author: ALMON, Justice.

text:
    A. Bruce DUDLEY, Jr., et al. v. John C. FRIDGE, et al.
    81-1044.
    Supreme Court of Alabama.
    Dec. 2, 1983.
    Barry Hess of Hess, Atchison & Horne, Mobile, for appellants.

      Vincent P. Kilborn, III of Kilborn & Gib-ney, Mobile, for appellees.
   ALMON, Justice.

This appeal involves a mineral royalty interest deed. The grantors brought this action to have the deed construed as advocated by the grantors or, failing this, to have the deed reformed. The trial court denied relief, holding that the deed was to be construed as advocated by the grantees and that the evidence did not support reformation of the deed.

The plaintiffs are A. Bruce Dudley, Jr., John N. Horner, J.H. Spencer, R.H. McLeod, and Larry U. Sims. In 1971 these five men purchased 100 acres of land in Mobile County with one-half the mineral rights. This 100-acre tract was subject to a lease referred to herein as the Daws lease, which reserved a Vs royalty to the lessor. The plaintiffs later purchased 20.5 acres in an adjoining section with full mineral rights and no existing lease.

In 1974 Larry Sims heard that Harris Anderson was knowledgeable in oil and gas matters and was handling some oil business in the area for a friend of Sims’s. Sims called Anderson and went to his office to learn about oil and gas transactions.

According to Sims, a man from Mississippi offered plaintiffs a proposal whereby he would lease the 20.5 acre parcel from them for a Vs royalty plus $1000 per acre bonus if the plaintiffs would also convey five royalty acres on the 100-acre tract for $2,400 per acre, or $12,000. A royalty acre is defined as a Vs royalty on the full mineral interest in one acre of land. Sims asked Anderson for advice on the proposal and, according to Sims, Anderson offered to better the proposal by offering a ¾6 royalty and $1000 per acre bonus on the 20.5 acres, provided that the plaintiffs deeded five royalty acres to Anderson.

The plaintiffs did in fact execute a lease with a ¾6 royalty on the 20.5 acres and a royalty deed relating to the 100-acre parcel. Defendant Harris Anderson was named as the lessee in the former instrument and the grantee in the latter. Both instruments are dated December 2, 1974. Because the meaning and application of the royalty deed are at issue in this ease, we shall set the deed out in full:

ROYALTY DEED
“KNOW ALL MEN BY THESE PRESENTS that [the plaintiffs and their wives], (hereinafter called Grantor), for and in consideration of the price and sum of TEN AND MORE ($10.00 and More) DOLLARS and other valuable considerations, cash in hand paid by Harris G. Anderson_ (hereinafter called Grantee), has granted, bargained, sold and conveyed, and does by these presents grant, bargain, sell and convey, unto the said Grantee the mineral royalty interest only, as hereinafter set out affecting and relating to the property described below:
“An undivided one-tenth (Vio) royalty interest only in and to that part of the minerals owned by Grantor in, on or under the following described property in SECTION 35, TOWNSHIP 1 SOUTH, RANGE 1 WEST:
“South Half (S ⅝) of Northeast Quarter (NE ¼) and East Half (E ½) of Southeast Quarter (SE ⅝) of Northwest Quarter (NW ⅝) of Section 35, Township 1 South, Range 1 West, Mobile County, Alabama.
“said interest being subject to the present oil, gas and mineral lease from H.H. Myers and wife, Hermena D. Myers to S.B. Daws, dated March 11, 1971 and recorded in Real Property Book 1032, page 383, of the records of the Office of Probate Judge of Mobile County, Alabama, and to be subject to any and all further leases at Grantor’s option.
“This sale and transfer is made and accepted subject to an oil, gas and mineral lease now affecting said lands, but the royalties hereinabove described shall be delivered and/or paid to the Grantee out of and deducted from the royalties reserved to the Grantor arising out of said lease. This sale and transfer, however, is not limited to royalties accruing under the lease presently affecting said lands, but the rights herein granted are and shall remain a charge and burden on the land herein described and binding on any future owners or lessees of said lands and, in the event of the termination of the present lease, the said royalties shall be delivered and/or paid out of the whole of any oil, gas or other minerals produced from said lands by the owner, lessee or anyone else operating thereon.
“The grantor herein reserved [sic] the right to grant future leases affecting said lands so long as there shall be included therein, for the benefit of the grantee herein, the royalty rights herein conveyed; and the grantor further reserves the right to collect and to retain all bonuses and rentals paid for or in connection with any future lease or accruing under the lease now outstanding.
“TO HAVE AND TO HOLD said royalty rights unto the said Grantee, forever; and the said Grantor hereby agrees to warrant and forever defend said rights unto the said Grantee against any person whomsoever lawfully claiming or to claim the same.
“WITNESS the signature of Grantor, this the 2nd of December, 1974.
[Signatures and Notarizations]
“Indorsement as required by Alabama Law: This instrument prepared by Larry U. Sims of Hand, Arendall, Bedsole, Greaves & Johnston, Lawyers, 3000 First National Bank Building, Mobile, Alabama.”

Sims took most of the language in this deed from a royalty deed form given him by Anderson, although he made changes throughout the form. The paragraph containing the property description and the description of the interest conveyed was entirely inserted by Sims. The portion of the deed most acutely in dispute is the description of the interest conveyed as a “Vio royalty interest.”

Anderson assigned his interest in the royalty conveyed by the deed to the other named defendants. In January 1976 the plaintiffs executed a new lease on the 100-acre parcel to AMAX Petroleum Corporation. AMAX was an assignee of Daws’s interest as lessee under the Daws lease, which was due to expire in March 1976. The AMAX lease recites on its face that it supersedes the Daws lease. In the AMAX lease, the plaintiffs reserved to themselves a xk royalty.

The dispute which precipitated this case arose in 1977 when the Getty Oil Company began drilling in the area as assignee of the AMAX lease. Getty apparently proposed to pay defendants Vio of Vs royalty, whereupon Anderson wrote to AMAX and Getty in June and July 1977 claiming Vio of ¼ royalty. Sims contested this claim, saying that defendants were only entitled to Vio of h royalty. Getty then wrote to Anderson, stating that “Mr. Sims advises in substance that your claim to an additional 5 net royalty acres under the December 2, 1974 royalty deed ... is not in accordance with the intent of the transaction,” and suspended payment of the disputed Vio of ⅛.

Plaintiffs filed this suit on November 2, 1977, seeking by the first cause of action of the complaint to have the court:

“declare that the Plaintiffs sold to Defendant, Harris G. Anderson, five royalty acres only; that Defendant Anderson’s subsequent assignees be bound by such declaration; that said royalty deed ... be so construed by order of this Court; and that said assignments ... also be so construed.”

The second cause of action of the complaint, as amended, averred that “through fraud, mutual mistake of the parties, or a mistake of one party which the other party at the time knew or suspected,” (see Code 1975, § 35-4-153) the deed did not “truly express the intention of the parties as to the exact royalty interest conveyed.” The averments continued that defendants were insisting upon an interpretation that plaintiffs conveyed to Anderson “a one-tenth interest in any and all royalties received by Plaintiffs instead of the true intent of the agreement that Plaintiffs convey to Defendant Anderson five permanent royalty acres.” This count requested the court to revise and reform the deed to express the intention urged by the plaintiffs, and further prayed that the assignments be construed as conveying only the 5 royalty acres intended to be conveyed.

The defendants answered, denying that the intent was to convey only five royalty acres and stating that the deed granted them a Vio royalty interest “not only in the existing S.B. Daws lease, but by its express terms a one-tenth (Vio) royalty interest in any additional oil, gas and mineral lease which the Grantors might execute on the minerals which they own.” They alleged that they were entitled to Vio of the Vi royalty because the AMAX lease “provides for a ¼ royalty payment to mineral royalty owners including the Defendants.” As to the second cause of action, the defendants denied that there was any fraud, mutual mistake of the parties, or mistake of one party which the defendants at the time knew or suspected. They further alleged that, under § 35-4-153, Code 1975,

“even if the allegations of the Second Cause of Action are true, which Defendants deny, any revision of the royalty deed by the Court would prejudice the rights of the Defendants other than Harris Anderson, which Defendants acquired their interests as third parties in good faith and for value.”

Sims and Anderson gave depositions, which were introduced as exhibits at trial. The trial court heard the case without a jury. Only Sims and Anderson testified. The trial court entered a judgment finding that the evidence did not support either the construction of the deed requested by the plaintiffs or reformation of the royalty deed; that there was no fraud, mutual mistake, or mistake of one party which the other at the time knew or suspected; and that the royalty deed truly expressed the intent of the parties. The court therefore ordered that the plaintiffs’ request for relief be denied, that the royalty deed is a valid and binding deed on the parties, and that the defendants are entitled to Vio of the V4 royalties payable under the AMAX lease. Plaintiffs appeal from this judgment.

Plaintiffs argue first that the deed unambiguously supports their position that the rate of the royalty interest was fixed at Vio of Vs. They say this is so because the deed states that the royalty interest conveyed was subject to the Daws lease, which provided a Vs royalty. They assert that the subsequent statements in the deed, that the interest was not limited to royalties accruing under the Daws lease, make the deeded royalty interest a permanent royalty interest rather than a term royalty interest which would terminate with the expiration of the Daws lease. Under this interpretation, the phrases “the rights herein granted,” “the said royalties,” and “the royalty rights herein conveyed” would mean the Vio of Vs permanent royalty upon which plaintiffs insist. They point to the phrase added by Sims, “and to be subject to any and all further leases at Grantor's option,” and state that this gives them the option to extend to defendants the benefit of the increased royalty of the AMAX lease, an option which they have not exercised.

The defendants state that the last-quoted phrase reserves to the plaintiffs the right to lease or not to lease the minerals at their option, but not the right to withhold from defendants the benefits of a lease more favorable than the Daws lease. The phrases lifted from the last three paragraphs of the deed, in the defendants’ view, are taken out of their context, which clearly shows that the Vio of royalty attaches to whatever royalty plaintiffs reserve in any lease. Finally, defendants point out that the deed mentions neither a Vs royalty nor 5 royalty acres.

We find no merit in plaintiffs’ position that the deed unambiguously grants only five royalty acres, or a Vio of royalty. This argument hinges on the plaintiffs’ contention that the phrase “and to be subject to any and all further leases at Grant- or’s option ” means that plaintiffs could choose whether or not to extend the benefits of a more favorable lease to defendants. This is not a reasonable interpretation of the language. With no additional consideration, why would the plaintiffs ever extend additional royalties to the defendants? A much more plausible and natural reading of the language is that the plaintiffs could choose whether or not to execute leases in the future. This retains executive control over the leasing of the minerals in the plaintiffs.

If the plaintiffs do not have the option whether to grant or withhold the benefits of future leases, the fact that the defendants’ interest is to be “subject to” future leases just as it is “subject to” the Daws lease at the time of the conveyance defeats the argument that only the Daws Vs royalty is meant when the deed later refers to “the said royalties” and “the royalty rights herein conveyed.” This reading is consistent with the provisions in the deed that the sale is not limited to the royalties accruing under the Daws lease and that the plaintiffs shall include the defendants’ royalty rights in any future leases. Instruments are to be construed as a whole so as to harmonize their parts whenever possible. Financial Investment Corp. v. Tukabatchee Area Council, Inc., Boy Scouts of America. 353 So.2d 1389 (Ala.1977); Hall v. Gulledge, 277 Ala. 580, 173 So.2d 571 (1965).

The plaintiffs’ second allegation of error is that, assuming the deed does not unambiguously support their interpretation, it is latently ambiguous and should be construed in their favor. They assert that the trial court erred in failing to find as a matter of law that the deed is ambiguous and in failing to construe it in the context of the surrounding circumstances to hold that the intent was to convey only five royalty acres. The plaintiffs argue that several items of evidence prove this intent.

The exhibits which plaintiffs cite are: 1) a sheet with two computations, allegedly in Anderson’s handwriting, one of which multiplies 2400 (the alleged price per royalty acre) times 5 (royalty acres) to equal 12,-000, and the other computing a price of 20,500 dollars for the 20.5 acres leased; 2) a draft signed by Anderson for $32,500 payable to plaintiffs and reciting that it is for an “O G & M lease covering 20.5 acres in Sec. 36, T IS, R 1W,” and “Royalty Deed 5 AC [Sec.] 35”; and 3) a letter from Sims to Anderson. This letter bears the date December 2, 1974, and reads:

“My group has today sold five acres of royalty on minerals in Section 35, Township 1 So., Range 1 West, to group of investors represented by you as their broker. This letter is to confirm my group’s consent to contact you to review any leasing arrangement contemplated by my group involving the five acres made the subject of the royalty deed if the current effective lease expires. It is understood that my group has the legal right to make any and all decisions as to such leasing but we will be glad to have your advice in that regard.”

Sims testified that he dictated this letter in Anderson’s presence at the time Anderson brought him the draft and he delivered the signed deed and lease to Anderson. Sims testified that Anderson smiled or smirked when he looked at the deed, causing Sims to ask, “Now, Mr. Anderson, are you sure that we are conveying the five royalty acres and nothing else?” Anderson replied, according to Sims, “Yes, sir. That’s our deal, five royalty acres, no more, no less, but how about giving me a letter saying that you will, your group will contact me if they ever re-lease.” Plaintiffs argue that Anderson’s behavior shows that he knew or suspected that the deeded interest would increase with a more favorable lease, contrary to the stated intent.

Defendants respond that the computations were made on the basis of five royalty acres simply because that was the only way to figure the price at the time. Anderson testified:

“A royalty interest can be increased from one to two to three to whatever royalty you might acquire on a lease or you reserve on a lease. So at the time I acquired this, it is true I bought five royalty acres. I paid for five royalty acres but that is one-tenth of the fifty acres that they owned. If they were prudent and good businessmen enough to acquire a lease on there that gives one-fourth, well, that they are—we are not, we are non-executive royalty owners. We have nothing to say and he made it very clear in the deed, very plain in the deed, we have nothing to say about any future leases or any future royalties. That is entirely up to the executive mineral owners. We are at his mercy so to speak, now. But it’s a kind of unwritten thing that he must protect us too. He can’t freeze us out. So, when we acquired the one-tenth interest that would go to any interest that he might get in the future.”

Anderson further testified that rather than saying defendants’ interest increased to ten acres, one could just as accurately say that “each acre of ours became twice as valuable as it was on the day that we acquired it.” He said that if one viewed the situation as plaintiffs owning 45 royalty acres under the Daws lease and defendants owning 5, under the AMAX lease plaintiffs’ interest doubled to 90 royalty acres and defendants’ to 10, rather than, as plaintiffs would have it, their interest increasing to 95 royalty acres and defendants’ share remaining at 5 royalty acres.

We set out this evidence relating to the possibility of a latent ambiguity because proof of a latent ambiguity arises when collateral matters outside the writing show the meaning of the document, unambiguous on its face, to be uncertain. Mass Appraisal Services, Inc. v. Carmichael, 404 So.2d 666 (Ala.1981); Gibson v. Anderson, 265 Ala. 553, 92 So.2d 692 (1956). The trial judge, considering the matters set out above, determined that the evidence did not support the construction requested by the plaintiffs. Plaintiffs insist that this judgment is due to be reversed as a matter of law, citing the rule that whether an instrument is ambiguous is a question of law. Mass Appraisal Services, supra; Holt v. Davidson, 388 So.2d 548 (Ala.1980); Miles College, Inc. v. Oliver, 382 So.2d 510 (Ala.1980).

Plaintiffs’ argument does not establish that the trial court is due to be reversed. While Sims’s testimony and the above-referenced exhibits may be said to cast some doubt on the meaning of the deed, this doubt is not strong enough, in light of the recitals on the face of the deed that the defendants’ royalty interest applies to future leases just as to the Daws lease and of Anderson’s testimony regarding the “five royalty acres only” controversy, for us to hold that the trial court erred as a matter of law in not finding the deed ambiguous and not giving it the construction urged by plaintiffs. Moreover, even if we were to hold that the trial court erred in not finding a latent ambiguity, the remainder of the court’s judgment makes it clear that the court, as finder of fact, found the facts not to support plaintiffs’ interpretation of the deed. This finding would be supported by the presumptions of the ore ' tenus rule, and the facts, as set out above, support the trial court's conclusion.

The plaintiffs’ final allegation of error is that the trial court erred in light of the evidence in finding no basis for reformation of the deed. The chief aspect of the evidence not already discussed above pertinent to this argument regards testimony by Sims that, after this controversy arose, he searched the probate records of Mobile County and found some thirty or forty royalty deeds prepared by Anderson. Plaintiffs introduced one of these into evidence. It describes various parcels in numbers of royalty acres and specifies after the list of parcels that “It is the intention of Grantor by this royalty deed to convey to Grantee, its successors and assigns Five (5) royalty acres .... ”

Sims testified that all the deeds prepared by Anderson similarly specified the number of royalty acres being conveyed. He and the other plaintiffs argue that Anderson, upon reading the deed prepared by Sims, was aware or suspected that Sims had made a mistake in failing to limit the conveyance to a certain number of royalty acres. Sims further testified that he described the interest conveyed as a Vio royalty interest because Anderson told him that would describe the five royalty acres being conveyed, Vio of fifty royalty acres being five acres.

Defendants respond that to have a deed reformed, a party must produce clear, convincing, and satisfactory evidence, citing Code 1975, § 35-4-153; Fidelity Serv. Ins. Co. v. A.B. Legg & Sons Burial Ins. Co., 274 Ala. 94, 145 So.2d 811 (1962); Taylor v. Burns, 250 Ala. 218, 34 So.2d 5 (1948); Great Atlantic & Pacific Tea Co. v. Engel Realty Co., 241 Ala. 236, 2 So.2d 425 (1941); Kelley v. Spencer, 213 Ala. 612,105 So. 802 (1925); and Lipham v. Shamblee, 205 Ala. 498, 88 So. 569 (1921); Hyatt v. Ogletree, 31 Ala.App. 8, 12 So.2d 397 (1942). The above discussion shows that the evidence was in such dispute that the trial court cannot be held in error for holding the plaintiffs did not sustain their burden of proof.

For the reasons stated, the judgment of the trial court is due to be, and is hereby, affirmed.

AFFIRMED.

TORBERT, C.J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.

      . The disputed royalty amounts to 5 royalty acres for the following reason: Plaintiffs owned ½ the minerals in the 100 acres. This equaled 50 mineral acres within the terms of the oil and gas industry, one mineral acre being defined as the full mineral rights in one acre. Because a royalty acre is defined as a ⅛ royalty on one mineral acre, plaintiffs owned 50 royalty acres under the Daws lease. When plaintiffs conveyed a Via royalty interest to Anderson while the Daws lease was in effect, Vio of these 50 royalty acres equalled 5 royalty acres. The AMAX ¼ (2/a) royalty lease may be viewed as creating 100 royalty acres. Thus, contend the defendants, their Vio royalty interest amounts to 10 royalty acres under the AMAX lease.


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Donald DEAL v. TANNEHILL FURNACE AND FOUNDRY COMMISSION, et al.
    82-308.
    Supreme Court of Alabama.
    Dec. 2, 1983.

      S. Shay Samples of Lee, Barrett & Mullins and Roscoe Hogan of Hogan, Smith & Alspaugh, Birmingham, for appellant.
    Andrew P. Campbell of Leitman, Siegel & Payne, and Robert E. Parsons of McDaniel, Hall, Parsons, Conerly, Scott & Lusk, Birmingham, for appellees.
    Mary Lee Stapp and Clyde P. McLendon, Asst. Atty. Gen., for amici curiae Leon Frazier, Commissioner of the Dept, of Pensions and Security of the State of Ala., and said Dept, of Pensions and Security of the State of Ala.
   BEATTY, Justice.

This is an appeal by plaintiff from the ■ grant of summary judgment for the defendants in an action based upon negligence, wanton conduct, and breach of an implied contract. We affirm.

The action grew out of injuries sustained by plaintiff when, as a visitor at Tannehill State Park, he dived into Mill Creek, a creek located within the park. Named as defendants were the Tannehill Furnace and Foundry Commission, the sixteen members of the commission, and the park superintendent, Edward Nelson. The commission members were sued individually, as commission members, and as members of the board of Tannehill Historical State Park. Nelson was sued as park superintendent. Plaintiffs complaint alleged that the defendants negligently or wantonly failed to provide a reasonably safe place for visitors of the park to swim, and failed to warn visitors of hidden objects submerged in the creek. Plaintiff also alleged the breach of an implied contract to furnish reasonably safe conditions in the park, the contract being founded on an admission fee paid by plaintiff.

The defendants filed a motion to dismiss based upon the Constitution of 1901, Art. I, § 14, which provides: “That the State of Alabama shall never be made a defendant in any court of law or equity.”

Following discovery and oral arguments in the court below, defendants furnished the affidavits of Nelson and Dan Kilgo, commission chairman. Defendants also requested that the trial court treat their motion to dismiss as a motion for summary judgment. In due course, summary judgment was granted in favor of all defendants and this appeal ensued.

Plaintiff has presented several issues for our consideration, all relating to the basic question of immunity from liability. In sum, plaintiff questions the defendants’ immunity under § 14, under the decisions of this Court in DeStafney v. University of Alabama, 413 So.2d 391 (Ala.1981), and Bell v. Chisom, 421 So.2d 1239 (Ala.1981); under an implied contract theory; and under the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States. We shall review these issues seriatim.

It will be helpful to examine the statutes creating the Tannehill Furnace and Foundry Commission, which are found in Code of 1975, §§ 41-9-320 through -342. Section 41-9-320 explains the commission’s purpose:

“(a) There is hereby created the Tannehill furnace and foundry commission to establish, operate and maintain as a state park or historic site the land and buildings in the county of Tuscaloosa where one of the state’s early ironworks, known as the Tannehill furnace and foundry, was located.
“(b) The purpose of the commission shall be to preserve, restore, maintain and promote as a state park or historic site the land and relics of the Tannehill furnace and, in recognition of the important part played by the iron and steel industry in the development of this state, to exhibit this old furnace as an example of the process of making iron in this state’s early days.”

Section 41-9-321 provides for the appointment of sixteen commission members. Section 41-9-322 provides that no member of the commission shall receive any pay for his services, but provision is made for repayment of expenses by the commission. Section 41-9-323 provides for meetings, organization, and procedures.

Section 41-9-324 constitutes the commission a body corporate:

“The commission shall constitute a body corporate and shall have, in addition to those set forth specifically in this division, all powers necessary or convenient to effect the purposes for which it has been established under and by the terms of this division, together with all powers incidental thereto or necessary to the discharge of its said powers and duties.”

And § 41-9-325 designates the commission as a state agency:

“The commission shall be a state agency and shall have exclusive control over the Tannehill furnace and foundry and the area appurtenant thereto, the memorial park established under this division, all improvements and exhibits located thereon and any additions constructed, created, leased, acquired or erected in connection therewith.”

Section 41-9-326(a) authorizes the commission to acquire the “old Tannehill furnace” property owned by the University of Alabama, whose board of trustees was itself authorized “to lease or to deed ... such lands and appurtenances thereto to the commission.” The commission, under this subsection:

“is further authorized to lease, accept as a gift or loan or otherwise acquire any other property, real or personal, including gifts or bequests of money or other things of value to be used in fulfilling the purpose for which it is established or for any auxiliary purpose incidental or appropriate thereto.
“(b) The commission is also authorized to borrow money and issue revenue bonds in evidence thereof, but no such bonds shall be general obligations of the state of Alabama or any agency or any political subdivision thereof. Nor shall such commission pledge to the payment of any such loans the land, buildings, exhibits or other appurtenances thereto. It may, however, pledge to the repayment thereof the proceeds derived from admission fees or charges or other fees or charges made in connection with such park or historical site.”

Section 41-9-327 provides for operation of the park; § 41-9-328 allows county governing bodies to appropriate unpledged public funds to the commission’s use. Section 41-9-329 grants tax exempt status to the commission, its properties, income, leases, agreements, bonds and bond income. And in § 41-9-330(a) all full-time employees of the commission “shall be treated as state employees for the purpose of participating in any insurance programs provided for state employees.” In subsection (b), the commission is empowered to pay employer’s contributions out of appropriated or other available funds, and authorized to deduct employees’ contributions for such programs.

Plaintiffs first argument is based upon the “separate entity doctrine.” Applying that doctrine, plaintiff asserts that these statutory provisions created neither a State agency nor a State subdivision, but a public corporation, a separate entity from the State of Alabama. If this is a tenable position, it follows that the commission is not “the State” under the provisions of § 14 of the Constitution.

Admittedly, there is some language describing the commission as “a body corporate,” § 41-9-324. Facially, this language would tend to establish the plaintiffs position. On the other hand, another section, § 41-9-325, describes the commission as “a state agency,” thus lending credence to the defendants’ position. Resolution of the issue cannot turn on the use of labels. Armory Commission of Alabama v. Staudt, 388 So.2d 991 (Ala.1980). Indeed,

“[wjhether a lawsuit against a body created by legislative enactment is a suit against the state depends on the character of power delegated to the body, the relation of the body to the state, and the nature of the function performed by the body_” Armory Commission of Alabama, 388 So.2d at 993.

We find nothing in either Curtis v. Alabama Elk River Development Agency, Inc., 372 So.2d 353 (Ala.Civ.App.1979); Knight v. West Alabama Environmental Improvement Authority, 287 Ala. 15, 246 So.2d 903 (1971); or Edmonson v. State Industrial Development Authority, 279 Ala. 206, 184 So.2d 115 (1966), requiring a holding that this commission is a separate entity from the State of Alabama.

Armory Commission of Alabama, supra, followed the analysis utilized in State Docks Commission v. Barnes, 225 Ala. 403, 143 So. 581 (1932), to determine whether the instrumentality in question was an arm of the State. Interestingly enough, in Barnes it was conceded that the State docks operation was a business undertaking. Nevertheless, other factors pointed to a strong nexus with the State itself, e.g., the use by the commission of State-owned land, and operation by the commission as agent for the State and not independently. In Armory Commission of Alabama, supra, it was noted that State appropriations flowed to the commission from the State Military Department, and that the governor was authorized by legislation to use military appropriations to pay the commission’s expenses. In both of these cases, moreover, the funds of each were found to be directly affected by a lawsuit because subjected to liability, and thus a lawsuit against either was tantamount to a lawsuit against the State itself.

Considering the legislative language of the various sections together, we have concluded, likewise, that the Tannehill commission was created as an arm of the State of Alabama, existing to carry forth an important function of our State government: holding, maintaining, and preserving state lands of historical significance for the benefit of our citizens. This governmental function is recognized by the legislative language which repeatedly emphasizes the commission’s purpose to preserve the Tannehill lands as an exhibit of the state’s iron- and steel-making heritage. Violations of the commission’s rules are made misdemeanors. The commissioners are vested with police power to make arrests, prefer charges, and to constitute deputy police officers. The commission is exempt from taxes, and its employees are, for insurance purposes, treated as other State employees.

Finally, there is evidence in the record that the Tannehill commission is funded by the Alabama legislature. It is certainly conceivable that a judgment for plaintiff would directly diminish any monetary appropriation made by that body out of the State treasury to the commission. Thus, this lawsuit directly affects a state property right and is “tantamount to a suit against the state.” Gill v. Sewell, 356 So.2d 1196 (Ala.1978). That fourteen of the seventeen individual defendants have homeowner’s insurance policies, which plaintiff contends furnishes “potential” coverage against their liability, does not militate against this fact.

In sum, the commission’s character, its function, and its funding identify the commission as the State of Alabama for purposes of § 14. Accordingly, the trial court was correct in granting summary judgment for the commission. The commission’s immunity extends to both the tort and the implied contract claims brought against it. Cf. Hillyer v. Central Review Board, 384 So.2d 1117 (Ala.Civ.App.1980).

We hold, likewise, that the commission members and park superintendent Nelson are immune from plaintiffs claims under the authority of DeStafney v. University of Alabama, 413 So.2d 391 (Ala.1981), and Bell v. Chisom, 421 So.2d 1239 (Ala.1981).

DeStafney contains a review of the decisions of this Court dealing with the immunity of public officials and employees and concludes:

“In summary, our cases, as well as the case law of other State immunity jurisdictions, adhere to the view that the State has an interest such as will prohibit suit against the State official or employee where the action is in effect against the State_” 413 So.2d at 393.

DeStafney also recognized that our own tort liability rule respecting public officials and employees is in general accord with § 895D of the Restatement of Torts (Second), which recites in part:

“(2) A public officer acting within the general scope of his authority is immune from tort liability for an act or omission involving the exercise of a judicial or legislative function.
“(3) A public officer acting within the general scope of his authority is not subject to tort liability for an administrative act or omission if
“(a) he is immune because engaged in the exercise of a discretionary function ....” 413 So.2d at 393.

That portion of the Restatement’s comments relating to the exercise of a discretionary function was noted:

“There is no single test [for application by the courts in determining whether the state employee was engaged in exercising a discretionary function or, if he was, how extensively this circumstance should work in his defense]. Attempts to solve the problem by setting forth a precise definition of the term, discretionary function, have been less than helpful. The expression is not only a standard (see Comment d); it is also a legal conclusion whose purport is only somewhat incidentally related to the definitions of the two words composing it. Instead of looking at the dictionary, therefore, the court must weigh numerous factors and make a measured decision, on the basis of that assessment, both (1) whether the particular activity should be characterized as a discretionary function, and (2) whether the officer engaged in that activity should be entitled to a full or limited immunity, a privilege (to act either on the basis of reasonable belief or of the actual facts), or a finding that he was not negligent.” 413 So.2d at 395.

In Bell v. Chisom, supra, this Court elaborated upon discretionary function immunity, referring to it as:

“the ability of public officers to ‘engage in making a decision by weighing the policies for and against it.’ ...
“... The most common approach to the problem [of applying the concept of discretionary function] is to distinguish between planning and operational levels of action, with only the former being immune. Such terms, however, are only shorthand for a range of factors — discussed in the Restatement comments— that the court may need to consider. The problem is not to define terms like ‘discretionary’ or ‘planning’ but to make a pragmatic assessment of what, if any, degree of immunity is necessary to enable the particular governmental function to be effectively performed....” 421 So.2d at 1241.

Commenting upon the application of this standard, this Court observed in Bell v. Chisom:

“As the Restatement’s comments suggest, the courts have at times found the discretionary function standard difficult to interpret. Nevertheless, in many cases this standard’s proper application will be readily apparent. Two such cases will serve to illustrate the conflicting policy considerations the courts must apply. On the one hand, in DeStafney itself we had no difficulty in rejecting the immunity claim of the individual defendant, an aide at the University day care center who allegedly allowed the plaintiffs child to fall off playground equipment. This defendant’s function clearly required due care rather than difficult decision making. On the other hand, we accepted the claim of immunity in Gill v. Sewell, Ala., 356 So.2d 1196 (1978), where the director of a work release center was sued for his decision to release a convicted felon who shot the plaintiff. That decision was an exercise of discretion central to the defendant’s function, and accordingly in DeStafney we noted, ‘unquestionably, Gill falls squarely within § 895D(3)(a) of the Restatement,’ 413 So.2d at 394.” 421 So.2d at 1241.

Under the evidence before the trial court in this case, it is clear that the individual defendants were engaged in discretionary functions in their relationship to the uses to which Mill Creek was put within Tannehill Park. Plaintiffs complaint alleged that the defendants “separately and severally were under a legal duty to establish, furnish, provide, and maintain an adequately safe place for visitors to swim and dive, or prohibit such activities altogether.” Under the express requirements of § 41-9-320, however, the members of the commission were under a statutory duty to “preserve” the park as “a state park or historic site.” In the performance of that duty, the evidence shows that the commission and the park superintendent, for aught that appears, in good faith sought to maintain the park, including the portion of Mill Creek within it, without altering its natural beauty and terrain. In order to help accomplish this purpose, park personnel, rather than encouraging swimming in Mill Creek, at the superintendent's instructions, erected signs around the stream stating that the stream was “dangerous” and that persons who swam “did so at their own risk.” Those signs were present on the occasion in question. This decision clearly fell within the exercise of the discretion given to these officials by their duty and authority to maintain and preserve the park as a historic site. Cf. Gill v. Sewell, 356 So.2d 1196 (Ala.1978) (release of prisoner from work release center held to be central to defendant-official’s function and thus official was immune under Restatement § 895D(3)(a) on discretionary function.)

Because we hold that these individual defendants possessed discretionary function immunity, we need not address the question of their immunity as mere “conduits through which the State of Alabama has acted.” See Milton v. Espey, 356 So.2d 1201 (Ala.1978), and Carter v. Board of Trustees of University of Ala., 431 So.2d 529 (Ala.1983).

Finally, plaintiff urges this Court to overturn Art. I, § 14, of the Constitution of 1901, as being in violation of the Fourteenth Amendment to the United States Constitution and of the protection guaranteed in the Declaration of Rights in the Constitution of 1901. Plaintiff’s principal argument here is that immunity, even constitutional immunity, insures that all persons similarly situated are not treated alike. “Those injured by private persons in a private capacity,” plaintiff asserts, “have a right of redress in a judicial forum. Those injured in the same manner by the state are left without a remedy.” Without consideration of the accuracy of this comparison, see Hutchinson v. Board of Trustees of University of Ala., 288 Ala. 20, 256 So.2d 281 (1970), we must first observe that there is no authority extant for the proposition that the Fourteenth Amendment requires a state to permit an action against itself. Indeed, in Palmer v. Ohio, 248 U.S. 32, 39 S.Ct. 16, 63 L.Ed. 108 (1918), the United States Supreme Court reiterated the rule of long-standing that:

“The right of individuals to sue a state, in either a federal or a state court, cannot be derived from the Constitution or laws of the United States. It can come only from the consent of the state. [Citations omitted.]” 248 U.S. at 34, 39 S.Ct. at 16.

Insofar as the Alabama Declaration of Rights is concerned, it is, of course, true that that Declaration assures redress for grievances, Constitution of 1901, § 13, and assures due process of law, § 6. The presence of these guarantees, we respectfully submit, does not repudiate other provisions of our state’s organic law which the people themselves have established, however inconsistent to some they may appear to be. By adopting § 14, our people have placed a limitation upon their own ability to make their state “a defendant in any court.” It would be incongruous for this Court to hold that this particular section of the Constitution of 1901 may not be enforced because it might appear to be in conflict with another. This follows from the requirement that constitutional provisions should be construed as a whole and in light of the entire instrument and to harmonize with its other provisions. Jefferson County v. Braswell, 407 So.2d 115 (Ala.1981); State Docks Commission v. State ex rel. Cummings, 227 Ala. 414, 150 So. 345 (1933). Nor is this Court authorized by its decisions in Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975), and Lorence v. Hospital Board of Morgan County, 294 Ala. 614, 320 So.2d 631 (1975), to withhold immunity here. Those decisions did not involve a constitutional grant of immunity, or the immunity of State officials and employees, as does this case.

The Court has carefully considered the arguments of counsel contained in their excellent briefs and in oral argument, and has concluded that the summary judgment granted below must be, and it is, affirmed.

AFFIRMED.

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


text:
    J.M. TOUCHSTONE and Ben Touchstone v. Rosa Lee PETERSON.
    82-642.
    Supreme Court of Alabama.
    Dec. 2, 1983.

      Marc E. Bradley, Fairhope, and Edward P. Turner, Jr., Chatom, for appellants.
    S.J. Laurie, Chatom, for appellee.
   BEATTY, Justice.

This is an appeal by J.M. and Ben Touchstone, defendants-appellants, from an adverse judgment in an ejectment action brought by Rosa Lee Peterson, plaintiff-ap-pellee. We reverse and remand.

In July 1953, appellant J.M. Touchstone purchased from Joe M. Pelham and his wife the ten-acre tract of land which is the subject of this dispute and went into possession of the ten acres at that time. Appellant Ben Touchstone began living with his brother, J.M., in August 1954, and both have continued in possession of the property since that time. On October 5, 1955, J.M. Touchstone sold by warranty deed these ten acres of land to Randolph and Uhbern Kirkland, intending to reserve for himself a life estate in the property. The deed, however, did not contain this reservation as, it was later discovered by the parties, such omission being the result of an error made by the scrivener who prepared the deed. Despite this fact, a correction deed was never executed, since J.M. Touchstone and the Kirklands had orally agreed and understood at the time of the sale that J.M. Touchstone had reserved the right for himself and Ben to live on the property for their lives. Accordingly, J.M. Touchstone, relying upon this oral understanding, failed to have the deed corrected.

On February 13, 1956, Randolph Kirkland married Rosa Lee Peterson, the plaintiff-appellee in this case. On March 13, 1969, Uhbern Kirkland and his wife conveyed all their interest in the disputed ten-acre tract by warranty deed to Randolph Kirkland. Although this deed again failed to mention J.M. Touchstone’s life interest in the property, there was an oral reaffirmation of his rights between the Kirklands and J.M. Touchstone.

On January 10, 1977, Rosa Lee Peterson and Randolph Kirkland were divorced. Pursuant to the terms of the divorce decree, she was awarded the disputed ten-acre tract; however, it was not until May 2, 1979, that the register’s deed conveying the property to Peterson was executed and delivered to her. Sometime in January 1977, after the divorce decree was entered, Rosa Lee Peterson visited the home of J.M. and Ben Touchstone, advised them she had been awarded the ten acres on which they resided, and requested that they move from the property. They refused to do so. Two and one-half years later, on May 2, 1979, Peterson gave J.M. Touchstone notice by registered letter to vacate the premises within ten days. When the Touchstones again failed to vacate, upon proper complaint filed by Peterson, the District Court of Washington County issued a writ of ejectment on June 12,1979. A hearing was held on the ejectment complaint in the district court on October 23, 1979, after which judgment was entered against the Touchstones. Thereafter, the Touchstones appealed to the Circuit Court of Washington County wherein they filed a counterclaim against Peterson, seeking reformation of the deed given to Peterson’s predecessor in title (her ex-husband Randolph Kirkland) by J.M. Touchstone, so as to reflect the life interest in the ten acres reserved by J.M. Touchstone, the original grantor. In Peterson’s answer to this counterclaim, she set up the special defense of laches, among other things. She also amended her complaint to add a claim for unlawful detainer.

At trial, on February 24, 1982, evidence on the counterclaim for reformation was presented ore tenus to the circuit court. Thereafter, on March 11, 1982, the court entered an order denying reformation of the deed in question, finding such reformation barred by the doctrine of laches, and also under Code of 1975, § 35-4-153, that reformation would result in prejudice to rights acquired by a third person in good faith and for value. The ejectment and unlawful detainer claims were then tried to a jury on March 30, 1982, and, at the conclusion of trial, a verdict was returned in favor of Peterson. Prior to the time the circuit court entered judgment on the ver-diet, the Touchstones filed motions for rehearing and for a new trial or, in the alternative, for judgment notwithstanding the verdict. Subsequently, on January 18, 1983, the court entered judgment on the verdict for Peterson, and on February 24, 1983, after the Touchstones refiled their motions for rehearing and for a new trial or, in the alternative, for judgment notwithstanding the verdict, these motions were denied by the circuit court. It is from the denial of these motions that the Touchstones appeal.

The controlling issue raised by the Touchstones on appeal is whether the circuit court erred in denying the Touchstones’ counterclaim for reformation. The first question presented is whether the circuit court correctly found Rosa Lee Peterson to be a bona fide purchaser for value under § 35-4-153, i.e., that she was a purchaser of legal title without actual knowledge of the Touchstones’ prior equity, or that she did not have knowledge of facts sufficient to put her on inquiry regarding the Touchstones’ prior equity before or at the time she was granted the property by the divorce decree or when she later received the deed to the property.

Section 35-4-153 provides as follows:

“When, through fraud, or a mutual mistake of the parties, or a mistake of one party which the other at the time knew or suspected, a deed, mortgage or other conveyance does not truly express the intention of the parties, it may be revised by a court on the application of the party aggrieved so as to express that intention, insofar as this can be done without prejudice to rights acquired by third persons in good faith and for value." (Emphasis added.)

In order to reform the deed to express the intentions of the parties thereto, under § 35-4-153, the Touchstones have the burden of proving with clear, convincing, and satisfactory evidence that the intention they seek to substitute was that of both parties to the deed. Fidelity Service Ins. Co. v. A.B. Legg & Sons Burial Ins. Co., 274 Ala. 94, 145 So.2d 811 (1962); Taylor v. Burns, 250 Ala. 218, 34 So.2d 5 (1948); Hyatt v. Ogletree, 31 Ala.App. 8, 12 So.2d 397 (1942).

All the parties to both deeds in question (the 1955 deed from J.M. Touchstone to Uhbern and Randolph Kirkland, and the 1969 deed from Uhbern Kirkland to Randolph Kirkland) were properly joined and testified at trial. It is clear from their testimony, taken together, that all of the parties to both deeds orally agreed and understood that J.M. Touchstone retained a life interest in the ten-acre tract and have since acted upon this understanding. The testimony was uncontroverted as to this intention and it was uncontroverted that a defect in the deed existed due to the omission of the life estate. The only conflicting testimony had to do with when the defect in the original deed from J.M. Touchstone to Randolph and Uhbern Kirkland was discovered. Thus, the Touchstones have met their burden of proving that the intention they seek to substitute was that of all parties to the deeds in question. The only remaining issue, under the language of § 35-4-153, supra, is whether Peterson obtained bona fide purchaser status in acquiring her rights in the subject ten acres.

The portion of the statute italicized above codifies the rule of law long recognized in this state: a written instrument is not subject to reformation as against the rights of a bona fide purchaser, without notice, and for value. Reformation or correction of a written instrument will generally be granted, however, as against subsequent purchasers who obtain their title or lien with notice of the existing equitable right to reformation. Gilmore v. Sexton, 254 Ala. 560, 49 So.2d 157 (1950); Walling v. Moss, 240 Ala. 87, 197 So. 30 (1940); Copeland v. Warren, 214 Ala. 150, 107 So. 94 (1926). As explained by this Court in Lightsey v. Stone, 255 Ala. 541, 546, 52 So.2d 376, 381 (1951):

“In order to constitute one a bona fide purchaser and entitle him to the protection of the rule, as against a prior equity or conveyance, it is essential: ‘ * * * (1) that he is the purchaser of the legal as distinguished from an equitable title; (2) that he purchased the same in good faith; (3) that he parted with value as a consideration therefor by paying money or other thing of value, assuming a liability or incurring an injury; (4) that he had no notice, and knew no fact sufficient to put him on inquiry as to complainant’s equity, either at the time of his purchase, or at, or before the time he paid the purchase-money, or otherwise parted with value * * Craft v. Russell, 67 Ala. 9, 12, and eases cited....”

Accord, First National Bank of Birmingham v. Culberson, 342 So.2d 347 (Ala.1977); Murphree v. Henson, 289 Ala. 340, 267 So.2d 414 (1972).

The first element enumerated above is that the purchaser acquire the legal title to the property; this element, read together with the fourth element, would require the purchaser to obtain legal title to the property before he had actual knowledge of a prior equity, or learned of facts sufficient to put him on inquiry concerning the complainant’s equity. Peterson testified at trial that it was not until January 1977, after the divorce decree was entered granting her the ten acres, that she learned of the Touchstones’ claim to a life interest in the property. The following testimony by Peterson to this effect was elicited at trial by her attorney on direct examination:

“Q. Did you have any discussions after you got the divorce with the Touchstones?
“A. Yes.
“Q. All right. Did ya’ll ever have any discussions about this land?
“A. Yes.
“Q. All right. Can you tell me at what point in time you had the discussions?
“A. Well, it was in January of ‘77. I went and told them that I would like for them to move because I was going to move the house from the property and have it torn down and moved because I planned to have my land pushed off because I was building me a house and this house they lived in is between my house and the road, and I planned to clear the land between my house and the road and I would like to move the house.
“Q. In relationship to the divorce, was that after or before?
“A. That was after.
“Q. After the divorce.
“A. Uh-huh.
“Q. Had you got that deed yet?
“A. No.
“Q. How long a period of time was it from the time you got your divorce until you actually got the deed out from Randolph?
“A. Well, I got my divorce the tenth day of January and May the second of 1979, I finally got my deed.
“Q. Better than two years later?
“A. Yes.
“Q. Now, when you went to the Touchstones on that occasion, did they make any statements to you concerning the deed from them to the Kirklands— Randolph and Uhbern?
“A. No, not the deed.
“Q. All right. What did they tell you, if anything, on that occasion when you asked them to move, that you wanted to push your land—
“A. They just said they had a right to live there.
“Q. They had a right to live there?
“A. That it was a verbal agreement that they had a right to live there.
“Q. That there was a verbal agreement. Was there any time in that conversation the subject of this old deed that was made that was supposed to be a reservation of some sort of right to live or life estate in?
“A. No, there was no such conversation.
“Q. During your marriage, did you and Randolph ever have any discussions about an error in a deed or about an oral agreement to allow them to live on the land?
“A. No, we never discussed it.
“Q. When is the first instance, if there is any, when your husband might have brought to your attention that there was some ‘right’ that the Touchstones had?
“A. Well, it was the week following the divorce. He called me.
“Q. Are you talking about January of ‘77.
“A. Right.
“Q. All right. Who called you?
“A. He called me and informed me that—
“Q. Who called you?
“A. Randolph.
“Q. Okay.
“A. The water pump at the house where I was living was on his property.
“Q. Where were you living at the time?
“A. I was living in the house that I got, on the five-tenths of an acre, right down under the hill from where he lived.
“Q. All right. Would that be in a different location?
“A. That’s a different location.
“Q. All right. What else if anything did he tell you?
“A. And then he told me, and by the way, I guess you know that J.M. and Ben are supposed to live there. And I said, no, I didn’t. And he said, well, that’s your problem.
“Q. Is that the first occasion you had ever become aware of any right from your husband that the Touchstones had?
“A. Yes.”

It is significant to her status as a bona fide purchaser that she learned of the Touchstones’ claim prior to the time the register’s deed to the ten acres was executed and delivered to her on May 2, 1979. It is also significant to point out that it was not until after she received the deed on May 2, 1979, that approximately one week later, on May 7, she served the Touchstones notice to vacate on the Touchstones, and subsequently petitioned the district court for a writ of ejectment on June 12, 1979 — an action which can only be brought by the record owner of the disputed property. Therefore, when the divorce decree was entered, Peterson acquired only an equitable title to the subject ten acres; it was not until the register’s deed was executed and delivered to her that her equitable title “ripened into a full legal title as against all equities and claims not known to her or notice of which she was not legally chargeable.” Larkins v. Howard, 252 Ala. 9, 39 So.2d 224 (1949) (emphasis added). In Mallory v. Agee, 226 Ala. 596, 600, 147 So. 881, 883 (1932), this Court explained:

“In order that a purchaser of land shall be protected against equities of third persons, he must have acquired at the time of such purchase the legal title by warranty deed_ ‘As a mere equity, that he acquires must be subordinate to older equities.... ’ Shorter v. Frazer, [64 Ala. 74 (1879)]” (Citations omitted.)

And, in the earlier case of Manning v. House, 211 Ala. 570, 574, 100 So. 772, 775 (1924), this Court, in applying the foregoing principle to the facts in that case, stated:

“W.E. Manning cannot be considered a bona fide purchaser of lot No. 7 without notice of its dedication. Beside the physical evidences of public use, it sufficiently appears that before his purchase he was advised of the controversy by his vendor, and that the landowners protested to him before he acquired a deed to the property.” (Emphasis added.)

Thus, since Rosa Peterson had actual knowledge of the Touchstones’ prior equity before acquiring the legal title to the property, she cannot be deemed a bona fide purchaser.

Beyond the element present here of actual notice of prior claims before acquiring legal title, it is apparent that Rosa Lee Peterson would further be deprived of bona fide purchaser status under the constructive notice doctrine as well. Generally, actual notice on the part of the subsequent purchaser of the error to be corrected in the deed is not necessary in order to permit reformation of the instrument as against him, provided he had constructive notice, or the facts were such as to put a prudent person on inquiry as to title, charging him with notice of all facts to which diligent inquiry and investigation would have led him. See generally, 79 A.L.R.2d 1180 (1961); Holly v. Dinkins, 202 Ala. 477, 80 So. 861 (1919). See also, Leslie v. Click, 221 Ala. 163, 165, 128 So. 170, 172 (1930), where this Court stated as follows:

“A purchaser with sufficient information to stimulate inquiry which would lead to knowledge of adverse or hostile and superior claim or title, and fails therein, the injury is the result of his own folly—he is wanting in good faith, an indispensable element of a purchaser (for value) without notice—and a court of equity will not protect such reckless purchaser. Taylor v. A. & M. Ass’n, 68 Ala. 229....”

Accord, Adams v. Adams, 346 So.2d 1146 (Ala.1977); First National Bank of Birmingham v. Culberson, supra; Murphree v. Henson, supra; Lightsey v. Stone, supra.

Furthermore, it is settled law in this state that, where a purchaser buys land and has knowledge that a third person is in possession thereof, he is charged with notice as to the nature of that party’s title, including the occupant’s equitable rights. This principle is stated in Holly v. Dinkins, supra, as follows:

“Whenever a party, dealing as a purchaser or incumbrancer with respect to a parcel of land, is informed or knows, or is in a condition which prevents him from denying that he knows, that the premises are in the possession of a third person, other than the one with whom he is dealing as owner, he is thereby put upon an inquiry, and is charged with constructive notice of all the facts concerning the occupant’s right, title, and interest which he might have ascertained by means of a due inquiry. 2 Pom.Eq.Jur. § 615_” 202 Ala. at 479, 80 So. at 863.

Accord, Lightsey v. Stone, supra; Walling v. Moss, supra; Sulzbacher v. Campbell, 219 Ala. 191, 121 So. 706 (1929); Copeland v. Warren, 214 Ala. 150, 107 So. 94 (1926). In Gilmore v. Sexton, supra, reformation of deeds was upheld as against third parties who had purchased the disputed land with notice that it was occupied and possessed by the complainant. There, this Court said that such continued possession is notice of all the equitable and other rights of the possessor. See also, Cumberland Capital Corporation, Inc. v. Robinette, 57 Ala.App. 697, 331 So.2d 709 (1976); Hill v. Taylor, 285 Ala. 612, 235 So.2d 647 (1970).

However, to put a purchaser upon inquiry and to operate as constructive notice, possession must exist at the time of the transaction by which his rights and interest were created. Holgerson v. Gard, 257 Ala. 579, 60 So.2d 427 (1952). Such possession must be open, visible, exclusive, and unambiguous, not liable to be misconstrued or misunderstood. Lightsey v. Stone, supra. Nevertheless, in Evans v. Bryan, 202 Ala. 484, 485, 80 So. 868, 869 (1919), this Court said:

“If the possession of the grantor, after making a conveyance, is long continued, it may be more reasonable to refer it to his right to occupancy rather than to the sufferance of the grantee. Possession, therefore, for an unreasonable period after a conveyance may well be sufficient to put persons upon inquiry as to the occupant’s rights.” (Emphasis added.)

See also, A. Shiff & Son v. Andress, 147 Ala. 690, 40 So. 824, 825 (1906), holding that where the complainant continued in possession of land after having been induced to convey the same such possession constituted notice of her equitable rights to purchasers from her grantee.

The evidence in the present case shows the continued possession by the Touchstones of the property in question from 1953 to at least 1979, when the writ of ejectment was issued. During this time, they resided on the property, raised gardens, kept dogs, cut firewood and some timber, and did other acts not inconsistent with their equitable rights in the property.

Rosa Lee Peterson, by her own testimony, admitted that in 1956, the year of her marriage to Randolph Kirkland, she learned that Ben Touchstone had conveyed the disputed ten acres to her husband, Randolph Kirkland, and his brother Uhbern in 1955. She further testified that she knew the Touchstones had continued to live on the property since before her marriage to Randolph Kirkland through 1977, the year their divorce was granted, and up to the present time, although she never inquired as to the nature of the Touchstones’ interest in the property. Apparently she did not inquire as to the Touchstones’ rights in the property even during the divorce settlement negotiations when she expressed her interest in receiving the ten-acre tract.

Accordingly, it is clear that she had notice of the continued possession of the property by the Touchstones, and, under the foregoing authorities, she was under a duty of inquiry as to their interest in the property, at least during the divorce settlement negotiations when she assumed the posture of “purchaser for value.” Having failed to do so, she is chargeable with an implied notice of everything to which her inquiry would have led, especially the nature of the possessor’s interest in the property. Consequently, it cannot be concluded that Peterson, either upon the granting of the divorce decree or upon her subsequent receipt of the register’s deed, acquired the rights of a bona fide purchaser. Thus, the trial court erred in denying reformation on the basis of “prejudice to rights acquired by [a third person] in good faith and for value,” pursuant to § 35-4-153.

The circuit court further based denial of reformation on its finding that the Touchstones were barred by the doctrine' of laches. Lapse of time alone does not establish laches. Darden v. Meadows, 259 Ala. 676, 68 So.2d 709 (1953); Ellis v. Stickney, 253 Ala. 86, 42 So.2d 779 (1949). To be affected by laches, the delay must have been with notice of the existence of the right, resulting in disadvantage, harm, or prejudice to another, or have operated to bring about changes in conditions and circumstances so that there can no longer be a safe determination of the controversy. Thus, special facts which make the delay culpable must appear. Lipscomb v. Tucker, 294 Ala. 246, 314 So.2d 840 (1975); McCary v. Treadway, 289 Ala. 334, 267 So.2d 410 (1972); Merrill v. Merrill, 260 Ala. 408, 71 So.2d 44 (1954). Although the evidence shows the Touchstones knew earlier of the mistaken omission from J.M.’s deed, it cannot be said that prejudice has resulted due to their delay in seeking reformation, nor is there any difficulty in determining the controversy in this case.

First, Rosa Lee Peterson cannot be said to have been prejudiced by the Touchstones’ delay in seeking reformation, because she does not qualify as a bona fide purchaser. She had ample notice of their continued possession of the property when she acquired the equitable title to the property by way of the divorce decree, and she had actual notice of their equitable claim to a life estate in the property when she acquired the legal title to the property by way of the register’s deed. The evidence further indicates that, prior to taking legal title to the property, she was offered other property in lieu of the ten acres encumbered by the Touchstones’ claim. Second, since all parties to the deeds in question gave testimony and agreed on the facts surrounding the mistaken omission from the deed of the Touchstones’ life interest in the property, and their oral understanding thereof, no doubt is cast over the determination of that controversy.

Moreover, it is a well-settled rule that laches cannot be imputed to one who has all the while been in the peaceable possession of the property with regard to which relief is sought. Hicks v. Huggins, 405 So.2d 1324 (Ala.Civ.App.1981); Craig v. Root, 247 Ala. 479, 25 So.2d 147 (1946); Fowler v. Alabama Iron & Steel Co., 164 Ala. 414, 51 So. 393 (1910). This Court in Fowler, supra, held that where one was in possession of land and asserting his equitable title, or, even if there was no actual possession, was asserting general acts of ownership, he was not guilty of laches in not resorting to equity to obtain the legal title before being sued in ejectment. Accord, Woodlawn Development & Realty Co. v. Hawkins, 186 Ala. 234, 65 So. 183 (1914). Thus, one who is in peaceable, uninterrupted possession of property is at liberty to wait until his rights in title are attacked without being chargeable with laches. Tarver v. Tarver, 258 Ala. 683, 65 So.2d 148 (1953); Ammons v. Ammons, 253 Ala. 82, 42 So.2d 776 (1949).

In the present case, the Touchstones sought reformation of the deeds in question after they had been sued in ejectment. As stated above, they had been in peaceable, continued possession of the presently disputed property for over twenty years prior to the ejectment proceedings. Therefore, their delay was excused and their suit for reformation not barred by laches.

We are mindful of the presumption indulged in favor of the findings and decree of the trial court. Fidelity Service Ins. Co. v. A.B. Legg & Sons Burial Ins. Co., supra. However, where, as here, this presumption of correctness is overcome by both the law and the evidence, the decision below is due to be set aside as being plainly and palpably wrong. It is clear that the trial court erred in denying the Touchstones’ claim for reformation. Accordingly, we must reverse the judgment and remand the case for further proceedings not inconsistent with this opinion. This being the dispositive issue on appeal, we do not consider that aspect of the appeal relating to the ejectment complaint.

The judgment is reversed and the cause is remanded.

REVERSED AND REMANDED.

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


author: JONES, Justice.

text:
    Alberta CARLTON and Helen Beverly v. Doris B. OWENS, Executrix of the Estate of Lillian B. Jones and Doris B. Owens, Individually.
    82-872.
    Supreme Court of Alabama.
    Dec. 2, 1983.

      Burgin H. Kent and Jeffrey C. Kirby of Bishop, Colvin & Johnson, Birmingham, for appellants.
    Paul E. Toppins of Lange, Simpson, Robinson & Somerville, Birmingham, for appel-lees.
   JONES, Justice.

This suit was filed by Doris B. Owens, executrix of the estate of Lillian B. Jones, deceased, and Doris B. Owens, individually, against Lillian Beverly, Helen Beverly, Mamie Beverly, and Alberta Carlton on December 4, 1981, in Jefferson County Circuit Court. The Defendants, all of whom reside in Birmingham, are sisters, and, along with Plaintiff, were cousins of the late Lillian B. Jones.

Plaintiff sought a judgment against Defendants pursuant to the full faith and credit clause, Art. IV, § 1, of the United States Constitution, premised upon an order for injunctive relief and judgment entered by the Chancery Court of Lauderdale County, Mississippi. The Mississippi adjudication included, among other things, a judgment against Defendants in the amount of $87,064.12, plus an additional amount of $5,000, representing attorney’s fees.

On August 19, 1981, Plaintiff/Appellee Doris B. Owens instituted an action in the Mississippi court, against Helen Beverly and Alberta Carlton, Defendants/Appellants, and two other Defendants, Lillian Beverly and Mamie Beverly. Plaintiff sought injunctive relief and damages for fraud and undue influence allegedly exerted by the Defendants against Lillian B. Jones during her lifetime. On January 6, 1982, defendants Helen Beverly and Alberta Carlton filed a motion to dismiss, followed by an amended motion to dismiss on January 19, 1982. Both motions were denied.

Defendants Lillian Beverly and Mamie Beverly never appeared in the Mississippi proceeding, alleging that the Mississippi Court did not have proper personal jurisdiction over them because of alleged failure of service of process. Neither is a party to this appeal. Appellants Alberta Carlton and Helen Beverly concede the propriety of the Mississippi court’s personal jurisdiction over them.

Within the instant suit, all the parties filed motions for summary judgment, which were overruled. Plaintiff’s subsequent motion to reconsider the denial of her motion for summary judgment was granted as to Defendants Alberta Carlton and Helen Beverly. This appeal, from a Rule 54(b) order, followed. We affirm.

FACTS

Lillian Jones, an elderly woman who underwent heart surgery in 1981 for implantation of a pacemaker, lived in Meridian, Mississippi. Before her illness, she executed a will naming as beneficiaries Defendant Lillian Beverly, Plaintiff Doris B. Owens, and Plaintiffs sister, Gladys B. Wallace. Plaintiff Doris B. Owens trav-elled to Meridian before Ms. Jones’s surgery and remained there to care for her personal needs. Before returning home, Ms. Owens contacted Defendants Lillian Beverly, Helen Beverly, Mamie Beverly, and Alberta Carlton to inquire whether they would care for Ms. Jones.

The four Defendants agreed and Ms. Owens brought Ms. Jones to Birmingham in March 1981, and left her with Defendants. In May 1981, Defendants carried Ms. Jones back to her home in Meridian. Defendants then proceeded to close out Ms. Jones’s bank accounts, and took the monies back to Birmingham, leaving Ms. Jones in Mississippi.

Defendants returned to Mississippi in June 1981. During this period, Defendants employed an attorney for the purpose of revising the earlier will of Ms. Jones. The new will, in accordance with Defendants’ instructions, left all of Ms. Jones’s assets to Lillian Beverly, and appointed Alberta Carlton as executrix of her estate.

Lillian Jones died on July 1, 1981. On July 10, 1981, Plaintiff Doris B. Owens petitioned for the probate of the earlier will of Lillian B. Jones. Defendants Alberta Carlton and Lillian Beverly filed a caveat against probate, and, in the same action, petitioned for the probate of the subsequent will. On August 18, 1981, the Mississippi chancery court ruled Defendants’ proposed will invalid on grounds that it had been procured by Defendants’ undue influence upon Ms. Jones.

On August 19, 1981, William B. Jacob, attorney for the estate of Lillian B. Jones, filed in Mississippi a “Declaration for Damages and Injunction” against Defendants, seeking to recover alleged damages caused to the estate by Defendants’ actions.

All Defendants were served with notice of the “Declaration.” Lillian Beverly and Mamie Beverly never appeared or filed any response to the “Declaration.” As we have already stated, Lillian and Mamie Beverly dispute the adequacy of service upon them. That issue is still pending in the court below. Alberta Carlton and Helen Beverly, who concede personal service and, thus, jurisdiction of the Mississippi court, retained counsel in Mississippi who made an appearance and filed motions on their behalf.

On October 8, 1981, counsel for Appellants filed a motion to withdraw from the case. As mandated by Mississippi law, he forwarded by certified mail to Appellants in Birmingham his intentions of withdrawal. His reasons for withdrawal included, inter alia:

“The retainer agreement between said defendants and the undersigned attorney provided only for representation in filing demurrers and initial pleadings. The named de^ndants have not responded to counsel’s correspondence requesting them to notify him if they wished him to represent them further. The within named defendants have not responded to counsel’s correspondence and have refused to accept telephone calls from him with the result that his ability to represent them had been impaired.”

The court thereupon granted the motion to withdraw.

Subsequently, after an evidentiary hearing, the Mississippi chancery court issued the following order:

“This cause came on for hearing ... on petition filed by complainant herein seeking injunctive relief and judgments against the above named defendants for the wrongful removal of assets of the Estate of Lillian B. Jones, deceased. Upon examination of the record, the court found that legal and lawful process issued to Lillian Beverly, Helen Beverly, Mammie Beverly and Alberta Carlton for the statutory amount of time. Further, the court found that each of the above named defendants has wholly neglected and failed to properly plead, answer or demur within the time allowed by law to any of the allegations of the Bill of Complaint or any more particularized petition. Further, the court found and was convinced that it had complete jurisdiction of all parties involved in this matter and that all proper and necessary parties were before the court.
[Omitted herefrom are the court’s detailed factual findings of fraud and undue influence.]
“IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that Lillian Beverly, Helen Beverly, Mamie Beverly and Alberta Carlton exercised undue influence and fraud over the person of Lillian Jones during her lifetime to wrongfuly obtain from Mrs. Jones assets belonging to her, including but [not] limited to, cash money and stock certificates.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a mandatory injunction is granted compelling each of the above named defendants to pay unto the Chancery Clerk of Lauder-dale County, Mississippi, the Honorable Herman Gray Johnson, any and all sums of money that have come into their possession from the assets belonging to Lillian B. Jones.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a judgment is granted against each of the above named defendants, jointly and severally, in the amount of $87,064.12 representing the cash money obtained by each of the above named defendants through fraud and undue influence. Upon execution of this judgment, these funds are to be turned over to the receiver for the Estate of Lillian B. Jones, namely, the Honorable Herman Gray Johnson, Chancery Clerk, Lauderdale County, Mississippi.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Honorable William B. Jacob is granted a judgment against each of the above named defendants jointly and severally, in the amount of $5000.00 representing the attorney’s fees for the bringing of this action to recover the assets that were wrongfully obtained from the Estate of Lillian B. Jones. Further, the Honorable Herman Gray Johnson, Chancery Clerk of Lauderdale County, Mississippi, is hereby awarded a judgment against each of the above named defendants in the amount of $62.00 representing the costs of bringing this independent action for the recovery of funds and assets of the Estate of Lillian B. Jones that were obtained by fraud and undue influence.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a decree pro confesso issue against each of the above named defendants finding them wholly and completely in default in any plea, answer or [demurrer] or other appropriate pleadings.”

DECISION

The Collateral Attack Issue

Defendants contend in this appeal that the judgment of the Mississippi chancery court is not entitled to full faith and credit in Alabama, because Defendants failed to receive notice of the setting of the Mississippi case for trial.

As postured by Appellee, and we think rightly so, whether the Defendants did or did not receive notice of the trial setting is not the issue here. The issue is whether Defendants can collaterally attack the Mississippi judgment based upon their assertion that they did not receive notice of the trial setting. Because this case deals with whether an Alabama court is required to give full faith and credit to a Mississippi judgment, when it is being collaterally attacked, cases dealing with the Alabama appellate courts' review of Alabama trial courts’ decisions in a direct appeal are inapplicable.

For purposes of a summary judgment motion, this Court must view the evidence in a light most favorable to the nonmoving party (here, the Appellants). Papastefan v. B & L Construction Co., Inc., of Mobile, 356 So.2d 158, 160 (Ala.1978). Accordingly, it must be assumed that Appellants did not receive notice of the Mississippi hearing on the “Declaration for Damages.”

The failure of Defendants to receive notice of the hearing, however, is an irregularity that renders the Mississippi judgment voidable, not void. Combs v. Chambers, 302 F.Supp. 194, 200-201 (N.D.Okl. 1969); Gray v. Hall, 203 Cal. 306, 265 P. 246, 253 (1928).

In Combs, supra, plaintiff attempted to enforce in Oklahoma a default judgment obtained against a defendant in Arkansas. Defendant sought to collaterally attack the Arkansas judgment in Oklahoma on grounds that neither the Arkansas court nor the plaintiff had afforded him notice of the application for default.

The federal district court, while unable to determine any Arkansas requirement that notice be given to defendant prior to entry of a default judgment, noted:

“If it may be assumed that Arkansas by statute or rule of court required notice before a default judgment can be taken and a default judgment is taken without such notice, such action does not constitute a lack of jurisdiction in the meaning of the full faith and credit clause of the Constitution of the United States. It is at most an irregularity, the judgment is not void and should be entered in a sister state.” 302 F.Supp. at 200.

See, also, Mueller v. Payn, 30 Md.App. 377, 352 A.2d 895, 901 (Ct.Spec.App.1976). (A violation of a procedural rule would not require a court to deny full faith and credit to a foreign judgment.)

Defendants do not contest the Mississippi court’s personal or subject matter jurisdiction. Once a court obtains jurisdiction, irregularities only render a judgment erroneous or voidable. Gray, 203 Cal. at 315, 265 P. at 251. “A judgment is never absolutely void if the court had jurisdiction of the subject matter and the person of the defendant no matter how erroneous it may be.” Gray, 203 Cal. at 314, 265 P. at 251. Failure to give notice is not jurisdictional under the full faith and credit clause. Combs, 302 F.Supp. at 201. Once jurisdiction has been acquired, “errors of judgment or irregularities which do not render the judgment void are not available on collateral attack.” Cobbs v. Norville, 227 Ala. 621, 623, 151 So. 576, 577 (1933); see Gray, supra, 203 Cal. at 313, 265 P. at 251.

In Gray, the court distinguished those cases in which a defendant receives no notice of an action from those in which the defendant received notice of the lawsuit but not of subsequent proceedings. In the first instance, any judgment rendered would be void because of the absence of jurisdiction of the court to render the judgment. Gray, 203 Cal. at 316, 265 P. at 252. In the second instance,, however, the lack of notice would only render the judgment voidable:

“The notice essential to due course and process of law is the original notice whereby the court acquires jurisdiction, and is not notice of the time when jurisdiction, already completely vested, will be exercised.” 203 Cal. at 318, 265 P. at 253.

The only remedy available to a defendant subject to a voidable judgment is a direct appeal from that judgment; a collateral attack is not allowed. Gray, 203 Cal. at 317, 265 P. at 252; Holcomb v. Holcomb, 198 So.2d 32, 33 (Fla.Dist.Ct.App.1967). Consequently, Defendants’ remedy would have been to attempt to have the Mississippi judgment set aside in a Mississippi court.

The Indispensable Party Issue

Defendants contend that the Alabama judgment should be set aside on appeal because of Plaintiff’s failure to join William B. Jacob and Gladys B. Wallace as indispensable parties in the instant action. Mr. Jacob is the Mississippi attorney for the estate of Lillian B. Jones, and Gladys B. Wallace is a beneficiary under Ms. Jones’s last will and testament.

According to Defendants, Mr. Jacob is an indispensable party because the Mississippi chancery court awarded him $5,000 in attorney’s fees, and that sum is included within the total judgment rendered by the Alabama court, the subject of this appeal. While the Mississippi court’s order mentions Jacob as being entitled to the $5,000, an examination of the opinion illustrates that, as is usual in cases in which attorney’s fees are awarded, the award of fees was to the estate of Lillian B. Jones, deceased, and not to Mr. Jacob personally.

An award of attorney’s fees belongs to the client and not the attorney. See, e.g., Carmichael v. Iowa State Highway Commission, 219 N.W.2d 658, 664 (Iowa 1974); In re Estate of Katz, 40 N.J.Super. 103, 122 A.2d 185, 187 (1956). We find no merit in Appellants’ contention that, because the Mississippi judgment awarded an attorney’s fee of $5,000, the judgment appealed from in the instant case is due to be reversed for failure of the Plaintiffs to join that lawyer as an indispensable party.

Defendants’ contention that Gladys B. Wallace is an indispensable party to these proceedings is likewise misplaced. This Alabama action was brought to enforce the Mississippi judgment. The Mississippi action was brought for the benefit of the estate of Lillian B. Jones. All funds recovered are to be paid to the court until the estate is settled and the assets distributed. Accordingly, as maintained by Ap-pellees, the executrix, Doris B. Owens, was the proper party to maintain the Mississippi action. See 7 C. Wright & A. Miller, Federal Practice and Procedure § 1618, at 192 (1972). Moreover, as noted by the Mississippi court, “all proper and necessary parties were before the court.”

Defendants also insist that Gladys B. Wallace should have been joined as a party to the instant proceeding because she is a “real party in interest.” While Ms. Wallace is a beneficiary of the estate, Rule 17(a) of the Alabama Rules of Civil Procedure states that “[a]n executor ... may sue in his own name without joining with him the party for whose benefit the action is brought.”

The Mississippi action was brought for the benefit of the estate. Consequently, it was not error for the executrix, Doris R. Owens, to initiate and pursue this action in the absence of Gladys B. Wallace as a party plaintiff.

The judgment below is due to be, and it is hereby, affirmed.

AFFIRMED.

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

SHORES, J., concurs in the result.

      . Although it is not determinative, we note that no pleading of Defendants raises the lack of notice as a defense to enforcement of the Mississippi judgment, or suggests that notice of an application for default is a requirement of Mississippi law.