deed serves no purpose and should not have been required by Meadors and has no legal effect.

A review of the history of LSA-R.S. 31:179 establishes that there was a sound basis for Meadors having considered that there existed a distinct possibility that the September 24, 1975 servitude was extinguished by the partition sale because LSA-R.S. 31:179 may not have been applicable to the servitude created during the pendency of the suit to partition by licitation.

In the decision of Amerada Petroleum Corporation v. Reese, 195 La. 359, 196 So. 558 (1940), the supreme court held that a mineral lease was extinguished by a partition sale even though the owner of the mineral lease was not made a party to the partition suit. The legislature in order to change the result of Amerada passed legislation which was incorporated in LSA-C.C. art. 741 from which LSA-R.S. 31:179 was derived to specifically provide that a mineral right whose owner was not made a party to the partition suit was unaffected by it.

In the decision of Martin Timber Company v. Roy, 147 So.2d 699 (La.App. 2d Cir. 1962), this court construed LSA-C.C. art. 741 to only be applicable to mineral transactions that occurred before the partition suit was instituted. In the Martin partition suit the plaintiff had initially placed of record a notice of lis pendens but cancelled it before they recorded the mineral sale. The Second Circuit did not attribute in its opinion any significance to whether or not notice of lis pendens was or was not of record as a basis for concluding that LSA-C.C. art. 741 was inapplicable to mineral servitudes created during the pendency of partition suit. Defendants in the Martin case urged in the trial court, contending, inter alia, that plaintiff’s mineral vendee was an indispensable party to the action. The trial court had rejected this contention and the Court of Appeal affirmed it. The effect of the Court of Appeal’s decision was to revert to the rule of Amerada, supra, in those cases where the mineral servitude was created during the pendency of a suit to partition by licitation. The supreme court granted writs and reviewed Martin, supra, at 244 La. 1050, 156 So.2d 435 (1963). The supreme court reversed the Court of Appeal and the trial court and held that the mineral vendee was an indispensable party to the litigation and remanded the case for further proceeding. The supreme court interpreted the Court of Appeal’s opinion to be an adjudication that LSA-C.C. art. 741 was inapplicable to a mineral servitude created subsequent to the institution of the suit to partition by licitation. The supreme court then stated that they neither approved nor disapproved the Court of Appeal’s interpretation of Art. 741:

“Further, we neither approve nor disapprove at this time, the apparent ruling of the Court of Appeal that the provisions of Revised Civil Code Article 741 (relied on by plaintiffs) are inapplicable to the Norman minerals which were acquired subsequent to the commencement of this action.” Id. at 438.

The comments under LSA-R.S. 31:179 reflect that the provisions of LSA-R.S. 31:179-187 “are an integrated set of provisions redrafting Article 741 of the Civil Code.” Though the provisions of LSA-R.S. 31:179 state that the mineral owner is a necessary rather than an indispensable party to the partition suit as he was held to be in Martin, supra, the provision contains no positive declaration that it is applicable to owners of mineral rights that acquire their interest subsequent to the institution of the suit for partition by licitation.

Our research reveals no appellate court decision subsequent to the supreme court Martin, supra, case which addresses the issue of whether LSA-C.C. art. 741 and its successor LSA-R.S. 31:179 are applicable to mineral rights created during the pendency of the partition suit.

Attorney Meadors was no doubt uncertain ás to how the supreme court would eventually interpret LSA-R.S. 31:179. The jurisprudence surrounding its source provision, LSA-C.C. art. 741, created that uncertainty. We do not now find it necessary to make an adjudication that LSA-R.S. 31:179 is or is not applicable to mineral servitudes acquired during pendency of a suit to partition the land by licitation, nor the effect upon such transaction of the existence or absence of a notice of lis pendens, for we conclude that there was sufficient uncertainty surrounding the validity of' H. L. Whitten’s September 24,1975 mineral servitude to justify the requirement that a document be signed declaring it to be extinguished and requiring Leon to execute a new deed creating another mineral servitude. Even if the first servitude survived the partition sale by virtue of the provisions of LSA-R.S. 31:179 H. L. Whitten was empowered by the provisions of LSA-C.C. art. 11:

“Individuals can not by their conventions, derogate from the force of laws made for the preservation of public order or good morals.
But in all cases in which it is not expressly or impliedly prohibited, they can renounce what the law has established in their favor, when the renunciation does not affect the rights of others, and is not contrary to the public good.” (our emphasis),

to extinguish his servitude. As the trial judge pointed out LSA-R.S. 31:27 specifically provides for the termination of a mineral servitude in the manner set forth in the second deed:

“27. Extinction of mineral servitudes A mineral servitude is extinguished by:
(3) renunciation of the servitude on the part of him to whom it is due, or the express remission of his right; * * * ”

We conclude that the mineral sale executed by defendants on September 16, 1976 satisfying a valid title requirement of the attorney for H. L. Whitten’s royalty vendee effectively extinguished the mineral servitude created September 24, 1975. The language of the act of extinguishment provides “was extinguished by a partition by licitation suit styled Leon H. Whitten v. Annie Baily Beasley”. We construe this language to establish that the intent of the parties to the September 16, 1976 mineral deed was to extinguish the earlier servitude as of the date of the partition sale. Under these circumstances, the disputed mineral interest was correctly determined by the trial judge to have passed in the partition sale.

We find the doctrine of estoppel alluded to by the trial judge in his reasons for judgment is unnecessary to achieve the results concluded by the trial judge.

Appellants by their own action destroyed the September 24, 1975 mineral servitude and they can not now say that they destroyed it as it was applicable to the requirement of Meadors and the royalty vendee, Shaw, but that they did not destroy it as is applicable to plaintiffs in this suit. Once it was destroyed it was gone and it is totally immaterial as to who may benefit by its extinguishment. In this case Shaw benefited from the extinguishment because he had an absolute good title to his royalty acquired from H. L., regardless of what interpretation the court might apply to LSA-R.S. 31:179. Plaintiffs in this law suit incidently benefited from the extinguishment, though they had no part in bringing it about, because they have a good title to the disputed mineral interest whatever may be the correct interpretation of LSA-R.S. 31:179.

For the reasons set forth by the trial judge as supplemented by us, we AFFIRM at appellants’ cost.

MARVIN, J., dissents with written reasons.

MARVIN, Judge,

dissenting:

I respectfully dissent. The essence of the trial court’s holding is that the Vi mineral interest, conveyed by Leon Whitten to H. L. Whitten in 1975 after the partition suit was filed but before the partition sale, was rescinded either by the sale or by the 1976 instrument executed by Leon and H. L. Whitten after the partition sale, and that they, Leon and H. L., are estopped to deny that result. The majority adopts this rationale as being “substantially” correct from a legal standpoint and holds that Leon and H. L. “cannot now say that [their declaration in the 1976 instrument] was applicable [only] to the requirement of Meadors [the lawyer for the royalty vendee] ... but ... is [not] applicable to the plaintiffs in this suit.”

I dissent because I believe it is error to apply estoppel under the circumstances of this case.

The reason the 1976 instrument was executed by Leon and H. L. Whitten was to satisfy the requirement of the lawyer (Mea-dors) for Shaw (the mineral vendee of H. L.) as to the questioned legal effect of the partition sale upon the minerals conveyed to H. L. by Leon after the partition suit was filed, but before the partition sale occurred. After the partition sale, Leon had acquired from plaintiff Harmon a Vs interest in the property purchased at the partition sale by plaintiff Harmon, and Meadors apparently wanted to make sure that H. L. had a title legally sufficient to convey the mineral royalty to his client, Shaw. The lower court’s reasons for judgment, quoted by the majority, adequately explains why the 1976 instrument was .executed.

The lower court “did not find it necessary” to determine the effect of the 1975 sale of Ve minerals by Leon to H. L. or to determine whether that sale "... was extinguished by the partition sale on August 4, 1976, as a matter of law.” Since I contend that estoppel should not apply, I strongly believe these issues should have been expressly resolved by the majority.

In this respect, H. L. (the father) is not the alter ego of Leon (the son). Their transactions are shown to be arms length and for consideration. No fraud or collusion is shown. I am of the further opinion that the partition sale did not extinguish the prior sale of Vfe minerals by Leon to H. L. See R.S. 31:179 and Martin Timber Company v. Roy, 244 La. 1050, 156 So.2d 435 (1963). If the mineral owner is not made a party to the partition suit, especially as here where no lis pendens was filed, the purchaser at the partition sale does not acquire the outstanding minerals. R.S. 31:179.

Even if H. L. and Leon may be estopped from claiming contrary to their acknowledgment in the 1976 instrument as to Shaw, H. L.’s mineral vendee, and his successors in title, they are not estopped as to plaintiff. Harmon and his co-plaintiff are not privies to that instrument and the acknowledgement was contained in the instrument, according to the majority, to resolve a questionable point of law. This is not a proper legal basis to find either renunciation or estoppel.

A privy to a deed is a party to the deed, a legal representative or successor'in title to a party to a deed. Gipson v. Gipson, 193 La. 807, 192 So. 355 (1939). A privy is one who has succeeded to some right or obligation which one of the parties to an act derived through or from the act. Commercial Germania Trust & Savings Bank v. White, 145 La. 54, 81 So. 753 (1919).

Only parties to a deed and their privies are estopped from denying the truth of any material fact asserted in the instrument. Estoppel is not applicable to assertions of law.

Even declarations of fact in a deed do not estop a party making them unless the declarations are the essence of the contract and the contract presumably would not have been entered into unless the recited fact actually existed. Succession of Sonnier, 208 So.2d 562 (La.App. 3d Cir. 1968). A misrepresentation of the effect of the law, except in exceptional circumstances, does not raise equitable estoppel. See American Bank & T. Co. v. Trinity Universal Ins. Co., 251 La. 445, 205 So.2d 35 (1967).

“Founded upon good faith the doctrine [of equitable estoppel] is designed to prevent injustice by barring a party, under special circumstances, from taking a position contrary to his ... representations
“Since estoppel bars the normal assertion of rights, courts apply the doctrine cautiously * * *
“To raise an equitable estoppel, the record must establish not only that the pleader relied upon a representation . .. but also that he was justified in so doing. Justifiable reliance is fundamental.” American Bank, supra, 205 So.2d at p. 40.

In Succession of Sonnier, supra, a surviving husband declared in an inter vivos act of donation to his wife that the property donated was community property. In a contest between the husband and the heirs of the decedent wife, the court held:

“... [T]he statement that ‘the property donated comprises community property’ was not essential to the donation. * * * [T]he husband is not estopped from asserting in this suit that the property affected by that donation was his separate property.” 208 So.2d at p. 567-568.

I furthermore disagree that the 1976 instrument truly constituted a renunciation of the prior servitude by H. L. Whitten so as to legally extinguish that servitude and I disagree that it is totally immaterial that plaintiffs may have benefited from the ex-tinguishment. As I view the 1976 instrument in its entirety and in the light of its purpose, it was executed to assure to H. L.’s mineral vendee the royalty interest he had previously purchased. This was accomplished by the conveyance to H. L. of Ve of the minerals which Leon had acquired when he bought a Vs interest in the property from the plaintiff Harmon, purchaser at the partition sale, after the partition sale. This language of the deed, I believe is highly pertinent:

“The vendor and vendee agree and acknowledge that the mineral servitude created ... by Leon ... in favor of H. L. ... was extinguished by a partition . . . and this is a reconveyance of the same mineral interest for the same consideration paid in the first mineral deed.”

In this respect, this amounts to a mere acknowledgement as to the legal effect of the partition sale and is not an express renunciation of the prior servitude insofar as concerns plaintiffs in this lawsuit.

The prior law (CC Art. 816), declaring that a renunciation is clearly confined to what is clearly expressed because one is not presumed to have renounced his right, is still the law. CC Art. 771, and Comment (b), Act 514 of 1977, effective January 1, 1978.

Plaintiffs have not justifiably relied on any acknowledgement or declaration by Leon and H. L. This is fundamental. American Bank, supra. A declaration or “acknowledgement” of the legal effect of a partition sale as extinguishing the servitude of a mineral owner, not a party to the partition suit, is neither a renunciation of the servitude, nor the type of representation upon which an estoppel can be legally based.

I find nothing in the law that prohibits a plaintiff in a partition suit from selling mineral rights before the partition sale. Plaintiffs have not alleged or shown any declaration or representation to them or a predecessor in title by Leon or by H. L. that plaintiffs were acquiring any minerals at the partition sale. Outstanding minerals are excluded from the partition sale unless the owner of the outstanding minerals is made a party to the partition suit. R.S. 31:179.

I do not find either a renunciation or equitable estoppel in these circumstances and respectfully dissent.

      . Alternatively, plaintiffs contend on appeal that the partition sale was a warranty transaction and if the title to the minerals of the one-sixth interest conveyed by Leon in the partition sale was vested in H. L. at the time of the partition sale and not extinguished by it, that when Leon acquired the one-third of the land and minerals in the sale from Harmon, that the after-acquired title doctrine placed one-half of the minerals there acquired by Leon (which would equal one-sixth) back into Harmon who purchased the land at the partition sale.

       The full text was contained in the trial judge’s reasons, but we omitted all but the applicable portion of the statute.

      . C.C. art 741: “1. If in the suit for a partition, it be determined that the estate be disposed by licitation, and the owner of any servitude or mineral interest or interest therein, be not joined as a party thereto, the servitude or mineral interests or interests therein, shall continue to exist on the estate unaffected and unimpaired by the licitation.
      2. If in the suit for a partition, it be determined that the estate be disposed of by licitation, and the owner and/or owners of any servitude or mineral interest affecting said estate, or any interest therein or part or portion thereof, be made a party thereto, and he who has granted the servitude, or mineral interest, or his successor who may be responsible for his warranty, becomes the owner of the whole, the servitude or mineral interest shall then exist on the whole estate, as if he had always been the sole owner; provided, however, that in such event the owner of such servitude or mineral interest shall not be entitled to participate in or receive any part of the proceeds derived from the licitation of such property.
      In all cases where the owner of any servitude or mineral interest is joined as a party to any suit for partition by licitation of an estate, before the property shall be offered for sale, there shall be an appraisement thereof by a Notary and two appraisers appointed by the Court, in which appraisement there shall be, first an ap-praisement of the entire estate, as a whole, and second, an appraisement of the rights of each party holding a servitude or mineral interest in the property or in any portion thereof, or in any undivided interest therein. Such appraisement shall be submitted to the Court for homologation, and the definitive judgment directing the sale of the property shall provide, in the event of an adjudication of the property to a third person, for an equitable distribution of the total price of the property as a whole to the interested parties in the proportion the interest of each bears to the whole.
      If, by the licitation, the estate be adjudicated to a third person, all servitudes, mineral interests or interests therein, owned by parties to the suit for partition by licitation of said estate, shall become extinct and the owners of such servitudes, mineral interests or interests therein, shall be relegated to the proceeds of the sale of the property for distribution or partition of the proceeds as hereinabove set out. But, if the adjudication be made to anyone who has granted in any way such servitude or mineral interest, such mineral interest shall be ipso facto perfected to the extent of the interest in the property acquired by such grantor, and, in such case, the owner of such servitude, mineral interests or interests therein, shall not be entitled to any participation in the proceeds realized from the sale of said estate; provided, however, that the title to servitudes or mineral interests in the property shall not be affected or impaired by any sale to effect a partition by licitation in any case where the title in and to the servitude or mineral interests may emanate from the whole of the co-owners of the estate, whether descending by single or separate title.
      3. No sale of an estate for the purpose of effecting a partition thereof shall be annulled, avoided or set aside because of the fact that the owner of any servitude or mineral interest affecting the whole or any portion of said estate, or interest therein, is not joined as a party to the suit instituted for the limitation of said estate; provided, however, that the interest of such party in such a case shall not be affected or impaired by the sale of said property, but shall remain in force to the same extent as if said sale had not been made.
      The term “mineral interest”, as hereinabove used, is hereby defined and shall mean any form of interest in minerals, whether it be oil, gas and mineral leases, or an interest in the mineral rights,' or a royalty interest, or any other form of interest whatsoever in which minerals or mineral rights in the property may be affected.”


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    In re HINTON, Applying for Adoption.
    No. 14322.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 1980.

      Richard R. Storms, Ruston, for appellant.
    Truett West, Farmerville, for appellee.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   HALL, Judge.

In this stepparent adoption proceeding, the stepfather appeals from a judgment of the district court, sitting as a juvenile court, denying his petition to adopt his wife’s two children of her previous marriage to the children’s father, who opposed the adoption. The court found that, although the father’s consent to the adoption was not necessary because the father had failed to comply with a court order of support for one year, it was in the best interest of the children to maintain a relationship with their father as well as with their mother and stepfather.

The juvenile court relied heavily on the Third Circuit’s decision in Adoption of Latiolais, 376 So.2d 555 (La.App. 3d Cir. 1979), which was later affirmed by the Supreme Court at 384 So.2d 377 (La.1980). In that ease the Third Circuit and the Supreme Court reversed a judgment granting the adoption, holding that even though the father’s consent is not required under LSA-R.S. 9:422.1 because of failure to comply with an order of support for one year, the main consideration is the best interest of the child. The Supreme Court held in that case that it was not established that the adoption was in the best interest of the children and to the contrary, it was established that there was a continuing close relationship between the father and the child which should not be severed.

On appeal, the stepfather-appellant urges that the juvenile court erred because in this case, readily distinguishable from Latiolais, there is no relationship of love, affection and regard between the father and the children. The appellant points out that in addition to the failure to pay court-ordered child support of $100 per month for more than one year, the father was not seen, visited, or even talked on the tele--phone with the children for almost two years.

Finding no abuse of the juvenile court’s great discretion in determining the best interest of the children, we affirm the judgment denying the adoption.

The children are a girl born February 2, 1969, and a boy born June 27, 1971. The marriage of their mother and father was dissolved by judgment of divorce on March 18, 1976. The divorce judgment granted custody of the two children to the mother and ordered the father to pay $100 per month for their support. On June 4, 1976 the mother and the petitioner for adoption were married and, since that time, the children have lived with their mother and stepfather in Ruston. The stepfather’s petition for adoption was filed November 16, 1979.

The juvenile court found that the father had failed to comply with the court order of support for a period of one year and that his consent to the adoption was not required under LSA-R.S. 9:422.1. The evidence establishes that the father made a payment of $1,000 on October 26, 1978, covering the period from December 1977 through September 1978. He did not make any additional child support payments until November 30,1979, after the adoption petition was filed, at which time he sent a postal money order for $300 with the notation that this sum was to cover child support payments for October, November, and December 1978.

The father testified that he was told by the mother that it would not be necessary for him to make child support payments and that she would prefer that he not do so. This was denied by the mother; however, she did testify that no requests, demands, or other efforts were made by her during the last year to get the father to make any child support payments. The trial court found that the evidence in the case leaves little doubt but that the stepfather and mother wanted the father of the children to be over a year delinquent in his support payments so that his consent to the adoption would not be necessary.

Having determined that the consent of the father to the adoption was not necessary, the juvenile court considered the best interest of the children and determined that their best interest would be served by maintaining a relationship with their father, as well as with their mother and stepfather.

The evidence relating to the father’s relationship with his children discloses that pri- or to the parents’ separation in 1974 the father was close to the children and, because he was self-employed and was at home most of the day, he spent more time with the children than did his wife, who was employed away from home. For about a year after the separation the father saw the children once or twice a month when he would pick them up and take them to his mother’s home for the weekend. After 1975, when the mother started going with the petitioner whom she later married, the father’s visits with his children decreased in number and were “scattered”.

The father last saw the children in the early part of 1978. It is clear from the record that the mother was uncooperative and made it difficult and unpleasant for the father to visit with the children. Because the daughter had an ear disease the mother would not let the father take the children away from Ruston. During 1978 the father called several times to talk to the children on the telephone but was not allowed to do so. The mother denied that she always refused to let defendant talk to the children, but admitted she did so on occasion because it upset them. Around Christmas 1978 defendant asked to take the children for a "visit to his mother’s home. The mother would not let the father take the children out of the city but she testified she was prepared to let him visit them in Ru-sten. The visit did not take place and the father has made no effort to visit with or contact the children since that time. At the time of trial in December 1979 the father had not seen or talked to the children in almost two years.

The father stated that the reason for the infrequency of his visits and attempts to visit his children was that the mother refused to let him see them and threatened to have him arrested if he tried to see them. The mother and stepfather denied that the defendant had been threatened with arrest or that he had been denied visitation rights. As a whole, the testimony indicates considerable conflict and animosity between the father and the mother that discouraged him from trying to see his children. The father considered but never took legal action to enforce his visitation rights. He testified he now wishes to comply with his support obligation and exercise his full visitation rights.

The juvenile court found that the evidence showed that the conduct and.attitude of the father and mother of the children since their separation left much to be desired. It found the animosity of the parents toward each other is detrimental to the children. The court found that the father was wrong in failing to provide for the children and also that the mother must find enough love for the children to encourage a meaningful relationship with their father.

The evidence, including the confidential report submitted by the Department of Human Resources, establishes that the home and environment being provided by the stepfather and mother is exemplary in all respects. The petitioner testified that he has an excellent relationship with his stepchildren, loves them very much, and wants to adopt them. He provides for all their needs. Both children call him “daddy”. The children’s mother confirmed that they have a good relationship with their stepfather. The mother and stepfather were of the opinion the adoption would be in the best interest of the children and would provide a more stable and comfortable atmosphere for them.

Evaluating the best interest of the children, the juvenile court made the following remarks:

“The stepfather by being married to the mother of the child will have and does have, by virtue of his day to day relationship with the children, an opportunity to develop a relationship with the children that will endure for their lifetimes. The natural father, on the other hand, is not precluded from demonstrating to his children the love affection he has for them. The court is convinced that it is best in connection with the emotional maturing and development of the children for them to know that they are loved and cared for by their mother and stepfather and also by their natural father. The court cannot assure the parties to this litigation of the situation which will insure and guarantee that the children will become well adjusted adults. However, the court in consideration of the matter has carefully and painfully considered all the testimony, evidence and circumstances in the case and expresses the opinion that the best interest of the minors would be for them to have a very meaningful'relationship with [their] mother, stepfather and natural father.”

In Latiolais, supra, the Supreme Court held that LSA-R.S. 9:422.1 does not set the criteria to be used in determining whether or not an adoption shall be granted. It applies only to the narrow question of whether parental consent shall be required when a minor’s adoption is sought. The court held that the best interest of the child is the major standard to which a court must look before it can determine when or whether to order an adoption. LSA-R.S. 9:432. In affirming the Court of Appeal’s reversal of a judgment granting an adoption, the court held that no showing was made by the petitioner that the minor’s best interest would be served by permitting the adoption and that on the contrary the father had shown that he and his daughter had a very close and loving relationship which had been maintained over the years. The court reiterated that the petitioner failed to show how the adoption, which would rupture the relationship between the minor and her father, would be in the child’s best interest.

In the Latiolais case, as revealed by the opinion of the Court of Appeal, although the father had failed to comply with a court order of support for more than a year he had nevertheless continued to visit with his child every other Sunday, taking the child to his mother’s home in the country where they rode horseback and engaged in other activities. There was a relationship of mutual regard and affection.

Although the relationship of the father and child in the Latiolais case is readily distinguishable from the relationship of the father and children in the instant case, the same principles are applicable. It is the best interest of the children that determines whether or not the adoption should be granted. The seriousness and finality of the severing of the relationship between the parent and child is a factor to be considered. The importance and benefit to the child of a continued relationship with a parent is to be considered. '

The fact that the father has forfeited his parental right to insist on continuation of his legal relationship with his children does not mean that the children should necessarily have their right to a relationship with the father legally terminated. Where the evidence indicates a real probability that the children can have and enjoy and benefit from a continuing relationship with their father, this is an appropriate factor to be considered in determining the best interest of the children.

Each case is to be determined on its own facts. The juvenile court should have great discretion in making this determination which will not be disturbed in the absence of a clear abuse of that discretion. Although one-year noncompliance with a support order has been established by the legislature as an arbitrary cutoff of the parental right to prevent an adoption, no such arbitrary standard has been legislatively established for determining when the adoption is in the best interest of the child or when the advantages of the adoption to the child outweigh the advantages to the child of a continued relationship with the child’s parent.

Here, the juvenile court found it to be in the best interest of the children to maintain a meaningful relationship with the father, while at the same time continuing their loving relationship with their stepfather and mother. The trial judge apparently was convinced that the father continued to have an interest in the children and had not maintained close contact with them because of the friction which existed after the divorce. The court obviously believed this relationship could be reestablished and that it would not interfere with the attachment the children have also developed for their stepfather. There is no showing that the denial of the adoption will operate to the detriment of the children or change the excellent situation they are now enjoying in their stepfather’s home through his affection, attention, and generosity.

The fact that the father here, although perhaps not entirely of his own fault, has not maintained the kind of close relationship found in the Latiolais case has caused us much concern in the determination of whether the juvenile court abused its discretion in this case. However, the juvenile court is in the better position to make the best interest determination. Where that court determines that it is in the best interest of children to maintain a relationship with the noncustodial parent and makes a reasonable determination that a meaningful, constructive relationship is probable, this court will not try to second-guess the juvenile court in such a sensitive balancing of interests.

Appellant argues that the facts of this case are closer to the facts of DeRosier v. Dean, 378 So.2d 588 (La.App. 3d Cir. 1979), decided by another panel of the Third Circuit after the Court of Appeal decision but before the Supreme Court decision in Latio-lais. The court affirmed a judgment granting an adoption where the child’s father exercised visitation rights infrequently and saw the children but twice during the year preceding the adoption proceeding. The argument has merit; however, the facts of the DeRosier case are not stated in detail, each case must be decided on its own facts and circumstances, and DeRosier was an affirmance of the juvenile court’s decision.

The judgment of the district court, sitting as a juvenile court, denying the adoption is affirmed. Costs of the appeal are assessed to the appellant.

Affirmed.


author: MARVIN, Judge.

text:
    Harold Lloyd GREEN, Sr., Plaintiff-Appellant, v. SOUTHERN FARM BUREAU LIFE INSURANCE CO., Defendant-Appellee.
    No. 14323.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 1980.
    Leslie B. Bagley and Associates, Ltd. by Leslie B. Bagley, Mansfield, for plaintiff-appellant.
    Colvin, Hunter, Brown, Plummer & Means by David B. Means, III, Mansfield, for defendant-appellee.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

As beneficiary of an insurance policy on the life of his wife, the husband appeals a judgment rejecting his demands for increased policy proceeds which were provided for accidental death of the insured. The sole issue is whether the record supports the trial court’s finding that the insured committed suicide by shooting herself.

Suicide is an affirmative defense which must be proved by the insurer. CCP 1005, Webster v. New York Life Ins. Co., 160 La. 854, 107 So. 599 (1926); Newdigate v. Acacia Mut. Life Ass’n, 180 La. 979, 158 So. 358 (1934).

Here we have credible witnesses testifying that on more than one occasion between the time the gunshot wound was inflicted (July 9, 1979) and the time of death (July 14, 1979), the decedent, while conscious and rational, stated that she intended to kill herself. Other evidence supports the finding that decedent had been despondent and in ill health and that she had attempted suicide in 1978 and again in the last month of her life by overdosing herself with medication.

When the husband discovered his wife wounded with the pistol laying nearby, he immediately telephoned his then employer-friend that she “has just shot herself ...” and asked for assistance. When the wife’s best friend entered to attend the wife on the floor of the family mobile home, the wife made declarations of her intent. Again in the ambulance on the way to the hospital and later in the hospital, the wife made declarations of her intent. The trial court did not err either in obviously rejecting the testimony of the husband that his wife was not contemplating, and had no reason to commit, suicide, or in weighing the totality of the evidence, even if that evidence be deemed contradictory.

At appellant’s cost, judgment is AFFIRMED.


text:
    Ollie Tatum VAIL, Plaintiff-Appellant, v. Max Dalton VAIL, Defendant-Appellee.
    No. 14325.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 28, 1980.

      Kenneth C. Thomas, Shreveport, for plaintiff-appellant.
    Love, Rigby, Dehan, Love & McDaniel by Joe Cordill, Jr. and Samuel P. Love, Jr., Shreveport, for defendant-appellee.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

In this action where the husband and the wife each sought- a separation against the other, the judgment granted the separation to the wife on grounds of adultery, rejected the husband’s demands, but specifically found the wife to have been at fault in contributing to the break-up of the marriage. Because this latter finding effectively precludes the wife from permanent alimony after a divorce under CC 160, the wife appeals the judgment, contending that the trial court erred factually and legally. We amend and affirm, for reasons we assign.

In an action for a legal separation, a trial court may determine the fault issue as it affects a spouse’s right to claim permanent alimony after a divorce. See Guin v. Guin, 378 So.2d 1022 (La.App. 2d Cir. 1979).

The fault which will deprive a spouse of this right must be of such a degree that it would independently constitute grounds for a separation. See Pearce v. Pearce, 348 So.2d 75 (La.1977). The initial fault on the part of one spouse which would render further marital relations insupportable may provoke some reasonably justifiable response on the part of the other spouse. A response by the other spouse in this context, however, is not fault within the meaning of CC 160 which will preclude permanent alimony. See Bruner v. Bruner, 364 So.2d 1015 (La.1978); Pearce, supra, and cases cited therein. The fault issue must be determined by the circumstances of each case and cannot be considered in the abstract.

Notwithstanding this finding of fault on the part of the wife, the trial court, in its reasons for judgment, declined to find mutual fault on the part of the wife as a ground for separation under CC 141, because the husband, admittedly slept overnight at the home of another woman and her children with some regularity two nights a week.

We are bound by the trial court’s finding of fault on the part of the husband because the husband did not appeal or answer the wife’s appeal. The only issues before us relate to the wife’s fault.

The record contains detailed evidence that the wife repeatedly complained to and nagged the husband about his being uncommunicative, she physically assailed him, kicked him, cursed him, scratched him on the face on one occasion, threw water on him on another, and threw a money bank at him on another. She deprived him of sleep on more than one occasion. She told him more than one time to leave the house, while in almost the next breath pleading with him to stay and work things out. The trial court found this to be an “overreaction” to the husband’s “seeing” the female friend and that her “reaction was one that contributed to the breakup of the marriage and ... to [his] leaving the house.” All of the husband’s silence was not attributable to the female friend. The marriage had been unhappy for many years before the female friend appeared on the scene. The husband testified:

“[These] problems had been going on with our marriage for a long time ... it was a buildup over the last years . . . Things had got- worse ... even 10 years ago she accused me of having a girlfriend .. . just on anything . . . she could find to pick at me to argue about, well, she did ... looking at a house [and] considering buying it ... We would have separated [11 years ago] but it was because she was pregnant is the reason I didn’t leave . . . it was unbearable then but I already had one little baby and another ... was on the way, and I couldn’t see . .. myself leaving.”

We cannot say that the lower court was clearly wrong in concluding that the wife’s fault (her repeated nagging, verbal and physical cruel treatment), at least contributed to the husband’s leaving the marital domicile. This conclusion is supportable even though the lower court expressly considered but declined to render a separation on the ground of mutual fault. CC 141.

The wife’s pre-separation fault (cruel treatment) constitutes independent grounds for a separation. This fault may be decreed so as to affect her rights to CC 160 permanent alimony, even though the trial court renders a judgment-of separation in favor of the wife on other grounds. That was the result in Adams v. Adams, 380 So.2d 737 (La.App. 4th Cir. 1980), where only the wife, who was granted a separation on grounds of the husband’s abandonment, appealed because the judgment also decreed her to be at fault in causing the separation. There, as here, the husband did not appeal and the appellate court was precluded from considering his fault or the obvious legal inconsistency in the judgment in the light of CC 141. Approving this approach, but reversing on the facts, the Supreme Court said:

“However, the better approach, where such an. inconsistency is present, is to examine whether the record supports the finding at issue without regard to other findings not before the Court. Dixon v. Dixon, 357 So.2d 856 (4th Cir. 1978); Watson v. Watson, 372 So.2d 639 (4th Cir. 1978). Thus, we only consider whether the lower courts erred in determining that plaintiff was at fault in causing the separation.” 389 So.2d 381, 382 (La.1980).

Since the 1979 amendment to CC 160, following Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), permanent alimony is no longer gender related. The fault decree below should be amended to reflect that both spouses are affected by the decree because of their respective fault.

Accordingly, the fault decree of the judgment is amended to read:

IT IS ORDERED AND DECREED that the fault of both parties contributed to the separation for the purposes of CC 160 permanent alimony.

The judgment otherwise, and as amended, is AFFIRMED at appellant’s cost.

      . The evidence shows that for about three months before the husband moved out of the family home in March 1979, the wife repeatedly questioned the husband about a female friend who worked in a grocery store he periodically served as a milkman. He saw her only in the store during working hours.
      “I would [respond to my wife’s questions and] tell her the truth ... no, I have not kissed her, no, we have not held hands, no we have had no sexual affair going on and I have not seen her on any occasion after working hours.”
      Since the March 1979 separation, the husband has stayed overnight at the apartment of the female friend and her three children, initially to assist her when the younger children were ill much later in 1979. Beginning in January 1980, the husband periodically began staying about two nights each week at the apartment of this friend and her children. She and her 14-year-old daughter testified, along with the husband. He stayed there during week nights when he had to work the next day, but not on weekends. He always slept with one or the other of the younger boys and left the home in time for his milk route which begins at 4:00 a. m. The husband and the female friend deny any romantic or physical involvement. They deny having been alone together or in a state of undress at any time. He stays in Waskom on the other nights and on weekends. There was no testimony about a particular act of adultery, or that the husband and his female friend were living together either as man and wife or in open concubinage. For an excellent discussion of the problems arising from and the effeots of extra-marital male-female relationships, see Richards, “Pleading and Proof of Adultery as a Ground for Divorce”, Vol. 27, La.B.J. No. 4, at p. 312 (March 1980); Manley v. Manley, 389 So.2d 454 (La.App. 2d Cir. 1980); Howes v. Howes, 388 So.2d 1182 (La.App. 4th Cir. 1980).


author: WALKER, Justice,

text:
    MULTIPLE LISTING SERVICE OF JACKSON, INC. and Jackson Board of Realtors, Inc. v. CENTURY 21 CANTRELL REAL ESTATE, INC. and Helene Cantrell, President.
    No. 52144.
    Supreme Court of Mississippi.
    Nov. 19, 1980.
    John Land McDavid, McDavid, Edmonson & Noblin, Alex A. Alston, Jr., Thomas, Price, Alston, Jones & Davis, Jackson, for appellants.
    Robert G. Nichols, Jr., W. E. Gore, Jr., Jackson, for appellees.

      Before PATTERSON, C. J., and WALKER and BROOM, JJ.
   WALKER, Justice,

for the Court:

This case involves the right of a private association to make rules of conduct involving its membership and its right to enforce disciplinary sanctions for failure to follow these rules. The appeal arises from the Chancery Court of the First Judicial District of Hinds County, which issued a final decree enjoining the appellants, Multiple Listing Service of Jackson, Inc. (hereinafter MLS) and Jackson Board of Realtors, Inc. (hereinafter called Board of Realtors) from enforcing disciplinary sanctions against ap-pellees, Century 21 Cantrell Real Estate, Inc. and Helene Cantrell, President (hereinafter collectively called Cantrell).

Both the Board of Realtors and MLS are non-profit professional associations, membership in which is voluntary. Cantrell became a member of the Board of Realtors on December 29, 1975, and a member of MLS on April 20, 1976. The two associations became affiliated on February 15, 1977. Cantrell was a member in good standing of the affiliated organizations.

The injunction issued by the Chancery Court prohibited the enforcement of three separate sanctions against Cantrell involving two unrelated complaints filed against her.

The first sanction, imposed by the Board of Realtors, was a severe reprimand and the placing of Cantrell on probation for a period of six months. It was error for the lower court to enjoin the enforcement of this sanction for the reason that Cantrell did not first exhaust the administrative remedies provided by the Constitution and Bylaws of the Board of Realtors. Cantrell did not appeal to the Board of Directors of the Board of Realtors, even though she was informed of her right to do so. The authorities are fairly uniform that the administrative remedies must be exhausted before resorting to the courts. NCAA v. Gillard, 352 So.2d 1072 (Miss.1972).

The second sanction, also imposed by the Board of Realtors, was the suspension of Cantrell from membership in that association for a period of thirty days. For the reasons hereinafter stated we find that the chancellor erred in enjoining the thirty-day suspension.

The third sanction, which was imposed by MLS, was a fine of $300. For the reasons hereinafter stated we are of the opinion the chancellor did not err in enjoining the enforcement of this sanction.

The authorities are in general agreement that judicial review of disciplinary proceedings of a voluntary association should be limited to determining only whether the member disciplined received procedural due process as required by the Fourteenth Amendment to the United States Constitution, and whether the association has conducted its inquiry in accordance with its own rules of procedure. The writer of an exhaustive article involving judicial review of the actions of private associations stated:

Where an association has conducted its inquiry in accordance with its own rules of procedure and in conformity with the minimum standards externally imposed to produce a rational and valid result, there is a strong presumption that its determination is a proper one. The interest in finality in the adjudication of disputes and the deference due the autonomy of the association and the competence of its tribunal argue against a broad scope of judicial inquiry. If a court, on consideration of the evidence adduced before the association tribunal, is convinced that the facts upon which the group’s action is based could reasonably have been found by a body acting in good faith, it probably should refuse to overturn an otherwise proper proceeding. 76 Harv.L.Rev. 983 at 1037 (1963).

In Lowery v. International Brotherhood of Boiler Makers, Inc., 241 Miss. 458, 130 So.2d 831 (1961), this Court cited with approval the general rule, as follows:

The authorities seem to hold fairly uniformly that the courts will not intervene except for fraud perpetrated upon a member, or lack of jurisdiction. ‘It is well established that courts will not interfere with the internal affairs of voluntary associations, except in such cases as fraud or lack of jurisdiction. * * * The decisions of the tribunals of an association with respect to its internal affairs will, in the absence of mistake, fraud, collusion, or arbitrariness, be accepted by the courts as conclusive. Moreover, it is held that the courts will not undertake to inquire into the regularity of the procedure adopted and pursued by such tribunals in reaching their conclusions.’ 4 Am. Jur. 466, Associations and Clubs, Sec. 17. (130 So.2d at 836).

In the case at bar, the disciplinary proceedings were in full compliance with the constitution and bylaws of the Board, and the thirty-day suspension was given only after Cantrell was afforded every element of due process. That is, she was given notice of the charges, notice of a hearing, the right to confront and cross-examine witnesses, an opportunity to refute the charges, and a hearing before an unbiased tribunal.

A private association has the right to set its own goals and standards as long as they are not against the public policy of the State. Cantrell, by her assent to the rules of the Board of Realtors, bound herself to abide by all lawful limitations imposed by those rules. The decision of the Board of Realtors, relative to the thirty-day suspension, was not arbitrary and capricious or an abuse of discretion and thus cannot be set aside under the limited review available in the courts. We therefore hold that the lower court erred in enjoining the enforcement of the thirty-day suspension of Cantrell imposed by the Board of Realtors.

The $300 fine imposed by MLS presents a different question. The complaint sent to MLS by Cecil Cost requested that MLS investigate a possible violation of Article 2(j) of the MLS Rules and Regulations, which state:

Any listing filed with the Multiple Listing Service shall not be made available to any non-participant in MLS without the consent of the listing broker.

After receiving the written response from Cantrell, MLS informed her by letter dated October 28, 1977, that she had been found guilty of violating Article 2(j) and that her membership in MLS would be suspended for sixty days unless she paid a penalty of $1,000. Cantrell was also informed that she had the right to appeal this decision to the professional standards committee of the Board of Realtors. Cantrell decided to appeal, and she was given a full and complete hearing, accompanied by all the required procedural safeguards heretofore mentioned. On April 4, 1978, the committee notified Cantrell that she had been found guilty of breaching Article 2(j) and that she was fined $300. Cantrell appealed this decision to the Board of Directors of the Board of Realtors, which affirmed the decision of the committee. The lower court enjoined MLS from enforcing this fine, in part because the rules and regulations of MLS established no guidelines for the imposition of fines or penalties.

Article IV of the MLS Bylaws, Rules and Regulations provides the following procedure for the enforcement of rules or disputes:

Section 1. The Board of Directors shall give consideration to all written complaints from members having to do with a violation of the By-Laws or the Rules and Regulations.
(a) The Board of Directors shall have the authority to reprimand, suspend, or expel members upon violation of the By-Laws, or the Rules and Regulations of MLS. The Board of Directors, if it should see fit, may grant the option of receiving a monetary fine in lieu of suspension. All penalties are to be prescribed for each individual offense by the Board of Directors of MLS.
(b) If the offense is one of a violation of the Bylaws or the Rules and Regulations and the member does not accept the disciplinary action imposed by the Board of Directors as in (a) above [t]he member may appeal for a hearing before the Professional Standards Committee of the Jackson Board of REALTORS in accordance with the By-Laws of the Board of REALTORS.
(c) All other complaints on professional conduct shall be referred by the Board of Directors to the Jackson Board of REALTORS for appropriate action in accordance with the usual procedures under terms of the By-Laws of the Board of REALTORS. (Emphasis added).

The main question before the Court on this part of the appeal involves the validity of the $300 fine imposed by MLS through the committee and the Board of Directors of the Board of Realtors. The bylaws of MLS give the Board of Directors of MLS the authority to levy fines. Article IV states that all penalties are to be prescribed for each individual offense by the Board of Directors of MLS. Similarly, the constitution and bylaws of the Board of Realtors authorize the professional standards committee to impose fines. However, nowhere in the record is there any indication that the amount of such fines are determined according to any uniform method, and there is no indication in the record as to the maximum allowable amount of a fine. In American Men’s & Boy’s Clothing Manufacturers Association v. Proser, 190 A.D. 164, 179 N.Y.S. 207 (Sup.Ct.1919), the New York Court stated the following:

It is quite competent for such an association as the Plaintiff to fix penalties by way of fines for derelictions of its members; but the penalties must be determined according to some method, to which the member has agreed, at least impliedly by joining the association, not only as to the imposition of the fine, but also as to the maximum amount thereof; otherwise, the association would be allowed to assess its own damages, which would be clearly unjust and improper. And a by-law imposing an excessive fine would be set aside as unreasonable. Hagerman v. Ohio Building & Savings Ass’n, 25 Ohio St. 186; Lynn v. Freemansburg B. & L. Ass’n, 117 Pa.St. 1, 11 Atl. 537, 2 Am.St.Rep. 639.
To hold that an association of this character might assess such amounts as it saw fit for any infraction of its rules or bylaws, important or unimportant, would make possible a course that would work serious loss to members and invite an abuse of authority. A fixed, reasonable fine, in the nature of liquidated damages for injury sustained because of dereliction, would be sustained. (179 N.Y.S. at 210).

See also 6 Am.Jur.2d Association & Clubs § 32 at 460 and 7 C.J.S. Associations § 31 at 73.

The appellants agree that arbitrary and capricious fines imposed without the consent of the member or without procedural safeguards are manifestly unjust. They contend, however, that Cantrell, by joining these associations, impliedly and expressly agreed tó become subject to the disciplinary sanctions of those associations, including the imposition of suspensions .and fines. Article VII, section 2(c) of the Board provides that after a hearing by the professional standards committee, the committee may find the charges to be unfounded, or may direct the reprimand, fining, suspension or expulsion of the member. The bylaws of MLS, in Article IV, section 1(a) state that the Board of Directors of MLS has the authority to reprimand, suspend or expel members, or may grant the option of receiving a monetary fine. Article IV, section 1(b) provides for an appeal and hearing before the professional standards committee of the Board, in accordance with the bylaws of the Board.

The appellants’ main argument is that decisions by an association which are not arbitrary or capricious should not be set aside under the limited review which courts undertake. They argue that discipline is essential to insure that no unfair advantage is taken by, nor any unreasonable burden placed, on any individual, and that each member conduct himself in a manner that promotes beneficial and economical interaction among the co-members for the good of all the members. They also contend they have a duty to its members and to the public to maintain professional standards of conduct and to insure that violations of these standards by a few do not breed public disrespect for all its members. Without the power to discipline, after fair hearings, those members who transgress the standards agreed to, neither the appellants nor any similar body can hope to fulfill these important purposes.

We agree with the appellants that it is highly desirable that private organizations, such as MLS and the Board,, have the right to discipline members for violations of standards of professional conduct as set out by the constitution, bylaws, rules and regulations of the respective organizations. However, we also are of the opinion that before a fine can be imposed a private association must have a schedule of maximum fines that may be imposed to which schedule each member has agreed to be bound by joining the association. To hold that an association might arbitrarily prescribe fines for each individual offense as it sees fit would make possible and invite an abuse of authority. A fixed, reasonable fine, in the nature of liquidated damages, for injuries sustained because of unprofessional or unethical conduct would be sustained. But an arbitrary fine, such as the one imposed here, cannot be enforced. We therefore hold that the chancellor properly enjoined the enforcement of the $300 fine by MLS for the reason that MLS has not established, and Cantrell has not agreed to be bound by, a maximum fine in a reasonable amount that may be imposed upon a member for violating its rules. The amount of such fine is left to be arbitrarily fixed after the particular offense has been charged and proved. This does not comport with the equal protection clause of the Fourteenth Amendment to the United States Constitution.

The decree of injunction issued by the chancery court is affirmed insofar as it enjoins MLS from imposing a $300 fine on Cantrell; it is reversed insofar as it enjoins the Board of Realtors from enforcing its suspension and probation of Cantrell. The injunction is modified accordingly, and those two sanctions are left in full force and effect.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

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

      . A complaint was filed by Cecil Cost with both the Board of Realtors and MLS on October 6, 1977, charging that Cantrell had allowed a third party broker, a non-member of MLS or the Board of Realtors, to show a property listed by Cost after Cost had refused to give the third party broker permission to show the property. There was ample evidence to support the finding that this conduct violated the Code of Ethics of the Board of Realtors and the Rules and Regulations of MLS.
      On February 18, 1978, Theresa Pitts filed a complaint with MLS, charging that Cantrell had materially altered a withdrawal notice. MLS referred this complaint to the Board of Realtors, and there was ample evidence to support the Board’s finding that Cantrell had violated the Code of Ethics.

      . In Gillard the Court vacated an injunction issued by the lower court, holding that a football player’s “right” to engage in intercollegiate football is not a “property” right that falls within the due process clause of either the Mississippi Constitution or the United States Constitution. The Court also noted that Gillard should have exhausted his administrative remedies before resorting to the courts. Although dictum in that case, we feel the principle is a sound one based on practical, common sense reasoning.


author: COFER, Justice, for the Court:

text:
    MISSISSIPPI MUNICIPAL ASSOCIATION INC. and City of Pearl, Mississippi, and other Municipal Corporations et al. v. The STATE of Mississippi, Hamp King, as Mississippi State Auditor, and Joe Sharp, as Mississippi Motor Vehicle Comptroller.
    No. 52143.
    Supreme Court of Mississippi.
    Nov. 26, 1980.

      John E. Stone, Bacon, Stone, Jernigan & Goodman, Jackson, for appellants.
    Bill Allain, Atty. Gen. by Donald Clark, Jr., Sp. Asst. Atty. Gen., Jackson, for appel-lees.
    Before ROBERTSON, P. J., and BOWLING and COFER, JJ.
   COFER, Justice, for the Court:

The Mississippi Municipal Association, Incorporated, certain cities and certain individuals, appellants, brought this suit in the Chancery Court of the First Judicial District of Hinds County seeking adjudication that Mississippi Code Annotated sections 27-5-101 and 27-5-103 (1972), are unconstitutional or for alternative relief. They made the State of Mississippi, the State Auditor, and the Motor Vehicle Comptroller defendants to their suit. From a decree sustaining defendants’ general demurrer to their amended bill of complaint, they have appealed here assigning alone that the sustaining of the demurrer was error. (A general demurrer to appellants’ original bill had been sustained, and the complainants, by leave of the Court, had filed their amended bill of complaint.)

They prayed, if the Court should hold the statutes to be constitutional, as an alternative, that the State Auditor and the Motor Vehicle Comptroller be enjoined requiring them to allow and pay to the municipalities of the state their fair, just, and reasonable share of the gasoline taxes (excise taxes on gasoline, diesel fuel, kerosene, or oil collected under State laws), that a just formula therefor be fixed by the Court by which such payments would be made and that, if after a period of grace afforded it, the legislature shall not correct the inequities of which the complainants complain, a final mandatory injunction shall issue enjoining the defendants from disbursing the gasoline taxes except in a manner prescribed by the Court. They prayed for other relief including attorney fees and related costs, and that the court retain jurisdiction to make further orders as may prove proper in the case.

The appellants do not assert any departure by the defendants-appellees from the wording of the Code sections 27-5-101 and 27-5-103, but rather earnestly assert that, in compliance therewith, the complainants are being deprived of their property without due process of law and without their being afforded the equal protection of the law under the United States Constitution and the Mississippi Constitution of 1890.

The statutes under attack detail out a procedure for payment by appellees of a portion of the gasoline tax collected under state law to the counties and municipalities for the purposes therein stipulated. The procedures for this revenue sharing (to counties by section 27-5-101 and municipalities by section 27-5-103), are laborious and complicated, and need not be analyzed here for purpose of this opinion.

Nevertheless, at a stage in section 27-5-101, a provision is made for periodic payment to counties of funds from the gasoline taxes. Section 27-5-103 creates a fund entitled, “the municipal aid fund,” out of which distribution is made to municipalities according to a complicated procedure set out in the body of the statute.

Appellants make comparison between the urban residents and those who live outside urban areas in the counties, the number of miles traveled by vehicles annually inside and outside the municipalities, and the numbers of automobiles owned by urban residents and those owned in the counties outside municipalities. They allege that all of the municipalities received, for the year ending June 30,1978,97/ioo of one percent of the gasoline taxes collected by the state that year, and for that year the counties received a minimum of $300,000 each to more than $2,000,000 each compared to the $300 to $27,000 each paid to the state’s municipalities. Complainants allege as facts that, owing to the disproportionate share of these revenues paid to the cities, the residents of the cities are, by their taxes, having to pay a much larger and burdensome amount for street upkeep and other municipal expenses than is paid by rural citizens of the counties who have less burdensome expenses for road maintenance owing to the amount the counties receive from the distribution of the gasoline taxes.

Our decisions to date, as will be noticed hereinafter, hold against the right of complainants herein asserted and sought to be vindicated. The appellants point to progress in the field of the Fourteenth Amendment rights including the broad spectrum of civil rights, and predict a reversal of the state’s case law in the future, and see and argue civil rights points in their briefs.

In McCullen v. State, on motion of J. P. Alexander, for use of Hinds County, 217 Miss. 256, 63 So.2d 856 (1953), the petitioner Hinds County sought a writ of mandamus against the Motor Vehicle Commissioner, based upon petitioner’s asserted right to a larger share in the distribution of the gasoline tax than the commissioner had been willing to allocate to it, under Chapter 287, Laws of 1952, predecessor statute to section 27-5-101. In construing the statute, this Court said this:

It must be borne in mind that the excise tax on gasoline is levied and collected by the State and belongs to the State; the State can keep all of it, and it is a matter of grace only with the Legislature that a portion of the tax is distributed to the counties; in other words, no county has any vested right in any portion of the gasoline tax money except such right as the Legislature may grant, and the Legislature has the power to distribute a portion of the tax in any manner, upon any basis, and under any formula which it may prescribe. (217 Miss, at 273, 63 So.2d at 862).

In Board of Supervisors of George County v. Bailey, 236 So.2d 420 (Miss.1970), this Court more recently had under consideration the authority of a Court under Code of 1942 annotated section 2505 (Supp.1968) [now section 99-15-17], to order payment from county funds to counsel appointed under that statute. In holding no such authority existed, this Court said:

The Legislature is the appropriate branch of the government to deal with this matter because it can conduct hearings to determine the extent of the need, the amount of funds required, and the numerous related factors involved. While the legislature can view the full spectrum of the problem, the courts, which do not have the means or facilities to adequately study the problem or provide the remedy, can only deal with the problem on a case by case basis. (236 So.2d at 423).

This Court said in Culley v. Pearl River Industrial Commission, 234 Miss. 788, 813, 108 So.2d 390, 391 (1959), that “.. . no requirement of uniformity or equal protection under the Mississippi and Federal Constitutions limit the power of the Legislature in respect to the allocation, distribution and application of public funds. 84 C.J.S. Taxation § 34....”

See also Schaeffer v. Sharp, 328 F.Supp. 762 (S.D.Miss.1971).

In advancing the thesis that the time is here when the Court should recede from the position that the legislature is the authority on the disposition of public funds, such as here involved, as is decided in our cases above cited, they argue that the conclusive principles of applicable law are laid down in Levy v. Parker, 346 F.Supp. 897 (E.D.La. 1972), aff’d 411 U.S. 978, 93 S.Ct. 2266, 36 L.Ed.2d 955 (1973), and Bunch v. Barnett, 376 F.Supp. 23 (D.S.D.1974).

In the Levy case, Louisiana had a homestead exemption law for the benefit of homesteaders. To make up for the loss to the taxing authority occasioned by this tax exemption that state adopted a law providing what is called there a “Property Tax Relief Fund.” (P. T. R. Fund) Various parishes had their own homestead assessments, from conservative to the ceiling, and the more mills of taxes levied the higher the amount of the refund from the P. T. R. Fund. In addition thereto, Orleans Parish, with boundaries contiguous with New Orleans, has a constitutional maximum permissible levy by which it is bound.

The suit was by taxpayers attacking the applicable provisions of the constitution and statutes of Louisiana as denying to them the equal protection of the law and due process of law. The District Court held this form of reimbursement unconstitutional as being based upon millage arrived at as hereinabove noticed, constituting unequal assessments by the taxing power of a local government and what that Court appraised as a “facially non-discriminatory payment of state revenues to localities based upon prevailing local millage rates.”

Bunch v. Barnett, supra, was a suit against Rapid City, South Dakota, and the United States, by certain victims of the 1972 flood, for reimbursement of certain charges made by that city for emergency occupancy of certain lots in Rapid City by the plaintiffs. The suit depended on an interpretation of 42 U.S.C., section 4436(a) and the allegations of the flood victims that Rapid City and the United States had furnished, free of charge, to other flood victims, housing and housing sites, whereas these defendants were undertaking to charge the plaintiffs for land occupied by the emergency houses. The District Court Judge recognized in his opinion that equal protection of the law under the United States Constitution does not preclude all disparities in treatment, but that there must be some rational purpose served by such disparity.

We do not believe that our statutes, sections 27-5-101 and 27-5-103, contain the infirmities as found by the courts to be present in the Levy and Bunch cases, supra, nor do we conclude that these statutes make for denial to individuals or municipal corporations and counties unequal protection of the law or of due process of law. We hold them to be free of the challenge of unconstitutionality asserted in appellants’ admitted bill.

Finding as we do in favor of their constitutionality, we determine further that we, as a court, may not nullify the formulas for distribution therein contained or legislate another formula or formulas in place of those, or either of them, therein contained. Should we allow any of the further relief prayed, we would be put in the position of amending the legislature’s solemn action in adopting these two statutes, and we are not empowered thus to do. ■ Mississippi Constitution (1890), Article I, section 1; Crippen v. Mint Sales Company, 139 Miss. 87, 103 So. 503 (1925).

The chancellor correctly sustained the ap-pellees’ general demurrer to appellants’ amended bill of complaint, and we affirm his action in doing so.

AFFIRMED.

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