author: MADDOX, Justice. TORBERT, Chief Justice MADDOX, Justice.

text:
    Ex parte OLD MOUNTAIN PROPERTIES, LTD. (In re APRIL INVESTMENTS, INC., a corporation v. OLD MOUNTAIN PROPERTIES, LTD., a Maryland limited partnership, et al.)
    80-919.
    Supreme Court of Alabama.
    April 9, 1982.
    Rehearing Denied June 11, 1982.

      William M. Acker, Jr., and Susan Dominick, Doughton, of Dominick, Fletcher, Yeild-ing, Acker, Wood & Lloyd, Birmingham, for petitioners.
    Jack E. Held of Sirote, Permutt, Friend, Friedman, Held & Apolinsky, Birmingham, for respondents.
   MADDOX, Justice.

This is a ruling on a petition for a writ of mandamus wherein the petitioner asked this Court to. direct the trial judge before whom this action was proceeding to change a ruling that that judge had made with regard to a certain discovery matter. Upon review, we find that the trial judge acted within the discretion vested in him as to these matters and, therefore, refuse to grant the writ asked for.

The petitioner is Old Mountain Properties, Ltd., a limited partnership organized and existing under the laws of the State of Maryland, with its principal place of business in Jacksonville, Florida. On October 15, 1980, April Investments, Inc., filed a complaint against Old Mountain Properties in the Circuit Court of Jefferson County. Pursuant to this complaint, April Investments filed notice to take the deposition of Old Mountain Properties by and through its general partner Charles A. Clarkson; the deposition was scheduled to be taken in Birmingham. Old Mountain Properties filed a motion for protective order, seeking protection from the taking of the deposition of the general partner in Birmingham instead of in Jacksonville, Florida, on the basis that the uncontested facts show Old Mountain Properties to be a foreign limited partnership, with its principal place of business in Jacksonville, Florida, and that Charles A. Clarkson, the named deponent, is a resident citizen of the State of Florida. The trial judge, after hearing oral argument on Old Mountain Properties’ motion for protective order, overruled the motion and ordered Old Mountain Properties to produce its general partner for deposition in Birmingham. It is from this ruling by the trial judge that Old Mountain Properties petitions this Court, asking us to order the trial judge to enter the protective order which they requested.

No rule or Alabama case provides a hard-and-fast rule on whether or not a nonresident corporate agent must come to the forum in order to give a deposition. This rule is especially applicable to matters of discovery, which are, and should be, left mainly to the discretion of the trial judge. As this Court stated in Campbell v. Regal Typewriter Co., Inc., 341 So.2d 120, 123, 124 (Ala.1976):

“The Alabama Rules of Civil Procedure permit very broad discovery and the rules must be broadly and liberally construed. Cole v. Cole Tomato Sales, Inc., 293 Ala. 731, 310 So.2d 210 (1975). However, ARCP 26(c) recognizes that the right of discovery is not unlimited, and gives the court broad power to control the use of the process and to prevent its abuse by any party. The rule does not allow an arbitrary limit on discovery, but instead vests the trial court with discretion in the discovery process. The question on review then becomes one of whether, under all of the circumstances, the trial court has abused this discretion. Tiedman v. American Pigment Corp., 253 F.2d 803 (4th Cir. 1957). In exercising its discretion, the trial court should be guided by the spirit of the rules, which is to permit full discovery so as to save time, effort and money and to expedite the trial with a view to achieving substantial justice for each litigant. First National Bank in Greenwich v. National Airlines, Inc., 22 F.R.D. 46 (D.C.N.Y.1958).
“The particular details of the discovery process must necessarily be left to the sound discretion of the trial court. The court may enter appropriate orders under ARCP 26(c) and if necessary, on a showing of undue burden, it may order alternative means of discovery. Burns v. Thiokol Chemical Corp., 483 F.2d 300 (5th Cir. 1973). Of course, the fact that it may be difficult to produce information which is discoverable is not a justification for disallowing the discovery of that information .... ”

Each request for a protective order must be considered on its own facts and equities; the trial court is in a better position to consider and weigh those factors than is an appellate court. This Court will not reverse the trial judge’s determination of such discovery issues such as here presented (whether to require the deponent to come to Birmingham), unless there is a clear showing that the trial judge abused his discretion in making his decision.

Protective orders, of the type asked for by the petitioner, are only issued “for good cause” shown by the person seeking the protection. See A.R.C.P. 26(c), and Assured Investors Life Insurance Co. v. National Union Associates, Inc., et al., 362 So.2d 228 (Ala.1978). The trial judge did not abuse his discretion by finding that “good cause” did not exist in this case. Petitioner had the burden, under Rule 26(c) A.R.C.P. of showing adequate justification for its protective order. In light of all the facts of this case, the single assertion that the defendant is a foreign limited partnership with its principal place of business in Jacksonville, Florida, and that the named deponent is a resident citizen of the State of Florida does not, automatically, show that the trial judge abused his discretion by requiring the deposition to be taken in Birmingham. The ruling of the trial court in denying the motion for protective order is hereby affirmed.

WRIT DENIED.

FAULKNER, JONES, SHORES, EM-BRY, BEATTY and ADAMS, JJ., concur.

TORBERT, C. J., dissents.

ALMON, J., not sitting.

TORBERT, Chief Justice

(dissenting).

I respectfully dissent from the denial of a protective order in this case. As correctly stated by the majority, protective orders are issued only “for good cause” shown by the person seeking the protection, A.R.C.P. 26(c), and the decision of the trial judge will not be overturned unless an abuse of discretion is shown. Campbell v. Regal Typewriter Co., 341 So.2d 120 (Ala.1976). Though trial judges are vested with a broad range of discretion in determining what circumstances will justify a variation from the general rule, this range is not unlimited.

The general rule regarding pretrial discovery, though not specifically addressed by any Alabama cases, has been enunciated on several occasions by the federal courts and it states that the deposition of a corporate officer or agent (or, as here, a member of a limited partnership) must be taken at the business’s principal place of business, absent peculiar circumstances justifying a change of venue. See, e.g., Salter v. Upjohn Co., 593 F.2d 649 (5th Cir. 1979); 8 C. Wright and A. Miller, Federal Practice and Procedure, § 212 at 410 (1970). It is fundamentally unfair to require a non-resident defendant, as here, to leave his place of business and travel at his own expense to the site of the deposition so that it can be taken more conveniently and less expensively to the plaintiff. Less v. Taber Instrument Corp., 53 F.R.D. 645 (W.D.N.Y.1971); Perry v. Edwards, 16 F.R.D. 131 (W.D.Mo.1954). This rule, of course, may be altered if justice requires, upon the showing of peculiar facts and circumstances, which showing then gives the trial judge broad discretion to determine what circumstances will justify a change in the site of the deposition. Here, however, the only possible rationale for requiring the deposition to be taken in Birmingham was that Old Mountain Properties, LTD., owned some real estate in Alabama, thus providing minimum contacts. No peculiar facts and circumstances, however, were shown by April Investments, Inc., to justify the request to depose the general partner of Old Mountain Properties, LTD., in Birmingham.

While the definition of “good cause” has not yet been decided in Alabama, I believe that once a non-resident corporate defendant seeking a protective order has demonstrated that it is, in fact, a non-resident defendant and that the plaintiff seeks to compel its officer or agent to come into the state to be deposed, it has prima facie supplied the “good cause” required by A.R.C.P. 26(c) to compel the issuance of the protective order. At this point, the non-movant must assume the burden of proof to show “peculiar facts and circumstances” to justify a variance from the general rule. Such circumstances might include a consideration of the relative hardships to the non-moving party should the protective order be granted, a conflict in the evidence as to the corporation’s principal place of business, the fact that the corporation’s officers visit Alabama regularly, and/or the fact that the plaintiff is impecunious. General Dynamics Corp. v. Selb Manufacturing Co., 481 F.2d 1204 (8th Cir. 1973); Baker v. Standard Industries, Inc., 55 F.R.D. 178 (D.P.R.1972); Connell v. Biltmore Security Life Insurance Co., 41 F.R.D. 136 (D.S.C.1966); Hirsch v. Glidden Co., 79 F.Supp. 729 (S.D.N.Y.1948). Here, Old Mountain Properties, LTD., clearly showed that it was a non-resident defendant, yet April Investments, Inc., made absolutely no showing of any peculiar facts and circumstances that would justify the taking of the deposition in Birmingham.

The decision of the majority, in effect, makes Alabama the only jurisdiction to allow, as a matter of course, a plaintiff to chose his own forum based upon the defendant’s minimum contacts, litigate all of the issues in his home territory, and compel a non-resident defendant to travel at his own expense to the forum whenever the plaintiff feels the need for discovery. This is not only contrary to the general rules of discovery, but is also, as a matter of policy, fundamentally unfair to the defendant.

Based upon the foregoing principles, I would hold that Old Mountain Properties, LTD., presented a prima facie showing of “good cause” for the issuance of the protective order; that April Investments, Inc., did not come forward with a showing of “peculiar facts and circumstances” to show why the deposition should be taken in Birmingham, Alabama, instead of the defendant’s principal place of business in Jacksonville, Florida; and that the trial judge thus erred in refusing to grant the requested protective order.

ON APPLICATION FOR REHEARING

MADDOX, Justice.

Old Mountain Properties, Ltd. has filed an application for rehearing and strongly insists that this Court has adopted a rule regarding discovery depositions of non-resident defendants which is inconsistent with the federal rule, and in a supplemental brief strongly contends that this Court, on the same day that the original opinion was released in this case, also released an opinion in Ex parte Richard E. Armstrong, et al. and that “[t]he two opinions are in irreconcilable conflict.”

Because of counsel’s strong insistence that the original opinion states an inaccurate rule of law, and because this Court received two requests to file amicus briefs from lawyers who normally represent defendants in civil litigation, we have re-examined the opinion in light of this additional concern. After re-examining the original opinion, and after considering other cases in which we have been called upon to review, by mandamus, trial court judgments in discovery matters, we are convinced that the original opinion states a correct principle of law; but because of counsel’s insistence to the contrary, we extend the opinion to answer some of counsel’s charges.

We first address counsel’s contention that Ex parte Armstrong 412 So.2d 772 (Ala.1982), is in irreconcilable conflict with the original opinion in this case. In Ex parte Armstrong, the Court, speaking through Mr. Justice Almon, with Chief Justice Torbert and Faulkner, Embry and Adams, JJ., concurring, did hold:

“Depositions of a corporation through its officers or agents should ordinarily be taken at the corporation’s principal place of business, especially when the corporation is a defendant. Salter v. Upjohn Company, 593 F.2d 649 (5th Cir. 1979). There may be circumstances that would justify the taking of a deposition somewhere other than the corporation’s principal place of business.”

As is quite apparent, the rule stated in Ex parte Armstrong is a general rule which applies to depositions of a corporation through its officers or agents. The fact that Ex parte Armstrong involved the deposition of a corporate president and this case involves the deposition of a general partner in a limited partnership is not necessarily a controlling factor, but, as the opinion in Ex parte Armstrong states, “there may be circumstances that would justify the taking of a deposition somewhere other than the corporation’s principal place of business.” Obviously, the rule stated in Ex parte Armstrong does not vary the general rule which this Court has consistently applied, that protective orders are issued only “for good cause” shown by the person seeking the protection, and that the decision of the trial judge will not be overturned except for a clear abuse of his discretion. Campbell v. Regal Typewriter Co., Inc., 341 So.2d 120, 123, 124 (Ala.1976). The Chief Justice, as he stated in his original dissent in this case, recognizes this general rule, but would find a clear abuse of the trial judge’s discretion in any case where a non-resident defendant is involved, because, as he said in his dissent on original deliverance, he feels “[i]t is fundamentally unfair to require a non-resident defendant, as here, to leave his place of business and travel at his own expense to the site of the deposition so that it can be taken more conveniently and less expensively to the plaintiff.” The general rule which this Court applies on petition for mandamus in cases involving discovery is succinctly stated in Assured Investors Life Insurance Co. v. National Union Associates, Inc., 362 So.2d 228, 231, 232 (Ala.1978):

“It is well settled that the Rules on deposition and discovery are to be broadly and liberally construed. Cole, [293 Ala. 731, 310 So.2d 210]. Rule 26(c), supra, recognizes, however, that the right to discovery is not unlimited, and the trial court has broad powers to control the use of the process to prevent its abuse by any party. See Campbell v. Eastland, 307 F.2d 478 (5th Cir. 1962); and Delong Corp. v. Lucas, 138 F.Supp. [805] 806 (S.D.N.Y.1956). The Rule does not allow an arbitrary limit on discovery; instead, it vests the trial court with judicial discretion in the discovery process. The question on review, then, becomes one of whether, under all the circumstances, the court has abused this discretion. Campbell v. Regal Typewriter Co., 341 So.2d 120 (Ala.1976). An appellate court may not decide whether it would, in the first instance, have permitted the prayed for discovery. Furthermore, it is unusual to find abuse of discretion in these matters. Swanner v. United States, 406 F.2d 716 (5th Cir. 1969); Tiedman v. American Pigment Corp., 253 F.2d 803 (4th Cir. 1958); Ex parte Alabama Power Co., 280 Ala. 586, 196 So.2d 702 (1967); and 35A C.J.S. Federal Civil Procedure §§ 532, 592.” (Emphasis added.)

It is clear that in Ex parte Armstrong, applying the general rule, the Court refused to supervise, by mandamus, the exercise of the trial judge’s discretion in that case, to require the president of Alabama Power Company to go to Mobile for the taking of a deposition in a personal injury action.

The “circumstances” of each case, therefore, are important in determining whether a trial judge has abused his discretion. As we have already pointed out, the ease of Ex parte Armstrong dealt with depositions of a corporate president, and in this case, the person sought to be deposed was the general partner of Old Mountain Properties Ltd., and the person sought to be deposed personally dealt with the plaintiff, April Investments, in the State of Alabama, and frequently came to Alabama to participate in transactions made the basis of the very action in which the discovery is sought. Needless to say, we considered all of these “circumstances” and we refuse to supervise the trial judge in this case. In short, on original deliverance, we applied the rule set out in Assured Investors Life Insurance Co. to the effect that “[a]n appellate court may not decide whether it would, in the first instance, have permitted the prayed for discovery.” We have opined that it is “unusual” to overturn a trial judge in discovery matters.

In brief, counsel for Old Mountain Properties argues:

“One practical point also needs emphasis. If the general partner of a little enterprise like Old Mountain Properties can be made to haul his records to Alabama, then the president of Ford Motor Company can be made to do the same. It would be less burdensome for Ford to send from Detroit an executive with all of Ford’s internal memoranda and engineering data on an alleged manufacturing defect than for a small entrepreneur to send its only employee from Jacksonville. Does this Court actually think Hon. Thomas E. Huey, Jr. would have threatened a default judgment against Ford by denying it a protective order under these circumstances, even where it has facilities in Alabama? If the opinion of April 9 stands, Ford can expect it.”

Counsel expresses a fear that trial judges may not exercise fairness when ruling on requests for protective orders involving non-resident defendants. Counsel overlooks the fact that in Ex parte Armstrong, a Mobile Circuit Judge refused to require the president of Alabama Power Company, a resident of Alabama, to go to Mobile.

Since receiving Old Mountain Properties’ request for rehearing, this Court has decided another case involving a discovery matter in which this Court has again upheld the action of the trial judge. In Ex parte McTier, 414 So.2d 460 (1982), this Court refused to issue mandamus to compel a trial judge to order a defendant to answer an interrogatory which the trial judge considered too broad and oppressive. It is clear, therefore, that this Court has consistently followed the rule set out in Assured Investors Life Insurance Co. v. National Union Associates, Inc., 362 So.2d 228, 231, 232 (Ala.1978).

If trial judges clearly abuse their discretion, mandamus is appropriate, and in an appropriate case, we would be duty bound to grant relief, but as this Court has pointed out, it will only be in the “unusual” case that we will do so. That is the rule stated in the original opinion in this case. That is the rule stated in Ex parte Armstrong. That is the rule stated in Ex parte McTier.

The application for rehearing is due to be overruled and the requests by those who are not parties to this litigation to file amicus briefs are also due to be denied.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED; REQUESTS TO FILE AMICUS BRIEFS DENIED.

FAULKNER, JONES, SHORES, EM-BRY, BEATTY and ADAMS, JJ„ concur.

TORBERT, C. J., dissents.

ALMON, J., not sitting.


source: Caselaw Access Project

author:
PER CURIAM.
      BEATTY, Justice

license: Public Domain

text:
    Frederick ROHRER, et al. v. John ALLEN and Hilma Allen.
    80-901.
    Supreme Court of Alabama.
    April 23, 1982.
    Rehearing Denied June 11, 1982.
    W. Donald Bolton, Jr., of Foster, Brackin & Bolton, Foley, for appellants.
    Charles C. Partin of Stone, Partin, Gra-nade & Crosby, Bay Minette, for appellees.
   PER CURIAM.

The defendants appeal from an adverse judgment in the plaintiffs’ action to quiet title to a parcel of land which plaintiffs claimed by adverse possession by prescription. See Fitts v. Alexander, 277 Ala. 372, 170 So.2d 808 (1965). We affirm.

The land in question consists of ten acres located in Baldwin County. The evidence for the plaintiffs showed that the defendants, Frederick Rohrer and others, derived legal title through one Walter Pederson, and that Rohrer and Pederson had paid the taxes on the parcel. In 1940 John and Hilma Allen, husband and wife, moved onto the land. They cleared one acre in the northwest corner and built a small log cabin, and thereafter cleared about an acre per year. Between 1940 and 1958, they continuously used about one and one-quarter acres around the house site and rotated the planting of a garden among the remaining acreage. The Allens sharecropped some of the land from 1940 until 1958, when they moved to Fairhope. A mentally retarded relative of John Allen’s lived in a log barn for most of the time the Allens were not living at the place. The Allens moved to Fairhope for economic necessity, and then to Robertsdale, and to Elsanor. The evidence is not disputed that they lived away from the land for approximately five years. Shortly after they moved their log cabin burned, destroying the possessions they had left there. During this period of their absence, nevertheless, they visited the place approximately every other week and sometimes every week. There was no dwelling house on the property from 1958 until around 1963, although the log barn was there. During that period, a relative who lived nearby used a portion of the property for a pea patch. In 1963, they began building another house on the site of the log cabin, and between 1963 and 1978, the property was leased by them to others for farming. The Allens’ mailbox, bearing their name, had been located on the road fronting the land for forty years, and it was established that the property had a community reputation as the “Allen place.” Additionally, there was testimony to the existence of fences which, although they did not fully enclose the land, were moved from time to time to protect rotating vegetable gardens from stock running at large.

In its decree the trial court found that the plaintiffs have been in the “actual, open, hostile, notorious, continuous, and exclusive possession of the tract ... since the 1940’s.... ” On this appeal the defendants challenge that finding as having no factual basis; that is, that the evidence does not support a finding that the plaintiffs’ possession was continuous over the necessary twenty-year period. Our study of the record reveals that there was substantial evidence to support the trial judge’s determination. The most critical issue is whether, as a matter of law, the evidence showed a continuity of possession.

The following evidence was given at trial to show that, even though the Allens did not reside on the property from 1958 to 1963, they still exercised dominion and possession over the property during that period:

(1) They went back and visited the land practically every weekend. On those visits they would cut grass and clean up and many times camped on the land.

(2) Mr. Allen, from time to time, returned to the land to check on things and to visit his brother.

(3) When the family moved to Fairhope, they left their furniture and possessions in the cabin located on the land, until the cabin burned and the possessions therein were destroyed.

(4) After the cabin burned, the family cleared away the rubbish in preparation to build a new house.

(5) The Allens’ log barn continued to exist on the property with Mr. Allen’s brother, Jason, living in it part of the time.

(6) The Allens’ mailbox, bearing their name, remained on the road fronting the property.

(7) One neighbor testified that the Allens had farmed the land practically every year since they first moved there, and that they had things planted on the land while they were gone.

(8) Another neighbor testified that he saw the Allens around the property so much that he did not know they had ever moved from it.

(9) A third neighbor testified that the Allens had always used the land in the same way as the surrounding landowners, and that it was his understanding that the Al-lens had continued to own the place during the period that they didn’t actually reside there.

In Turnham v. Potter, 289 Ala. 685, 690, 271 So.2d 246 (1972), this Court stated:

“It is not necessary to physically reside upon land to establish title by adverse possession. Moorer v. Malone, 248 Ala. 76, 26 So.2d 558 (1946). Land need only be used by an adverse possessor in a manner consistent with its nature. Alabama State Land Co. v. Matthews, 168 Ala. 200, 53 So. 174 (1910). As was said in Matthews:
‘[Ojpenness and notoriety and exclusiveness of possession are shown by such acts in respect of the land in its condition at the time as comport with ownership— such acts as would ordinarily be performed by the true owners in appropriating the land or its avails to his own use * * *.’ 168 Ala. 201, 53 So. 174.” (Emphasis added.)

A similar principle was stated by this Court in the case of Fuller v. Yancey, 281 Ala. 126, 129, 199 So.2d 666 (1966), wherein we stated:

“We also observed in Morris v. Yancey, 267 Ala. 657, 104 So.2d 553 (1958):
“ ‘In regard to the evidence of the defendant going to show possession of the entire section, we observe that the kind of possession is determined by the condition of the land, not with reference to its being changed into another state, but its then present state. Openness, notoriety and exclusiveness are shown by acts which at the time, considering the state of the land, comport with ownership such as would ordinarily be done by an owner for his own use and for the exclusion of others. Kidd v. Browne [200 Ala. 299, 76 So. 65], supra.’
******
“It appears from the evidence that defendants treated the land in every respect as the owners thereof, or at least the jury could have so found from the evidence. This evidence tended to show openness, notoriety, and exclusiveness by acts which at the time, between 1927 — 49, could, considering the state of land, comport with ownership, such as would ordinarily be done by an owner for his own use to the exclusion of others.”

This Court stated further in Kubiszyn v. Bradley, 292 Ala. 570, 575, 576, 298 So.2d 9 (1974):

“The erection and maintenance of a fence is one of the clearest symbols of possession. Graham v. Hawkins, 281 Ala. 288, 202 So.2d 74 (1967). Cutting of timber, although it may not, standing alone be sufficient, is one factor to consider. Cf. Lay v. Phillips, 276 Ala. 273, 161 So.[2d] 477 (1964); Smith v. Brown, [282 Ala. 528, 213 So.2d 374] supra. Cultivation is an act of possession or ownership, although not conclusive in all cases. Cambron v. Kirkland, 287 Ala. 531, 253 So.2d 180 (1971). In sum, to constitute an actual possession of land, the question is whether the adverse claimant has put the land to such use as it is reasonably adapted. James v. Mizell, 289 Ala. 84, 265 So.2d 866 (1972); Alabama State Land Co. v. Matthews, 168 Ala. 200, 53 So. 174 (1910). Although possession must be continuous, it is not necessary that each type act be continuous. It would be unreasonable to require a landowner to use continuously all the land enclosed within his fences. James v. Mizell, supra.
“In applying these principles to this case, our oft-stated rule of review is that when the trial court has heard the evidence orally, its decree is favored with a presumption of correctness, which will not be disturbed on appeal unless plainly erroneous or manifestly unjust. Morgan v. Larde, 282 Ala. 426, 212 So.2d 594 (1968); Butts v. Lancaster, 279 Ala. 589, 188 So.2d 548 (1966). When so viewed, we think there is ample evidence which would establish that the Bradleys and their predecessors in title have held adverse possession of the disputed property east of the road and up to the fence line for a period of considerably more than twenty years.” (Emphasis added.)

In view of the principles set out in these cases, we are of the opinion that under the evidence, the trial court could have found that the Allens had established adverse possession under the facts of this case.

“ ‘Where the trial court makes findings after hearing witnesses ore tenus, every presumption will be indulged in favor of the court’s findings, and its findings will not be disturbed on appeal unless they are found to be palpably wrong.’ Russell v. Russell, 361 So.2d 1053, 1054 (Ala.1978).”

The finding in this case is not palpably wrong, manifestly unjust or contrary to the great weight of the evidence offered at trial; therefore, the judgment entered based upon that finding of fact is due to be affirmed.

AFFIRMED.

MADDOX, FAULKNER, ALMON, SHORES, EMBRY and ADAMS, JJ., concur.

TORBERT, C. J., and JONES and BEAT-TY, JJ., dissent.

BEATTY, Justice

(dissenting):

I respectfully dissent.

In 1940 John and Hilma Allen, husband and wife, moved onto the land in question. They cleared one acre in the northwest corner and built a small log cabin, and thereafter cleared about an acre per year. Between 1940 and 1958 they never used the entire parcel at any one time, but rotated the planting of a garden. The only part of the parcel continuously used was about one and one-quarter acres around the house site. The Allens did sharecrop some of the land from 1940 until 1958 when they moved to Fairhope. A mentally retarded relative of John Allen’s lived in a log barn for most of the time the Allens were not living at the place. They removed to Fairhope from economic necessity, and then to Robertsdale and to Elsanor, and so they lived away from the land for approximately five years. Shortly after they moved, their log cabin, which had rotted down, burned, destroying the possessions they had left there. During this period of their absence, nevertheless, they visited the place approximately every other week and sometimes every week. There was no dwelling house on the property from 1958 until around 1963, although the log barn was there. During that period no one used the property except for one relative who lived nearby who had a small pea patch on part of the land. At the end of that period they began building another house on the site of the log cabin, and between 1963 and 1978 the property was leased by them to others for farming. The Allens’ mailbox, bearing their name, had been located on the road fronting the land for forty years, it is true, and it was also established that the property had a community reputation as the “Allen place.” There was also testimony to the existence of fences which, although they did not fully enclose the land, were moved from time to time to protect rotating vegetable gardens from stock running at large.

In its decree the trial court found that the plaintiffs have been in the “actual, open, hostile, notorious, continuous, and exclusive possession of the tract ... since the 1940’s.... ” On this appeal the defendants have challenged that finding as having no factual basis; that is, that the evidence does not support a finding that the plaintiff’s possession was continuous over the necessary twenty-year period. My study of the record lends support to that position.

The law places a strict burden upon one who claims title by adverse possession because all presumptions and intendments favor the title, and possessions are not presumed to be hostile to the title. Rabren v. Mudd, 285 Ala. 531, 234 So.2d 549 (1970); Dothard v. Denson, 72 Ala. 541 (1882). Each of the elements, correctly described by the trial court, must be proved, and proved by clear and convincing evidence. Machen v. Wilder, 283 Ala. 205, 215 So.2d 282 (1968); Raper v. Belk, 276 Ala. 371, 162 So.2d 466 (1964); Walthall v. Yohn, 252 Ala. 262, 40 So.2d 705 (1949). The element of continuity is as essential as any other of adverse possession:

“Indeed, ‘the continuity of the adverse possession is the very essence of the doctrine and policy of the statutes of limitation,’ for ‘whenever a party quits the possession the seisin of the true owner is restored, and a subsequent wrongful entry constitutes a new disseisin.’ ” (Snow v. Bray, 198 Ala. 398, 73 So. 542, quoting from Henry v. Brown, 143 Ala. 446, 39 So. 325.)

And in Hoyle v. Mann, 144 Ala. 516, 522, 41 So. 835 (1905), this Court, writing to the element of continuity, stated:

“The very gist of the claim by adverse possession is that for [ten] years the claimant has occupied the land so openly, visibly, adversely, notoriously, and continuously that the owner is presumed to have known it. It would be a strange principle then, which would allow a man to go on the land, set up adverse possession, and then leave it, and claim that his possession remained adverse, merely because he intended to return.”

The Court went on to require that one leaving the land must “keep his flag flying and present a hostile front to adverse pretensions” leaving “under circumstances indicating that he has not left possession.” If a person evacuated a place, “leaving no indicia of a continuing possession,” observed this Court in Perry v. Lawson, 112 Ala. 480, 484, 20 So. 611 (1895), “this would be an abandonment of his possession.” (Emphasis added.) Of course, the elements of adverse holding are manifested “by such acts in respect of the land in its condition at the time as comport with ownership — such acts as would ordinarily be performed by the true owner in appropriating the land or its avails to his own use.” Alabama State Land Co. v. Matthews, 168 Ala. 200, 53 So. 174 (1910). So the controlling question before us is whether the facts disclosed, which are essentially undisputed, are sufficient as a matter of law to establish acts which meet the requirement of continuity.

Regardless of what some neighbors thought the Allens were doing, by Mrs. Allen’s own testimony it is clear that the element of continuity was absent during the period between 1958 and sometime around 1963. She moved to Fairhope with the children in April of 1958 and remained there seventeen months. Mr. Allen lived with her there beginning at the end of the following summer and lived with her two years, and at the end of that period they moved to Robertsdale where they lived for a few months. At the end of that period they moved to Elsanor where they built a house with money furnished by two of the children. They lived in Elsanor for something less than two years, according to her testimony, and moved back to the farm sometime between 1961 and 1963 during the month of July.

During the period of time they had vacated the property, their visits from time to time back to the farm were described as “camping,” sitting in the backyard by the log barn, building a fire and cooking snacks. During part of that time her brother-in-law (who had the adjoining place) planted snap-beans in a corner on the west side, just using it as a little garden spot. And for some indeterminate time during their absence another brother-in-law lived on the property when not in the Veterans Administration Hospital at Gulfport and when not with them in Fairhope. They had no lease agreement with him because “he was family.” Cf. Kerlin v. Tensaw Land & Timber Co., Inc., Ala., 390 So.2d 616 (1980).

The fact that the mailbox remained while they were away establishes no element of continuity. There is no evidence that it was anything but a container for the receipt of mail, and the record fails to disclose that while they were away from the land they received any mail through it. Obviously they did not because they lived somewhere else, first Fairhope, then Roberts-dale, and later Elsanor.

It is clear that any claim of title in the plaintiffs under the twenty-year prescription period beginning in 1940 must fail because of the evidence showing that they vacated the property in 1958. And while the place was used for farming between 1940 and 1958, and between 1963 and 1978, they neither planted nor farmed the place between 1958 and 1963, but only camped occasionally around the home place. Thus, their use of the land was distinctively different than that of the other periods. Such a “possession” was constructive only, and cannot support adverse possession. Powell v. Hopkins, 288 Ala. 466, 262 So.2d 289 (1973). But even assuming that the occasional returns constituted acts which “flew their flag,” it is obvious that any such indi-cia of possession were not continuous. Accord, Tensaw Land & Timber Co. v. Rivers, 244 Ala. 657, 15 So.2d 411 (1943). It is equally clear that the twenty-year prescriptive period did not run in plaintiffs’ favor from 1963 or thereabouts until this suit was filed in May 1980.

Under this state of the record, therefore, it was error for the trial court to deny the defendants’ motion for a directed verdict and motion for judgment notwithstanding the verdict. For that reason the judgment in favor of the plaintiffs on their complaint should be reversed.

The defendants’ counterclaim in the form of an ejectment action was likewise disposed of erroneously. The record discloses that the defendant Rohrer adduced evidence of title to the parcel which was undisputed. The defendants should be allowed the opportunity to proceed with proof of damages under their ejectment counterclaim if they so desire.

TORBERT, C. J., and JONES, J., concur.


author: BEATTY, Justice.

text:
    Arthur Brennan MALLOY v. Thomas C. SULLIVAN.
    81-436.
    Supreme Court of Alabama.
    April 23, 1982.
    Rehearing Denied July 2, 1982.
    Arthur Brennan Malloy, pro se.
    Robert S. Lamar, Jr. of Ball, Ball, Duke & Matthews, Montgomery, for appellee.
   BEATTY, Justice.

Appeal by the plaintiff, in a malpractice action brought against an attorney, from summary judgment rendered in favor of the defendant. We affirm.

The complaint arose out of a criminal prosecution against the plaintiff in the United States District Court for the Middle District of Alabama. In that proceeding the defendant was charged with violating the provisions of Title 18, § 2314, United States Code, i.e., unlawfully transporting forged securities in interstate commerce. The defendant in this case, a lawyer, was appointed by the federal trial court to represent the plaintiff in that criminal prosecution. Following a non-jury trial, the plaintiff was found guilty and sentenced to a term of imprisonment of nine years. An appeal was taken to the United States Court of Appeals for the Fifth Circuit and, when that Court affirmed the conviction, a petition for writ of certiorari was filed with the United States Supreme Court. That Court denied the writ.

Subsequently, Malloy brought this action in our state court against the attorney who had defended him, charging negligence in the defense of the federal prosecution. The state trial court dismissed the action for lack of jurisdiction. The plaintiff appealed to this Court which reversed and remanded on the ground that our state court did possess jurisdiction. Malloy v. Sullivan, Ala., 387 So.2d 169 (1980).

Following remand the defendant moved for summary judgment. In support of that motion the defendant adduced (1) an affidavit of Maury D. Smith, (2) a copy of the brief filed by the defendant in support of plaintiff’s appeal to the United States Court of Appeals, a copy of the brief of the United States in that appeal, and a copy of the petition for a writ of certiorari filed in the United States Supreme Court by the defendant on behalf of the plaintiff. The plaintiff elected not to file any material on the issue of professional negligence in opposition to the defendant’s motion notwithstanding the trial court’s full and detailed explanation to him of this opportunity. After a hearing on this motion, the trial court granted the defendant’s motion and entered summary judgment in his favor. The plaintiff has appealed from that judgment, maintaining that a question of fact does exist on the issue of negligence in the defendant’s representation of him.

The proposition is well understood that the party adverse to a summary judgment motion may not rest upon his pleadings but must set forth specific facts showing a genuine issue for trial. “If he does not so respond, summary judgment, if appropriate, shall be entered against him.”

A review of the entire record supports the trial court’s conclusion that summary judgment was appropriate.

The principle which governs a legal malpractice action based upon negligence is the same as in any other negligence action, the plaintiff having the burden of proving a duty, its breach which caused injury, and damages. Herston v. Whitesell, Ala., 374 So.2d 267 (1979). The lawyer is not bound to exercise extraordinary diligence, but only reasonable care and skill. This is the measure of duty and liability. Goodman & Mitchell v. Walker, 30 Ala. 482 (1857); see also 7 Am.Jur.2d, Attorneys at Law § 199 (1980).

The affidavit of Mr. Smith was that of a practicing lawyer of many years’ experience in the trial of criminal and civil actions, who had examined the entire transcript of the federal prosecution, and who concluded that the defendant’s conduct of plaintiff’s defense was that which any skilled and prudent attorney would have exercised in the same representation and under similar circumstances. Mr. Smith’s opinion was, in fact, that the defendant had exceeded the diligence required, “particularly in exhausting all appellate remedies,” and that defendant’s representation neither caused nor contributed to plaintiff’s conviction or to the sentence imposed.

The brief in support of plaintiff’s appeal to the United States Court of Appeals is extensive, containing a summary of the testimony of the eleven witnesses in the federal trial together with extensive argument and citation of legal authorities on the legal issues suggested by the facts recited, i.e., the sufficiency of the evidence to sustain a conviction and whether the sentence was excessive. The Government brief in response directly traversed the defense’s brief on points of fact and law on the issue of guilt. On the sentencing aspect, the defendant received nine years when the maximum of ten years and a $10,000.00 fine was possible. Plaintiff was shown to have been previously convicted of seven felonies. In the federal system the trial court is vested with broad discretion in sentencing.

The same extensive consideration was applied in the petition and brief filed with the United States Supreme Court on plaintiff’s behalf. Based upon the extensive review of the evidence contained in the briefs, we cannot conclude that there is present any fact upon which an inference of professional neglect could have led to, or contributed to, the plaintiff’s conviction and sentence.

The record shows that after the United States Supreme Court had denied certiorari plaintiff filed in federal district court a motion to vacate his sentence and judgment against him on the grounds

“that he was secretly indicted by a grand jury, that the government attempted to shore up a weak case by having a co-defendant testify against him, that the testimony of the co-defendant was proven to be erroneous, and that the government relied upon fingerprint evidence alone to convict him, and that there was no direct evidence presented by the government to support a conviction. He adds the further allegations in his motion that the court erred in refusing to grant him a motion for acquittal, that the evidence presented was insufficient to show possession, and that the evidence did not prove that the movant caused the interstate transportation of an altered security. Further, that he was denied a fair and impartial trial due to the actions of the court.”

This motion was denied, the reviewing magistrate observing that:

“The matters and things which Malloy attempts to present by this motion should have been presented upon his direct appeal to the Fifth Circuit Court of Appeals .... ”

These allegations are neither supported by the record nor do they demonstrate the slightest inference of counsel’s negligence. To the contrary, the record illustrates a conscientious effort to represent an accused in a case difficult to defend.

Let the judgment be affirmed.

AFFIRMED.

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


author: EMBRY, Justice. TORBERT, Chief Justice

text:
    Marion Lloyd WINNER, II, et al. v. MARION COUNTY COMMISSION.
    81-188.
    Supreme Court of Alabama.
    May 7, 1982.
    Rehearing Denied June 11, 1982.

      C. Harry Green, Hamilton, for appellants.
    James K. Davis of Fite, Davis & Atkinson, Hamilton, for appellee.
   EMBRY, Justice.

The sole question for review is whether the lease of a building for a term of years, with an option to renew thereafter, is a “sale or disposal” of property within the meaning of Act No. 80-128, a local act requiring competitive bidding for certain property transactions by the County Commission of Marion County.

The Commission entered into a lease agreement with Hamilton Aviation, Inc., on 17 August 1981, wherein the Commission agreed to lease to Hamilton the old Air Force fire station, located on the north ramp of Marion County Airport, for a term of ten years, with the option of Hamilton to renew the lease upon expiration of that period. Plaintiffs, being citizens who also desire to rent the old fire station, filed this action seeking to enjoin the Commission from relinquishing possession to Hamilton under the terms of the lease and, further, to require that the Commission lease the property by open bid in the manner prescribed by Act No. 80-128. The trial court refused this requested relief, granting defendants’ motion for summary judgment.

On appeal, the respective contentions of the parties are directed to the single issue of whether the Commission’s lease to Hamilton of the old fire station is a property transaction which Act No. 80-128 requires to be accomplished by open bidding. The pertinent provisions of Act No. 80-128 read:

“Section 1. The provisions of this act shall only apply in Marion County.
“Section 2. All contracts for the sale or disposal of real property, tangible personal property, equipment or other items owned by or under the control of the county commission shall be let by free and open competitive bids. The chairman of the county commission shall certify to the description and condition of said property, shall give jurisdiction in writing for the disposal of the property, shall estimate the value of the property and shall keep the certification as a part of the permanent record of the commission.
“Section 2.[] Every proposal to make a sale covered by this act shall be publicly advertised at least twice at two-week intervals in a newspaper of county-wide circulation and a newspaper of statewide circulation in advance of the date fixed for receiving bids. The advertisements shall state a description of the property to be sold along with the date, time and place of opening of the sealed bids.
“Section 3. All bids shall be publicly owned [sic, opened] and all bidders shall be entitled to be present in person or by representation. Any agreement or collusion among bidders or prospective bidders or any other person in restraint of freedom of competition, by any agreement to bid at a fixed price or to refrain from bidding, shall render the bids of such bidders void and shall cause such bidders to be disqualified from submitting further bids. Any disclosure prior to opening the sealed bids of the terms of a bid shall render the proceedings void.
“Section 4. All proceeds from the sale or other disposition of the property under this act shall be deposited in the general fund of the county.
“Section 6. Any taxpayer of the area within the jurisdiction of the county and any bona fide unsuccessful bidder on a particular contract shall be empowered to bring a civil action in the appropriate court to enjoin execution of any contract entered into in violation of the provisions of this act.” (Emphasis added.)

Plaintiffs contend that by employing the terms “disposal” and “disposition” in conjunction with the word “sale,” the Legislature apparently intended to encompass transactions other than a “pure or straight sale,” which we take to mean an exchange of property for cash or cash equivalent. Citing numerous reference materials and cases from other jurisdictions, plaintiffs further maintain the term “disposal” implies not only a permanent alienation, but may also denote a temporary transfer, such as a pledge, assignment, mortgage or other passing over of property into the control of another.

Most pointedly apt of the cases advanced by plaintiff is Rider v. Cooney, 94 Mont. 295, 23 P.2d 261 (1933), from which plaintiffs note the following language:

“... When a lease is granted upon the public lands of the state, an interest or estate in the lands has been alienated, and therefore the leasing of the lands of the state for a term of years is the disposal of an interest or estate in the lands within the provisions of our Constitution.”

However, that statement is qualified by the preceding sentences of the paragraph from which it is taken, as follows:

“It is contended that even though the leasing of the state lands grants an interest in the land, nevertheless, because at the end of the term the state is reinvested with title and possession, no disposal of the lands is made, and that, therefore, the constitutional prohibition is inapplicable in the circumstances under consideration. It is said that the word ‘dispose’ means ‘to get rid of, to put out of the way, to finish with, to alienate, to part with.’ Webster’s Dictionary. If the constitutional prohibition ran only against disposal of the lands and was silent upon the question of the disposal of an interest or estate in the lands, there would be merit to the contention. The constitutional prohibition, however, is against the disposal of the lands, or an interest or an estate therein. .. . ” (Emphasis added.)

In any event, we need not look beyond decisions of this court in order to reach a proper construction of the questioned language of Act No. 80-128. In Reynolds v. State, 73 Ala. 2 (1882), this court remarked:

“The words of a statute are to be understood in their popular significance, when nothing appears to the contrary. Mayor, etc. v. Winter, 29 Ala. 651; Thurman v. The State, 18 Ala. 276; Favers v. Glass, 22 Ala. 621 [58 Am.Dec. 272]. To dispose of, in popular sense, when used in reference to property, means to part with the right to or ownership of it; in other words, a change of property. If this does not take place, it would scarcely be said the property is disposed of. .. .”

Applying a broader interpretation in a will dispute, in Stay v. Stay, 201 Ala. 173, 77 So. 699 (1918), this court observed:

“The courts have not committed themselves to any inflexible definition of the words “dispose of,” as comprehending a grant of power operating upon property. It seems to be agreed, however, that ‘dispose of’ is a more generic term than sell or transfer, and imports a larger power, unless restricted by the context, or by the obvious purpose of the grantor....
“In the present case we can entertain no doubt but that the testatrix intended to arm Mrs. Stay with a plenary power to sell, mortgage, or lease the entire estate at her discretion.... ” (Emphasis added.)

The limitation of context noted in Stay is of particular importance when the court is called upon to construe statutory language. It is the duty of the court to construe every word in each section of a statute consistent with the other sections in pari materia. State Dept. of Indus. Relations v. Deslattes, 372 So.2d 867 (Ala.Civ.App.1979).

Although the phrases “sale or disposal” and “sale or other disposition” are used in the first sentences of Sections 2 and 4 respectively, the last sentence of Section 2 refers only to the “disposal” of the property. And the first sentence of the second Section 2 begins: “Every proposal to make a sale covered by this act.. .. ”

A logical reading leads one to the conclusion that the Legislature used these terms somewhat interchangeably. Support for this conclusion, based on subsequent usage of the same terminology in the instrument, is drawn from the opinion on rehearing in Rutledge v. Crampton, 150 Ala. 275, 43 So. 882 (1909), wherein it was said:

“Our attention is called to the case of Phelps v. Harris, and authorities there cited and considered in 101 U.S. 370, 26 L.Ed. 855, wherein it is held, and properly so, that the right to sell and dispose of the property gave the right to partition, and wherein a proper distinction is made between the words ‘sell’ and ‘dispose’; but such cannot be the meaning of the word ‘dispose’ in the case at bar, for the words as used in the will of Bell are synonymous, for, while it says ‘sell and dispose’ of as she may think best, it further says, ‘either at public or private sale,’ thus directing the method of disposition and limiting it to a conveyance,..."

Although Rutledge concerned construction of a will, the rules of limitation by context and by subsequent usage of the same language in such instruments are not dissimilar to those rules of statutory construction governing context limitation and subsequent language.

We do not conclude, however, that the Legislature, used the term “disposal” in Act No. 80-128 quite so narrowly as that term was interpreted to have been employed in Rutledge. Rather, we think the Legislature intended the distinction, referred to in Rutledge, which was drawn by the United States Supreme Court in Phelps v. Harris, 101 U.S. 370, 25 L.Ed. 855 (1879), as follows:

“Now, whilst it may be true that when the words ‘disposed of are used in connection with the word ‘sell,’ in the phrase ‘to sell and dispose of’ they may often be construed to mean a disposal by sale; it does not necessarily follow that when power is given generally, and without qualification by associated words, to dispose of property, leaving the mode of disposition to the discretion of the agent, that the power should not extend to a disposal by barter or exchange, as well as to a disposal by sale. The word is nomen generalissimum, and standing by itself, without qualification, has no technical signification.... [T]his would include the power to barter or exchange as well as the power to sell.”

Although the Supreme Court in Phelps did not construe “to dispose of” as synonymous with “to sell,” we note that the court’s “broader” reading of the phrase makes reference only to transactions involving a parting of ownership, such as barter or exchange of property.

Also of significance is the court’s reference to “qualification by associated words,” a principle which this court has embraced through application of the doctrine of “noscitur a soeiis” in construing statutory language. This doctrine holds that where general and specific words which are capable of an analogous meaning are associated one with the other, they take color from each other, so that the general words are restricted to a sense analogous to that of the less general. State v. Western Union Telegraph Co., 196 Ala. 570, 72 So. 99 (1916); C. Sands, Sutherland Statutory Construction § 47.16 (4th ed. 1973).

For the foregoing reasons, we conclude that a “disposal” or “disposition” of property, for which competitive bidding is required in Marion County under Act 80-128, involves a parting with ownership of the property, and would not, therefore, include a lease for a term of years.

We are constrained to comment on one other point raised by plaintiffs. They contend that if Act 80-128 is held inapplicable to the lease in question, the county commission may avoid the requirements of the act as to almost any property transaction by structuring it as a lease, rather than as a sale. However, in determining whether there has been compliance with Act 80-128, the courts are certainly not limited to deciding whether the form in which the commission has couched a particular transaction constitutes a sale or disposal of property, but may look to the substance of the transaction to determine its true nature. This approach of “substance over form” is often taken by the federal courts in tax cases when holding that certain transactions structured as leases are, in fact, disguised installment sales. 4A J. Mertens, The Law of Federal Income Taxation § 25.109 (1979 Rev.), and cases cited therein.

In the instant case, however, it is unnecessary for us to engage in such an analysis, because plaintiffs have not argued that the specific instrument in question is anything other than what it purports to be, a lease for a term of years.

The judgment of the trial court is due to be and is hereby affirmed.

AFFIRMED.

FAULKNER, JONES, BEATTY and ADAMS, JJ., concur.

TORBERT, C. J., and MADDOX, AL-MON and SHORES, JJ., dissent.

TORBERT, Chief Justice

(dissenting).

I respectfully dissent. I cannot agree with the majority that the phrase “sale or disposal” is so narrow as to include only a complete parting of ownership. Previous Alabama cases, as well as cases of other states and of the United States Supreme Court (all of which, curiously, are cited by the majority) have held that the term “disposal of property” means a giving up of control of property, whether complete or temporary, and it clearly has been held a broad enough term to encompass leases for a term of years or otherwise.

In Rider v. Cooney, 94 Mont. 295, 23 P.2d 261 (1933), the Montana Supreme Court held that “the leasing of the lands of the state for a term of years is the disposal of an interest or estate in the lands.... ” (Emphasis added.) The majority, however, attempts to qualify the holding by quoting the immediately preceeding language of that court. Yet upon close scrutiny of that language, it is quite apparent that it supports my position and the language in the holding of that case. The Rider opinion states: “It is contended that even though the leasing of the state lands grants an interest in the land, ... no disposal of the lands is made.... If the constitutional prohibition ran only against disposal of the lands ..., there would be merit to the contention” (emphasis added). Reynolds v. State, 73 Ala. 2 (1882). In Stay v. Stay, 201 Ala. 173, 77 So. 699 (1918), this Court, as cited by the majority, held that “ ‘dispose of’ is a more generic term than sell or transfer, and imports a larger power, unless restricted by the context....” The Court concluded by holding that this power included the right to sell, mortgage, or lease. Furthermore, in the present case, there is no “restrictpon] by the context” to cause one to interpret disposal in any manner other than as it has always been interpreted.

Finally, the majority cites Phelps v. Harris, 101 U.S. 370, 25 L.Ed. 855 (1879), which plainly states that the power “to sell or dispose” would naturally “include the power to barter or exchange as well as the power to sell.” This language gives no credence to the majority’s holding that “dispose” is interchangeable with “sell.”

The very language of the act itself makes it clear that the Legislature intended to cover more than straight sales; otherwise, the phrase “sale or disposal” would have been redundant. Taking the logical meaning of the words used in the act and following prior Alabama Supreme Court interpretations, I can see no other reasonable interpretation of the phrase “sale or disposal” than to say that a lease for a term of years falls squarely within the coverage intended by the Legislature when it passed Act No. 80-128. For these reasons, I feel that the decision of the trial court should be reversed.

MADDOX, SHORES and ALMON, JJ., concur.

      . Through an apparent oversight in drafting, the Legislature designated two sections of the act “Section 2.” When the latter of these two sections is discussed in this opinion, it will be referred to as “the second Section 2.”


author:
PER CURIAM.
      MADDOX, Justice

text:
    Cecil F. ADAM, et al. v. SHELBY COUNTY COMMISSION, et al.
    80-178.
    Supreme Court of Alabama.
    May 14, 1982.
    Rehearing Denied June 11, 1982.
    James H. Weaver, Jr. and Carol J. Milli-can, Birmingham, for appellants.
    Carl E. Johnson, Jr., Bishop, Colvin & Johnson, Birmingham, for appellees.
   PER CURIAM.

This is an appeal from a summary judgment adverse to the appellants in an action in which they challenged the constitutionality of Act Number 816, Acts of Alabama 1965, Regular Session, which created the Shelby County Planning Commission. There are two issues involved:

“(1) Where a party moves for a summary judgment, can the trial court deny the motion and enter, on its own motion, a summary judgment against the movant? “(2) Did the trial court err in rendering summary judgment for the defendants under the facts which were before the court at that time?”

The facts of this case are simple: Act 816 was enacted by the state legislature on September 2, 1965; it created the Shelby County Planning Commission. The act basically provided that the planning commission would consist of seven members — two to be appointed by the Board of Revenue of Shelby County, two to be appointed by the Shelby County Board of Education, two to be appointed by the Shelby County Bar Association, and one by the judge of the Circuit Court of Shelby County. Expenses were to be paid out of the general fund of Shelby County. Jurisdiction of the planning commission was to extend to all areas of the county not already affected by zoning except that certain railroad, mining, and utility operations, and buildings having a cost of $500.00 or less and certain remodeling operations were excluded from its jurisdiction. The planning commission was given general power to zone, including the power to make and maintain a master plan and to adopt zoning regulations. No beat was to be governed by the act unless a majority of the voters therein had voted to be so governed. Section 14 of the act provided for granting exceptions to zoning regulations, and Section 15 governed appeals to the circuit court from planning commission actions.

By complaint filed May 3, 1974, in the Circuit Court of Shelby County, appellants sought a declaratory judgment that Act 816 was invalid under various constitutional grounds. Pursuant to their complaint, appellants filed a motion for summary judgment. The appellants submitted a brief in support of that motion, and the appellees filed a brief in response thereto. In ruling on the appellants’ motion for summary judgment, the trial judge granted judgment for the appellees. It is because of this ruling that the appellants bring this appeal.

The appellants initially contend that

“[t]he Court’s ruling on Appellants’ Motion for Summary Judgment, entered October 17, 1980, has two aspects; (1) The Court overruled the motion; (2) the Court decided all the legal and factual issues in favor of the Appellees (R.P. 133). The latter aspect of the judgment was in reality a summary judgment entered on the Court’s own initiative, and since it was made without prior notice to the parties, it was procedurally incorrect. Hales v. First National Bank of Mobile, 380 So.2d 797 (1978).”

This assertion brings us to an issue of first impression in Alabama, to wit: When a motion for summary judgment is filed by one party, can a trial judge, on his own motion, grant summary judgment in favor of the opposing party?

Rule 56 of the Alabama Rules of Civil Procedure, dealing with summary judgments, makes no specific provision as to whether a court, upon motion of one party and without cross motion by the other party, may grant a summary judgment against the moving party and in favor of the non-moving party.

As was stated earlier, this issue has not yet been decided in this state; it is, also, an issue on which the federal courts have not reached full agreement. [Annot., 48 A.L.R.2d 1188 (1956).] However, the clearly established majority rule with respect to Federal Rule 56 is found in Watkins Motor Lines, Inc. v. Zero Refrigerated Lines, 381 F.Supp. 363 (N.D.Ill.1974), wherein it is stated:

“The fact that defendants did not choose to file a cross-motion for summary judgment does not preclude the court from entering judgment in their favor. ‘If either the proponent of the claim or the defending party moves for a summary judgment, and the court finds that the moving party is not entitled thereto, but that the other party is so entitled, it would seem that the court has the power to enter the proper judgment, although a cross-motion therefor was not made. Rule 54(c) gives the court the power to enter the final judgment to which the prevailing party is entitled, even if the party has not demanded such relief in his pleadings, except in default judgment cases. The theory is that the form of the pleadings, should not place a limitation upon the power of the court to do justice. So where one party has invoked the power of the court to render a summary judgment against his adversary, it is reasonable that this invocation gives the court power to render a summary judgment for his adversary if it is clear that the case warrants that result.’ 6 Moore’s Federal Practice Par. 56.12 at 2241.”

381 F.Supp. at 367-68. See also, Hennessey v. Federal Security Administrator, 88 F.Supp. 664 (D.Conn.1949); Carpineta v. Shields, 70 So.2d 573 (Fla.1954); Annot., 48 A.L.R.2d 1188 (1956).

We hold that the rule of law stated in Watkins Motor Lines is sound, and accordingly, we opt to follow the rule that cases construing the Federal Rules of Civil Procedure are authority for construction of the Alabama Rules of Civil Procedure. Ex Parte Dorsey Trailers, Inc., 397 So.2d 98 (Ala.1981). Even though it would be better practice for an opposing party to file a cross motion, under our corresponding Rule 56, we hold that in the absence of a timely and meritorious objection, there is no reason why, upon the motion of one of the parties, the court cannot dispose of the whole matter by granting a judgment to the other party if it finds that there is not a scintilla of evidence supporting the moving party’s position, thus showing the non-moving party to be entitled to a judgment as a matter of law.

The case at bar, due to its nature, was particularly susceptible to this type of action by the trial court. The case presented the question of the constitutionality of a statute, and the action revolved primarily around the wording of that statute. This left little, if any, facts open to interpretation. We note also that there is nothing in the record indicating that the appellants made any objection to this ruling of the court at the trial level. See, Chestnut Hills Civic Ass’n v. Dobbins, 361 So.2d 1043 (Ala.1978).

We now consider the second issue raised by the appellant: Did the trial court err in rendering summary judgment for the defendants under the facts that were before the court at that time?

The first contention of the appellants under this issue is that the trial court erred in finding Act 816 to be constitutional because there are material and substantial differences in Act 816 as enacted and the version of Act 816 which was published prior to its enactment.

As the appellants correctly set forth, Section 106, Constitution of Alabama, 1901, requires publication of a local act prior to its consideration by the legislature. This is in order to give affected persons notice “of the substance of the proposed law, of its characteristics and essential provisions, and of its most important features.” Wilkins v. Woolf, 281 Ala. 693, 208 So.2d 74 (1968).

While Section 106 does require notice of the substance of the proposed act, the legislature has the right to shape up and work out details in the act before it is finally passed. The rule is that the legislation, when finally enacted, must not be materially and substantially different from the act as proposed by publication. State ex rel. Wilkinson v. Allen, 219 Ala. 590, 123 So. 36 (1929).

The trial judge in his “Ruling on Motion for Summary Judgment” addressed this issue as follows:

“Concerning the assertion of violation of section 106 of the Alabama Constitution, it is immaterial that the notice was given in detail and there was a variation from the notice and the act itself. The test is whether or not the deletions, additions, or modifications are materially different. That is the test in any case. It cannot be precisely defined what is or is not materially different. This must be done on a case-by-case basis, according to certain Appellate guidelines. The legislature has the right to shape up and work out details. After comparing the variations, the Court is of the opinion that none of them are material, [they] and are therefore valid.”

In the case of Wilkins v. Woolf, this Court set forth the following principles which are considered when this issue is presented on appeal:

“The purpose of Section 106 is to inform all those affected by local legislation of the proposed legislation to the end that they have an opportunity to oppose such legislation if they deem it unwise. Wallace v. Board of Revenue, 140 Ala. 491, 37 So. 321.
“The requirements of Section 106 are met if the published notice advises the local public of the substance of the proposed law, of its characteristic and essential provisions, of its most important features. Section 106 does not negative the right of the legislature to shape up and work out details of local legislation. Christian v. State, 171 Ala. 52, 54 So. 1001; Gray v. Johnson, 235 Ala. 405, 179 So. 221.
“Another guiding principle of paramount importance is that courts seek to sustain, and not strike down, the enactments of a coordinate department of government. Every legislative act is presumed to be constitutional and every in-tendment is in favor of its validity.
Tucker v. State, 231 Ala. 350, 165 So. 249, Gray v. Johnson, supra....
“While the requirements of Section 45 of our Constitution as to the limiting effect of the caption or title of an Act upon the provision of the body of the Act itself, and the limitations imposed by the published notice of an Act as required by Section 106 of our Constitution upon the provisions of the Act itself are not identical, their similarity suggests the same line of reasoning in construing them, and the requirements of both constitutional provisions should receive a broad and liberal construction and avoid so strict a construction as would hamper and embarrass legislation. Gray v. Johnson, supra.

281 Ala. at 697, 698, 208 So.2d 74.

While we do not set out the particular changes in Act 816, as published, and as subsequently enacted, suffice it to say that we have thoroughly and carefully reviewed the wording contained in both.

Appellants placed in their brief the following diagram setting forth those changes made between publication and enactment which they contend are substantial and material:

As Published
1. Contained no provision limiting eligibility of qualified electors in Shelby County to serve on Planning Commission (R. P. 080) (Sec. 2)
2. Contained no limitation upon qualified electors who could sign petition for enabling election and vote in election. (R. P. 081) (Sec. 8)
3. Contained no provision limiting any activity or special interest group within the County from zoning.
4. Provided that regulations adopted by Planning Commission be approved by county governing body. (R. P. 082) (Sec. 9)
5. Placed no limit on the type of buildings to be regulated by zoning. (R. P. 082) (Sec. 10)
6. Did not place any limitation upon basis of appeal to Circuit Court from Planning Commission ruling; provided for trial de novo. (R. P. 083, Appeals) (Sec. 15)
As Enacted
1. Provided that members of Planning Commission must reside outside corporate limits of any municipality. (R. P. 096) (Sec. 2)
2. Provided that only electors residing outside corporate limits of municipality could sign petition for enabling election and vote in election. (R. P. 099) (Sec. 8)
3. Added provision excluding certain mining activities, railroads, and utilities from zoning. (R. P. 098) (Sec. 6)
4. Provision requiring approval by County governing body deleted. (R. P. 099) (Sec. 9)
5. Excluded certain home remodeling and buildings costing under $500 from zoning regulation. (R. P. 100) (Sec. 10)
6. Provided that appeal to Circuit Court must rest upon question of unreasonable, discriminatory, unconstitutional or otherwise [invalid application] of the zoning ordinance; eliminated provision for trial de novo. (R. P. 102) (Sec. 15)

The trial court incorrectly held that the variations complained of were not material, in at least two aspects: the added provision which excluded certain mining activities, railroads, and utilities from zoning, and the deletion of the provision which required approval of the county governing body.

Article IV, § 106, as amended, of the Alabama Constitution of 1901, in pertinent part provides:

“No .. . local law shall be passed ... unless notice of the intention to apply therefor shall have been published ... which notice shall state the substance of the proposed law.... ”

As stated in Birmingham-Jefferson Civic Center Authority v. Hoadley, 414 So.2d 895 (Ala.1982), this Court listed “four well-defined canons of construction.” These canons are:

“(1) The ‘substance’ means an intelligible abstract or synopsis of its material and substantial elements; (2) the substance may be sufficiently stated without stating the details subsidiary to the stated elements; (3) the Legislature may shape the details of proposed local legislation by amending bills when presented for consideration and passage; and (4) the substance of the proposed act as advertised cannot be materially changed or contradicted.”

Birmingham-Jefferson Civic Center Authority v. Hoadley, 414 So.2d at 899. See also, Parrish v. Faulk, 293 Ala. 401, 404-405, 304 So.2d 194 (1974); State ex rel. Wilkinson v. Allen, 219 Ala. 590, 123 So. 36 (1929).

This Court in Parrish v. Faulk, quoted the following from State v. Allen which offers guidance when deciding whether Section 106 has been violated:

“To accomplish these objects section 106 of the Constitution requires that the substance of the act must be published in advance. It cannot have the desired effect if the publication states details of substantive features different materially from the act as passed. If the details are not published but only the general nature of its substantive features, the public is put upon inquiry as to such details, and bound by a failure to inform itself, continuing through such changes and amendments as may stay within such substantive features as published. But if the publication gives details, the public need not pursue the inquiry further in respect to such details; for the information is complete, and it has the constitutional right to assume that such details will not be materially changed throughout the journey of the bill to its final passage and approval.”

293 Ala. at 405, 304 So.2d 194.

In Birmingham-Jefferson Civic Center Authority v. Hoadley, the Legislative Electoral College, which consisted of members of the House of Representatives and the Senate of our Legislature, were to choose the Board of Directors of the Civic Center Authority. In the advertised version, the entire “Legislative Electoral College” was to vote jointly but in the enacted version the Senate and House delegations were separated with the Senate delegation to appoint five board members while the House delegation was to appoint only four board members. This Court decided that this change violated § 106 because: “The filling of directorships in the Authority is important, and the authority designated to fill those offices is a matter of substance and not merely a detail which can be changed from the authority designated in the published notice to a different authority not designated in the published notice.” 414 So.2d at 900.

In Parrish v. Faulk, 293 Ala. 401, 304 So.2d 194 (1974), the advertised version provided that the office of license commissioner would be filled by an appointing board composed of three designated officials and that the term of office for the commissioner was at the pleasure of the board. The enacted version, however, provided that the office would be filled by qualified electors, presumably the voters of Houston County, and the term of office would be for a fixed term of four years. This Court considered this change to violate § 106 because:

“[T]he filling of the office of license commissioner of Houston County is important, and that the authority designated to fill the office is a matter of substance and not merely a detail which can be changed from the authority designated in the published notice to a different authority not designated in the published notice.”

293 Ala. at 408, 304 So.2d 194.

In State ex rel. Wilkinson v. Allen, 219 Ala. 590, 123 So. 36 (1929), the advertised version provided that one of the judges of the municipal court was to be named judge of a new court and his successors were to be elected by the judges of the circuit court. The enacted version provided that the judge and his successors would be appointed by the Governor. This Court held that this change violated § 106 because:

“We think that both the county authorities and private citizens are directly interested in the changes referred to, and that as to such matters there is likely to be a difference of opinion. Being of this opinion, we find it necessary to declare that the act offends section 106 of the Constitution, and cannot stand.”

219 Ala. at 593, 123 So. 36.

In this case, the differences between the substance of the published act and the bill which passed the Legislature are material and warrant the intervention of the judiciary to declare the statute unconstitutional. While there are six variations between the bill as published and as enacted, there are at least two which are material and, therefore, impermissible variances in violation of § 106. First, as published the proposed act contained no provision limiting any activity or special interest groups within the county from zoning, but as finally enacted it contains a provision excluding mining activities, railroads, and utilities from zoning. Secondly, the published bill provided that regulations adopted by the planning commission would be approved by the county governing body; as enacted, the provision requiring approval by the county governing body was deleted. These provisions of the act as passed by the Legislature materially changed the substance of the act. The proposed bill presented to the people gave the planning commission authority over any land use activity and guaranteed that the county government would have to approve any regulations adopted by the commission. The enacted legislation exempted certain special interests, i.e., mining, railroads, and utilities, from the jurisdiction of the planning commission and, in addition, withdrew control of the planning commission from the county governing body, which is composed of elected officials answerable to the voters of Shelby County for their actions. This is not the same bill as examined by the voters of Shelby County. Perhaps they did want some groups to have privileges that the rest of the area would not enjoy. But on the other hand perhaps the voters thought that elected officials, the county governing body, would be in a position to check any regulations adopted by the planning commission insuring that the commission would operate within the boundaries of popular demands. This act violates Art. IV, § 106.

Because of our holding on the Section 106 issue, we need not address appellants’ contention that Act 816 is invalid because it violates the principles of separation of powers of government by illegally delegating legislative power to a subordinate body.

The judgment of the trial court is due to be reversed and the cause rendered.

REVERSED AND RENDERED.

TORBERT, C. J., and FAULKNER, JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.

MADDOX, J., dissents.

MADDOX, Justice

(dissenting).

I dissent on the same grounds I expressed in my dissenting opinion in Birmingham-Jefferson Civic Center Authority v. Hoadley, 414 So.2d 895 (Ala.1982).

My position on the requirements of § 106 was very eloquently stated by this Court in 1906, five years after § 106 was ratified by the people as a part of our Constitution. In State ex rel. Hanna v. Tunstall, 145 Ala. 477, 40 So. 135 (1906), the Court, in great detail, defined the word “substance” which appears in § 106. Because the opinion in Hanna expresses so eloquently my own view of what the framers intended, I quote extensively from that opinion. In the quoted portion of that opinion, I emphasize certain statements of law which I think are quite significant and which I think the majority, in this case, has overlooked. In Hanna, the Court opined:

“This provision of our Constitution has been before this court several times, and, from the fact that the courts of other states having like provisions have declared that the Legislature is the sole judge as to whether the constitutional requirement has been met, we have not the benefit of the light which might have been thrown upon the subject by the adjudications of other tribunals. Said section 106 of the Constitution requires that the notice shall ‘state the substance of the proposed law.’ In the first case in which this section came under review, this court quotes from Worcester’s Dictionary the meaning of the word ‘substance,’ to-wit, ‘The essential or material part; essence; abstract; compendium; meaning,’ and hold that, while it is not necessary to publish the bill itself, yet the notice should contain ‘its essential and material parts, its essence, or an abstract, such as would give the people fair information of what it was.’—Wallace v. Board of Revenue, 140 Ala. 491, 504, 37 South. 321. And in a subsequent case, in which it was held that a notice of the intention to apply for the creation of a new county was sufficient, although it did not give the boundaries, and gave a name of the proposed new county different from that which was finally adopted by the Legislature, this court stated that the ‘substance’ of that proposed law was the establishment of a new county, by taking territory from the counties named; there was nothing misleading or deceptive in the notice; and that, if it were required to go into all those particulars, ‘every change made by the Legislature in fixing and defining the boundaries from that given in the notice, would be fatal to the enact-
ment of the statute.’—Law v. State, 142 Ala. 621, 38 South. 798. The Century Dictionary also defines ‘substance’ as: ‘(1) That which receives modifications; essence. (2) Real or essential part; essence.’ ‘(5) The meaning expressed by any speech, or writing; the purport’ — and gives the illustration from Shakespeare, ‘All of one nature, of one substance bred.’ It also gives a further definition as ‘the main part’ Webster’s International Dictionary defines ‘substance’ (from sub stare to stand under) as the ‘substratum;’ second the ‘most important element; the characteristic and essential components, the main part; essential import;’ and the great apostle gave it even a wider range when he said: ‘Faith is the substance of things hoped for.’ As stated by the chairman of the committee, when this section was before the convention, the object in view was that the community should not ‘be misled as to the purpose of the law;’ it was ‘to obviate advantage being taken of the public.’
“There are other provisions in our Constitution which have the same general purpose in view, though not identical with this one. Section 61 provides that ‘no bill, shall be so altered, or amended, on its passage * * * as to change its original purpose.’ And section 45, which requires the subject to be clearly expressed in the title, has been frequently before this court, and, while we do not wish to be understood as intimating that ‘purpose,’ ‘subject,’ and ‘substance’ are synonymous, yet the object sought to be sustained in each case is the same. And in construing them we should have the same general end in view. Both our own court, and others, where there are similar constitutional provisions, have given this a broad and liberal interpretation, so as to carry out the intention of the Constitutional framers. That purpose was very aptly expressed by Chief Justice Brickell in these words: ‘The limitation is not excepted from the cardinal rule that it is only a clear violation of the Constitution which will justify the courts in overruling the legislative will. Every legislative act is presumed to be constitutional, and every intendment is in favor of its validity. —Cooley’s Const.Lim. (6th Ed.) 218. While the limitation must be so construed and applied as to avoid and suppress the mischief against which it is directed, the construction must not be strict, embarrassing legislation by making laws unnecessarily restrictive in their scope and operation.’—State v. Street, et al., 117 Ala. 207, 23 South. 807. While the requirements of this section and that in regard to subject are not identical, yet their objects are, and their similarity suggests the same general line of reasoning in construing them. The title, giving the subject, may also contain the substance of the act, but does not necessarily do so. That provision requires that the title shall express the subject; this one requires that the notice shall inform the people as to what, in substance, is to be done with that subject. The word ‘substance’ is sometimes used as the antonym of ‘form,’ and sometimes as contradistinguished from an entire and detailed statement of matter. The substance of this act is the substitution of the county solicitor described in the notice, for the former solicitor of the city court of Anniston; the form of it might be either an amendment to a former statute, or an act, original in form, accomplishing the same purpose. We say of a political address that it was, in substance, a discussion of the tariff question, while the orator may have incidentally touched on other matters. We think that the object of the Constitution makers in using this term was to indicate that it was not necessary to go into all the details, but to inform the people substantially what changes were proposed, and not interfere with the right of the Legislature to shape it up and work out the details. Any one who has ever had any experience in legislation knows that it is next to impossible to formulate all the details of a proposed law as intelligently beforehand, as he can when he has had the benefit of a conference with the committee having the special matter in charge. Hence, this constitutional provision requires the notice to contain the substance of the proposed law. When it gets into the Legislature, that body is free to act on it, subject to the constitutional restrictions as to changing by amendment, etc., and subject to the further restriction that the substance of the act shall correspond with the notice given.” (Emphasis supplied.)

The Court today reinforces the holding in Parrish v. Faulk, 293 Ala. 401, 304 So.2d 194 (1974), which follows State v. Allen, 219 Ala. 590, 123 So. 36 (1929). I dissented in Parrish v. Faulk, because I believe then, as I do now, that we unnecessarily hamper the legislature’s right to work out details of local legislation in the legislative process.


text:
    Louis W. FARMER, et al. v. Wayne GANT, et al.
    81-155.
    Supreme Court of Alabama.
    May 21, 1982.
    Rehearing Denied July 2, 1982.

      Robert B. French, Jr., Fort Payne, for appellants.
    Robert S. Thomas of Thomas & Proctor, Scottsboro, for appellees.
   BEATTY, Justice.

Appeal by the plaintiffs from an adverse judgment in their suit to have a deed set aside. We affirm.

The plaintiffs are Louis Farmer and Jeannette Farmer, husband and wife. They filed their complaint against Marlon Farmer, their son; Christy Farmer, the wife of Marlon; Wayne and Daisy Gant; and Barbara White. For reasons not presently material, no relief was sought in the subsequent trial against Marlon and Christy Farmer or against Barbara White.

The case grew out of a loan transaction between the Farmers and the Fyffe Bank. Louis Farmer owned a tract of land near Pisgah in Jackson County. Marlon Farmer needed about $27,000 to finance an advertising venture. Louis, his father, knew of this need, and agreed with Marlon to give Marlon a deed to a certain part of this land for Marlon to use as collateral for a loan from the bank. It appears that Louis Farmer also wished to obtain a loan for himself at that time. Louis had a deed prepared, apparently by a layman, which Louis and Jeannette executed and acknowledged before a notary. Marlon took this deed to a lawyer in Scottsboro who advised Marlon that the description needed clarification and who, with Marlon’s consent, prepared a new deed whose description accorded more accurately with the property described in the other deed. This attorney also prepared the mortgages and other documents for the loans. Marlon took these documents to the bank where they were executed, Louis and Jeannette executing the new deed at that time. According to Louis, he explained to the bank’s loan officer that he was executing this deed of land (approximately 27 acres) to Marlon for the purpose of enabling Marlon to borrow the money. The loan to Marlon did not go through, however, but Marlon took his deed and departed. Louis testified that he and his wife attempted to obtain this deed from Marlon but were unsuccessful. Marlon himself testified that his parents requested that he either destroy the deed or return it to them. Instead of doing so, however, Marlon sought out Wayne Gant, a neighbor of his father’s who had earlier attempted to purchase some of this land from Louis. Ultimately Marlon and Wayne Gant agreed on a sale of 1.55 acres of the tract included in the deed from Louis to Marlon for a purchase price of $4,000. Wayne Gant advanced the money to Marlon, and later both Wayne and Marlon went to the same lawyer in Scottsboro. Wayne requested a check on the title to the 1.55 acres. This was done expeditiously since the same lawyer had examined the title only a few days before in connection with the prospective bank loans. The deed from Marlon to Wayne Gant was duly prepared and executed, and both deeds were recorded.

The case was tried to a jury on two issues: (1) whether there was a delivery of the deed from Louis to Marlon, and (2) whether the Gants were bona fide purchasers for value of the 1.55 acres from Marlon. The jury found for the defendants and that “the defendants are bona fide purchasers of the lands.” Plaintiffs’ motion for a new trial was overruled.

On appeal plaintiffs insist that there was no delivery of the deed from Louis Farmer to Marlon Farmer and that as a consequence the Gants could not be bona fide purchasers for value.

It is clear from the evidence taken at trial that Marlon was acting on behalf of his father in obtaining the necessary documents for the loan from the Fyffe Bank. The deed from Louis to Marlon thus prepared by the lawyer was subject only to “valid adverse title as to minerals, oil or mining rights, easements or rights of way, covenants running with the land; encroachments or other matters or defects shown by a survey of said property.” This deed was duly executed by Louis and Jeannette at the bank and came into Marlon’s possession during the loan transaction there. A deed regularly executed and in the grantee’s hands is prima facie presumed to have been duly delivered. Crosby v. Baldwin County, 227 Ala. 122, 148 So. 814 (1933). Although Louis Farmer testified to his motive in making the grant to Marlon, there was also testimony from Marlon which tended to negate any intention on his father’s part to reserve a locus poenitentiae. Indeed, there was no qualification expressed by Louis in his execution of the first deed to Marlon. This evidence clearly made the question of delivery one for the jury.

Louis Farmer insists, however, that Wayne Gant took the conveyance from Marlon Farmer with notice that the deed was intended to be used as collateral, and thus Gant could not be a bona fide purchaser. Such an arrangement did not make the deed itself void, cf. Hess v. Hodges, 201 Ala. 309, 78 So. 85 (1918) (defective description defeated claim of alleged bona fide purchaser); Barden v. Grace, 167 Ala. 453, 52 So. 425 (1910) (deed delivered blank as to grantee void unless executed in name of intended grantee), and assuming arguendo that Louis’s “understanding” had some latent effect upon the deed’s validity (which position we have found to be not well taken under the facts) the testimony of both Marlon Farmer and Wayne Gant established a lack of any notice on Gant’s part of any equity of Louis in the land. Thus that issue was also one for the jury, which found in favor of the Gants.

We have carefully considered the entire record and the briefs of the parties, and are clear to the conclusion that the jury’s verdict was supported by the evidence and that the trial court’s denial of the plaintiff’s motion for a new trial was correct. Accordingly, the judgment must be, and is, affirmed.

AFFIRMED.

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

      . He mortgaged the remainder to Barbara White.