author: SULLIVAN, Justice,

text:
    Gayle O. KELLY and Iris Kelly v. David SHOEMAKE, Admr., C.T.A., Estate of Zetta K. Windham, et al. Gayle O. KELLY v. David SHOEMAKE, Admr., C.T.A., Estate of Zetta K. Windham, et al.
    Nos. 55134, 55135.
    Supreme Court of Mississippi.
    Nov. 21, 1984.
    As Modified on Denial of Rehearing Dec. 12, 1984.

      James Leon Young, Gee Ogletree, Young, Scanlon & Sessums, Brandon, on appeal only, for appellants.
    Walker L. Watters, Thomas R. Hudson, William C. Brabec, Gerald, Brand, Watters, Cox & Hemleben, Jackson, Wallace Allred, Collins, for appellees.
    Before ROY NOBLE LEE, P.J., and HAWKINS and SULLIVAN, JJ.
   SULLIVAN, Justice,

for the Court:

I.

A.

This appeal arises from decrees of the Chancery Court of Covington County removing Gayle Kelly as administrator of the estate of Mrs. Zetta K. Windham, setting aside various deeds, codicils, and transfers of funds on the ground that Kelly exercised undue influence over Mrs. Windham, and rendering a judgment in favor of the estate for $1,194,972.39 against Kelly for failure to satisfactorily account for and return funds belonging to Mrs. Windham’s estate. From these decrees, appeal is taken with the following errors alleged to have been committed by the chancellor:

1. Failure to credit the overwhelming weight of the evidence that an express oral contract existed between Kelly and the Windhams whereby they would transfer all they owned to him in return for his rendering personal services to them in their old age.

2. Misapplying the law of undue influence to subsequent transactions between the Windhams and Kelly rather than to the time of the abovementioned agreement.

3. Abusing its discretion in refusing to reopen the case to hear testimony that would have fully and fairly presented Kelly’s case.

4. Misapplying the law of estoppel to bar Kelly from claiming any right to the proceeds from the sale of Windham properties to which he held an unrecorded deed.

5. Removing Kelly as administrator of the estate and rendering a judgment against him for any sum whatever.

We have carefully reviewed the voluminous evidence in this case and the arguments by both sides and we conclude that none of the errors assigned by Kelly has merit. We affirm the chancellor’s decrees in all respects.

B.

We summarize the basic facts of the fourteen year relationship between the Windhams and Gayle Kelly below; additional facts will be developed as needed in the discussion of law.

R.L. and Zetta Windham were a childless, elderly and wealthy couple living in Collins, Mississippi. In 1964, they executed mutual wills providing for equal division of their wealth between their respective families. In 1966, their nephew, Gayle Kelly, came with his family to live on the Wind-ham property and from that date forward he and his wife were at the disposal of the Windhams to perform whatever tasks were required. In 1974, R.L. Windham sold his considerable oil and gas holdings to Wiley Fairchild for approximately $2,180,000. After Mr. Windham’s death in 1975, Kelly continued to render the usual services but also began to manage Mrs. Windham’s business affairs.

From 1975 until her death in 1978, Mrs. Windham executed codicils appointing Kelly as executor and disinheriting anyone who contested the will, with the forfeited share passing to Kelly. Mrs. Windham’s checking and savings accounts were changed to make Kelly a joint tenant, as were her certificates of deposit. Kelly withdrew large sums of money, and changed a million dollar certificate of deposit to his own name, while she was. hospitalized. After her death, appellant recorded four deeds conveying to him all interests in the Windhams’ properties. He produced two and three million dollar checks signed by Mr. Windham to prove the existence of an express oral agreement in 1965 between the Windhams and himself whereby he would receive all of their fortune in return for coming to live and care for them in their declining years. Kelly was cited to produce the will and codicils of Mrs. Wind-ham in 1979, and after a three-year discovery process and oft-delayed trial, the chancellor entered the decrees rejecting his claims and ordering repayment of Wind-ham estate funds to be distributed according to the terms of the 1964 will.

II.

WAS THE CHANCELLOR’S REFUSAL TO REOPEN THE CASE REVERSIBLE ERROR?

The chancellor refused to reopen the case to hear testimony of three witnesses overlooked by Kelly’s trial counsel but granted leave to take their depositions which are included in the record on appeal.

It is well settled that a chancery court has the authority to reopen a case for additional proof. Hamilton v. McGill, 352 So.2d 825, 830 (Miss.1977). In Grs Mississippi Chancery Practice, § 595, pp. 631-32 (2d Ed.1950), cited in Hamilton, it is said:

... it has long been the settled rule in our courts of equity that where on a final hearing or even after submission it is clearly perceived that some material point is either left unproved or the explanation of it is insufficient the chancellor has the discretion in the interest of justice and merits to remand it to the docket for further proof.

In Griffith, supra, § 632, p. 690, it is stated:

It is the earnest desire of courts, and especially of courts of equity, to render decision only upon a full and fair exposition of all the pertinent material facts, and the court will always be interested in any presentation that discloses any material fact not theretofore brought into the case. Nevertheless the law requires diligence from suitors, and when a trial has been had the question is not always whether justice has been done but whether the party complaining could, by the exercise of proper diligence, have produced a different result.

The right of a litigant to have a case reopened for additional testimony must necessarily be left largely to the sound judicial discretion of the chancellor. Euclid-Mississippi v. Western Casualty and Surety Company, 249 Miss. 779, 163 So.2d 904, 908 (1964). The chancellor’s decision should reflect a proper balance between administering full justice in an individual case and maintaining a prompt, efficient and orderly administration of justice, free from inexcusable negligence by the parties. See Griffith, supra, § 632 at 691.

In this case, appellants had over three years to complete the discovery and the trial lasted for five days during two court terms. Kelly called fifteen witnesses to substantiate his claim. His motion to reopen the case came three weeks after the court rendered a bench decree adverse to him but before entry of the final decree. The question is whether the chancellor abused his discretion in denying appellant’s motion to reopen the case.

When the litigation in a will contest is so protracted as in the case at bar, considerable deference should be given to a chancellor’s exercise of discretion not to reopen the case. Having had three years of discovery and a five-day trial, it would appear that the equities favor enforcing a prompt, efficient and orderly administration of justice. Moreover, the testimony of the three witnesses that Mr. and Mrs. Windham expressed their desire to have Kelly inherit their estate conforms to testimony already offered by other witnesses for Kelly during the trial. A motion to reopen the case to receive newly discovered evidence may be denied when the new evidence is merely cumulative. Allman v. Gulf and S.I.R. Co., 149 Miss. 489, 506, 115 So. 594 (1928).

We, therefore, conclude that the chancellor reasonably exercised his discretion in refusing to re-open the case to hear the witnesses’ testimony because the lengthy discovery and trial period point in favor of a prompt, orderly, and efficient administration of justice. Moreover, we find that no reversible error resulted from excluding their testimony because it was cumulative.

III.

WAS THE CHANCELLOR’S REFUSAL TO FIND AS A MATTER OF FACT THAT AN EXPRESS ORAL AGREEMENT EXISTED BETWEEN THE WINDHAMS AND KELLY IN 1965, AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

A.

The chancellor’s findings of fact reflected that the 1964 mutual wills of R.L. and Zetta Windham accurately reflected that each of them and both of them intended to divide their property equally between the two families. Having made this finding, the chancellor by inference had to have found that there was no agreement between the Windhams and Gayle Kelly in which he alone would receive all of the substantial Windham estate. Kelly challenges this implied finding of fact as against the overwhelming weight of the evidence. Kelly faces a difficult task on appeal. Not only must he show that at trial he introduced clear, definite, and certain evidence to prove the existence and terms of the alleged oral contract, he must show that the chancellor’s failure to credit his proof is not supported by substantial evidence and is manifestly wrong.

To enforce an oral agreement to devise property, Kelly has the burden to establish the existence and terms of the agreement by evidence which is “clear, definite and certain.” Shaw v. Ladner, 447 So.2d 1272, 1274 (Miss.1984); Voss v. Stewart, 420 So.2d 761, 464 (Miss.1982); Kalavros v. Deposit Guaranty Bank and Trust Co., 248 Miss. 107, 114, 158 So.2d 740, 743 (1963); In Re Boyd’s Estate, 228 Miss. 526, 532, 87 So.2d 902, 904 (1956); In Re Reinecke’s Estate, 225 Miss. 376, 381-82, 83 So.2d 438, 440 (1955). Clear, definite and certain evidence must establish both components of the alleged contract, its existence and its terms or scope.

Sound policy reasons were enunciated in In Re Boyd’s Estate, supra, for requiring a high burden of proof to establish claims such as Kelly’s.

The terms of a contract of this kind must be clear, definite, certain, and complete. [Citations omitted]. We can not say the chancellor was manifestly wrong in finding that there was no contract. It is difficult to see how he could have found otherwise. For this Court to hold that under this proof the chancellor should have found the existence of a contract (assuming, but not deciding, that it was enforceable) would be to place the devolution of property upon a shaky foundation, encourage litigation in estates, and put a premium on flimsy claims to estates of the dead.

Id. 228 Miss, at 532-33, 87 So.2d at 904.

The chancellor, as the trier of fact, determines the question of the existence and terms of an alleged agreement to devise property. Voss v. Stewart, 420 So.2d 761, 765 (Miss.1982). As observed in Richardson v. Riley, 355 So.2d 667 (Miss.1978), a chancellor’s

... findings of fact on conflicting evidence cannot be disturbed by this Court on appeal unless we can say with reasonable certainty that these findings were manifestly wrong and against the overwhelming weight of the evidence. Even if this Court disagreed with the lower court on the finding of fact and might have arrived at a different conclusion, we are still bound by the chancellor’s findings unless manifestly wrong, as stated above. [Citations omitted].

Id. at 668. In reviewing findings of fact made by the chancellor, where there is substantial evidence supporting the chancellor’s factfindings, they are beyond the power of this Court to disturb. Tedford v. Dempsey, 437 So.2d 410, 417 (Miss.1983). Where the chancellor made no specific finding on an issue of fact, this Court proceeds on the assumption that the chancellor resolved all such fact issues in favor of appellee. Tedford v. Dempsey, supra; Culbreath v. Johnson, 427 So.2d 705, 707-08 (Miss.1983).

B.

1.

Kelly argues that the chancellor must have recognized the existence of the 1965 oral agreement because the court upheld part of a 1972 deed in which the Windhams conveyed to the Kellys their home and surrounding properties, and all other real, personal or mixed property they owned. The chancellor ruled that the Kellys were entitled to the Windham homestead, based upon the unquestioned validity of the description of that property in the deed, and upon undisputed testimony from numerous witnesses, including one of the appellees in this case, that the Windhams wanted Kelly to have their home.

As for the effectiveness of the 1972 deed to convey to Kelly all other property owned by the Windhams, the chancellor heard and was entitled to credit testimony from the contestants’ documents expert that cast serious doubt upon the validity of the “all other property” clause. The document expert stated that, in his opinion, the description in the 1972 deed originally ended with a period after the description of the Wind-ham home property. At a later date, the deed was reinserted with imperfect alignment, the period was supplanted by a comma, and the “all other property” clause was typed in.

Although Kelly maintains that the Windhams gave him the deed to all of their property in 1972, he admitted that the document conflicted with later warranties given by the Windhams in the sale of their oil and gas properties to Fairchild in 1974, which Kelly himself notarized. Other testimony was offered by Kelly to prove that the Windhams openly recognized Kelly’s ownership of their entire estate, and by the contestants to prove that the Windhams continued to treat the property as their own. The chancellor was faced with sharply conflicting testimony and a noticeable discrepancy between the description of the Windham home property and the “all other property” clause. On the balance, we cannot say that the chancellor’s resolution of the conflict against the validity of the “all other property” clause is not supported by substantial evidence. We conclude that the chancellor’s partial upholding of the 1972 deed does no more than recognize the Kel-lys’ legitimate and basically unquestioned claim to the Windham homestead property. The chancellor’s refusal to credit the “all other property” clause is supported by substantial evidence. The 1972 deed, viewed in this light, does not constitute clear, definite, and certain evidence of the alleged oral agreement.

2.

Kelly also relied upon two checks signed by Mr. Windham in the amounts of two and three million dollars bearing the references “agreement” and “reafirm (sic) 1965 agreement,” as proof of the agreement. The chancellor did not directly address the validity of these checks except to note that the Kellys had not probated them as a claim against the estate of either Mr. or Mrs. Windham. Kelly asserted that Mr. Windham gave him the two million dollar check in 1966, shortly after Kelly moved to Collins in furtherance of the agreement. The three million dollar check, Kelly claimed, was given to him shortly after Mr. Windham closed the Fairchild sale.

Although the chancellor made no express finding to this effect, there was considerable evidence suggesting that in fact Mr. Windham did not draw these checks for Kelly. Two witnesses, including one disinterested party, testified that Mr. Windham habitually gave signed blank checks to members of the family to purchase items, but never wrote checks for such large amounts as these two checks. Although the checks bear Mr. Windham’s signature, the amounts, dates, and references are typed in. The checks are not numbered and the account on which they were drawn never held funds sufficient to cover either check. The existence of the checks was not revealed until after the Windhams were dead when Kelly was ordered to probate Mrs. Windham’s will. The uncertain authorship and questionable circumstances surrounding these two checks substantially support the chancellor’s refusal to recognize them as clear, definite, and certain evidence of the agreement.

3.

Kelly also contends that the oral agreement was evidenced by the fact that he was made a joint tenant on Mrs. Wind-ham’s savings and checking account and certificate of deposit, and by the fact that he later became the sole owner of a million dollar certificate of deposit. The chancellor found that Mrs. Windham did not make a gift of any of these funds to Kelly and that he had no property rights in the funds. Kelly never was named on any Windham account or certificate of deposit until after Mr. Windham’s death. Kelly’s dealings with the account and certificate of deposit funds occurred with little or no knowledge on the part of Mrs. Windham. Certain bank officials testified that Kelly said he was acting as trustee for Mrs. Windham in reinvesting the certificates of deposit. Finally, Mrs. Windham’s federal tax returns show that she owned and received interest income from the accounts and certificates of deposit until her death, while Kelly’s tax returns show him as a wage-earning employee who recognized no interest income from the certificates of deposit until after Mrs. Windham died.

4.

Kelly offered the testimony of several witnesses, including Mr. Windham’s C.P.A., and Mrs. Windham’s private nurse and her minister, to the effect that the Windhams wanted their entire fortune to go to Kelly. Kelly and his brother, to whom Kelly lent very large sums of Windham estate funds, testified as the only witnesses to the actual verbal agreement between the Windhams and Kelly in 1965. Their testimony was contradicted by that of numerous other family relatives, all appellees in this case, and other disinterested persons, including Mr. Windham’s business confidant, who stated that Kelly had only been hired by Mr. Windham because Windham knew he would have to support Kelly eventually. The sharply conflicting testimony raised a factual dispute which the chancellor as the finder of fact was obliged to resolve. In reviewing the testimony of the witnesses for both sides, we cannot confidently say the chancellor was manifestly erroneous in failing to rule that Kelly’s witnesses established the existence of the oral agreement by clear, definite and certain evidence. Although Kelly’s own testimony about the agreement cannot be directly contradicted, since only he, his brother, and the Wind-hams were allegedly present, his interest in the outcome of the case is clear and his credibility was not unquestioned.

C.

The proof in this case offers a striking comparison to the recent case of Shaw v. Ladner, 447 So.2d 1272 (Miss.1984), in which we held that an oral agreement of the type alleged by Kelly was proven by clear, definite, and certain evidence. In Shaw v. Ladner, the proponents of the alleged oral contract introduced the testimony of five disinterested witnesses who stated that the elderly Ladniers repeatedly voiced their intentions to leave their estate to the Ladner couple in exchange for the Ladners rendering constant personal services to the Ladniers in their final years of life. 447 So.2d at 1274. The opponent, Shaw, we noted, was unable to rebut any of this testimony and his testimony that Mrs. Ladnier had promised her property to him was uncorroborated by any other witness. Id.

In the case at bar, the existence and terms of the alleged oral agreement was only established by the testimony of Kelly and his brother, both of whom have an apparent interest in this case’s outcome. The documentary evidence offered to corroborate the alleged contract contains serious flaws, already outlined above, so that it must be disregarded, as was the contradictory testimony of Shaw’s corroborating witness in Shaw v. Ladner, 447 So.2d at 1273. Also, Kelly’s “disinterested” witnesses, the C.P.A., the lawyer, and the private nurse, had all depended previously upon Kelly to write the checks for services rendered to Mrs. Windham. The opponents to Kelly’s contract, unlike Shaw v. Ladner, introduced considerable evidence in rebuttal to the existence of the contract, too lengthy to outline, but clearly sufficient and from disinterested sources.

In summary, we are convinced that upon a full review of the evidence the chancellor was not manifestly wrong in failing to recognize that the contract alleged by Kelly in fact existed.

IY.

DID THE CHANCELLOR MISAPPLY THE LAW OF UNDUE INFLUENCE?

A.

The chancellor’s final decree found as a matter of fact that Gayle Kelly was in a close, personal, and confidential relationship with his aunt, Mrs. Windham. The chancellor also found as fact that, after her husband’s death, Mrs. Windham relied upon Kelly exclusively to make all her business and financial decisions and to conduct her business affairs. These findings of fact are not challenged by Kelly on appeal and are fully supported by the evidence.

It is well-settled law that once the existence of a confidential relationship is proven, a presumption of undue influence arises and the burden of going forward with the proof shifts to the grantee/beneficiary to prove by clear and convincing evidence:

(1) good faith on the part of the grantee/beneficiary;
(2) the grantor’s full knowledge and deliberation of his actions and their consequences, and
(3) advice of (a) a competent person, (b) disconnected from the grantee, and (c) wholly devoted to the grantor’s/testator’s interests.

Murray v. Laird, 446 So.2d 575, 578 (Miss. 1984); Harris v. Sellers, 446 So.2d 1012, 1014-15 (Miss.1984).

The law of undue influence as applied to the case at bar is that any transactions between Mrs. Windham and Kelly occurring after the death of Mr. Windham may be presumed to be void as the result of undue influence, unless Kelly shows by clear and convincing evidence that (a) he exercised good faith, (b) Mrs. Windham knew and deliberated her actions and their consequences, and (c) that she received competent independent advice. Murray v. Laird, supra; Harris v. Sellers, supra.

B.

1.

In determining whether Kelly exercised good faith in connection with the codicils, certificates of deposit, accounts, and deeds, Murray v. Laird, requires us to consider (a) the identity of the initiating party in seeking preparation of the instrument, (b) the place of the execution of the instrument and in whose presence; (c) what consideration and fee were paid, if any, and (d) by whom paid, and (e) the secrecy or openness given the execution of the instrument. 446 So.2d at 578. The proof on the question of Kelly’s good faith does not clearly and convincingly establish Kelly’s good faith, rather it demonstrates its absence. Kelly was active in the procurement of the codicils naming him as the executor of Mrs. Windham’s estate and giving to him the portion of her estate which an heir would forfeit if he contested the will or codicils. Kelly drove Mrs. Windham to her Laurel attorney’s office on every occasion and was present in the office during the execution of the first codicil. He drove her to the chancery clerk’s office each time she had the other two codicils witnessed. Kelly wrote and delivered the checks to the Laurel attorney for services rendered in preparation of the codicil. Kelly also generally concealed the codicils in his possession until Mrs. Windham’s death. Kelly was likewise active in the creation of the joint accounts, certificates of deposit, and deeds. He admitted that he established joint accounts and certificates of deposit without even telling Mrs. Windham. He procured a million dollar certificate of deposit in Jackson in his own name using her funds, while she lay ill in a Hattiesburg hospital. He admitted that he typed the 1975 deed conveying Mrs. Windham’s property to him, the 1976 mineral right and royalty transfer, and instituted the negotiations to have the Knight heirs’ property transferred to Mrs. Windham in 1977, which she conveyed to him one month later. Kelly admitted that he did not record the 1975 and 1977 deeds until three days after Mrs. Windham’s death. While Murray v. Laird notes that "... prior disclosure of a donation is not a prerequisite to its validity ...”, 446 So.2d at 579, the fact that Kelly concealed from all but his immediate family the codicils, deeds, accounts, and certificates of deposit reinforces the undue influence presumption. In short, there was no affirmative or positive proof that Kelly exercised good faith in these numerous transactions.

2.

In determining whether Mrs. Windham’s actions were the product of a knowing and deliberate choice, Murray v. Laird directs us to consider (a) her awareness of her total assets and their general value, (b) whether she understood who were the natural inheritors of her bounty under a prior will, and how the proposed change legally affected that will, (c) whether non-relative beneficiaries would be excluded or included, and (d) her knowledge of who controls her finances and business and by what method, if controlled by another, and how dependent she is upon him and how susceptible to his influence. 446 So.2d at 579. For the last three years of Mrs. Windham’s life, she was frequently ill, hospitalized, and dependent upon Kelly to transact all necessary business for her, including tax and accounting matters. She depended upon Kelly to drive her to her attorney’s office, to the bank, and to the courthouse. Although the Laurel attorney testified that Mrs. Windham appeared to be independent and unsusceptible of external influence, he admitted that it was his impression that she relied upon Kelly generally for advice. As for the transfer of Wind-ham account funds, Mrs. Windham, according to Kelly’s own testimony, was not even aware of his dealings with her money. It was also shown that she did not understand the consequences of the 1975 deed divesting herself of title to all her real and personal property because she continued to treat the Fairchild sale proceeds as her own property on which she paid taxes. She also told members of the Windham and Kelly families that they would be taken care of. Kelly called several witnesses who stated that Mrs. Windham was independent and uninfluenceable, while the appellees testified that she was an emotional, dependent person who was especially devoted to Kelly. In reviewing all the evidence on this issue, we conclude that Kelly did not clearly and convincingly rebut the evidence that Mrs. Windham did not act independently and deliberately with respect to the challenged transactions.

3.

Finally, in determining whether Mrs. Windham received informed independent advice from someone wholly devoted to her interests, Murray v. Laird directs our attention to whether the advisor (a) conferred with her prior to drafting the documents, (b) was given full knowledge upon which to base his suggestions, (c) was competent to advise and was wholly devoted to her interests. 446 So.2d at 579. The chancellor placed heavy emphasis on the fact that Mrs. Windham received no independent advice on any of her business or financial affairs after the death of her husband. The chancellor found as fact that she relied exclusively upon Kelly for personal and financial advice. In connection with the codicils, the Laurel attorney was unable to render meaningful advice because he did not know the extent of her assets, he never saw her tax returns, and did not question on whether the codicils were the product of a free-thinking independent mind or whether they were imposed by the dominance of an over-reaching person. Although the attorney stated that Mrs. Windham's actions were based on an independent decision, he was unaware of the antecedent circumstances leading to the drawing of the codicils and he did state that Mrs. Windham relied upon Kelly generally for advice. As to the other transactions, Mrs. Windham did not know of Kelly’s dealings with her funds in many cases, so she could not have received independent advice on those matters. Kelly’s own testimony was that he prepared or procured the 1975, 1976, and 1977 deed according to her directions and there was no proof of prior independent advice as to those deeds. The record reflects that Kelly did not clearly and convincingly prove that Mrs. Windham received independent competent advice on the transactions in question.

Kelly asserts that the chancellor should have restricted his inquiry as to the existence of undue influence to the time when the Windhams made their offer to him in 1965. Relying solely on Deanes v. Tomlinson, 54 So.2d 474, (Miss.1951), Kelly argues that the law of undue influence is properly applied to the time of the initial agreement. Deanes was a sick, elderly man who offered to deed his property and will his estate to his third cousin, Tomlinson, if she would take him into her home and care for him. He later filed suit to set aside the deed on the ground of fraud and insufficient mental capacity. In addressing the question of fraud, we stated:

There was no confidential or trust relation existing between these parties. While Mrs. Tomlinson and appellant were third cousins, they had not visited each other within the past year or so. Mrs. Tomlinson neither sought nor solicited the agreement. She did not even accept the proposition until two or three days after it was made. Admittedly, appellant originated the idea, and, of his own free will and accord, sought its consummation. Consequently, it is obvious that there was no fraud in this case. [Citations Omitted]

54 So.2d at 475.

Kelly argues that Deanes is precise authority for his situation because of three similar circumstances:

1. Kelly was a relative of the Wind-hams but had not visited them frequently prior to the agreement. Similarly, Mrs. Tomlinson had not visited Mr. Deanes within the past year or so prior to their agreement.
2. Kelly did not propose the agreement. The chancellor found that Kelly came to Collins at the request of the Windhams. Similarly, in Deanes Mrs. Tomlinson did not propose the agreement, but its idea was originated with Mr. Deanes.
3. Mr. and Mrs. Windham were mentally competent at the time of entering into the agreement in 1965. Likewise, Mr. Deanes was mentally competent at the time he had entered into the agreement and had satisfactorily taken care of his business prior to the agreement.

Under these facts Kelly contends the chancellor should have determined that, at the time the Windhams entered into the agreement with him, the parties were dealing at arms-length and acting of their own free will and accord.

Kelly’s argument is without merit for two reasons. First, as noted in section III, we do not find that an oral contract to transfer to Kelly all the Windham property was entered into in 1965, so there is no factual basis for analyzing the relative position of the parties at that time. Second, even assuming arguendo that such an agreement existed, Kelly’s contention asks a court to remain blind to any development of a caretaker relationship from an arms-length contract into a close, personal, and confidential relationship. Kelly asks us to ignore the fourteen-year ripening of his aunt’s love for him into a condition of unqualified trust; this we will not do. Deanes v. Tomlinson, supra, does not require such a result, and Harris v. Sellers and Murray v. Laird direct us to consider the circumstances existing at the time of the transactions in question. Harris v. Sellers, 446 So.2d at 1014-15, Murray v. Laird, 446 So.2d at 578-79.

In conclusion, we rule that the chancellor properly applied the law of undue influence to the facts and circumstances surrounding each of the challenged transactions.

y.

DID THE CHANCELLOR ERR IN FINDING THAT THE KELLYS WERE ES-TOPPED FROM CLAIMING ANY INTEREST IN THE WINDHAM PROPERTIES, OTHER THAN THE WINDHAM HOMESTEAD, TO WHICH THEY HELD AN UNRECORDED DEED?

The chancellor ruled that the 1972 deed was effective to convey to Kelly the Wind-ham home property but that Kelly was estopped from claiming any interest under the “all other property” clause to the oil and gas holdings conveyed by the Wind-hams to Fairchild in 1974. The basis for this ruling was that although Kelly received the deed in 1972, he did not record it until August, 1979. Kelly made no mention of the deed at the time when he took the Windhams’ acknowledgment on the buy/sell agreement with Fairchild in 1974, which expressly stated that there were no prior unrecorded deeds by the Windhams affecting their oil and gas holdings. Kelly subsequently made no claim to any of the properties conveyed by the Windhams to Fairchild or to the proceeds from the sale prior to the death of both of the Windhams. Kelly also did not change the tax assessment rolls to reflect his asserted ownership of the Windhams’ other properties under the 1972 deed.

The fact that Kelly waited until well after Fairchild recorded his deed to the Windhams’ oil and gas properties to place on record his own claim under the 1972 deed bars him under our recording statute from claiming priority of title over the Fairchild deed. Mississippi Code Annotated § 89-5-5 (1972). Kelly admitted that Fairchild received no actual notice from either the Windhams or himself as to the existence of the 1972 deed.

If Kelly had had a valid claim to the proceeds of the Fairchild sale, his sole legal recourse would have been to probate a claim against either the estate of Mr. or Mrs. Windham. Mississippi Code Annotated § 91-7-51 (1972). The chancellor found as fact that he did not do so. Thus, Kelly is barred under the law from claiming the proceeds of the sale of the minerals from the funds of Mr. or Mrs. Windham’s estate. Kelly’s delay in asserting his claim under the “all other property” clause has resulted in the loss of the best source of proof as to the Windhams’ intentions through the death of the Windhams themselves.

The chancellor relied not upon these statutes but upon the doctrine of equitable estoppel to rule that Kelly’s claim against the Fairchild sale proceeds was barred. The basic elements of equitable estoppel, stated in terms of the facts of this case, are (1) the appellee’s belief and reliance upon Kelly’s misrepresentation that he had no claim to the Fairchild sale funds, (2) the appellee’s change of position in not bringing an action to determine the intended effect of the 1972 deed as a result of the misrepresentation, and (3) detriment or prejudice to the appellees caused by their failure to settle Kelly’s claim of ownership. Thomas v. Bailey, 375 So.2d 1049 (Miss.1979). The heirs of Mrs. Wind-ham were entitled to rely upon the land records which did not reflect until 1979 any claim by Kelly to the Windham oil and gas holdings sold to Fairchild. Clearly, if a conflict had been apparent, the heirs would have brought suit at that time to determine the true ownership of those holdings and the proceeds therefrom. Finally, the proceeds from the Fairchild sale, constituting the bulk of the Windham estate, were spent by Kelly to the true heirs’ prejudice, as a result of their reliance upon his silence, which was only broken after the Windhams’ deaths. Although there was sufficient statutory authority to effectively bar Kelly’s claim to the Fairchild proceeds in the Windham estate, we are of the opinion that the chancellor properly applied the doctrine of equitable estoppel to likewise bar such a claim.

VI.

DID THE CHANCELLOR ERRONEOUSLY REMOVE KELLY AS ADMINISTRATOR OF THE ESTATE AND RENDER A JUDGMENT AGAINST HIM IN THE AMOUNT OF ESTATE FUNDS FOR WHICH HE FAILED TO SATISFACTORILY ACCOUNT?

The chancellor ordered Kelly to file an accounting and inventory on November 17, 1982, for the estate of Mrs. Windham pending the outcome of the trial, using as the point of beginning the figure shown on her federal estate tax return as the total gross estate, $1,818,208.12. Kelly was ordered to present accountings and inventories for the years 1978 through 1982, but none of them filed by Kelly have been ratified by the chancery court. Kelly contended that codicil no. 1 to Mrs. Windham’s will waived any formal accounting by the executor. This codicil was challenged by the appellees and held void as the result of undue influence. The chancellor correctly exercised his discretion in requiring Kelly to file accountings and inventories during the pendency of the litigation in order to preserve and protect the assets of the estate.

Kelly’s contentions that he should be reinstated as executor and should not be held liable for unaccounted-for estate funds are based on the premise that the chancellor erroneously failed to find the existence of the 1965 agreement and misapplied the law of undue influence to the case. As noted in sections III and IV, we affirmed the chancellor on both issues.

Mississippi Code Annotated § 91-7-277 (1972) requires that at least once a year every executor present under oath an account of his administration, showing the disbursements, every item of which and the amount thereof to be distinctly stated and supported by legal voucher, and it shall also show the receipts of money and from what sources. The failure to account annually shall be a breach of the administration bond for which the executor may be removed. In this case, Kelly filed several accountings and inventories, none of which were sufficiently specific to satisfy the chancellor.

Mississippi Code Annotated § 91-7-253 (1972) provides that no executor or other fiduciary acting pursuant to the authority of any chancery court may borrow or use for his own benefit, directly or indirectly, any of the funds or property of the estate committed or entrusted to him by such court. Kelly has admitted that he has spent or lent large sums of funds taken from the Windham estate for which he is unable to account.

Mississippi Code Annotated § 91-7-285 (1972) authorizes the chancellor to remove any executor who is derelict in the performance of any duty required of him by law or orders of the court. Kelly’s misconduct and misappropriation of estate funds form a sufficient basis for the chancellor to remove him as executor of Mrs. Windham’s estate. As a result of the inadequate accountings, a personal judgment was rendered against Kelly for $1,194,-972.39. The chancellor was manifestly correct in holding Kelly personally liable for the misappropriation of such large sums of Mrs. Windham’s estate funds.

VII.

CONCLUSION

This case is affirmed on all issues raised by Kelly. The chancellor’s refusal to reopen the case was a reasonable exercise of discretion under the circumstances. Kelly failed to prove the existence of the alleged oral contract with the Windhams by clear, definite, and certain evidence. The chancellor properly applied the law of undue influence to the time period of the challenged codicils and other transactions. The silence by Kelly as to any claim to the proceeds of the Fairchild sale estops him from claiming any interest under his 1972 deed. Finally, appellant’s unsatisfactory accountings and misappropriation of estate funds fully supported the chancellor’s decision to remove him as executor and hold him personally liable for the money missing from the estate. Finding no error, we affirm.

AFFIRMED.

PATTERSON, C.J., WALKER, and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    William Carl EVANS v. STATE of Mississippi.
    No. 55169.
    Supreme Court of Mississippi.
    Nov. 21, 1984.

      Merrida P. Coxwell, Jr., Jackson, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Catherine Walker Underwood, Asst. Atty. Gen., Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and HAWKINS and SULLIVAN, JJ.
   SULLIVAN, Justice,

for the Court:

William Carl Evans appeals from his conviction in the Circuit Court of Hinds County, Mississippi, of possession of more than one kilogram of marijuana with intent to deliver, and a sentence to a term of fifteen (15) years in the custody of the Mississippi Department of Corrections.

On appeal, Evans claims the verdict against him was against the overwhelming weight of the evidence and the indictment charges him with a non-existent crime.

Neither assignment of error has merit, and we affirm.

FACTS

The principal actors were Evans, Gary Parham, a police informant, Mike Farrell, Renee Luke, the girl friend of Mike Farrell, Officer Barrett of the Jackson Police Department, and Mia Meeks, a girl friend of Evans.

Parham asked Mike Farrell if he would sell him some marijuana and Farrell pointed to Evans, the appellant, and suggested that Parham talk to the appellant. Evans told Parham he could get him the marijuana of the type specified by Parham. Evans and Parham agreed on a price which was to be $1500.00 for three pounds of marijuana to be delivered within a week. After two aborted attempts to effectuate the transfer, Parham was told to come to Eddie’s place on February 9, 1983, alone and with the money. Officer Barrett wired Parham for this meeting and monitored the meeting. Inside the bar, Parham met with Farrell. Farrell and his girl friend, Renee Luke, left Parham in the bar and took Renee Luke’s automobile to the apartment of Evans. Evans went into his back bedroom and brought out a plastic garbage sack which contained three wrapped bags full of marijuana. Farrell returned to the automobile and got in the front seat. Evans placed the marijuana in the back seat on the floorboard and took a seat in the back by the marijuana. Officer Barrett observed the vehicle when it returned to Eddie’s place. He saw Evans get out of the back seat and go into the bar with Renee Luke. Farrell remained in the automobile. A short time thereafter, Parham came out and got into the car and the arrest of Farrell took place.

Twenty-three days later, Renee Luke and Evans were arrested.

Mia Meeks was the main witness for the defense and she testified as to what Evans had told her about the events of the night of the transaction. Evans admitted getting the marijuana for Farrell after Farrell had badgered him to do so. According to Meeks, Evans claimed that he got disgusted with the entire transaction and gave the pot to Farrell and had nothing further to do with the transaction.

On this testimony, the jury found Evans guilty.

I.

WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

Appellant’s argument under this assignment of error is two-pronged. His first contention is that the state failed to prove either actual or constructive possession in the appellant. The testimony shows that at the time of the arrest of Farrell the marijuana was in a vehicle occupied by Farrell and owned by Renee Luke and that the appellant was inside the bar, where he exercised no dominion or control over the marijuana. Furthermore, police informant Parham testified he never saw Evans with the marijuana. It is contended that the damaging evidence of Farrell should have been given no weight at all by authority of our decision in Jones v. State, 368 So.2d 1265 (Miss.1979), where the testimony of the co-defendant was given no weight as there was no corroborative evidence linking the defendant to the crime. On the basis of these contentions, Evans argues that the state has wholly failed to prove actual or constructive possession and, therefore, the verdict is against the overwhelming weight of the evidence.

The second prong of appellant’s attack under this assignment of error is that this evidence will not support a conviction, citing Jones v. State, 368 So.2d 1265 (Miss.1979) again Evans urges that there is no evidence at all to corroborate Farrell’s testimony and no indication that anyone else was targeted by Parham except Farrell and that Farrell merely wanted to spread the blame in hopes of a lighter sentence. Both the appellant and the state rely upon Curry v. State, 249 So.2d 414 (Miss.1971), where the Court stated:

... there must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. It need not be actual physical possession. Constructive possession may be shown by establishing that the drug involved was subject to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.

249 So.2d at 416.

Under the totality of the circumstances, the jury could reasonably conclude that the appellant’s relationship with the marijuana was one of constructive possession and the appellant was aware of its character and presence and was in dominion over it. This is borne out by the following: (1) The pot had been in the ear next to appellant; (2) the informer was told he would have to talk to the appellant about buying the marijuana; (3) the appellant discussed price with the informer and whether he could get the marijuana; (4) appellant told the informer he would deal with him through Farrell; (5) the informer testified the reason for using Farrell as a middleman was that appellant didn’t want to deal directly with him for fear of being busted; (6) the appellant was the focus of one aborted buy and present at another; (7) appellant was looking for Farrell and Farrell’s girl friend the night of the bust, and was eventually picked up and brought to Eddie’s by them, in the automobile where the marijuana was located; (8) testimony of the informer was corroborated by Farrell; (9) Farrell testified that when they went to pick up the appellant, the appellant had the marijuana at his house which was transferred to their car; (10) Farrell testified that he assumed the reason appellant went with them to Eddie’s was that he was afraid to let the marijuana too far out of his possession; that appellant did not give the marijuana to Farrell; that the appellant never acted like he didn’t want to have anything more to do with the deal.

We move to the issue of whether or not the testimony of Farrell was uncorroborated. Under our holding in Mason v. State, 429 So.2d 569 (Miss.1983), the uncorroborated testimony of an accomplice may be sufficient to convict an accused. Where there is slight corroborative evidence, the accomplice’s testimony is likewise sufficient to sustain the verdict. Id. at 571. However, such testimony should be viewed with great caution and suspicion and must be reasonable, not improbable, self-contradictory or substantially impeached.

Farrell’s testimony was reasonable, consistent and substantially uncontradicted and the jury did receive a cautionary instruction relating to the manner in which Farrell’s testimony should be viewed. If we assume arguendo that Farrell’s testimony should be completely disregarded, there is still sufficient evidence to make this case a proper one for the jury’s resolution. Parham testified as to Evans’ involvement in the initial negotiations, involved Evans in the aborted transactions, and placed Evans near the scene of the successful transaction. Officer Barrett placed Evans in the car moments prior to the transaction. The main witness for the defense, Mia Meeks, testified that Evans admitted obtaining the marijuana for the transaction. Whether or not Evans abandoned his attempt to sell the marijuana to Parham and gave the marijuana to Farrell would be a question for the jury. Furthermore, this testimony corroborates the testimony already given by the witness Farrell. The issue then becomes whether or not the evidence is legally sufficient to sustain the jury’s verdict. Our rule in this regard is set out in Erving v. State, 427 So.2d 701, 702 (Miss.1983), wherein the Court stated:

[W]e are required to consider the evidence in the light most favorable to the state and accept as true the evidence supporting, or tending to support, the verdict, with all inferences supportive of the verdict that reasonably may be drawn therefrom.[cites omitted].

Based upon the foregoing, we find that the verdict was not against the overwhelming weight of the evidence.

II.

DID THE INDICTMENT CHARGE A CRIME?

In his contention that the indictment does not charge an offense, appellant relies upon three cases: Mosley v. State, 358 So.2d 1318 (Miss.1978); Joyce v. State, 327 So.2d 255 (Miss.1975); and Schloder v. State, 310 So.2d 721 (Miss.1975). These cases dealt with our prior statute which did not proscribe as an offense the possession of a controlled substance with intent to sell.

However, Mississippi Code Annotated § 41-29-139 (Supp.1984), in effect at the time of the crime, states in part:

(a) Except as authorized by this article, it is unlawful for any person knowingly or intentionally:
(1) To ... possess with intent to sell, barter, transfer, manufacture, distribute or dispense, a controlled substance; ...
(b) Any person who violates subsection (a) of this section shall be sentenced as follows:
(1) In the case of controlled substances classified in schedule I or II, as set out in sections 41-29-113 and 41-29-115, ... such person may, upon conviction, be imprisoned for not more than thirty (30) years or fined not more than one million dollars ($1,000,000.00) or both;

Conceding that the statute does not use the word “deliver”, in Gandy v. State, 438 So.2d 279, 284-85 (Miss.1983), we stated that the word “deliver” in an indictment is equivalent to “transfer”. Therefore, the indictment did charge Evans with a crime and there is no merit to this assignment of error.

AFFIRMED.

PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.


author: ROBERTSON, Justice,

text:
    Nora Faye HARRIS, Jerry K. Todd and Margie H. Todd v. BUXTON T.V., INC.
    No. 55250.
    Supreme Court of Mississippi.
    Nov. 28, 1984.

      Jon A. Swartzfager, Laurel, for appellants.
    John Mark Weathers, George E. Dent, Aultman, Tyner, McNeese, Weathers & Gunn, Hattiesburg, for appellee.
    Before PATTERSON, C.J. and DAN M. LEE and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court:

I.

This appeal follows a jury verdict in favor of Buxton T.Y., Inc. whom Nora Faye Harris and others had sued seeking damages for injury to real property allegedly resulting from water drainage precipitated by improvements that Buxton had made to its adjoining upland property. On this appeal, we find two errors committed by the trial court: (1) his refusal of Harris’ request to call as an adverse witness and ask leading questions of Buxton’s building contractor who had made the improvements in Buxton’s property; and (2) his failure correctly to instruct the jury regarding the standard of care by which Buxton’s conduct should be judged. We reverse.

II.

In April or May of 1981, Buxton acquired certain real property in Laurel, Mississippi, and began improvements during June or July of that year. That property adjoined and was upland of certain developed real property owned by Nora Faye Harris, Jerry K. Todd and Margie H. Todd (hereinafter collectively “Harris”), Plaintiffs below and Appellants here.

The building already on the Buxton property was increased substantially in size and a paved parking lot was constructed. Bux-ton had no expectation as to how drainage from this property would occur. This matter had been left to the contractors and engineers who performed the work. Indeed, Buxton was not aware of precisely what changes were made to its property as a result of the construction he had authorized. During the period of construction from June to October of 1981, Harris complained to Buxton that water from the Bux-ton property was coming on the Harris property.

On April 18, 1982, Harris commenced this action by filing a complaint in the Circuit Court of the Second Judicial District of Jones County, Mississippi. Since Bux-ton was unfamiliar and unknowledgeable regarding the specifics of the improvements that had been made to its property, Harris attempted at trial to call Joe Parker — who was Buxton’s general contractor for the improvements made on the Buxton property — as an adverse witness and to cross-examine him regarding the improvements actually made. The basis for this request was that Parker was identified with Buxton and that Harris could not, and would not, vouch for this witness’ credibility. The trial judge overruled Harris’ request. Given this turn of events, Harris elected not to call Parker at all.

Several other witnesses were called regarding conditions on the Buxton property and the adjoining properties, as well as witnesses testifying as to engineering and construction practices. The testimony of all these witnesses is not relevant to the points raised here on appeal.

The only other aspect of this trial which is relevant to this appeal concerns two jury instructions: P-2 and D-18. In essence, Instruction P-2 told the jury that while a property owner has the right to alter his property, he may not do so to the detriment to other landowners and that if the jury found that the water drainage flow onto the Harris’ property “either increased [‘in volume’ excised], velocity, intensity or concentration” then the verdict should be in favor of Harris. Instruction D-18, in contradistinction, told the jury that an “uphill” landowner is not liable to an adjoining landowner “even though the flow of water is accelerated or the volume increased” and so even if the jury found that Buxton had caused these detriments to Harris — the jury should nonetheless find in favor of Buxton.

After hearing the evidence and having been thus instructed, the jury after due deliberation found in favor of Buxton. From final judgment entered on the verdict, Harris appeals and presents two issues:

III.

Harris’ first assignment of error is that the Circuit Court

“erred in not allowing the Plaintiffs [Harris, et al] to call the Defendant’s contractor, Joe Parker, as a witness identified with an adverse party under Rule 43(b)(3) of the Mississippi Rules of Civil Procedure.”

As the record makes clear, the thrust of Harris’ complaint is that Buxton made some improvements or alterations upon the properties it occupied thus allegedly altering drainage patterns and causing excessive waters to be cast upon Harris’ lower adjoining lands. Harris says that, prior to these improvements, there was no drainage problem on their property, but that after Buxton did his work on his property,

“the Plaintiffs have been caused to suffer severe flooding to their home and yards by rain water draining from Defendant’s property.”

In this context, Harris sought to call as a witness one Joe Parker. Harris’ counsel stated to the court that Parker was the general contractor who actually made and performed the alterations to the property of which Harris was complaining. Harris’ counsel invoked Rule 43(b)(3), Miss.R. Civ.P., and asked that he be allowed to ask the witness leading questions and that he not be required to vouch for Parker’s credibility.

It is important that, prior to her efforts to call Parker, Harris had called Robert Earl Buxton, the corporate representative of Buxton T.V., Inc. as an adverse witness. Buxton proceeded to testify that he had hired Joe Parker Construction Company to make certain renovations on an existing building on the property complained of by adding approximately 2,000 sq. ft. to an existing 1,200 sq. ft. building by doing certain paving on the back of the lot and other related work. Buxton further testified that he was not familiar with the manner in which his contractor had done the work, but rather he had hired a contractor to do a job and he turned the matter over to his contractor.

In this context it certainly appears that, if Buxton has any liability in the premises, that liability will be the substantial product of the acts or omissions of Joe Parker Construction Company. Joe Parker as the chief managing officer of that corporation is the individual Harris sought to call as a witness.

Parenthetically, had Buxton been determined to have liability in the premises, Buxton may well have had an indemnity claim over against Parker. If Harris had elected to do so he could have named Parker as a defendant in this action. Had that been done Buxton could procedurally have asserted its indemnity claim against Harris via a cross-claim under Rule 13(g), Miss.R. Civ.P.

In this context, we consider Rule 43(b)(3), Miss.R.Civ.P. The rule provides as follows:

(3) Leading Questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse witness, or a witness identified with an adverse party, interrogation may be by leading questions. [Emphasis added]
(4) Who May Impeach. The credibility of a witness may be attacked by any party, including the party calling him.

This rule has an identical counterpart in Rule 611(c) of the Federal Rules of Evidence.

Rule 43(b)(3) is clear and unequivocable. In the context of the assignment of error before us, the rule provides that, when a party calls a witness identified with an adverse party, interrogation may be by leading questions. The meaning of this rule has been explicated in the official Comments which provide

“The final sentence deals with categories of witnesses automatically regarded and treated as hostile. Rule 43(b) of the Federal Rules of Civil Procedure has included only ‘an adverse party of an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party.’ This limitation virtually to persons whose statements would stand as admissions is believed to be an unduly narrow concept of those who may safely be regarded as hostile without further demonstration. The phrase of the rule, ‘witness identified with’ an adverse party, is designed to enlarge the category of persons thus callable.”

The comment, as well as the express language of the rule, make it clear that Rule 43(b)(3) is broader than its former counterpart in the Federal Rules of Civil Procedure. The matter is of no moment for, as we have noted above, Rule 611(c) of the Federal Rules of Evidence contains a sentence identical to that in question here.

Since the adoption of Rule 611, Fed.R.Ev. in 1975, there has been precious little litigation concerning the issue of who may be considered as “identified with an adverse party”. There are only two decisions emanating from United States Courts of Appeals which address this issue: Ellis v. City of Chicago, 667 F.2d 606 (7th Cir. 1981) and Perkins v. Volkswagen of America, Inc., 596 F.2d 681 (5th Cir.1979). The holding of these cases can be summarized as follows:

Before the adoption of Rule 611(c), the use of leading questions on direct examination required either a showing of actual hostility or a determination that the witness being examined was an adverse party, or an officer, director, or managing agent of such an adverse party, [citations omitted]
These limitations were designed to guard against the risk of improper suggestion inherent in examining friendly witnesses through the use of leading questions, [citations omitted]
The drafters of Rule 611(c), however, determined that these limitations represented “an unduly narrow concept of those who may safely be regarded as hostile without further demonstration.” [citation omitted] The new rule was thus designed to enlarge the categories of witnesses automatically regarded as adverse, and therefore subject to interrogation by leading questions without further showing of actual hostility.
—Ellis, 667 F.2d at 612-13; see also Perkins, 596 F.2d at 682 (trial court’s failure to allow a mere employee of a corporation to be regarded as “identified with the corporation” was incorrect)

It is significant to note that cases dealing with this issue under the more narrow strictures of Rule 43(b), Fed.R.Civ.P. — pri- or to the adoption of Evidence Rule 611— had attempted to read that rule in a more practical and sensible manner:

We believe that this situation demands a liberal construction of the Rules that takes into account the practicalities of the business world, the litigation which the business world must face and the underlying rationale of the rule. As the demands of litigation change with time, the law should make every attempt to accommodate this change to effect the modern demands of justice. The courts in determining who is a “managing agent” within the terms of Rule 43(b), should not be too technical or literal in their approach and thus disqualify for cross-examination the only persons within the corporation who have knowledge of the subject matter of the litigation. The court should view each case on an ad hoc basis and liberally apply the Rule to reach the demands of justice in each ease, [citations omitted]
—Skogen v. Dow Chemical Co., 375 F.2d 692, 701 (8th Cir.1967); see Sanford Brothers Boats, Inc. v. Vidrine, 412 F.2d 958, 970-71 (5th Cir.1969) (citing Skogen, former employee who was no longer employed by the company “could reasonably be expected to identify with the interests” of the company); see also Jones v. John Hancock Mutual Life Insurance Co., 416 F.2d 829, 830, 833 (6th Cir.1969) (independent insurance agent identified with the interests of John Hancock); Fall v. Esso Standard Oil Co., 297 F.2d 411, 417 (5th Cir.1961) (chief mate on ship identified with the interests of the ship owner and against the interests of a seaman).

Even though decided under the more stringent Federal Rule 43(b), the case of Melton v. O.F. Shearer & Sons, Inc., 436 F.2d 22 (6th Cir.1970), is most instructive. Keep in mind the facts of this case: Joe Parker was the managing officer of the general contractor who performed the improvements and alterations on the Buxton property alleged to have caused the water drainage damage to Harris. Compare this situation to that present in Melton:

After employing our opportunity for contemplative consideration of the matter, we are persuaded that the special facts of this case justify an inference of the hostility of the witness Keymon. The plaintiffs claim of negligence was bottomed on the conduct of Keymon. He was the tort-feasor if a tort was, in fact, committed. He could have been sued as the sole defendant, or jointly with the owners of the boat, who could be made to respond in damages only under the rule of respondeat superior. While not then in the employ of the defendants, O.F. Shearer & Sons, Keymon’s profession or occupation continued to be that of a river towboat pilot. His reputation as such, and his career, could be hurt by a finding of negligent operation of a riverboat that resulted in death to a third party. We believe that all this would permit his being recognized as a hostile witness within the meaning of the first sentence of Federal Rule 43(b).
—Melton, 436 F.2d at 26.

Joe Parker is obviously in a situation very analogous to that of Keymon. At the very least, his business reputation is on the line. Arguably, Harris could have sued Parker along with Buxton. If the breach of a duty owed Harris in fact occurred, Parker was in fact the villian. Especially given the fact that Parker would appear to be “identified with the adverse party” (Buxton) even under the far stricter old federal Rule 43(b), it follows a fortiori that he easily meets the criteria for being regarded as an adverse witness under the new Federal Rule 611 and hence under Mississippi Rule 43(b)(3) — both of which are far broader and embody a more relaxed standard.

In sum, the test for determining how closely the witness must be identified with the adverse party before he falls within that rule is variously stated:

(1) If the witness’ acts or omissions are the predicate for a party’s claim or defense, that is, if in a case such as this under the plaintiff’s theory of the case the defendant is subject to potential liability in substantial part not just because of his own actions but because of the actions or omissions of the witness in question, then that witness is ordinarily sufficiently identified with an adverse party and may be called as an adverse witness and interrogated by leading questions.

(2) If the conduct of the witness plays such an integral part in the transaction or occurrence which is the subject of the action and which gives rise to the defendant’s potential liability, so that the defendant, if the plaintiff’s primary original claim is successful, would have prima facie a claim for indemnity over against the witness, then again the witness is said to be sufficiently identified with the adverse party so that the witness may be called as an adverse witness and cross-examined.

The rule, of course, is a two-way street. A defendant or any other party may call a witness identified with a plaintiff or any other party and interrogation may be by leading questions.

When a party invokes the “identified with an adverse party” prong of Rule 43(b)(3), the trial judge’s responsibility is to determine from the facts and circumstances of the case whether the witness proposed to be called is one who is identified with the adverse party within the meaning and contemplation of the rule. In the case at bar, however, the trial judge undertook no such inquiry. Indeed, when confronted with Plaintiffs’ request, the trial judge’s ruling was simply “overruled”. All of this was error.

In an attempt to salvage the situation, Buxton argues here that the rule is discretionary. Buxton points to the language of the rule which provides that, when a party calls a witness identified with an adverse party, “interrogation may be by leading questions”. (Insofar as we can ascertain, Buxton here impliedly concedes that Parker is a witness identified with an adverse party, as, indeed, it must.) It is certainly true that the word “may” ordinarily contemplates a discretionary situation. Buxton misreads the rule, however, in perceiving that the discretion is vested with the trial judge. Whether the witness will be asked leading questions is a matter primarily within the discretion of the party calling the witness. The trial judge’s discretion is limited to assuring that a party is not allowed to examine by leading questions a witness adverse within Rule 43(b)(3) but in fact quite friendly.

Buxton further complains that the point has not been preserved because Harris made no proffer of what the testimony through Parker would have been. Generally, when a party seeks to offer evidence which in turn is excluded by the trial court, before we will consider the matter on appeal the party must have somehow placed in the record the nature and substance of the proffered evidence for our consideration. In Re Estate of Bowen, 234 So.2d 51, 52-53 (Miss.1970); Martin v. Wadlington, 337 So.2d 706, 708 (Miss.1976). This general rule has no application, however, when a party is improperly denied a right of cross-examination. As a matter of common sense, the party would seldom know precisely what cross-examination would reveal.

Finally, we note that a problem generically similar to that we confront here was considered recently by this Court in Moffett v. State, 456 So.2d 714 (Miss.1984). Moffett was a criminal case. We there held that the state, upon calling a witness who was friendly to the defendant, was not allowed to cross-examine that witness. We further held that the state vouched for the credibility of the witnesses it called, as does the defendant in a criminal case. Mof-fett recognized that the voucher rule and the prohibition on cross-examination of one’s own witness have been widely cri-tized and further recognized that the rule had been abandoned in this state in civil cases by virtue of Rule 43(b). The rule was enforced in Moffett because that was a criminal case which was not within the scope of Rule 43(b). Dicta in Moffett made it clear, however, that had Moffett been a civil case, the outcome would have been different.

Whether or not the trial judge’s ruling in the case at bar that Parker could not be interrogated by leading questions should, standing alone, constitute reversible error need not be addressed here since, as will presently appear, there was a second error committed in the trial court in that the jury was not properly instructed as to the law.

IV.

Harris’ second assignment of error is that

“the Court erred in granting Defendant’s Instruction Number D-18”. Instruction D-18 states Buxton’s theory of the case. It reads as follows:

INSTRUCTION TO THE JURY NO. D-18

The Court instructs the Jury that under the law an upper landowner has a right to make reasonable use of his or her property and may make certain improvements thereon under certain circumstances without liability to the lower landowners.

The Court further instructs the Jury that should you find from a preponderance of the evidence in this case, if any, that the property of the Defendant, Bux-ton T.V., Inc., is uphill from the property of the Plaintiffs; that drainage and rainwater naturally drains from the property of the Defendant, Buxton T.V., Inc., toward the property of the Plaintiffs, across the land of the Plaintiffs and into a ditch or creek which runs along the border of the Plaintiffs’ property; that such drainage pattern is natural and has existed for a number of years; and that the Defendant, in adding onto its property and in paving a portion of the property for use as a parking lot and driveway, did not cause more or additional water to flow across the land of the Plaintiffs; that the construction did not change the grade of the Defendant’s property nor the natural fall of the land; and although a portion of the Defendant’s property was paved that the rainwater and drainage water still flows in the same direction and naturally across the Plaintiffs’ property and into the adjacent creek; and that the Defendant did not change the course of the water in connection with any of the construction nor present occupants of the premises; then in that event, the Defendant is not liable to the Plaintiffs even though the flow of water is accelerated or the volume increased and should you so find, the verdict should be in favor of the Defendant, Buxton T.V., Inc. [Emphasis supplied]

An initial problem arises from the fact that Instruction D-18, and particularly the language emphasized above, appears wholly contradictory with language in Instruction P-2 granted at the request of Harris. D-18 instructs the jury that Buxton is not liable even though the flow of water “is accelerated or the volume increased”, while P-2 instructs the jury that Buxton is liable for an increase in “velocity, intensity or concentration”. Our paramount concern is, however, not the contradictory nature of these two instructions, for we have concluded that neither instruction correctly states the law.

The law regarding water drainage from one property owner’s land onto adjoining parcels is summarized and distilled in Hall v. Wood, 443 So.2d 834 (Miss.1983):

An upper landowner may without fear put his lands to reasonable uses even though as a proximate result thereof waters harm lower landowners, provided the harm is not unreasonable or unnecessarily severe. [ — ]
An upper landowner may increase the flow of water via drainage incident to the reasonable development of his property even though it does some damage to the lower landowner. Water by its nature confers burdens as well as benefits. These burdens our law requires to be shared equitably.
From the vantage point of the owner of lower lands, the law is complementary. In diverting waters from his lands, any owner must use reasonable care to prevent unnecessary injury to adjoining landowners.
Applying these principles, we hold that the upper landowners such as Hall are entitled to make reasonable use of their land. Where there is reasonable likelihood of damage to property of lower landowners, however, upper landowners are required to do whatever is reasonable to minimize the damage. The fact that some damage nevertheless occurs to the lower landowners does not render the upper landowner liable. On the other hand, where the upper landowner has done nothing in an effort to ameliorate the adverse effect on local landowners where there are ameliorative steps which reasonably could have been taken, and where the damage is in fact substantial, and further where the development activities of the upper landowner are a major proximate cause of that damage, the lower landowners are entitled to damages and/or injunctive relief as may be appropriate.
—Hall v. Wood, 443 So.2d at 838-40; see also Georgia Pacific Corp. v, Armstrong, 451 So.2d 201, 205-06 (Miss.1984) (Hall standard applies to lower landowners as well).

In essence, Hall v. Wood declares that an upper landowner has a duty to act reasonably (a) in anticipating damage that may occur to lower landowners as a result of the upper landowner altering his property and (b) in taking such ameliorative steps as may be reasonably necessary or appropriate to assure that the lower landowner is not burdened inequitably. Under Hall v. Wood, when an upper landowner fails to act as a reasonable, prudent landowner to safeguard the correlative interests of his neighbors, he is liable to his neighbors for damages caused by his unreasonable and inequitable behavior.

A correct jury instruction may properly include the various factual elements in Instruction D-18. It must, however, in the end be couched so as to pose to the jury the question of whether the upper landowner acted “reasonably” to minimize detriment to neighbors. Since neither P-2 nor D-18 required that the jury determine the reasonableness vel non of Buxton’s conduct given the facts and circumstances of the case, reversal is required. On remand the Circuit Court is directed to instruct the jury as to the proper standard for evaluating Buxton’s conduct.

REVERSED AND REMANDED

PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, DAN M. LEE, PRATHER and SULLIVAN, JJ., concur.


author: PRATHER, Justice,

text:
    Danny L. CLEMONS v. STATE of Mississippi.
    No. 54524.
    Supreme Court of Mississippi.
    Nov. 28, 1984.

      Clayton Taylor Lewis, Philadelphia, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P.J., and BOWLING and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

This is an appeal from a criminal conviction in the Circuit Court of Neshoba County, in which a jury found the defendant, Danny L. Clemons, guilty of rape. The court sentenced Clemons to 15 years imprisonment in the Mississippi Department of Corrections, from which conviction Clemons appeals, assigning as error:

(1) That the evidence was legally insufficient to support the appellant’s conviction;

(2) That the trial court erred in overruling appellant’s motion for a directed verdict; and

(3) That the trial court erred in overruling appellant’s request for a peremptory instruction of acquittal.

I.

Janet Stephens, the prosecutrix, is a 31 year old resident of Philadelphia, MS.' Mrs. Stephens has been married 11 years, with two children.

Mrs. Stephens testified that on Sunday morning, June 27, 1982, her husband left the house around 5:20 a.m. to go fishing. Mrs. Stephens and her two daughters were asleep. Around 6:00 to 6:30 a.m., Mrs. Stephens, startled by a noise, awoke to find a man standing at the foot of her bed.

Stephens described her assailant as a black male, six feet tall, weighing approximately 155 pounds, around 20 years of age, with a light mustache, dressed in a yellow T-shirt, blue jeans and tennis shoes. Mrs. Stephens identified the appellant in court as her assailant.

According to Mrs. Stephens, the appellant pulled the bedding to the bottom of the bed, then walked to the bedroom door and looked down the hall into the bedrooms where Mrs. Stephens’ daughters were sleeping. He then returned to the bedroom, closed the bedroom door, came over to Stephens and told her to do as she was told and she wouldn’t be hurt. Efforts by Mrs. Stephens to resist the assailant were met with repeated threats to follow his directions or suffer harm. At trial she expressed fear for the safety of her two* children. The intruder commanded Stephens to remove her clothes; when she shook her head, he said “Do as I say. Take your clothes off or I will hurt you.” Efforts to resist by her were met by pressure applied to her neck.

Under cross-examination, Mrs. Stephens acknowledged that her assailant did not exhibit a gun or any other weapon and did not threaten her with death. However, she testified that she was scared and believed that he would kill her and her children. There were no bruises, abrasions, cuts or marks of violence on her body after the incident and her clothes and bed sheets had not been torn.

Upon completion of the act, Mrs. Stephens’ attacker dressed and climbed out the window. Before leaving, he asked Mrs. Stephens if she would like him to replace the window screen and she shook her head affirmatively.

Following the attack, Mrs. Stephens showered, woke her daughters and left the house. She went first to the Holy Cross Catholic Church where she vacuumed the alter and talked to the priest. Around 7:20, Mrs. Stephens and her daughters went to her brother-in-law’s house, to get him to take her to her husband.

Mrs. Stephens told her husband what happened; they returned home where they remained for approximately one hour and then went to the Philadelphia Police Station around 9:00 a.m. According to Mr. Stephens, he took his wife home for an hour before going to the police station because she was extremely upset and he needed to calm her down.

Fingerprints lifted from the window of the Stephens’ home matched the known fingerprints of appellant Clemons.

Larry Turner, a forensic serologist with the Mississippi Crime Lab, testified that appellant Clemons had ABO blood type B, secretor status. According to Turner a vaginal slide examination revealed the presence of acid phosphatase and intact spermatozoa, as well as the presence of ABH substances B and H, which indicated an ABO blood group type B, secretor status. Turner further testified that approximately 7 percent of the population has ABO blood group type B, secretor status. Patricia Warren, a lab technician, testified that Kandy Stephens is ABO blood group type O-RH-positive.

Willie Rush, appellant’s landlord, testified that he visited with the appellant on Sunday morning, June 27, 1982 from approximately 6:10 or 6:15 until approximately 6:30 or 6:40. No other witnesses appeared on behalf of the appellant.

II.

Was the evidence legally insufficient to support appellant’s conviction of rape?

Appellant concedes that the well-settled rule in Mississippi is that in a prosecution for rape, physical force on the part of the assailant, or physical resistance on the part of the victim, is not necessary if the proof shows beyond a reasonable doubt that the victim surrendered because of fear arising out of a reasonable apprehension of great bodily harm. Davis v. State, 406 So.2d 795 (Miss.1981); Rush v. State, 301 So.2d 297 (Miss.1974); Fields v. State, 293 So.2d 430 (Miss.1974). The question raised by appellant’s first assignment of error is whether the proof was legally sufficient to show beyond a reasonable doubt that Mrs. Stephens surrendered to the appellant out of a “reasonable apprehension of great bodily harm”.

Among the factors which appellant contends undermine any reasonable apprehension on the part of Stephens are the absence of any bruises or marks of violence on her person and the fact that no weapon was exhibited. In McQueen v. State, 423 So.2d 800 (Miss.1982), this Court reversed a conviction of forcible rape on the grounds that the evidence was legally insufficient to support the verdict. In McQueen, no bruises or marks of violence were present, no weapon was exhibited, and significantly, no evidence of any threats was presented. We held that the evidence was insufficient to show that the prosecutrix was under a reasonable apprehension that she would suffer injury. 423 So.2d at 803. In Bishop v. State, 370 So.2d 238, 239 (Miss.1979), this Court reversed a rape conviction based on the sufficiency of the evidence where no weapon was exhibited and no bruises left upon the alleged victim except a reddening around the vagina. In Bishop, the only evidence of any threat by the defendant was that he stepped toward the prosecutrix when she refused to undress. 370 So.2d at 239.

In Christian v. State, 456 So.2d 729 (Miss.1984) this Court affirmed a conviction of rape even though no weapon was used and there was no sign of external injury. Defendant in Christian had threatened to kill his victim several times during the course of the incident. In Davis v. State, 406 So.2d 795 (Miss.1981), this Court affirmed a conviction of rape where there was no weapon exhibited and no evidence of external bruises. In Davis, the prosecu-trix testified that the defendant pushed her to the floor and threatened to harm her if she didn’t cooperate. 406 So.2d at 801.

This Court interprets the above decisions to mean that the presence of absence of threats by the defendant is a factor of equal importance with the presence or absence of bruises or the presence or absence of a deadly weapon. Where, as in Bishop and McQueen, the evidence of threats is absent or slight and there is no evidence of physical injury or use of a weapon, doubt may exist as to the reasonableness of the victim’s apprehension of great bodily harm. On the other hand, where as in Christian and Davis, there is evidence of explicit threats of harm, the submission of the victim may be said to be the result of “fear arising out of a reasonable apprehension of great bodily harm” even if no weapon was exhibited and no external physical injury established.

In the case sub judice, the testimony of Mrs. Stephens was that the appellant verbally threatened to harm her several times during the incident. In addition, Mrs. Stephens testified that the appellant pried her legs apart, and that the appellant "covered her mouth with his hand and placed his right thumb against her neck, applying pressure whenever she struggled (R. 136). The Court concludes that, under this Court’s decisions in Christian, supra, and Davis, supra, the evidence in the case sub judice is legally sufficient to support the conclusion of the trier of fact that Mrs. Stephens submitted to her assailant because of fear arising out of a reasonable apprehension of great bodily harm.

Appellant acknowledges that a conviction of rape may be based on the uncorroborated testimony of the victim where that testimony is not discredited or contradicted by other evidence. Otis v. State, 418 So.2d 65 (Miss.1982). Appellant points out, however, that this Court has repeatedly stated that the uncorroborated testimony of the prosecutrix in a rape case should be examined and scrutinized with caution. Goss v. State, 413 So.2d 1033 (Miss.1982); Upton v. State, 192 Miss. 339, 6 So.2d 129 (1942); Monroe v. State, 71 Miss. 196, 13 So. 884 (1893).

Appellant points out inconsistencies in Ms. Stephens statements and behavior. While Stephens claimed that upon arrival at the-Neshoba County Hospital, she was nervous and crying, Beth Burns, the registered nurse at Neshoba County Hospital, testified that Mrs. Stephens was calm and that she was not crying. Appellant also notes that Stephens admitted under cross-examination that, at the preliminary hearing, she did not mention going to church immediately following the incident.

In Goss v. State, supra, this Court upheld a conviction of rape although there were inconsistencies between statements attributed to the prosecutrix prior to trial and her testimony at trial. This Court held that the jury had the right to disbelieve the alibi defense of the defendant and resolve all conflicts of testimony in favor of the prosecutrix. 413 So.2d at 1036. Significantly, in the case sub judice, the jury was instructed that the uncorroborated testimony of an alleged rape victim must be scrutinized with a high degree of caution. This Court has previously held that such an instruction need not be given. Oates v. State, 437 So.2d 441 (Miss.1983); Goss v. State, 413 So.2d 1033 (Miss.1982).

III.

Did the trial court err in overruling appellant’s motion for a directed verdict?

Did the trial court err in refusing to grant a peremptory instruction of acquittal?

In judging the sufficiency of the evidence on a request for a peremptory instruction, the trial judge is required to accept as true all of the evidence that is favorable to the State, including reasonable inferences that may be drawn therefrom, and to disregard evidence favorable to the defendant. If the evidence judged in this manner is sufficient to convince a rational factfinder of the defendant’s guilt beyond a reasonable doubt, the trial judge must deny the requested instruction. Gray v. State, 427 So.2d 1363, 1368 (Miss.1983).

The test to be applied on request for peremptory instruction is the same that this Court would apply in reviewing a verdict for legal sufficiency. Carroll v. State, 196 So.2d 878 (Miss.1967). This Court concludes that the evidence was legally sufficient to support the verdict, under the above test, and also concludes that the trial court committed no error in refusing appellant’s request for a peremptory instruction.

AFFIRMED.

PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, DAN M. LEE, ROBERTSON and SULLIVAN, JJ., concur.


author: PATTERSON, Chief Justice,

text:
    FIRST MISSISSIPPI NATIONAL BANK, et al. v. S & K ENTERPRISES OF JACKSON, INC., et al.
    No. 54481.
    Supreme Court of Mississippi.
    Nov. 28, 1984.
    Rehearing Denied Jan. 9, 1985.

      Thomas Hudson, Gerald, Brand, Watters, Cox & Hemleben, Robert S. Murphree, James W. Newman, III, W. Larry Latham, Jackson, for appellants.
    Alex A. Alston, Jr., Beth Clay, Thomas, Price, Alston, Jones & Davis, Jackson, for appellees.
    Before PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ.
   PATTERSON, Chief Justice,

for the Court:

First Mississippi National Bank (hereinafter Bank) filed a bill of complaint in the Chancery Court of the First Judicial District of Hinds County, to foreclose its deed of trust executed by S & K Enterprises and secured further by the personal guarantees of S & K’s five (5) stockholders. Defendant stockholder Zoltán Kovacs filed a motion to dismiss because he was not subject to service of process in Mississippi. Having concluded Kovacs had insufficient contacts with the State of Mississippi to support in personam jurisdiction, the court entered a decree dismissing the bill of complaint against Kovacs. The Bank has appealed.

Alleging the attempted appeal was interlocutory and was not perfected within the statutory time, Kovacs filed a motion to dismiss the appeal and a brief in support thereof. The Bank resisted the motion to dismiss and filed a brief in opposition to Kovacs’ motion.

In mid 1978 Bernard Sarme, Richard Stowed, Joseph Kirkland, and Arnold Smith, Jr., formed a corporation called S & K Enterprises to purchase a building on Lake-land Drive in the City of Jackson, to renovate it, and operate it as a discotheque. Kovacs, an interior designer from California, was hired to supervise the renovation. Subsequently Kovacs purchased 20% of the stock of S & K Enterprises.

The purchase and renovation were financed through a loan of $550,000.00 from the Bank to S & K Enterprises, secured by a deed of trust on the property. The nightclub, called Zoli’s in honor of Kovacs, opened for business in late 1978.

The Bank instituted foreclosure on June 2, 1981, after the note and deed of trust were not paid. On October 2, Kovacs filed a motion to dismiss which was sustained by the court on December 11. The Bank amended its complaint against Ko-vacs on January 27, 1982, prompting Ko-vacs to file a second motion to dismiss on April 23. However, we do not reach the issue of res judicata because Kovacs voiced no objection to the Bank’s motion for leave to amend the bill of complaint; further, Kovacs fully participated in the second hearing.

The second decree dismissing Kovacs was entered July 30, 1982. On August 3, the court entered its Decree for Judgment and Sale which determined the amount of the debt, ruled that the Bank had a valid first lien on the property, and empowered the Bank to foreclose on its deed of trust. The petition for an appeal from the decree dismissing Kovacs was filed on September 13. The next day on September 14, the court entered its decree confirming sale and granting deficiency judgment.

We first address Kovacs’ proposition that the appeal should be dismissed for failure to comply with Mississippi Code Annotated, § 11-51-7 (Supp.1984), which requires appeals from interlocutory orders or decrees to be applied for within 30 days after the order or decree is filed. It is undisputed the Bank did not petition for appeal until September 13, 45 days after the entry of the decree dismissing Kovacs; the appeal if interlocutory would therefore fail according to § 11-51-7. However, the Bank disputes the characterization of this appeal as interlocutory and argues it is prosecuting an appeal from a final decree according to Mississippi Code Annotated, § 11-51-3 (1972). We therefore turn to the question of whether this appeal is proper as one from a final decree.

Kovacs argues the appeal fails under § 11-51-3 as construed by this Court. The substance of this contention is his definition of the September 14 Decree Confirming Sale and Granting Deficiency Judgment as the final decree. Dismissal is required, Kovacs contends, because the Bank petitioned for appeal on September 13, one day before this decree was entered. Citing Worthy v. Graham, 246 Miss. 358, 149 So.2d 469 (1963), we recently held in Tuggle v. Williamson, 450 So.2d 93 (Miss.1984), that in determining the timeliness of such appeal, time runs from the entry of the decree ordering the sale rather than from the order confirming the sale. Applying this rule to this case, we are of the opinion time ran from the August 3 decree for judgment and sale and that the September 13 petition for appeal was not premature and was therefore properly granted.

We likewise reject Kovacs’ argument that the Bank, not having filed a petition for appeal within thirty (30) days of the order dismissing Kovacs, is now precluded from appealing this issue from the time of the entry of the final decree by authority of § 11-51-3. No language in that statute or in § 11-51-7 supports this proposition. We are of the opinion the interlocutory appeal statute merely grants the aggrieved litigant the option of requesting an interlocutory appeal within 30 days; we find no statutory language stating the issue that could have been raised by an interlocutory appeal is lost so that such issue cannot be raised in the appeal from the final judgment.

We turn now to the question of whether the lower court erred in ruling that Kovacs was not subject to the in personam jurisdiction of the Chancery Court of the First Judicial District of Hinds County. It must first be determined whether the Mississippi Long-Arm Statute, Mississippi Code Annotated, § 13-3-57 (Supp.1980), reaches Ko-vacs. That statute provides in pertinent part that any non-resident person

... who shall make a contract with a resident of this state to be performed in whole or in part by any party in this state, or who shall commit a tort in whole or in part in this state against a resident of this state, or who shall do any business or perform any character of work or service in this state, shall by such act or acts be deemed to be doing business in Mississippi....

The original note and deed of trust were signed by Joseph Kirkland and Richard Stowell, the Vice President and Secretary-Treasurer of S & K Enterprises, on September 14, 1978. Stowell alone signed a renewal note and deed of trust on September 26, 1979. The notes were payable at any office of the Bank and we note from the record there are no offices of the Bank other than in this state.

On August 30, 1979, in Mohave County, Arizona, Kovacs executed a personal guaranty securing the loan from the Bank to S & K Enterprises. Both the note and the guaranty provided they be construed according to Mississippi law.

On similar facts we held the guarantor was subject to jurisdiction under the Long-Arm Statute. In Shackelford v. Central Bank of Mississippi, 354 So.2d 253 (Miss.1978), the non-resident executed a loan guaranty agreement wherein he agreed to indemnify the bank in the event of default on an indebtedness owed by Pilgrim Properties, Inc. to the bank. The court noted,

... The loan guaranty agreement was executed in order to enable Pilgrim Properties, Inc. to obtain credit at intervals from appellee. Appellant signed the agreement in Albany, Georgia, his place of residence. The instrument provided that the guaranty was to be construed according to the laws of the State of Mississippi and was to be performed by appellant in said state. It was accepted by appellee at its office in Brandon, Mississippi.

354 So.2d at 254.

Since in Shackelford these facts were held sufficient to invoke jurisdiction under the Long-Arm Statute, we are of the opinion that case requires an identical holding here. The facts are essentially the same: the instruments, while executed out of state by a non-resident, provided that they be performed in Mississippi and construed according to Mississippi law; they were also accepted in Mississippi. Therefore, we must hold § 13-3-57 gives the chancery court jurisdiction over Kovacs.

We next consider whether subjecting Kovacs to in personam jurisdiction meets the due process requirements of the Fourteenth Amendment of the United States Constitution. This question involves determining whether it is “fair and reasonable to require the defendant to come into the state and defend the action.” Marathon Metallic Building Company v. Mountain Empire Construction Co., 653 F.2d 921, 923 (5th Cir.1981). The appropriate test was set out in Great Western United Corporation v. Kidwell, 577 F.2d 1256, 1266 (5th Cir.1978):

Only if the nonresident defendant has such “minimum contacts” with the state “that the maintenance of the suit does not offend ‘traditional notions of fair play and justice’,” International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), or if the defendant has performed some act “by which [it] purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws,” Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), may the forum, consistently with due process, extend its long arm to embrace it.
... Of necessity, inquiries into whether the exercise of personal jurisdiction is permissible in a particular case are sensitive to the facts of each case....

See also Mississippi Interstate Express, Inc. v. Transpo, Inc., 681 F.2d 1003 (5th Cir.1982).

The affidavit of Joseph Kirkland states that S & K Enterprises had originally hired Kovacs to “design and construct the interi- or of Zoli’s Discotheque....” At least twice a month during the latter part of 1978, Kirkland “visited the premises [of Zoli’s] and conferred in person with ... Kovacs as to ... the progress of the design work in the interior of the building ...”

Additionally, the affidavit of Julian C. Cornett, a Vice President of the Bank, stated Cornett had on at least two different occasions during the latter part of 1978 visited the premises and conferred in person with Kovacs about the progress of the project. Further, Cornett stated, “Kovacs and/or his company was also engaged in 1979 to perform certain repairs necessitated by the flood in April 1979.” As previously stated, Kovacs also personally guaranteed the loan from the Bank to S & K Enterprises.

We are of the opinion that by engaging in these activities Kovacs purposefully availed himself of the privilege of doing business with the Mississippi resident in Mississippi and therefore could reasonably have anticipated that his conduct would have consequences in this state. As held in Murray v. Huggers Manufacturing, Inc., 398 So.2d 1323 (Miss.1981), these factors satisfy the due process requirements for the exercise of jurisdiction under the Long-Arm Statute. In view of the facts we are of the opinion no unfairness would result from requiring Kovacs to defend this suit in Mississippi.

For these reasons, the judgment is reversed and the case remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.