author: DOUCET, Judge.

text:
    Gladys Mae Pitre BOAGNI, Widow of Vincent Boagni, Sr., et al., consolidated with Estate of Gladys Mae Boagni Waterbury (No. 14,381), and Estate of Gladys Mae Boagni Waterbury (No. 14,553) Plaintiff-Appellant, v. Robert L. WATERBURY, Defendant-Appellee.
    No. 8090.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 2, 1981.

      Fontenot & Hurlburt, J. Winston Fonten-ot, Lafayette, and Albert J. Boudreaux, Opelousas, for plaintiff-appellant.
    Carl W. Cleveland and Barbara T. Cas-teix, New Orleans, Ledet & Gaudin, Stephen J. Ledet, Jr., Opelousas, for defendants-appellees.
    Before DOMENGEAUX, STOKER and DOUCET, JJ.
   DOUCET, Judge.

Gladys Mae Boagni Waterbury died in Opelousas, Louisiana on February 15, 1968, leaving no descendants. Following her death, a dispute arose between her husband, Robert L. Waterbury, and her mother, Mrs. Gladys P. Boagni, over the disposition of the assets of her succession. As a result of that conflict, three separate suits were filed in the district court and consolidated for trial.

The issues raised by this appeal concern only the third suit, Number 56,292 on the docket of the district court, which was originally brought by Mrs. Boagni and the decedent’s brothers, Vincent Boagni, Jr. and Christopher D. Boagni. The petitions of the decedent’s brothers were later dismissed by the trial judge, however, after he sustained exceptions of no cause of right of action filed by the defendants to that suit, Robert L. Waterbury, Dolores Waterbury Danner, and William B. Waterbury.

This is primarily a suit en declaration de simulation. The transactions attacked are three sales of land by Robert Waterbury to his sister, Dolores W. Danner, and certain sales and leases entered into by Robert Waterbury, as vendor and lessor, and his brother, William B. Waterbury, as vendee and lessee. In addition, plaintiff seeks a declaration that the community of acquets and gains formerly existing between Robert Waterbury and the decedent is indebted to the decedent’s separate estate in the sum of $200,000.00, the amount derived from an expropriation of the decedent’s paraphernal property.

Following a trial on the merits, judgment was rendered in favor of the defendants and against plaintiff, rejecting her demands at her cost. From that judgment, plaintiff appeals.

On appeal, plaintiff argues that the trial judge erred in (1) admitting into evidence uncertified copies of the defendants’ income tax returns; (2) failing to require the defendants to prove the reality of the contested transactions after she had shown the existence of a number of suspicious circumstances surrounding them; and (3) failing to recognize that the community of acquets and gains formerly existing between Robert Waterbury and the decedent is indebted to the decedent’s separate estate in the sum of $200,000.00.

ADMISSION OF THE INCOME TAX RETURNS

Plaintiff’s contention that the trial judge erred in admitting copies of Robert Waterbury’s and Dolores Danner’s income tax returns is based on the “best evidence” rule. See Breaux v. Laird, 230 La. 221, 88 So.2d 33 (1956); Al Smith’s Plumbing & Heating Service, Inc. v. River Crest, Inc., 365 So.2d 1122 (La.App. 4th Cir. 1978); Raceland Stockyards, Inc. v. Giaise, 352 So.2d 392 (La.App. 4th Cir. 1977); and Auto-For-Rent, Inc. v. Provenza, 242 So.2d 353 (La.App. 2nd Cir. 1970). Plaintiff argues that the best evidence under the circumstances would have been copies certified by the Internal Revenue Service as duplicates of the original returns filed with that agency.

We are inclined to agree with plaintiff’s contention that the copies that were introduced were not the best evidence available, at least insofar as they are proof of the fact that the defendants actually reported the income reflected therein. However, we note that Robert Waterbury and Dillon E. Danner (Dolores Danner’s husband, who prepared and filed joint returns for Mrs. Danner and himself) were allowed to testify without objection that they had in fact reported the income shown on those copies. In view of the fact that there was other admissible evidence of the fact sought to be proved, we find that plaintiff has failed to demonstrate that she was harmed by the trial judge’s decision to admit the copies into evidence. We therefore see no need for remanding this case to the district court for the substitution of certified copies of the returns as suggested by counsel for plaintiff in his brief.

BURDEN OF PROOF

The general rule is that the party alleging a simulation has the burden of establishing it with a reasonable certainty. D’Angelo v. Nicolosi, 183 La. 1039, 165 So. 193 (1936). In some cases, however, the plaintiff is aided by the existence of a legal presumption of simulation, which has the effect of shifting the burden to the defendants to establish the validity of the transactions under attack.

This presumption of simulation arises in two manners. The first occurs when a seller remains in possession of the thing he sells, either under a precarious title, or by reserving the usufruct of the thing. LSA-C.C. Art. 2480; Ingram v. Freeman, 326 So.2d 565 (La.App. 3rd Cir. 1976), and the cases cited therein. The second occurs when the party alleging the simulation produces evidence of circumstances which create a highly reasonable doubt or suspicion about the honesty or validity of the transaction. Smith v. Smith, 239 La. 688, 119 So.2d 827 (1960); Ingram v. Freeman, supra, and the cases cited therein.

Plaintiff claims the benefit of the presumption and argues that the trial judge erred in failing to require the defendants to establish the validity of the contested transactions. After reviewing the evidence in the record and the trial judge’s written reasons for judgment, we find no merit in that argument. We agree with plaintiff’s contention that the presumption applies. However, we find that the trial judge concluded that the defendants had succeeded in establishing the validity of the transactions, and for reasons which will be set out in greater detail in the following discussion of the evidence, we cannot say that he was clearly wrong in doing so.

FACTS

All but one of the transactions that are attacked by plaintiff involved property belonging to the community of property formerly existing between Robert Waterbury and the decedent. In entering into the transaction involving the decedent’s para-phernal property, Robert Waterbury acted under a power of attorney issued by the decedent in 1955; in the other transactions, he acted as head and master of the community. The following is a list of those transactions:

Exhibit B Assignment of an oil and gas lease to William B. Waterbury for $12,-000.00 on October 10, 1967
Exhibit C Sale of 38.2 acres to Dolores W. Danner for $7,640.00 cash on December 15, 1967
Exhibit D Sale of 2.08 acres to Dolores W. Danner for $416.00 cash on December 15, 1967
Exhibit E Sale of 184.25 acres to Dolores W. Danner for $13,818.75 cash on December 15, 1967
Exhibit F Sale of 101.32 acres to William B. Waterbury for $15,198.00 cash on December 15, 1967
Exhibit G Sale of movables to William B. Waterbury for $10,000.00 cash on January 2, 1968
Exhibit H Surface lease of 325.03 acres to William B. Waterbury for $1,512.96 per annum for 10 years commencing January 2, 1968. (The property was the decedent’s paraphernal property)
Exhibit N Sale back from William B. Waterbury to Robert Waterbury of 101.32 acres (Exhibit F, above) for $20,-640.00 cash on December 30, 1974

In the case of the three sales of land to Dolores W. Danner (Exhibits B, C and D, above), there is no question about the fact that the presumption of simulation arising under LSA-C.C. Art. 2480 applies, because Robert Waterbury remained in possession of the property after the date of the sales. There was some dispute about whether he also retained possession of the property sold to William B. Waterbury. However, the trial judge found that William B. Waterbury had gone into possession of the property, and that finding is not clearly wrong. Nevertheless, plaintiff argues that the presumption of simulation applies to all of the above transactions, because a number of suspicious circumstances create a highly reasonable doubt about their validity.

We will not attempt to enumerate all of the suspicious circumstances alleged by plaintiff. We find little support in the record for some of them, and we attach no significance to others. We believe, however, that the following circumstances asserted by plaintiff are worthy of mention:

1. The decedent was terminally ill and in a coma when the transactions took place.
2. There was no apparent need for the alienations of property.
3. Robert Waterbury failed to account for the proceeds of the sales and leases.
4. Cash was used.
5. Robert Waterbury retained possession of the property sold to Dolores W. Danner.
6. William B. Waterbury sold some of the property that he purchased back to Robert Waterbury after the decedent’s death.

Whether or not the decedent was actually Comatose when the disputed transactions took place is not entirely clear. However, there is no dispute about the fact that she was extremely ill and generally incapacitated the last year or so of her life. She was hospitalized in New Orleans, Louisiana for a time, after which Robert Waterbury set up a clinic in their home to care for her. In addition to procuring all of the necessary medical equipment, including life support equipment, an auxiliary generator and some laboratory equipment, he hired a number of local nurses to provide bedside care 24 hours per day and a professional nurse from New Orleans to supervise them.

Mr. Waterbury maintained the clinic in his home at considerable expense from September of 1967, shortly before the disputed transactions took place, until the decedent’s death in February of 1968. Mr. Waterbury testified that the sales and leases were a necessary means of generating the funds needed to meet the extraordinary expenses that were incurred in that five month period. He further testified that out of the roughly $60,000.00 that was derived from those transactions, approximately $22,-000.00 remained at the decedent’s death and was listed as an asset in the succession proceedings, and the balance of $38,000.00 had been spent in caring for the decedent and in maintaining their household and their business operations.

Plaintiff attempted to contradict that testimony by showing that the decedent’s medical bills had been paid by a Boagni family partnership. However, the only evidence that she produced to support that allegation consisted of a number of can-celled checks that had been issued in the 1950’s.

With regard to the consideration for the transactions, the record shows that the cash sales were executed before Seth Lewis, Jr., a notary public and highly respected member of the bar. Mr. Lewis passed away prior to the trial and was therefore unavailable to testify. However, one of the witnesses to the acts, Emily Boudreaux, appeared and testified that she had actually seen the cash change hands.

Mr. and Mrs. Danner testified that Mrs. Danner borrowed $20,000.00 of the cash that she used to purchase the property from her father, William A. Waterbury. Mr. Danner produced a demand note signed by Mrs. Danner and payable to William A. Waterbury in that amount, which was admitted into evidence. The Danners further testified that nothing had ever been paid on the note because Mrs. Danner’s parents, who were elderly and in poor health, had no immediate need for the cash, and it was understood that unless it was needed earlier, Mrs. Danner would not have to account for the loan until one of her parents died and their succession was opened.

In a deposition taken prior to his death, William B. Waterbury testified that he acquired the cash that he used to purchase the property through various business dealings related to the oil and gas industry. He testified that he worked for several different companies as a drilling consultant and that he made additional money by buying and selling used drilling equipment. He further testified that he customarily carried large amounts of cash because it enabled him to purchase used drilling equipment at discounted prices from companies that were leaving a drilling site and moving to another area. His testimony that he frequently dealt in cash was corroborated by his brother and by his wife, Gertrude Flesner Waterbury, who testified that although she knew very little about his business dealings, she was aware of the fact that he sometimes used large amounts of cash, and on one occasion, following the sale of their home in Baton Rouge, she saw a substantial quantity of it in his possession.

With regard to Robert Waterbury’s continued possession of the property sold to Mrs. Danner, Mr. Waterbury and the Dan-ners testified that he used the property pursuant to a surface lease granted by Mrs. Danner. According to their testimony, the consideration for the lease was Mr. Waterbury’s agreement to pay the property taxes when due and maintain the land for agricultural and grazing purposes by repairing fences, fertilizing, etc. Other evidence established that the amount that Mr. Waterbury claims to have expended in fulfillment of those obligations was commensurate with the rent that plaintiff charged her son, Christopher Boagni, under a surface lease of similar property.

The final circumstance asserted by plaintiff, the retrocession of the 101.32 acre tract sold to William B. Waterbury, plaintiff considers to be the most suspicious. The trial judge disagreed with that conclusion, finding that in effecting the transfer there was a settlement of accounts between the brothers, which indirectly confirmed the earlier sale. The finding is supported by the fact that part of the consideration for the sale back to Robert Waterbury was the retirement of a demand note that William Waterbury had executed in his brother’s favor at an earlier time.

Although the trial judge didn’t articulate his evaluations of credibility, we believe that his acceptance of the defendants’ testimony is implicit in his written reasons for judgment. After carefully scrutinizing that testimony and the accompanying documentary evidence, we cannot say that he was clearly wrong in doing so. The defendants’ explanations of the unusual circumstances surrounding the transactions were not so implausible or unlikely as to be beyond reasonable belief. Since their testimony together with the other evidence in the record furnishes a reasonable factual basis for the trial judge’s finding that the transactions were real and not simulations, we are not free to disturb that finding under the standard of appellate review set out by our Supreme Court in Canter v. Koehring Co., 283 So.2d 716 (La.1973) and further explained in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Accordingly, the trial judge’s refusal to declare the disputed transactions simulations is affirmed.

RESTITUTION OF PARAPHERNAL PROPERTY

The legal principles governing plaintiff’s claim for restitution of the decedent’s paraphernal funds were recently set out in this court’s opinion in Succession of Vice, 385 So.2d 554 (La.App. 3rd Cir. 1980) as follows:

“Our jurisprudence is established that: ‘. . . when large sums of community funds are commingled indiscriminately with separate funds, to the extent that the separate funds are no longer capable of identification, all of the commingled funds become community property. Succession of Land, 212 La. 103, 31 So.2d 609; Magnolia Petroleum Co. v. Crigler, 12 So.2d 511 (La.App.); Bruyninckx v. Woodward, 217 La. 736, 47 So.2d 478; Slater v. Culpepper, 233 La. 1071, 99 So.2d 348.’
“A wife is entitled to restitution of her separate property at the time of dissolution of the community if the funds delivered by the wife to the husband and commingled with community funds can be traced to her separate funds or if the benefit to the community is established with reasonable certainty. Guilott v. Guilott, 326 So.2d 551 (La.App. 3rd Cir. 1976). In the absence of compelling proof that a strong and substantial economic advantage inured to the benefit of the community, the wife’s restitution claim will be denied. Succession of Russo, 246 So.2d 26 (La.App. 4th Cir. 1971), writs refused, 258 La. 760, 247 So.2d 861.”

Plaintiff presented documentary evidence establishing that in 1961 the decedent received approximately $200,000.00 as a result of an expropriation of her separate property. The only other evidence relevant to this issue was Robert Waterbury’s testimony that after paying approximately $40,000.00 in legal and expert witness fees, the balance of the award was deposited in a joint community checking account and later withdrawn by both him and the decedent for various purposes. The trial court concluded that that evidence was not sufficient to determine whether restitution was owing. Acting pursuant to LSA-C.C.P. Art. 1631, he allowed the parties sixty days to determine if they wished to produce additional evidence limited to the issue of plaintiff’s claim for restitution. Neither party availed themselves of that opportunity, as a result of which the trial court rendered judgment denying plaintiff’s claim.

We find no error in that ruling. Under the legal principles set out above, the evidence produced by plaintiff is clearly lacking. At the time of the decedent’s death, all but about $5,000.00 of the commingled funds in their joint checking account had been withdrawn. The evidence provides no basis for determining what if any portion of the decedent’s separate funds, which both Mr. Waterbury and the decedent had access to, inured to the benefit of the community. Under those circumstances, the trial court correctly refused to declare that the community is indebted to the decedent’s separate estate.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.

      . William B. Waterbury died prior to the trial. His widow, Gertrude Flesner Waterbury, and his children, Tricia Waterbury Defies, Janine Waterbury Rozas, Meda Marie Waterbury, Dawna Dee Waterbury and Rebecca Renee Waterbury, were substituted as defendants.

      . This conclusion would not necessarily apply to cases in which copies of income tax returns were offered as proof of some circumstance collateral to the issue of whether income was reported to the taxing authority, such as the amount of a person’s income for a given year. See Joseph Durst Corp. v. Coastal Development Co., 177 So.2d 123 (La.App. 3rd Cir. 1965), writ refused 248 La. 420, 179 So.2d 17 (1965).


source: Caselaw Access Project

license: Public Domain

text:
    TENNESSEE RIVER PULP & PAPER CO. and Travelers Ins. Co. v. Leslie COOPER.
    No. 52836.
    Supreme Court of Mississippi.
    Sept. 16, 1981.
    Reed Hillen, Holland, Ray & Upchurch, Tupelo, Fred B. Smith, Smith, Elliott & Fortier, Ripley, for appellants.
    Jan R. Butler, Butler & Butler, W. B. Meek, Eupora, for appellee.
    Before SMITH, P. J., and WALKER and BOWLING, JJ.
   Appeal from Circuit Court, Webster County; Clarence E. Morgan, Jr., Judge.

Motion of Appellant to Dismiss Appeal Sustained. Cross Appeal of Leslie Cooper Affirmed. The entire cause remanded to the Workmen’s Compensation Commission for further proceedings.


text:
    POULTRY PACKERS, INC. v. Leon GARDNER and Vaughn Gardner d/b/a Weather Kontrol Engineers.
    No. 53004.
    Supreme Court of Mississippi.
    Sept. 16, 1981.
    James E. Smith, Jr., Smith, McLemore & Smith, Carthage, for appellant.
    Charles C. Pearce, Union, for appellees.
    Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
   Appeal from Circuit Court, Scott County; Marcus D. Gordon, Judge.

AFFIRMED.


text:
    Willis RIGDON v. STATE of Mississippi.
    No. 52816.
    Supreme Court of Mississippi.
    Sept. 16, 1981.
    J. K. Henry, Union, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and BROOM, JJ.
   Appeal from Circuit Court, Newton County; Marcus D. Gordon, Judge.

AFFIRMED.


author: LEE, Justice,

text:
    Herman FORD and Mattie Louise Ford v. Rodney E. DEFENBAUGH, d/b/a Defenbaugh & Company.
    No. 52770.
    Supreme Court of Mississippi.
    Sept. 16, 1981.

      Leon. Johnson, Grenada, for appellants.
    Stephen S. Cooke, Grenada, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   LEE, Justice,

for the Court:

Herman Ford and Mattie Louise Ford have appealed from a judgment of the Circuit Court of Grenada County, Honorable Clarence E. Morgan, Jr., presiding, entered in favor of Rodney E. Defenbaugh in the sum of $879.62, together with an attorney’s fee of $100, on a suit for deficiency judgment. We reverse.

Appellants have assigned four errors in the trial below, but, in view of our decision, we only consider (1) whether the lower court erred in overruling appellants’ motion for a directed verdict for violation of the Truth-in-Lending Act and (2) whether the lower court erred in declining to grant a reasonable attorney’s fee to appellants.

On July 10, 1978, appellee made a consumer loan to the appellants in the amount of $1,781.77 and, as security therefor, the appellants executed a promissory note to appellee and granted a security interest in a 1973 Pontiac Catalina automobile and their household goods. They defaulted on the repayment of the loan, the automobile was repossessed by appellee and sold for $1348, according to the terms of the promissory note and security agreement, leaving a balance due appellee in the sum of $879.62.

Appellee filed suit against appellants for deficiency judgment on January 14, 1980, and the appellants answered alleging as an affirmative defense a set-off that the ap-pellee had violated the disclosure provisions of the Truth-in-Lending Act and was liable to appellants for the statutory penalties and attorney’s fee provided in said act. They also filed a counterclaim for same. On motion of appellee, the trial court dismissed the appellants’ counterclaim but permitted them to proceed with the claim for set-off.

Several violations of the Truth-in-Lending Act were charged by appellants and, among them, the evidence is uncontradicted that appellee failed to disclose a description or identification of household goods used as security for the loan in violation of 15 U.S.C.A. section 1639(a)(8) and Regulation Z, section 226.8(b)(5). The trial judge, in his opinion, found that there had been such a violation. Section 1639(a)(8) provides:

(a) Any creditor making a consumer loan ... in a transaction which is neither a consumer credit sale nor under an open-end consumer credit plan shall disclose each of the following items to the extent applicable:
(8) A description of any security interest held or to be retained or acquired by the creditor in connection with the Extension of Credit, and a clear identification of the property to which the security interest relates.

Regulation Z, section 226.8(b)(5) provides in part the following:

(b) In any transaction subject to this section, the following items, as applicable, shall be disclosed:
(5) A description or identification of the type of any security interest held or to be retained or acquired by the creditor in connection with the extension of credit, and a clear identification of the property to which the security interest relates or, if such property is not identifiable, an explanation of the manner in which the creditor retains or may acquire a security interest in such property which the creditor is unable to identify. In any such case where a clear identification of such property cannot properly be made on the disclosure statement due to the length of such identification, the note, other instrument evidencing the .obligation, or separate disclosure statement, shall contain reference to a separate pledge agreement, or a financing statement, mortgage, deed of trust, or similar document evidencing the security interest, a copy of which shall be furnished to the customer by the creditor as promptly as practicable ....

At the conclusion of all the evidence and after the parties had rested, the trial judge entered judgment for appellee and denied the set-off claimed by appellants on the ground that they had not proved any actual damages. The trial judge cited and relied upon Ken-Lu Enterprises, Inc. v. Neal, 29 N.C.App. 78, 223 S.E.2d 831 (1976). That case involved a counterclaim by the debtor rather than a set-off and, in discussing 15 U.S.C.A. section 1640(h), the Court said:

The design of the Act was to provide protection for consumers by affording them, through meaningful disclosure, an opportunity to compare and shop for credit. The Act should be used to protect consumers, but it should not be used to thwart the valid claims of creditors. We hold that defendants who are sued on evidences of debt may not assert potential liability of the creditor under the Truth-in-Lending Act as a counterclaim or defense in such action, so far as any damages other than actual ones.
(223 S.E.2d at 834)

The Ken-Lu decision has been sharply criticized by other jurisdictions. In Pacific Concrete U. v. Kauanoe, 614 P.2d 936 (Hawaii 1980), the Court said:

Appellee raises an additional argument that the result sought by appellant would be inconsistent under the amendment to the Act. Under this section, damages pursuant to the Act cannot be asserted because appellant’s TILA claims were not determined by a court of competent jurisdiction in an action to which the appellee was a party. The Ken-Lu, supra case was cited in support of this argument. There a North Carolina Court of Appeals interpreted the section to bar all counterclaims or defenses under the TILA until a creditor’s civil liability had been determined by a proper court judgment.
This interpretation has been expressly rejected by several other courts who interpreted the section to apply only in situations where debtors tried to deduct unilaterally from the amounts owing because of alleged TILA violations. Lincoln First Bank of Rochester v. Rupert, supra; Stephens v. Household Finance Corp., Okl., 566 P.2d 1163 (1977); Reliable Credit Service, Inc. v. Bernard, 339 So.2d 952 (La.App. 1976).
* ifc Sft ijt $ ‡
A subsequent bill to the TILA entitled “The Truth in Lending Simplification and Reform Act” would amend § 1640(h) to expressly allow recoupment claims. The section-by-section analysis of the bill states:
“SEC. 14. Set-off rights. — Would amend section 130(h) of the Truth in Lending Act to make clear that this section, which prohibits a borrower from off setting Truth in Lending damages against a debt owed unless a court has found a Truth in Lending violation, does not prohibit a borrower from raising a creditor’s violation by way of recoupment or similar doctrine where permitted by State law. It was Congress’ intent in enacting this section in 1974 to prohibit a debtor from unilaterally offsetting alleged damages, but not to prohibit the borrower from seeking an offset in a legal action. This amendment will supersede an erroneous court decision on this subject.”
123 Cong. Rec. 11337 (1977). Appellant has not attempted singly to deduct any amounts from the debts owed. Rather, in the current instituted suit he alleged as a counterclaim certain TILA violations on appellee’s part. These allegations were made to obtain a judicial determination of all claims relating to the loan transaction at one time. An approach such as the one taken in Ken-Lu, supra, would result in a complete bar to the assertion of any TILA claims as defenses in creditors’ actions. Such a drastic result was not contemplated by its drafters and would severely undercut the spirit of the Act. Appellant should be allowed his claims.
(614 P.2d at 942-943)

The Oklahoma Supreme Court held in Stephens v. Household Finance Corporation, 566 P.2d 1163 (Okl. 1977), the following:

We believe the reasoning in Ken-Lu is faulty and decline to adopt its views. Reading § 1640(h) in conjunction with the balance of the Act, we are convinced this amendment was directed to a situation wherein a debtor attempts to evade payment on a note by deducting the Act’s penalty from his payment without a judicial determination of the liability of the lender.
Although we agree with Household that § 1640(h) requires a judicial determination of liability, the state action serves this purpose. Liability under the Act will be determined by the judgment of the court in the action wherein the set off or counterclaim is alleged, after lender, as a party to the lawsuit, has had an opportunity to be heard, and defend against the claim. The court will set off any adjudicated penalty against the debt.
We therefore hold § 1640(h) does not apply to a claim under the Act used as a defense or counterclaim in an action on a note.
(566 P.2d at 1166)

See also National Boulevard Bank of Chicago v. Thompson, 85 Ill.App.3d 1145, 41 Ill.Dec. 241, 407 N.E.2d 739 (1980); Easy Living, Inc. v. Whitehead, 65 Ohio App.2d 206, 417 N.E.2d 591 (1979); Household Finance Corp. v. Hobbs, 387 A.2d 198 (Del.Sup.1978); Lincoln First National Bank of Rochester v. Rupert, 60 A.D.2d 193, 400 N.Y.S.2d 618 (1977); Stephens v. Household Finance Corp., supra; Comments, 21 Vill.L.Rev. 904 at 924, Fn. 121, and at page 925.

We agree that the reasoning expressed in the above cases is sound and we decline to follow Ken-Lu Enterprises, supra.

15 U.S.C.A., Truth-in-Lending Act, section 1640, provides the following:

(a) Except as otherwise provided in this section, any creditor who fails to comply with any requirement imposed under this part or part D or E of this subchapter with respect to any person is liable to such person in an amount equal to the sum of—
(2)(A)(i) in the case of an individual action twice the amount of any finance charge in connection with the transaction, . . . except that the liability under this subparagraph shall not be less than $100 nor greater than $1,000; or
s}t s)c s{: jf: >}:
(3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney’s fee as determined by the court.

The full amount of the finance charge here is $1,098.23. We hold that the appellants are entitled to a set-off in the sum of $879.62, being the sum for which appellee sued appellants, coming within Section 1640, supra, and the amount of the judgment rendered. Appellants are also entitled to a reasonable attorney’s fee for services rendered in the lower court and on this appeal. Therefore, the judgment of the trial court is reversed and judgment is rendered here on the set-off claim of appellants in the sum of $879.62 which extinguishes the judgment and the attorney’s fee awarded in the lower court to appellee. The case is remanded to the Circuit Court of Grenada County for the purpose of fixing a reasonable attorney’s fee for services rendered by appellants’ attorney in the lower court. When that court fixes such attorney’s fee, it shall add one-half of said amount to the fee for services rendered by appellants’ attorney in this Court.

REVERSED AND JUDGMENT RENDERED HERE FOR APPELLANTS AND REMANDED TO THE LOWER COURT FOR DETERMINATION OF ATTORNEY’S FEE.

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


author: HAWKINS, Justice,

text:
    Alan H. HARRIGILL v. STATE of Mississippi.
    No. 53054.
    Supreme Court of Mississippi.
    Sept. 16, 1981.
    Merrida P. Coxwell, Jr., Jackson, Donald J. Steighner, Columbus, for appellant.
    Bill Allain, Atty. Gen., by Karen A. Gil-foy, Asst. Atty. Gen., Jackson, for appellee.

      Before SMITH, P. J., and BOWLING and HAWKINS, JJ.
   HAWKINS, Justice,

for the Court:

The appellant Harrigill, an attorney, was indicted by the grand jury of the First Judicial District of Hinds County on July 5, 1978, for the crime of obtaining money under false pretenses as prohibited by Mississippi Code Annotated § 97-19-39 (1972), convicted and on November 17, 1978, sentenced to serve a term of three (3) years in the Mississippi Department of Corrections and pay a fine of $50,000. He was also disbarred.

On March 12, 1980, this Court affirmed the conviction and judgment of the lower court, and on April 2, 1980, a petition for rehearing was denied. Harrigill v. State, 381 So.2d 619 (Miss.1980). Pursuant to the mandate issued from this Court, Harrigill was incarcerated with the Department of Corrections at Parchman.

On November 7, 1980, Harrigill filed in the circuit court of the First Judicial District of Hinds County a motion entitled, “Motion to Modify Original Confinement Order to Exclude Imprisonment Upon Basis of Criminal Fine.” The motion requested the court to enter an order amending its original sentence by making a finding that Harrigill was at the time of the motion unable financially to pay the criminal fine and by removing the criminal fine as a basis for any future criminal confinement or imprisonment. He supported the motion with an affidavit. A hearing was conducted by the circuit judge on the merits of the motion, at which time Harrigill testified he was eligible for parole, and that the parole board would release him, subject only to payment of the fine.

On January 21, 1981, the trial judge denied the motion as being unsupported by and contrary to the evidence adduced. The judge further found that Harrigill had not complied with Mississippi Code Annotated § 99-19-20 (Supp.1980) concerning the impositions of fines.

Harrigill has appealed, and the state has filed a cross-appeal, assigning as ground therefor the circuit judge lacked jurisdiction to hear this cause.

In Denton v. Maples, 394 So.2d 895 (Miss.1981), we announced what we thought was already manifest: once a case has been appealed from the circuit court to this Court, the circuit court loses jurisdiction to amend or modify its sentence. If the case is affirmed, the lower court is issued a mandate to perform purely ministerial acts in carrying out the original sentence. There is no authority in the circuit court, or indeed this Court, following the issuance of a mandate affirming the case, to modify a judgment and sentence theretofore imposed. In the absence of some statute authorizing such modification, and presently there is none, once a case has been terminated and the term of court ends, a circuit court is powerless to alter or vacate its judgment.

When a criminal case has been completed and the term of court ends, unless the circuit court has deferred sentence, or placed the defendant upon a suspended sentence and retained jurisdiction for this specific purpose as authorized by statute, the power of the circuit court to alter or amend its sentence is terminated. If the case is duly appealed to this Court, this Court has appellate jurisdiction to either affirm, reverse and remand, or reverse and render the judgment the lower court should have rendered. It is only when the case is remanded for a new trial that the circuit court is again invested with discretionary authority with reference to that particular case.

The only avenue of relief available for people incarcerated is through the executive branch of our government, unless there is some statutory or constitutional right being violated, in which latter event to address the appropriate court by an appropriate original proceeding. Following conviction and final termination of a case, however, neither the circuit court nor this Court has power to simply review a case and decide whether or not the original sentence should be amended in any way. Any attempt to do so is a nullity. See State v. Dunn, 111 N.H. 320, 282 A.2d 675 (1971); Hulett v. State, 468 S.W.2d 636 (Mo.1971); People v. Fox, 312 Mich. 577, 20 N.W.2d 732 (1945), 168 A.L.R. 703; 24B C.J.S. Criminal Law § 1952(7).

In Hayes v. State, 46 Wis.2d 93, 175 N.W.2d 625 (1970), the Court held the trial court had an inherent power to reduce a sentence, but to permit such discretion provided only application therefor was made within one year following judgment. In the absence of specific statutory authority therefor, we decline to follow such holding.

This holding, of course, is without prejudice to any department of the Executive Branch of our State Government making whatever decision it deems appropriate and lawful in the case of the defendant, and also without prejudice to the defendant’s asserting any statutory or constitutional right by original petition in an appropriate legal forum. A court does have inherent power to correct judgments obtained through fraud, accident or mistake, which is reviewable through a writ of error coram nobis. However, this is not such a case. See McNeeley v. Blain, 255 So.2d 923, 925 (Miss.1971); City of Starkville v. Thompson, 243 So.2d 54, 55 (Miss.1971); Corry v. Buddendorff, 98 Miss. 98, 54 So. 84 (1911).

Reversed on cross-appeal and case dismissed for lack of jurisdiction.

REVERSED ON CROSS-APPEAL AND RENDERED.

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

LEE and BOWLING, JJ., took no part.

      . § 99-19-20 states:
      (1) When any court sentences a defendant to pay a fine the court may order (a) that the fine be paid immediately, or (b) that the fine be paid in installments to the clerk of said court or to the judge, if there be no clerk, or (c) that payment of the fine be a condition of probation, or (d) that the defendant be required to work on public property for public benefit under the direction of the sheriff for a specific number of hours, or (e) any combination of the above.
      (2) The defendant may be imprisoned until the fine is paid if the defendant is financially able to pay a fine and the court so finds, subject to the limitations hereinafter set out. The defendant shall not be imprisoned if the defendant is financially unable to pay a fine and so states to the court in writing, under oath, after sentence is pronounced, and the court so finds, except if the defendant is financially unable to pay a fine and such defendant failed or refused to comply with a prior sentence as specified in subsection (1) of this section, the defendant may be imprisoned.
      This subsection shall be limited as follows:
      (a) In no event shall such period of imprisonment exceed one (1) day for each ten dollars ($10.00) of the fine.
      (b) If a sentence of imprisonment, as well as a fine, were imposed, the aggregate of such term for nonpayment of a fine and the original sentence of imprisonment shall not exceed the maximum authorized term of imprisonment.
      (c) Credit shall be earned for work performed under subsection (l)(d) above at the rate of the highest current federal minimum wage.
      (3)Periods of confinement imposed for nonpayment of two (2) or more fines shall run consecutively unless specified by the court to run concurrently.


text:
    Roy D. McCOLLOUGH v. MISSISSIPPI STATE GAME & FISH COMM’N., et al.
    No. 52883.
    Supreme Court of Mississippi.
    Sept. 23, 1981.
    Louie M. Bishop, Waynesboro, for appellant.
    Bill Allain, Atty. Gen., R. Lloyd Arnold, Sp. Asst. Atty. Gen., P. Roger Googe, Asst. Atty. Gen., Jackson, for appellees.
    Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
   Appeal from Chancery Court, Wayne County; J. Shannon Clark, Chancellor.

AFFIRMED.


text:
    Marshall Dennis PEEL v. Elizabeth Polk PEEL.
    No. 53066.
    Supreme Court of Mississippi.
    Sept. 23, 1981.
    Roger K. Doolittle, Jackson, for appellant.
    Robert W. King, King & Spencer, Jackson, for appellee.
    Before SMITH, P. J, and WALKER and BOWLING, JJ.
   Appeal from Chancery Court, Hinds County; James Arden Barnett, Chancellor.

AFFIRMED.


text:
    Martin LANDRY v. STATE of Mississippi.
    No. 53081.
    Supreme Court of Mississippi.
    Sept. 23, 1981.
    Lawrence D. Arrington, Hattiesburg, for appellant.
    Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before SMITH, P. J., and WALKER and BOWLING, JJ.
   Appeal from Circuit Court, Lamar County; R. I. Prichard, III, Judge.

AFFIRMED.


text:
    Genola REEVES and Joyce Page Purvis v. Andrew REEVES.
    No. 52842.
    Supreme Court of Mississippi.
    Sept. 23, 1981.
    Eugene C. Tullos, Tullos, Tullos & Tullos, Raleigh, for appellant.
    Dewitt T. Allred, Jr., Collins, for appellee.
    Before SMITH, P. J., and WALKER and BOWLING, JJ.
   Appeal from Circuit Court, Covington County; James D. Hester, Special Judge.

AFFIRMED.


text:
    In re Incorporation of the TOWN OF MOOREVILLE; Dewey Taylor, et al. v. Joe SULLIVAN, et al.
    No. 52894.
    Supreme Court of Mississippi.
    Sept. 23, 1981.
    Douglas M. Wright, Tupelo, for appellants.
   Appeal from Chancery Court, Lee County; George F. Adams, Chancellor.

Billy W. Shelton, Jimmy D. Shelton, Tu-pelo, for appellees.

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

AFFIRMED.


text:
    Fredrick BOOKER v. COMMERCIAL CREDIT PLANS, Consumer Discount Company, d/b/a Commercial Credit Plan.
    No. 52864.
    Supreme Court of Mississippi.
    Sept. 23, 1981.
    Willie L. Rose, Lexington, for appellant.
    Ralph M. Dean, Oxford, for appellee.
    Before SMITH, P. J., and BOWLING and HAWKINS, JJ.
   Appeal from Circuit Court, Lafayette County; W. W. Brown, Judge.

AFFIRMED.


text:
    George G. MANSELL, Jr. v. STATE of Mississippi.
    No. 52807.
    Supreme Court of Mississippi.
    Sept. 23, 1981.

      James E. Smith, Smith, McLemore & Smith, Carthage, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   LEE, Justice,

for the Court:

George G. Mansell, Jr., was convicted in the Circuit Court of Madison County, Honorable Alfred G. Nicols, Jr., presiding, for aggravated assault on a law enforcement officer and was sentenced to serve thirty years in the Mississippi Department of Corrections. Mansell has appealed here and assigns four errors in the trial below.

I.

Did the trial court err in permitting introduction in evidence of an oral statement by appellant to a trusty, over objection, when appellant was not advised of his Fifth Amendment rights against self-incrimination at a time when appellant was in custody and had been in custody for a period in excess of fifteen months?

On the night of March 8, 1979, Deputy Sheriff William L. Wadford responded to a call from a local night spot east of Canton. While inside the building, he was informed that a man had taken something from his automobile. The deputy obtained a description of the individual and the car he was driving and the deputy and a companion started in pursuit of that vehicle. The deputy radioed Highway Patrolman Larry Greer, who was several miles away on the same highway, for assistance and Patrolman Greer set up a roadblock.

Deputy Sheriff Wadford overtook the automobile and pulled it over to the side of the highway. He got out of his car and approached the other vehicle and, when he came alongside of it, the driver shot the deputy three times in the chest, fatally wounding him. The car sped away and after traveling approximately two miles, it came to the roadblock set up by Patrolman Greer. The patrolman approached the appellant, who shot him twice and sped away. Appellant was arrested about 2:00 a. m. at a gas station near Carthage, Mississippi. The present case arises from the prosecution and conviction of appellant for an aggravated assault on Patrolman Greer.

John Steed, who had been convicted of murder and sentenced to life imprisonment, was placed in the cell with appellant and occupied that cell from April 2, 1979, until appellant’s trial on September 17, 1980. At the trial, Steed testified, over objection, that appellant told him he had tried to kill the patrolman with one shot by firing at his head, but that he missed him. Steed further testified that appellant told him he was going to “get off” on this charge of aggravated assault on a law enforcement officer as he had done on the prior charge for capital murder. Steed stated that he had never spoken to the prosecutor about the case before the trial, that he did not question the appellant about the incident, that he did not promise the appellant he would do anything for him if he would tell what had happened, and that the prosecution had not made any promises to him for testifying in the case.

The appellant contends that the statements were inadmissible because Steed was an agent of the law enforcement officials at the time the statements were made and that Steed had been employed by them to use subtle techniques of persuasion to obtain the incriminating statements from appellant, in violation of his Miranda rights. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Court said:

Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.
(384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706)

And:

In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.
(384 U.S. at 478, 86 S.Ct. at 1630, 16 L.Ed.2d at 726)

The evidence is uncontradicted that appellant was in custody at the time he made the incriminating statements to Steed, but there is no evidence to support the argument that Steed interrogated the appellant when the incriminating statements were made or that Steed acted as the agent of the law enforcement officials at the time they were made, or was planted in the cell by them for the purpose of hearing incriminating statements.

In McElroy v. State, 204 So.2d 463 (Miss.1967), the defendant sought to exclude a statement made by him in his jail cell to the owner of stolen cattle where McElroy told him that he stole the cattle. The lower court refused defendant’s request to conduct a preliminary examination of the witnesses outside the presence of the jury to determine the voluntariness of the statement and the Court reversed for that reason.

In Glass v. State, 278 So.2d 384 (Miss.1973), the defendant was mowing grass on the yard of the courthouse when the widow of the homicide victim spoke to him and Glass made incriminating statements about the homicide. The Court held that the statements were not the result of custodial interrogation and were free and voluntary statements admissible at the trial.

In Brown v. State, 293 So.2d 425 (Miss.1974), the defendant was incarcerated and the mother of the homicide victim went to the jail for the purpose of finding out about her daughter’s death. She asked Brown if he killed her daughter and he replied: “Mrs. Gainey, you won’t believe it, it was an accident.” The sheriff, though not in the immediate presence of the prisoner, was nearby and had taken Mrs. Gainey to the defendant’s cell. In holding that the statement did not result from custodial interrogation, this Court said:

The trial court conducted a preliminary inquiry out of the presence of the jury and the proof established that the statements made by appellant to Mrs. Gainey were free and voluntary. It was also established that the conversation was not instigated by anyone connected with any law enforcement agency. Mrs. Gainey wanted to find out why appellant had killed her daughter. Although appellant was in jail at the time this confrontation occurred, it did not amount to custodial interrogation within the meaning of the rule announced in Miranda v. Arizona, supra. Glass v. State, 278 So.2d 384 (Miss.1973); and McElroy v. State, 204 So.2d 463 (Miss.1967). The trial court correctly held that this testimony was admissible.
(293 So.2d at 428)

Many jurisdictions have held that incriminating statements made to a fellow cellmate, who is not an agent of law enforcement officials or acting at their direction by prior arrangement, are admissible at trial even though Miranda, warnings were not given beforehand. State v. Kurtz, 564 S.W.2d 856 (Mo.1978); State v. Killary, 133 Vt. 604, 349 A.2d 216 (1975); Bedingfield v. State, 47 Ala.App. 677, 260 So.2d 408 (1972).

Although Steed was a trusty or floorwalker, that fact does not make him an agent of the officers for purposes of a Miranda violation. We think the reasoning in Holston v. State, 208 So.2d 98 (Fla.1968), where defendant confided in a fellow inmate, who was also a trusty, is sound. The Florida Court said:

The appellant now challenges all the statements. He maintains that the one given the trusty was improper because it was obtained while he was in custody by an agent of the Broward County Sheriff’s Department, hence introduction of it was improper under the decision of the Supreme Court of the United States in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 694 (1966). But the position is unsound because the premise is faulty. Thomas was not a law enforcement officer. He was merely a fellow-convict with special privileges, and his connection with the case could not properly be described as conduct of custodial interrogation.
(208 So.2d at 100)

The United States Supreme Court said in Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980):

It is clear therefore that the special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation. “Interrogation,” as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.
(446 U.S. at 300, 100 S.Ct. at 1689, 64 L.Ed.2d at 307)

We are of the opinion that there is no merit in this assignment.

II.

Did the trial court err in allowing the oral statement given by appellant to his cellmate to be admitted into evidence in violation of the hearsay rule?

The appellant argues that the admission of the incriminating statements to Steed violated the hearsay evidence rule. However, the trial judge admitted the statements as admissions against interest which has been long recognized as proper. Dycus v. State, 396 So.2d 23, 28 (Miss.1981).

III.

Did the trial judge err in failing to take into account mitigating circumstances when he sentenced the appellant?

The maximum sentence for aggravated assault upon a law enforcement officer is a term of thirty years imprisonment and $5000 fine. The lower court imposed a sentence of thirty years in prison. The appellant contends that the judge erred in failing to take into account mitigating circumstances when he sentenced the appellant and that the sentence is tantamount to cruel and unusual punishment. This Court has held many times that the imposition of sentence is within the sound discretion of the trial court and the sentence will be upheld, if it is within statutory limits. Yazzie v. State, 366 So.2d 240 (Miss.1979); Ainsworth v. State, 304 So.2d 656 (Miss.1975).

IV.

Did the trial court err in failing to give the appellant credit for the time that he served in the Madison County Jail awaiting trial?

The appellant last contends that the trial court erred in not giving him credit for the time served in jail. Appellant was in the Madison County Jail for a period in excess of fifteen months.

Mississippi Code Annotated section 99-19-23 (1972) provides:

The number of days spent by a prisoner in incarceration in any municipal or county jail while awaiting trial on a criminal charge, or awaiting an appeal to a higher court upon conviction, shall be applied on any sentence rendered by a court of law or on any sentence finally set after all avenues of appeal are exhausted.

It is apparent that the appellant will receive credit for time served in jail pursuant to the above-mentioned statute, and the assignment is without merit.

AFFIRMED.

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


author: ROBERTSON, Presiding Justice,

text:
    Billy ARD v. STATE of Mississippi.
    No. 52845.
    Supreme Court of Mississippi.
    Sept. 23, 1981.
    Billy Ard, pro se.
    Bill Allain, Atty. Gen. by Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

Billy Ard, pro se, an inmate of the Mississippi State Penitentiary at Parchman, appeals from the dismissal of his petition for writ of habeas corpus by the Circuit Court of Sunflower County.

Ard pled guilty in the Circuit Court of Madison County to the May 22, 1976, burglary of Canton Gulf Oil Bulk Plant, and was sentenced to serve three years with the State Department of Corrections, with two years suspended pending good behavior for five years, and one year to serve in the Madison County jail.

Ard was subsequently indicted in the Circuit Court of Madison County for business burglary on August 23, 1977. On June 9, 1978, Ard pled guilty to this offense, and his sentence was to serve a term of four years in the custody of the State Department of Corrections and that “that sentence shall not be reduced or suspended nor shall you be eligible for parole or probation.”

The suspension of his sentence for the 1976 burglary was then revoked and he was ordered to serve the three year sentence imposed for that offense, less the amount of time he had served in the Madison County jail.

On December 11, 1980, Ard filed a petition for writ of habeas corpus in the Circuit Court of Sunflower County, alleging his unlawful confinement on the ground that he had not been sentenced as a habitual criminal because the maximum penalty for business burglary, namely, 7 years, was not imposed.

MCA section 99-19-81 (Supp.1980), provides:

“Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.”

The crime of business burglary carries a maximum sentence of 7 years. MCA § 97-17-33 (1972).

In a footnote to Usry v. State, 378 So.2d 635 (Miss.1979), we find this language:

“The wording of section 99-19-81 (Supp.1978) leaves little doubt as to the intent of the legislature. It means precisely what it says. If a defendant is indicted and convicted of a primary crime, and in the same indictment is charged under this statute and found guilty, the trial court is mandated to impose upon such defendant the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.” 378 So.2d at 638.

We also said in Usry:

In Watson v. State [291 So.2d 741 (Miss.1974)] supra, we held that when a previous conviction for a felony under the laws of this state, any other state, or of the United States is used to enhance the punishment of one convicted for the unlawful possession of a deadly weapon, the indictment must allege with particularity the state or federal jurisdiction of the previous felony conviction, the date of judgment and the nature or description of the offense constituting the previous felony.” 378 So.2d at 637.

The indictment in the case at bar for business burglary and as a habitual offender is defective in that, in charging the conviction of a second offense, in order to fit under section 99-19-81, the indictment merely recited: “[A]nd the said Billy Ard was convicted in the State of Mississippi, of another felony, same being Cause No. 218.”

It is readily seen that the indictment does not meet the requirements of the statute as interpreted in Usry in that it does not state the court in which he was convicted, the date of the judgment, the nature or the description of the offense for which he was convicted, nor that he was sentenced to serve “one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, ...”

It is clear to this Court that Ard was not sentenced by the Circuit Court of Madison County as a habitual offender because the indictment did not meet the requirements of section 99-19-81.

This would have the effect of invalidating the further penalty “that sentence shall not be reduced or suspended nor shall you be eligible for parole or probation.” This Court deleted similar language in Hill v. State, 388 So.2d 143 (Miss.1980).

The order of the Circuit Court of Sunflower County dismissing the petition for writ of habeas corpus is, therefore, affirmed, but the further penalty imposed by the Circuit Court of Madison County when Ard pled guilty to the offense of business burglary “that sentence shall not be reduced or suspended nor shall you be eligible for parole or probation” will be deleted,

AFFIRMED, BUT PROVISION OF NO PAROLE OR PROBATION DELETED.

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


text:
    John W. HANCOCK v. FARM BUREAU INSURANCE CO., et al.
    No. 52890.
    Supreme Court of Mississippi.
    Sept. 23, 1981.

      Paul M. Neville, Meridian, for appellant.
    Kenneth Watts, Grace Watts, J. R. Shannon, Walter W. Eppes, Jr., Meridian, Jerome B. Steen, Whitman B. Johnson, III, Steen, Reynolds, Dalehite & Currie, Jackson, for appellees.
    Before ROBERTSON, BROOM and HAWKINS, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

Appellant, John W. Hancock, filed a complaint in the Chancery Court of Lauderdale County against Farm Bureau Insurance Company, State Farm Insurance Company, J. R. Shannon and Walter W. Eppes, Jr., seeking reformation of a written release signed by Hancock and obtained by Farm Bureau Insurance Company, for its insured, Mary Walker Stewart. Hancock also prayed that State Farm Insurance Company and its attorneys, J. R. Shannon and Walter W. Eppes, Jr., be enjoined from interposing and relying on this written release as an affirmative defense in a suit for damages filed by Hancock against Gerald Miles Harrison in the Circuit Court of Lauderdale County.

General demurrers by all defendants were filed in the Chancery Court suit and the chancellor sustained these general demurrers and dismissed Hancock’s bill of complaint.

On January 6, 1979, about 7:00 p. m., Hancock ran into a stopped automobile owned and operated by Mary Walker Stewart on U. S. Highway 45 Alternate, approximately one mile north of Artesia, Mississippi.

Shortly thereafter, Gerald Miles Harrison drove his car into Hancock’s automobile while it was immobilized due to the collision with the Stewart automobile. Stewart’s insurer, Farm Bureau Insurance Company, on February 23, 1979, settled Hancock’s claim against Stewart for $1500, and took a general release from Hancock on that date.

When suit was filed in the Circuit Court of Lauderdale County by Hancock against Gerald Miles Harrison, defendant Harrison answered and asserted as an affirmative defense the “Final Release and Settlement of Claim” executed by Hancock to Mary Walker Stewart.

At this stage of the proceedings, Hancock, plaintiff in the Circuit Court suit against Harrison, filed his bill of complaint in the Chancery Court of Lauderdale County, praying reformation of the release executed by Hancock in favor of Stewart. This complaint was filed not against Harrison, the only defendant in the Circuit Court suit, but against Stewart’s insurer, Farm Bureau Insurance Company, Harrison’s insurer, State Farm Insurance Company, and Harrison’s attorneys, J. R. Shannon and Walter W. Eppes, Jr. Hancock also prayed that Harrison’s insurer “State Farm Insurance Company, J. R. Shannon and Walter W. Eppes, Jr.” be enjoined “from relying on the said Release in the defense of Gerald Miles Harrison in Cause No. 1055-H pending in the Circuit Court of Lauderdale County, Mississippi.”

We affirm the decree of the chancery court sustaining the general demurrers of all defendants and dismissing the bill of complaint because there is no equity on the face of the bill and because plaintiff Hancock has a plain, adequate and speedy remedy at law.

In Huffman v. Griffin, 337 So.2d 715 (Miss.1976), this Court said:

“This motion raises the issue of priority jurisdiction between courts of concurrent jurisdiction. The principal of priority jurisdiction is that where two suits between the same parties over the same controversy are brought in courts of concurrent jurisdiction, the court which first acquires jurisdiction retains jurisdiction over the whole controversy to the exclusion or abatement of the second suit. [Citing Lee v. Lee, 232 So.2d 370, 373, (Miss.1970), and other authorities]. (Emphasis added).
“In this state priority of jurisdiction between courts of concurrent jurisdiction is determined by the date the initial pleading is filed, provided process issues in due course. [Citing Euclid-Mississippi v. Western Casualty and Surety Company, Inc., 249 Miss. 547, 559-60, 163 So.2d 676 (1964), and other authorities]. 337 So.2d at 719.

Plaintiff, Hancock, chose his forum when he filed his suit for damages against Gerald Miles Harrison in the Circuit Court of Lauderdale County. He is bound by that decision and, as said in Huffman :

“[T]he court which first acquires jurisdiction retains jurisdiction over the whole controversy to the exclusion or abatement of the second suit.”
337 So.2d at 719. (Emphasis added).

In Bogdahn et al. v. Pascagoula Street Ry. & Power Co., 118 Miss. 668, 79 So. 844 (1918), it was held that the matter of a $7,500 settlement with a joint tort feasor and a release executed by the plaintiff was properly submitted to a circuit court jury for consideration.

In Pearson v. Weaver, 252 Miss. 724, 173 So.2d 666 (1965), Pearson appealed from a judgment of the Circuit Court of Bolivar County which sustained a plea in bar to his declaration because Pearson had executed a written release to defendant Weaver’s insurance carrier. Pearson claimed that there was a mutual mistake because his injuries were more serious than at first supposed when the release was executed. It was stipulated that the trial judge could decide all questions of law and fact without submitting the matter to a jury. The circuit court determined that there was no mutual mistake of the contracting parties and this Court affirmed.

In McCorkle v. Hughes, 244 So.2d 386 (Miss.1971), appellant McCorkle filed suit for damages against Hughes in the Circuit Court of the First Judicial District of Hinds County. The defense was that McCorkle had knowingly and voluntarily executed a general release of all damages resulting from the automobile accident. This defense was set up in the answer as a plea in bar and a separate and preliminary hearing was held on this plea.

McCorkle, in her reply, admitted that she signed the general release but alleged that there was a mutual mistake as to the nature and duration of her injuries. This Court affirmed the circuit court’s ruling that there was no mutual mistake, no fraud and no over-reaching.

These cases are cited to show that Hancock has a plain, adequate and complete remedy at law, and can assert mutual mistake in the Circuit Court of Lauderdale County in the execution of his release to Stewart.

The suit having been first filed in the Circuit Court of Lauderdale County, that court “retains jurisdiction over the whole controversy to the exclusion or abatement of the second suit.” Huffman v. Griffin, supra. (Emphasis added).

Another fatal error in the chancery court suit is that Harrison, the only defendant in the circuit court suit, is not even made a party and yet Hancock seeks to enjoin Harrison’s insurer and his attorneys from asserting in the circuit court an affirmative defense on Harrison’s behalf. Any decision of the chancery court would thus not affect the sole defendant, Harrison, in the circuit court suit.

The decree of the chancery court, sustaining the general demurrers of all defendants and dismissing the bill of complaint, is, therefore, affirmed.

AFFIRMED.

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

LEE, J., takes no part.


author: BOWLING, Justice,

text:
    Narvel TILLMAN v. Thadys Victoria WILLIAMS, Executrix of the Estate of Ada Broadnex Tillman, Deceased.
    No. 52819.
    Supreme Court of Mississippi.
    Sept. 23, 1981.
    Norman Breland, Breland & Barnett Gulfport, Walter J. Phillips, Gex, Gex & Phillips, Bay St. Louis, for appellant.
    Joseph H. Benvenutti, Bay St. Louis, for appellee.
    Before SMITH, PATTERSON and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

This appeal from the Chancery Court of Hancock County involves the interpretation of Section 91-5-27, Mississippi Code Annotated (1972). Appellant Narvel Tillman was the husband of Ada Broadnex Tillman, deceased; they having been married in April 1948. Mrs. Tillman died testate on November 29, 1977, and her will which was executed on July 8, 1960, was probated. The will devised and bequeathed all of her property in specific items to three different persons. The deceased’s husband was not mentioned in the will. He filed his petition to be recognized as an heir and declared owner of one-half of his wife’s real and personal property pursuant to said statute, which reads as follows:

If the will of the husband or wife shall not make any provision for the other, the survivor of them shall have the right to share in the estate of the deceased husband or wife, as in the case of unsatisfactory provision in the will of the husband or wife for the other of them. In such a case a renunciation of the will shall not be necessary, but the rights of the surviv- or shall be as if the will had contained a provision that was unsatisfactory and it had been renounced.

Several witnesses testified at the hearing on appellant’s petition and it appears clear from this testimony that appellant and his wife parted company from fifteen to twenty years prior to the wife’ death in 1977. The only certainty appears to be that the appellant moved his abode to an adjoining county. None of the witnesses had any positive knowledge as to the reason for the separation of the parties or any other really relevant fact other than he left. Although living apart all those years, neither party secured a divorce and were still man and wife at the time of the wife’s death. There was no evidence of any attempted remarriage or disclaimer of the marriage by either party during the years of separation. There was no evidence that either party attempted to secure a divorce. The only thing we find that appellant did after moving to the adjoining county was to haul pulpwood and drink whiskey. There was an indication that during all the years of separation the deceased received regular government checks from some type of benefits as a result of her marriage to appellant. There was no positive proof on this question one way or the other.

After hearing the extremely indefinite and doubtful evidence presented by the witnesses, the chancellor decreed that appellant was prohibited from being recognized as an heir of his wife under the above quoted statute on the grounds that “he had deserted the deceased and totally abandoned her as to support.”

We first need to reiterate the former opinions of this Court to the effect that under Section 91-5-27 the surviving spouse, where no provision is made for him or her in the will of the deceased, is entitled to either a child’s share or if no children, one-half of the deceased spouse’s estate, the same as if “the will had contained a provision that was unsatisfactory and it had been renounced.” We made this plain in the case of Bullock v. Harper, 239 So.2d 925 (Miss.1970). We reiterated this positive principle in the case of McBride v. Haynes, 247 So.2d 129 (Miss.1971). Again, we stated:

We are of the opinion that Section 669 [§ 91-5-27] specifically relieves the surviving spouse from taking any affirmative action and the law automatically renounces the will.

The learned chancellor recognized the above principle and therefore correctly found that appellant was entitled to one-half of the real and personal property owned by his wife at the time of her death. The lower court, however, found that appellant was estopped from claiming his one-half share on the ground that he had deserted his wife.

It is probable that the lower court was misled by the statements of this Court in Walker v. Matthews, 191 Miss. 489, 3 So.2d 820 (1941), and In Re Marshall’s Will, 243 Miss. 472, 138 So.2d 482 (1962), where there appears a sentence indicating that “desertion or abandonment is held to estop a spouse from inheriting from the other.” This point needs clarifying.

In Walker, supra, it mentions that the “desertion or abandonment theory” was a “majority rule.” Research reveals that this majority constituted seven states, all of which have statutes clarifying this issue where abandonment is shown. Our Legislature has not seen fit to enact any legislation on this abandonment question. It is, therefore, obvious that the statute has to be strictly construed unless there is a clear desertion and abandonment that sets up the estoppel. In Walker, the surviving wife had engaged in a marriage ceremony with another man, and her deceased husband also had married another. There was a clear abandonment of the marriage relationship.

In Rowell v. Rowell, 251 Miss. 472, 170 So.2d 267 (1964), the Court held even an adulterous affair did not amount to desertion “in the absence of a statute or showing of a bigamous marriage.”

In Baugh v. Brimage, 242 Miss. 459, 135 So.2d 701 (1961), a surviving husband was held estopped to inherit from his deceased wife’s estate when he had entered into a bigamous marriage and was living with still another woman with whom he had several children.

In Re Marshall’s Estate, supra, the surviving wife lived with various men after leaving her husband. Furthermore, the husband, prior to his death, had married another woman. The abandonment of the marriage relationship was clear.

In Walker, supra, Justice Roberds, in writing for the Court humorously set out the situation when he said:

We will try to weave into the warp of this life of this Lothario the woof of his nuptial and concubinage experiences in an effort to picture the fabric of his earthly existence. He appears to have about lived to the limit of his physical and mental powers. He was a fireman on a railroad, and, like the sailor with a sweetheart in every port, it was his desire to have one at each depot along his route. As he neared the end of life’s run, we find him returning to the old home, and, as his engine was pulling into the terminal and its fires were burning low, sitting on his front porch, murmuring over and trying to read his Bible. That night the fires went out.

The lower court in the present case recognized the difficulty in holding estoppel in the case sub judice, when he said in the decree: “That even though the separation was proved, a total abandonment of the deceased was left in doubt. ...” A thorough review of the record reveals that not only was an abandonment uncertain, but there just was not any substantial evidence to show a desertion or abandonment as required in the above quoted cases. There was, at most, just a separation proven. As stated, there was no marriage or divorce proceedings by either party, and their place of living alone was in adjoining counties. The statute in question cannot have any meaning if the surviving spouse is disinherited under the clear language of the statute solely because of a long separation.

We are forced to hold the learned chancellor was manifestly in error and the cause should be reversed and a decree rendered here granting appellant an undivided one-half interest in the real and personal property owned by the deceased wife, Ada Broad-nex Tillman, at the time of her death. He of course, owns each particular item of property as a tenant in common with each person to whom a devise or bequest was made.

The decree of this court pursuant to this opinion shall be placed in the records of the administration of the deceased, Mrs. Ada Broadnex Tillman, pending in the Chancery Court of Hancock County, Mississippi, and in the land records in the Office of the Chancery Clerk of said county.

REVERSED AND RENDERED.

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

LEE and HAWKINS, JJ., took no part.


author: ALMON, Justice.

text:
    Clancy THOMASON, et al. v. Sam MULLINAX, et al.
    79-171.
    Supreme Court of Alabama.
    Aug. 7, 1981.
    Murray W. Beasley, Tuscumbia, for appellants.
    J. William Thomason of Thomason & Russell, Bessemer, and Nolan & Newman, Fayette, for appellees.
    N. Lee Cooper and R. Michael Leonard of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for amici curiae, Alabama Mining Institute, and Alabama Surface Mining Reclamation Council.
   ALMON, Justice.

This is an appeal from a decree quieting in the heirs of Sam Mullinax title to all the minerals underlying certain land located in Fayette County, Alabama. We reverse.

In 1934, Sam Mullinax purchased from M.B. Earnest land located in Fayette County. The deed from Earnest to Mullinax contained a reservation excepting the minerals and mining rights. Even though he only owned the surface, Mullinax assessed the entire property until 1957 when he conveyed the property to a third party, reserving the minerals and mining rights to himself. During the period between 1934 and 1957, Mullinax conducted various coal mining operations on this property. These operations — conducted with wheelbarrows and wagons — including removing coal from an underground mine and exposed outcroppings as well as “pop shotting” to remove the overburden from coal seams lying near the surface. The coal removed was used for domestic purposes in Mullinax’s blacksmith shop and home, although at one time Mullinax sold a portion of the mined coal to the Fayette County Board of Education. In 1939, Mullinax leased oil and gas rights to Superior Oil Company. Apparently, that company drilled one and possibly more wells, but subsequently abandoned the well or wells when they proved to be dry.

Mullinax’s heirs brought suit to quiet in themselves title to all the minerals underlying approximately eighty acres of the land he owned in 1957. The trial judge, sitting without a jury, granted this requested relief as to sixty acres after he determined that Mullinax adversely possessed the minerals under that acreage because “the mining operations * * * were conducted openly and continuously, as seasonally necessary and as the nature of the business and operations and the customs of the country permitted and required,” and that “[e]ntry on the land during any of the period would have revealed to a reasonable observer facts which should reasonably have made such observer believe that mining operations were being conducted.”

The appellants, heirs of W.M. Ennis and others who were Earnest’s and Mullinax’s predecessors in title, raise several issues on appeal. The pivotal issue is: When title to minerals has been severed from title to the overlying surface, can those minerals be adversely possessed, and, if title can be so acquired, how far does the adverse possession extend?

The rules applicable to adverse possession of minerals when the title to the mineral estate has been severed from the surface estate were summarized by this Court in Sanford v. Alabama Power Co., 256 Ala. 280, 288, 54 So.2d 562, 569 (1951):

After severance of the minerals, in situ, from the surface the possession of the latter is not possession of the former. The effect of the severance is to create two closes, adjoining but separate. The mineral, after severance, is a corporeal hereditament, and mere nonuser will not affect the owner’s title; and to lose his right by adverse possession, the owner must be disseised. Hooper et al. v. Bankhead & Bankhead, 171 Ala. 626, 54 So. 549, and cases cited. To acquire by adverse possession the title to the mineral interests so severed, there must be an actual taking or use under claim of right of the minerals from the land for the period necessary to affect [sic] the bar. Under the authorities, it is essential, to effect adverse possession of the minerals, after severance in title from the surface, that the adverse claimant do some act or acts evincing a permanency of occupation and use, as distinguished from acts merely occasional, desultory or temporary acts suitable to the enjoyment and appropriation of the minerals so claimed, and hostile to the rights of the owner. Birmingham Fuel Co. v. Boshell, 190 Ala. 597, 67 So. 403, and cases cited; Hooper v. Bankhead & Bankhead, supra.

In the present case, the trial judge, hearing the evidence ore tenus, determined that Mullinax satisfied these requisites and, therefore, had adversely possessed the minerals. This determination of fact is supported by the evidence, is neither palpably erroneous nor manifestly unjust, and is accordingly due to be affirmed. Smith v. McNaughton, 378 So.2d 703 (Ala.1979); Gertz v. Allen, 376 So.2d 695 (Ala.1979).

The trial judge’s determination as to the extent of Mullinax’s adverse possession and his decree quieting title to sixty acres is, however, erroneous and due to be reversed.

The rationale of Sanford v. Alabama Power Co., supra, is applicable to the issues before this Court. That case involved a suit to quiet title to the minerals underlying the surface of the NE Vi and NW Vi of the SE Vi of Section 34, Township 15 South, Range 17 West, in Walker County, Alabama. In 1874, all of this property was owned in fee by H. A. Key. In January of that year, Key conveyed by deed the surface rights to J. M. Garner. Ten years later Key conveyed the rights to the minerals underlying Garner’s property to Musgrove Brothers. In 1941 Alabama Power acquired the mineral interests via a deed from Musgrove Brothers. Sanford acquired his interest by way of inheritance from Garner. Alabama Power sued to quiet title to the minerals underlying the described property. Before trial, the complaint was amended to omit the NW Vi of the NE Va of Section 34, upon which Sanford had conducted a coal mining operation. Sanford advanced two arguments pertinent here: first, that he had acquired title to the minerals underlying the entire tract of land in question by virtue of the mining operations conducted on the NW Vi of the NE Vi of Section 34; and, second, because he had color of title to all of the minerals underlying the land in question, his actual possession of the minerals in the quarter section where he was conducting mining operations was sufficient to constitute possession of all the minerals. After deciding that the facts did not support a claim of adverse possession, the Court, noting that it was not deciding a question of adverse possession, rejected Sanford’s second argument, stating:

We quote from the ease of French v. Lansing, [73 Misc. 80, 132 N.Y.S. 523], as follows:
“These rules [that one who actually possesses a portion of land under color of title constructively possesses all of the land] apply to adverse possession of the surface, and form no guide, even by analogy, to such a case as the present. They all contemplate some sort of notice to the true owner and possession and dominion of one kind or another over the whole of the premises claimed adversely. Where there is such known farm or lot with defined boundaries, the partial improvement may fairly be said to give warning of a claim to the whole, and to constitute possession of the whole.
“The same thing cannot be said to result from the opening of a quarry for gypsum or limestone or the driving of a gallery into a vein of coal. In either case, what claim is made or what possession is there of the minerals beyond the face of the quarry or the end of the vein? If a coal mine, is there possession and claim of the entire vein no matter how far the same may extend? In the case at bar, if there is adverse possession, it covers at least the 200 acres deeded to Otis; for it is to be observed that the act of Otis and his grantees in subsequently dividing the surface is not notice of any kind to Wick-ham and his heirs. One of the tests of adverse possession under a claim of title is whether or not it is such as enables the possessor to maintain trespass against a stranger. If A. opened a quarry on the south end of these 200 acres, could he maintain an action in trespass against B. who, subsequently, opened a quarry at the north end thereof? Or, suppose B. opened a coal mine. Without, however, deciding definitely just how, if at all, adverse possession of minerals separated from the surface can be obtained, it is probably enough to hold here that the mere opening of a quarry, with or without a written claim of title, did not constitute adverse possession as against Wickham and his heirs of the gypsum situated beyond the quarry.” [Emphasis supplied by Sanford court.]
In Piney Oil & Gas Co. v. Scott, [258 Ky. 51, 79 S.W.2d 394], it was said:
“A would-be disseisor who enters under a bare color of title is no better off than one who enters without color and marks off a distinct line around what he intends to occupy. Each, if he acquires any rights, must do so because of his occupation, claim, and use of the premises for the statutory period.
“A disseisor upon the surface may actually build upon, occupy, and use but a portion of the territory embraced within his marked line or color, but he has an immediately potential use and occupancy of the remainder of his claim, and the law by construction extends his actual occupation over it, but, when he gets below the surface and attempts to take possession of minerals, he can have no immediately potential use or occupation of the whole of the minerals over which the law can by construction extend his actual possession; therefore he can have no possession of the unmined portion. Their possession was never in advance of their operations, unless they surrounded a block; then they had possession of that block, but no more. They got no more than they loosened or around which they had established a confine. By their operations they may have pushed the mineral owner back, but they have never pushed him off. To disseise the title holder, they must push him off and keep him off. * * They could have no actual possession until they had a potential possession, and they have never had any potential possession of the coal that has not been disturbed. * * *
******
We are of the opinion that the reasoning underlying the holdings in the cases from other jurisdictions, from which we have quoted above, impels us to the conclusion that the mining operations conducted by [Sanford] in the NW Vi of the NE Vi of Section 34 cannot be said to have put him in possession of the minerals in, under or upon the lands included in the bill of complaint as amended.

256 Ala. at 289-90, 54 So.2d at 570-71. In sum, Sanford was in possession of only that part of 'the coal seam which he had either loosened or actually mined.

Mullinax’s heirs concede in brief that adverse possession of a portion of the minerals does not always extend to the entire area to which the adverse possessor holds the surface rights. They argue, however, that title to the entire mineral estate will accrue to the adverse possessor if his actions constitute notice that he intends to claim title to all the minerals. In an effort to show that Mullinax’s actions evince an intent to adversely possess all the minerals underlying his surface estate, the heirs point to the following factors: (1) record title to the surface estate was held by Mullinax; (2) he assessed the property; (3) he leased the rights to drill for oil and gas; and (4) his mining operations were conducted over most of the quarter section he owned.

Even though these facts argued by Mullinax’s heirs may be evidence of his intent to adversely possess all those minerals underlying his surface estate, they in no way alter the rationale of Sanford: one may adversely possess only those minerals over which one has actual possession, and such possession is acquired only over those minerals which have been either bounded by a confine, loosened or actually mined. Thus, applying this rationale, we hold that Mullinax and his heirs only acquired title to that coal which was loosened or actually mined. It follows, therefore, that the trial judge’s order quieting title in the heirs of Sam Mullinax is erroneous and is due to be reversed.

REVERSED AND REMANDED.

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

      . A.A. Nichols, the Fayette County Tax Assessor, testified that no one other than Sam Mulli-nax assessed the property in question during the years between 1934 when Mullinax acquired the property and 1957 when he soid it. In assessing the property, Mullinax did not assess the surface rights separately from the min-erais rights as he could have done under Code 1975, § 40-11-1, and its predecessor Tit. 51, § 21, Code 1940. Nichols testified that as far as his records indicated, Mullinax assessed the whole property in fee. However, in answer to a subsequent question, Nichols explained that it is a general practice in Fayette County that when a property owner assesses his property and no one else separately assesses the mineral rights, such assessment is construed to be an assessment of both the surface and mineral rights. There was no evidence during either direct or cross examination of the tax assessor as to whether Mullinax continued to assess the mineral rights after he sold the surface rights in 1957.