text:
    Harvey A. GOLD v. Oscar P. LaBARRE, et al.
    No. 54207.
    Supreme Court of Mississippi.
    June 6, 1984.
    Rehearing Denied July 25, 1984.

      L. Joe Lee, Lee & Grenfell, Michael R. Medley, Jackson, for appellant.
    Landman Teller, Teller, Chaney & Rector, Wren C. Way, Way & Field, Vicksburg, for appellee.
    Before PATTERSON, C.J., and HAWKINS and PRATHER, JJ.
   PATTERSON, Chief Justice, for the Court:

On May 20, 1981, Harvey Gold brought suit against Huette Barber, Oscar LaBarre, Johnny Jabour, The American Bank of Vicksburg and its Trustee, Landman Teller, Jr., in the Chancery Court of Warren County. Complainant sought cancellation of a warranty deed from himself to Johnny Jab-our, cancellation of a deed of trust from Jabour to Landman Teller, Jr., Trustee for the American Bank; or in the alternative, that the deed from Gold to Jabour be can-celled and that complainant be awarded a joint and several judgment of $80,000 against Barber, LaBarre and Jabour; or in the next alternative, that Gold be granted a joint and several judgment of $54,313.60 against Barber, LaBarre and Jabour plus costs.

Each of the defendants answered, and issue being joined, the cause was heard on its merits. At the conclusion of complainant’s case in chief, the American Bank and its Trustee, Landman Teller, Jr., and Johnny Jabour were dismissed on their respective motions that the complainant had failed by his evidence to establish a case against them. The trial continued against Barber and LaBarre and at its conclusion the bill of complaint was dismissed as to these defendants.

Aggrieved, Gold appeals to this Court assigning as error:

1. That the learned chancellor below erred in dismissing Jabour and the American Bank upon the close of appellant’s case in chief;

2. That in the event the conveyance to Jabour and deed of trust to the American Bank are valid, appellant is the holder of a first lien against the subject property;

' 3. That the court below erred in dismissing Jabour at the close of appellant’s case in chief;

4. That the chancellor below erred in not returning a judgment against LaBarre, Barber and Jabour; and

5. That the finding of facts and conclusions of law by the chancellor below were against the overwhelming weight of the evidence.

The appellant did not pursue his appeal against Jabour and the American Bank of Vicksburg, or its trustee, and these appeals were dismissed by this Court on January 5, 1983. The remaining appellees are Oscar LaBarre and Huette Barber from whom the appellant seeks a money judgment for the conversion of his property, thereby abandoning his other assignments of error.

Although this appeal is now limited to damages against Barber and LaBarre for conversion, it also necessarily relates in some degree to the record title to a parcel of real estate in Warren County because the record title, not real ownership, was the security basis for the loan or loans placed in issue. The factual circumstances are singular; all appear to be sub-rosa, and the posture of the case before us is unusual. For these reasons we set forth the circumstances in some detail.

At some point in time prior to February 14,1980, Huette Barber became the alleged “real” owner of a tract of land on Tiffin-town Road in Bovina in Warren County. Although there is no disagreement between the parties or their attorneys that the land “somehow” belonged to Barber, his name appears nowhere in the deraignment of title either as a grantee, devisee, donee, by inheritance or otherwise. Notwithstanding this absence of record title in Barber it does emerge from the record that Barber manipulated the record title through others to raise money for his used car business without incurring the suspicion of the lending institutions or the ire of judgment creditors.

The first transfer of the land concerning the present issues was from Norman and Joyce Fields to Henry Harrel on February 7, 1979. The record title was placed in Harrel’s name so that he could obtain money from the First National Bank of Vicksburg for Barber by pledging the record title as security for the loan, Barber remaining the undisclosed real owner. Thereafter Barber arranged a meeting in Attorney LaBarre’s office for February 15, 1980. Those attending were Oscar La-Barre, an attorney; Henry Harrel, the holder of the record title to the property; Barber, a used car dealer (the alleged “real” owner of the property but with several outstanding judgments against him); Alex Gold, now deceased, a certified public accountant (Barber was one of his clients); and Harvey Gold, the son of Alex Gold, an accountant who worked in the office with his father. We note that Harvey Gold testified several times he was not present at the meeting but ultimately stated that he might have been present but did not participate in the discussions. The other attendees testified that he was present.

According to LaBarre the meeting was called to accommodate Barber in his desire to pay the loan that Harrel had obtained for him from the First National Bank of Vicksburg and for which purpose Harrel held the record title. LaBarre was also requested by Barber to ascertain the exact amount of money he needed to retire the mortgage as well as additional loans from Harrel. In connection with these requests LaBarre was asked to prepare a warranty deed from Harrel to Harvey Gold.

On February 15, 1980, those mentioned met in LaBarre’s office, where Harrel conveyed the record title to Harvey Gold. The ostensible consideration for the conveyance was paid from $46,000.00 in cash which either Barber or Alex Gold brought to the meeting but which was disbursed by La-Barre and Barber. The source of the money is critical to the issues involved and is in sharp dispute since Harvey Gold contends it came from a loan he had negotiated with John Bell at his father’s request. He testified that Bell did not want to loan the money to his father because the elder Gold was in ill health and for this reason the loan was made to him and that he signed the note to Bell on February 14, 1980. (Appendix 1.) Barber testified the money came to him directly from Bell. His testimony follows:

Q. From whom did you get the money?
A. John Bell.
Q. How much money did you get?
A. $46,000.
Q. Did you borrow it from him?
A. No.
Q. Why did he give it to you?
A. Because he had paid some people to burn my house.
MR. LEE:
I am going to object to that, your Honor.
MR. WAY:
Q. I don’t want you to talk about any investigation, I mean I am talking about, did you borrow the money from him?
A. No.
Q. He paid you the money?
A. He paid me to fix my house
Q. They have objected to your telling why, so just leave it right there, O.K.? Don’t say anything else about it. O.K. $46,000 he paid you and do you want to tell the Court why he paid it to you?
A. Yeah, he paid it to me
Q. I just want to know if you want to tell the Court why he paid it? Not why he did; do you want to tell the Court?
A. It don’t make me no difference.
Q. O.K. then. So you got $46,000?
A. Yeah.

In either event LaBarre prepared a receipt which was given to Harvey Gold at the time of the conveyance. It follows:

The receipt corroborates the testimony of Gold if it is not a sham to deceive prospective lendors of future loans. It portrays the quality of the testimony with which we are presently concerned. LaBarre explained,

A. I acknowledged receipt to Harvey Gold at Mr. Barber’s request. This was at a meeting that was held the 15th day of February, 1980, which Mr. Harvey Gold, Mr. Alex Gold, Mr. Huette Barber, and Mr. Henry Harrel were all present in my office. The idea was in hopes that Mr. Barber would be able to obtain some additional funds to put in a stock of cars. Mr. Gold was to make an application for a loan. The loan was to be made in the name of Harvey Gold and thus the receipt was given at Mr. Barber’s instance and request, by me to the Gold’s that day.
Q. Then you are telling us you never actually received the cash money from Harvey Gold or his father, Mr. Alex Gold?
A. Absolutely not, sir.
Q. Do you know where the money came from?
A. It came from Mr. Barber’s coat and pockets.
Q. Do you know where he obtained the money?
A. No, sir, I do not.
Q. What was the purpose of keeping the title to the property away from Mr. Huette Barber?
A. Mr. Barber had a number of judgments against him at the time and his credit rating was not available to make a loan himself, and he was trying to get a loan to get his used car business going back with a good deal of ears. In other words, for additional cars to sell.

LaBarre was positive that he did not represent Harvey Gold as an attorney and neither did he know the source of the cash brought to his office by Barber, his client. He does concede, however, that on the occasion he gave Gold a certificate of title over his signature, in addition to the receipt mentioned. (Appendix 2.) The certificate of title has some significance in addition to its role of camouflaging the “real title,” as there appears in it statements which seem to qualify LaBarre’s oral testimony that he did not represent Gold. The statements,

As further outlined this date, I will at the proper time make application for title insurance for you or your assignee at no additional cost to you and the only items that you will pay are the title premiums, etc.
As further stated this opinion does not cover the second parcel as was shown in the deed to you as there are several objections to it.
Thank you for the opportunity to be of service.

The words “at no additional cost” and “thank you for the opportunity to be of service” seem to strengthen Gold’s contention that he relied upon Attorney LaBarre to protect his interest in a later transaction involving a conveyance of the same real property because he had drawn the legal instruments and participated in disbursing the money involving Harvey Gold in the first transaction. We think this because the same attorney drew the first deed conveying the property to Gold, issued a receipt for the consideration and prepared a certificate authenticating title to be vested in Gold.

In later questions concerning the $46,-000.00 LaBarre qualified his former testimony that he did not know its source, stating:

Q. At that time did you have any knowledge as to where the money he paid you that day was received from?
A. Only what Mr. Barber told me in their presence, which he said he got it from John Bell. John had paid him some money that he owed him.

Gold testified that John Bell came to his father’s office on the day before the meeting with cash in excess of $35,000.00 which was counted by Bell and his father. After Bell had departed, Barber arrived and then left with his father to deliver the money to LaBarre in his office. From the record it undoubtedly appears that the money used to extinguish the lien of the First National Bank of Vicksburg and the indebtedness due Harrel was also the consideration for the conveyance from Harrel to Gold and that it came from John Bell either as a loan to Gold or as a direct payment to Barber.

Bell’s version was that Alex Gold approached him to obtain money so that he could help a friend who was about to lose his house. He stated,

Q. You may proceed, Mr. Bell.
O.K. I loaned Mr. Gold the money so he could buy a house. He was going to get a house because somebody was supposed to be taking a house away from a friend of his, and he wanted the money to pay it off and fix it up and sell it.
Q. Who was the friend of his, do you know?
A. Huette Barber.

The money was delivered by him to Harvey Gold and his father. He explained,

Q. Have you later been informed by your attorneys or anyone else that Mr. Harvey Gold took title to real estate owned by Mr. Henry Harrel?
A. Yes, sir, I got a copy of it. I requested that when I loaned him the money. I got a copy of it where it’s in Harvey’s name.
Q. All right, sir. Was there a verbal understanding between yourself and Mr. Harvey Gold as to what he would do with the money you loaned him and what he was to receive was there any understanding?
A. Yes, sir.
Q. And what was that?
A. I would loan him the money; they would fix the house up, and when" they sold it I would get my money back. That is exactly what the understanding was. When they sold the house I would get my money.
Q. Why didn’t you loan the money to Mr. Huette Barber?
A. Why did I?
Q. Why didn’t you?
A. Because Huette won’t pay nobody.

There is testimony that Bell was to receive in addition to the interest in the note the sum of $7,500.00 when the property was sold.

We return to Harvey Gold’s testimony. It discloses that he did not actively participate in the above negotiations, but acted in accord with his father’s instructions for which he was to receive, and did receive, $500.00 for the use of his name as the record title holder and perhaps for signing the note to Bell. All of the foregoing however, according to Gold, was with the understanding he would be paid the amount of the note when the property was sold so that he could repay Bell.

Unfortunately Alex Gold, the father, died before the case was tried and, of course, since the events leading up to the first meeting and its transaction were verbal, his testimony is unavailable and this obfuscation is compounded because Gold took no measures to protect himself but simply complied with his father’s request. Other testimony indicates he did so to aid his father who was to receive $7500.00 from the sale of the house after renovation and sale.

The aftermath of the first meeting was that Alex Gold was unable to negotiate a SBA loan for Barber or to sell the house despite efforts to do so for a number of months. He then approached Johnny Jab-our, a real estate broker with years of experience in the Vicksburg and Warren County area, for aid in moving the property. Initially Jabour did not want to get involved because the property had been offered for sale without success for more than 10 months, but he later changed his mind. He acquired the property under the following circumstances,

Q. Did you take steps to go ahead and buy this property?
A. I took steps to buy this property.
Q. What did you do in regard to those steps?
A. I went to the — at least I requested through Mr. Barber, who was telling me that he would get some money out of this deal, that if he got me two appraisals on the house, it would take that first to get a loan. He had one appraisal that he brought to my office, and then we found out that we had to have two, and he had those appraisals made and he paid for them, because I told him I wouldn’t get involved with it, the appraisal part. There were two appraisals made; I went to the Bank, to Mr. James Cole at the Bank is the party I went to, and I told him I wanted to borrow $80,000 to purchase this house and that here were the two appraisals on the house.
Q. Were you familiar with what the $80,000 would be used for? Do you know?
A. Yes, I do. At least some light has come into the Court that I didn’t know, but I can quote to you what was told to me and it was also told to me by Huette Barber, that he owed roughly $54,000— Fifty some-odd-plus is what he told me, he didn’t say the exact amount, and it was another amount stated that his mother had made him a loan for an additional amount over that, that he was trying to pay back, and that the rest of the money would go to him.
Q. All right, sir. To whom was the $54,000 to be paid?
A. To Harvey Gold.
Q. You knew that?
A. Yes, sir, I did.

For his services in obtaining the loan Jabour was to receive $10,000 when the loan was closed as well as a six percent commission if the property brought more than $80,000.00 but with the understanding that if any funds remained after the sale, they would go to Barber. There was an additional agreement between Jabour and Barber which permitted Barber to live in the house pending its sale by paying the interest on the loan, the taxes and insurance on the property.

Jabour was successful in obtaining a loan commitment of $80,000 from the American Bank in Vicksburg. Thereafter Harvey Gold was requested by either Barber or LaBarre to come to the attorney’s office. In compliance he did so and on April 7,1981, conveyed his interest to Johnny Jabour by a warranty deed prepared for his signature by LaBarre and which was left with the attorney for delivery. Jabour notified both Bell and Harvey Gold that the loan on the property would be closed at 3:00 o’clock p.m. on April 7, 1981, in The American Bank.

Despite the notice neither Bell nor Gold appeared and the loan was closed in The American Bank with James Cole, its President; Huette Barber; Johnny Jabour; and Oscar LaBarre present. Jabour thereupon transferred the title he had received from Harvey Gold to the bank for its trustee, Landman Teller, Jr., and the bank issued its check for $80,000.00 payable to Oscar LaBarre, Attorney; and Johnny Jabour. Although no longer an issue it should be noted there is testimony the bank officer was aware of the true situation, but since they were dismissed no testimony was offered by the bank concerning its standing as an innocent purchaser without notice.

While in the foyer of the bank immediately after the loan was closed Jabour told LaBarre that he needed to ascertain the sum due Harvey Gold and called him for that purpose. The line was busy so he then called John Bell because Jabour knew that he had loaned the money to Gold. When Bell responded Jabour asked him to hold and handed the phone to Attorney LaBarre, so he would be advised of the amount. Jabour stated that LaBarre noted the sum by writing it down following which he (Jabour) suggested they go to LaBarre’s office to complete the transaction. He was next asked if he took any steps to secure payment to Harvey Gold and responded:

A. I asked Mr. LaBarre after we got off the telephone that we go back to his office to make the checks out to everyone, including myself. He stepped outside with Mr. Huette Barber, outside the front door, which I wasn’t but about three or four feet from, and when he came back he said, “Huette’s got so many judgments against him, he wants it to be done in cash.”
Q. Did you take issue with that?
A. Well, he was the closing attorney, and God, I’ve known Oscar all of my life, and he’s always done everything, you know, right to my knowledge, as far as my dealings with him, and every other attorney I’ve ever dealt with, so he said that is what he was going to have to do, and so he went to the window, asked me to sign the check, and he went to the window and they gave him $80,000, and I can’t recall if it was in two bags or one bank bag, but he gave me $10,000, and he said that either I or we were going down to my office to pay off the rest of the stuff and I am going to take it by Harvey Gold’s office within about 30 minutes.
Q. Now, Mr. LaBarre told you he was going to take the money by Harvey Gold’s office in thirty minutes?
A. That’s right.

LaBarre testified he prepared the warranty deed from Gold to Jabour, examined the title and certificate for The American Bank but that the bank prepared the deed of trust. He acknowledged his presence when the loan was closed and that he talked with Bell concerning the amount and Bell told him that Barber owed him $54,-313.60. He stated the check was cashed because both Bell and Barber wanted cash and that when the money was received Jabour took $10,000, which Barber had promised him for securing the loan, and departed. LaBarre explained the remainder of the transaction as follows:

Q. Now, what else was said or done? What happened to the rest of the money?
A. I handed it to — the fact of the business is, my office is about two and a half blocks away from The American Bank, so we took it up, well, I handed the sack to Huette and we took it up to my office and he counted out my money and the tax money, and the fact of the business is, I understood him to say that they were going to meet — John Bell, Alex Gold, were going to meet at Alex Gold’s office because Alex Gold was both of ’ems accountant, and that was where the money was going to be transferred. Huette left my office on the way to go down to pay John Bell whatever he owed him.
Q. Now, what about when you were at the Bank and giving the money to Mr. Barber? Was Mr. Jabour there?
A. He was leaving right at that time, yes, sir.
Q. What, if anything, did he say or what, if anything, did you say to cause him to believe that you were going down to Gold’s office?
A. I didn’t say anything. I said, “We’re going up to my office to take my fee and the taxes, and then Huette’s going down to pay Mr. John Bell.” That was my understanding as to what was happening.

Later in his office LaBarre deducted the sum due for taxes and his attorneys fee and Barber left with the remainder of the cash, it being LaBarre’s understanding that he was going to meet John Bell and Alex Gold in Gold’s office where Bell was to be paid. The record is all too clear that neither Barber nor the money ever appeared in either Gold’s or Bell’s offices. LaBarre stated he knew nothing of Barber’s failure to reach his destination until called by Gold the next morning.

He explained, however, that he was unaware that Gold had any interest in the money and that Cole, the President of the American Bank, knew all about Barber’s interest in the property because the two appraisals submitted to the bank by Jabour listed Barber as being in possession of the house. He also stated he prepared a certificate of title for Gold and the bank rejecting record title in Jabour through Gold’s warranty deed. He maintained that he did not represent Harvey Gold and what legal work he performed in preparing the instruments was at the request of Barber, his client. When asked if such was proper or improper he responded, “Mr. Lee, I prepared them at the request of my client. I feel that they were proper under the circumstances" that were involved.” He acknowledged the telephone conversation with Bell from the bank but insisted that he, not Jabour, initiated the call and that Bell advised him Barber owed him $54,313.60. Moreover he was unaware of the note from Gold to Bell until this court proceeding.

Barber testified that he received $68,300 out of the transaction after Jabour deducted his $10,000.00 and LaBarre received his attorneys fee and a sum for taxes. He stated the money belonged to him because he was the real owner of the land sold to Jabour since there were no outstanding loans or materialmens liens against it. He conceded he owed John Bell $3,860.00 at the time but maintained that indebtedness arose from another transaction. The money was not taken to Bell by him because LaBarre had told him the indebtedness was $54,313.60 (the sum noted by LaBarre from the telephone conversation). When this amount was mentioned as an indebtedness by his attorney he (Barber) ended the conversation by responding, “He’s crazy.” However he left LaBarre with the impression that he was going to pay John Bell. Whether this was a reference to the lesser indebtedness arising from another transaction or the larger sum presently in issue, we are unable to determine from the record.

Disturbed by this turn of events Harvey Gold brought this suit against the The American Bank; Landman Teller, Jr., the bank’s trustee; Attorney Oscar LaBarre; Johnny Jabour; and Huette Barber. As mentioned, the bank, its trustee and Jabour were dismissed both as to monetary judgment against them and any claim affecting their title. The suit has therefore reduced itself to the issue of the conversion of Gold’s money by LaBarre and Barber since the propriety of dismissing the other defendants was not pursued on appeal.

Central to the issue of conversion is, obviously, the legal entitlement of the complainant to the property alleged to have been wrongfully converted. Absent evidence of ownership the complainant’s suit must necessarily fail, but if ownership be established in the complainant, additional evidence is required to substantiate the allegations that the defendants wrongfully converted the property to their own use.

Undoubtedly, the trial court had before it a difficult case to decide, there being several parties, testimony that conflicted at every turn, and sub-rosa transactions involving the professional integrity of an attorney of many years practice. This gave rise to several issues for decision, but unfortunately some of them were not decided and others were erroneously decided. This Court’s task is no less difficult because we are confronted with the same facts in addition to our reluctance to reverse a chancellor on the facts unless it appear that he is manifestly in error. However, we need note that it becomes our duty to do so when it is apparent to this Court that such error exists. Lampley v. Pertuit, 199 So.2d 452 (Miss.1967); Smith v. Cook, 213 Miss. 876, 58 So.2d 27 (1952); Teague v. Brown, 199 Miss. 262, 24 So.2d 726 (1946); and Gerard v. Gill, 195 Miss. 726, 15 So.2d 478 (1943). These rules are mandated so that justice might be done in accord with the evidence in all cases. Moreover, we are authorized to reverse and remand for a new trial when dispositive issues remain undecided by the trial court. See Oliver Finnie Grocery Co., et al v. Bodenheimer, et al, 77 Miss. 415, 27 So. 613 (1900).

Our present concern is that some of the trial court’s findings are manifestly erroneous and other critical issues were not decided. There was no finding, indeed no mention in the trial court’s opinion, of the receipt for $37,966.53 which Gold received from LaBarre at the conclusion of the first transaction. This was the meeting in La-Barre’s office which resulted in the retirement of the indebtedness to the First National Bank of Vicksburg as well as indebt-ednesses of Barber to Harrel. The genuineness of this receipt is inexorably linked to the source of the $46,000.00 thought necessary to retire the loans mentioned and to renovate the house so it could be sold. We think it obvious that if the funds came from Gold by way of a loan from Bell, great support would be lent to the authenticity of the receipt and Gold’s contentions of his initial interest in the land and the subsequent transaction related to it would be enhanced. A contrary finding by the trial court, that the funds came directly from Bell to Barber and were used to retire the loans, would decimate Gold’s claim for conversion. Inescapably, however, such finding would also havé the effect of branding each of the participants, except the bank and its trustee, but including Gold and Attorney LaBarre, as co-conspirators in a scheme to deceive prospective lendors and avoid judgment creditors by flying the flag of record title while simultaneously concealing the real ownership. We are of the opinion this necessitates a reversal.

In disposing of these issues and leaving them undecided, the trial court found that neither Barber nor anyone else authorized or requested Harvey Gold to execute a note for $48,760.00 to John Bell, and neither did Barber agree in any way to the terms of the note and this was not satisfactorily explained to the court. The court concluded, “There are a lot of money hungry parties involved, all those open hands for $7500.00 or $10,000 or better, wanting a slice of the pie in this case.” These comments while perhaps proper did not reach the dispositive issue because Gold did not need authority from Barber to negotiate a loan from Bell. The question was and is, did Gold’s funds retire the indebtedness that existed on the property on February 15, 1980. The court further found that Gold gave no accounting or any statement to LaBarre when he went by the attorney’s office to sign the deed to Jabour. From this the court determined that Gold was not really claiming any money. Again, we think it apparent that if the receipt issued to Gold be not a deceit that LaBarre was at least aware of the sum mentioned in it because it was written in longhand over the attorney’s signature.

The court found from the believable evidence that LaBarre was representing only Barber and that after the loan was closed, the telephone communication from Jabour to Bell caused both Bell and Gold to “become excited about getting some of the money, including the $7500.00 each, testified to by Bell, and as they stirred around they employed an attorney and sued every party who had anything to do with any of these transactions, ...” However, there is simply no evidence to support this finding. After concluding that the defendants were not liable to the complainant the court substantiated its findings by the following,

The evidence does not substantiate it and if it did, the Court is of the opinion the statute of fraud would prevail, that usury is involved, and Mr. Harvey Gold has come into this Court asking this Court to do something that he failed or neglected to do to protect himself. He is an Accountant. He knows that he was in a position of trust holding this property for the benefit of Mr. Barber. He signed the deed at Mr. Barber’s request but he concealed from him and Mr. LaBarre the signing of a note which he now wants to transfer to the defendants in this case. Mr. Gold had the title to the property so if he had wanted to give a Deed of Trust on it to secure that indebtedness, he should have done so prior to signing the deed to close that loan. He was certainly negligent in failing to bringing any statement of any claim or to be present at the loan closing, if he did have a claim at that time, which Court seriously doubts.

It seems to us that if Gold were the trustee for Barber then surely he could not execute a deed of trust in violation of the trust to protect himself. But if the court’s reference is to the execution of a deed of trust commensurate with an interest in the land equal to the sum in the receipt, then if that be the correct interpretation of the court’s finding, it was also erroneous because no relief was granted Gold. We therefore are of the opinion the trial court manifestly erred in these findings.

The testimony is overwhelming that Gold did not pay LaBarre an attorneys’ fee, but we do not think payment is the sole criteria to be considered in determining whether an attorney-client relationship existed. To base the relationship on the narrow basis of payment does not address the attorneys’ responsibility in a mul-ti-person transaction fraught with the probability of conflicting interests to disclose that he represents only one of the participants, thereby notifying the others of the true situation so they might take reasonable steps to protect themselves.

There is much evidence, in our opinion, which would have led Gold to believe, not unreasonably, that LaBarre would protect his interests. We think this because La-Barre drew the first conveyance from Har-rel to Gold, drew the receipt for $37,966.53 and handed it to Gold, prepared Gold a certificate of title and participated in the distribution of the funds at the February 15, 1980 meeting. Preceding the April 7, 1981 meeting at the American Bank, La-Barre drew the deed conveying Gold’s interest in the property to Jabour and prepared a certificate of title for the American Bank and Gold. In addition LaBarre assisted in the attempt of Barber to obtain an SBA loan, which according to the testimony, the complainant’s father, Alex Gold, had also undertaken.

We do not mean by the above remarks to indicate the lack of disclosure imposes liability on LaBarre for the conversion. We mention it because it has the potential of liability and will probably be an issue if it is first determined on retrial that Gold was the source of the funds removing the indebtedness from the land in the first instance. Of interest see In re Boivin, 271 Or. 419, 533 P.2d 171 (1975); In the Matter of Edward J. Dolan, 76 N.J. 1, 384 A.2d 1076 (1978); and the Code of Professional Responsibility of the Mississippi State Bar, approved March 15, 1971, by the Supreme Court of Mississippi, amended March 16, 1983, Interests of Multiple Clients, EC5-14, et seq.

REVERSED AND REMANDED.

WALKER and ROY NOBLE LEE, P.JJ. and HAWKINS, DAN M. LEE, PRATHER and SULLIVAN, JJ., concur. BOWLING and ROBERTSON, JJ., not participating.

APPENDIX “2”

15 February 1980

Mr, Harvey A. Gold Alex Gold S. Associates P. 0. box 1084

Vicksburg, Mississippi 39180

Ret Pt. Section 9, T 16, R5F.

First parcel in deed from Henry Harrel to you, and same as In Iields deed in Book 603, page 326

Dear Harvey:

Pursuant to your request the undersigned has this date brought up to date a title opinion and insurance policy that was finished in February of 1980 regarding the above described property, and 1 find from said examination that there are no intervening liens or encumbrances since the recording of a deed of trust from Henry. W* Harrel fco John C. Wheeless, Jr. as Trustee from the First National Bank of Vicksburg as Beneficiary securing a loam of $25,000.00 at 10% interest. Said deed t>6 trust is recorded in Book 613 and at page 111. X have this date cancelled the deed tS£ trust by making payment to the First National Bank .and Mr; Walter Jones has signed the cancellation, Vhieh i'a thle date reoorded.

I did check the land records, the Ha pendens doaket, the liens of construction; the judgment roll«And Other records in the.office of the Chancery Clerk and Circuit Clerk that affect title to the ptoperty, and find no other liens or encumbrances other than the minerals as mentioned in the deed and the covenants as outlined therein. The opinion is based on the records and no other certification is given. I did not check the taxes as stated to you in conversation this date, but since you have knowledge of this situation I feel that you have knowledge.

As further outlined this date, I will at the proper time make application for title insurance for you or your assignee at no additional cost to you and the only items that you will pay are the title premiums, etc.

As further stated this opinión does not cover the second pareel as was shown in the deed to you as there are several objections to it.

Thank you for the opportunity to be of service.


source: Caselaw Access Project

license: Public Domain

text:
    Samuel Newton HOLLIDAY, III v. STATE of Mississippi.
    No. 54258.
    Supreme Court of Mississippi.
    July 18, 1984.
    Rehearing Denied Sept. 26, 1984.

      John W. Christopher, Canton, for appellant.
    Bill Allain, Atty. Gen. by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
    Before PATTERSON, C.J., and HAWKINS and PRATHER, JJ.
   PATTERSON, Chief Justice, for the Court:

In the Circuit Court of Madison County, Samuel Newton Holliday, III was tried on a charge of murder and convicted of manslaughter. The court imposed a sentence of twenty (20) years in the custody of the State Department of Corrections with five (5) years suspended.

Holliday appeals, assigning the following as error:

I. The court erred in admitting into evidence colored, photographic slides, appearing as Exhibits 7 and 8.

II. The verdict was against the great weight of the evidence and the law governing the crime of murder and/or manslaughter.

III. The trial court committed reversible error in refusing to grant Appellant’s Instruction D-2.

On the morning of July 23, 1981, Grace Holliday entered the bedroom of Stella Hol-liday, and found her dead of a gunshot wound to the chest. Stella Holliday was her son’s ex-wife.

Responding to Mrs. Holliday’s call, Officer Charles Sullivan of the Canton Police Department found Stella’s body lying in the middle of her bed with a pistol by her side. The teenage son of the deceased had covered her body with a bedspread. Investigation revealed no sign of a struggle in the bedroom and no indication of forced entry of the house. The testimony discloses, however, a sliding glass patio door was unlocked. Neither fingerprints nor smudges were found on the pistol.

At trial the state called several witnesses to refute defense counsel’s suggestion on opening statement that Stella Holliday committed suicide. Emily Endris and Helen Gregory testified that Stella had been in good spirits the night before at their regular bridge game. Gregory testified further that Stella had told her Newton Holliday, III, had threatened her and that she was afraid of him.

To further rebut the intimation of suicide, forensic scientist Michael Allen testified that in his opinion the weapon found on the bed had fired the projectile found in a wall of the room and that this particular gun would leave a heavy deposit of lead residue when fired at fewer than 18 to 24 inches. Since there was little such residue on the blouse Stella Holliday was wearing at the time of her death, Allen concluded that (1) the distance between the victim and the gun at the time of the shooting was greater than 18 to 24 inches; or (2) some object was between the victim and the weapon at the time of the shooting. No such object was found. FBI tests revealed gunshot primer residue on Stella’s hands but were inconclusive as to whether her hands were on or simply near the firearm at the time it discharged.

Dr. Rodrigo Galvez, who performed the autopsy, cast further doubt on the defense’s position by testifying that at the time of the shooting the gun was between one foot and three feet from the victim’s chest.

Highway Patrol Investigator Jimmy Boxx testified further he found in the ashtray beside Stella Holliday’s bed two cigarette butts of the brand smoked by Holli-day. Boxx interviewed Holliday twice, on July 25 and again on July 28, and received conflicting information from him. First, on July 25, Holliday told Boxx he owned a gun fitting the description of the one found on Stella’s bed, but that he had not seen the weapon in a year and a half. On July 28, however, Holliday claimed to have seen the gun during the past two weeks. Secondly, Holliday told Boxx on July 25 that it had been weeks, perhaps months, since he had been in his ex-wife’s bedroom, on July 28, he admitted he was there the Tuesday before Stella’s body was found on Thursday.

Highway Patrol Investigator Donald Bray testified Holliday admitted having threatened Stella hundreds of times.

The most damaging testimony from the defendant’s point of view was elicited from Prentiss Hawkins, the husband of Grace Holliday’s sister. Hawkins testified he accompanied his wife and son to Holliday’s house at approximately 10:00 a.m. on July 23. Holliday, who was drinking heavily at the time, was holding a pistol and speaking of shooting himself with it. More significantly, Hawkins testified he overheard a conversation between Holliday and his son, Stanley Holliday. According to Hawkins,

A. He answered Stan when Stan said it was a bullet from the 38 Special that killed his mother. Mr. Hollidays [sic] said, “It was the other 38 that killed her. I ought to know, I pulled the trigger.”

Holliday testified he neither made this statement nor shot Stella, although he did admit he owned the gun found on Stella’s bed. Holliday testified he had a stormy relationship with his ex-wife and that they had been in disagreement over the disposition of a jointly held parcel of land.

Holliday first raises the issue of admission into evidence of two color slides depicting the victim and the scene of the crime. When the state sought to introduce these slides, the defense objected on the ground they had no probative value in view of a photograph which had previously been admitted without objection. Being of the opinion that two of the slides had independent evidentiary value, the court overruled the objections accordingly and admitted them into evidence.

Holliday now contends these slides had no probative value and that their gruesomeness served only to inflame the jury.

The admissibility of photographs is largely a matter within the trial court’s discretion, and the fact that a photograph is grisly does not render it incompetent so long as it has legitimate evidentiary value. Sharp v. State, 446 So.2d 1008 (Miss.1984). Since these slides depict the entry wound and the bullet hole in the wall, which were not shown in the first photograph, we cannot hold the slides were without probative purpose. However, we emphasize the issue of prejudice arising from the admission of gruesome photographs is very serious, and prosecutors and trial judges are advised to use great caution in this area.

Holliday’s second argument is the verdict was against the overwhelming weight of the evidence. While acknowledging the closeness of this case, we must accept as true all the evidence which supports the state’s position and therefore are unable to conclude the verdict should be set aside. Sadler v. State, 407 So.2d 95, 97 (Miss.1981).

Finally, Holliday contends the court erred in refusing to instruct the jury that the state was required to prove Holliday guilty beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis consistent with innocence. He cites Sisk v. State, 260 So.2d 485 (Miss. 1972), wherein we held where the state’s case is based on circumstantial evidence, the jury should be instructed that they are required to believe the defendant guilty beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis.

In our opinion, one piece of direct evidence prevents this case from being characterized as one based entirely on circumstantial evidence: that is the testimony by Prentiss Hawkins that he heard Holliday admit shooting his ex-wife. While we think the better practice is to give an instruction such as D-2 in a case where there is very little direct evidence, we cannot here hold the trial court in error for failing to do so.

Having reviewed the record, we conclude the case is a close one but contains no reversible error. Therefore we affirm.

AFFIRMED.

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


text:
    Kenny BLANKS v. STATE of Mississippi.
    No. 54995.
    Supreme Court of Mississippi.
    Aug. 1, 1984.
    Rehearing Denied Sept. 26, 1984.
    Gene Brown, Meridian, for appellant.
    Bill Allain, Atty. Gen., by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROY NOBLE LEE, P.J. and ROBERTSON and SULLIVAN, JJ.


text:
    MOHASCO/FUTORIAN CORPORATION and Hartford Accident and Indemnity Company v. Icy M. POWELL.
    No. 54304.
    Supreme Court of Mississippi.
    Aug. 1, 1984.
    Rehearing Denied Oct. 3, 1984.
    John P. Fox, Thomas J. Lowe, Jr., Jackson, for appellants.
    Roy 0. Parker, Roy 0. Parker & Associates, Tupelo, for appellee.
    Before PATTERSON, C.J., and DAN M. LEE and PRATHER, JJ.


author: SULLIVAN, Justice, for the Court:

text:
    Raymond R. DUANE and Alice P. Duane v. Robert J. and Joyce L.B. SALTAFORMAGGIO.
    No. 54326.
    Supreme Court of Mississippi.
    Aug. 15, 1984.

      Lucien M. Gex, Jr., Gex & Adams, Wave-land, for appellants.
    Walter J. Phillips, Gex, Gex & Phillips, Bay St. Louis, for appellees.
    Before ROY NOBLE LEE, ROBERTSON and SULLIVAN, JJ.
   SULLIVAN, Justice, for the Court:

The Chancery Court of the First Judicial District of Harrison County, Mississippi, heard and dismissed with prejudice appellants’ claim for a mandatory injunction requiring appellees to remove improvements from the Duane property and for civil trespass.

Three errors are assigned:

(1) Did the trial court err in finding that an erroneously placed artificial monument took precedence over the official plat of record?

(2) Was it error to fail to find that there was a conflict between course and monument when in fact there was a conflict between monuments?

(3) Did the trial court err in failing to hold that where parties take property by reference to a recorded plat the recorded plat determines the dimensions of their lot?

On July 10, 1978, appellants, Duane and wife, purchased Lot 8, Block 12, Section B-l, Pass Christian Isles Subdivision, from Wallace C. Walker. Duanes’ deed described the lot which they purchased as “Lot 8 of Block No. Twelve (12) of Pass Christian Isles, Section B-l, Harrison County, Mississippi, according to the official map or plat thereof on file and of record in the office of the Chancery Clerk of Harrison County, Mississippi, in Plat Book 30 at page 18.” On August 16, 1978, Robert and Joyce Sal-taformaggio purchased the adjoining Lot 7. Their deed used the identical reference for Lot 7 that was contained in the Duane deed on Lot 8.

Both deeds contained a restrictive covenant that no building shall be erected, constructed, or maintained on said property in Block 18-A and Block 12 ... “within six feet of any interior side property line.”

Prior to building on Saltaformaggio’s lot, his contractor hired Lucius Marks to perform a survey on Lot 7. Marks went to the site where he located monuments fixing the front corners of Lot 7. He went 100 feet to the rear of the lot where he found iron rods of the size and type indicated on the plat. Checking toward Lot 12 along the 100-foot line, he found iron rods the correct width apart down through Lot 12. Checking toward Lot 1, he found that Lot 6 was in conformity. He did not find a mark between Lots 4 and 5, but he found one between Lots 3 and 4, which was the correct distance away to form two lots according to the plat. The lot lines created by these monuments formed approximately a 93 ° angle from Elm Lane. He became concerned because he assumed from the plat that the lot lines were at 90 ° angles.

Returning to Lot 7, he turned a 90 ° angle and looked again for markers. This time he located one six feet away from that which he previously found between Lots 3 and 4. This rod formed a 90 0 angle from Elm Lane. He also found one between Lots 4 and 5, which appeared to him to have been disturbed by the placement of an underground drainage structure. Taken together, the two newly discovered marks would create widths of 58 feet each instead of the platted 55 feet for Lots 4 and 5. Marks also found a 2⅝ inch pipe at the rear of Lot 1 along Audubon Lane, which formed a 90 ° angle to Elm Lane.

Faced with these conflicting findings, Marks concluded that the iron rods 100 feet back on Saltaformaggio’s lot accurately reflected the lot lines indicated on the plat. His original survey, although incorrectly drafted at a 90 0 angle, shows the Saltafor-maggio lot lines to be established by the iron rods at a 93 ° angle. It was under this survey that Saltaformaggio’s house was built to fit the stakes Marks had established.

In the fall of 1979 a Mr. Marquez, who had purchased Lot 9 in the same block, hired Eugene Richardson to survey his lot prior to constructing his home on Lot 9. Richardson noticed a discrepancy in the lot lines of Lot 9, 8 and 7, and called it to the attention of both Mr. Duane and Mr. Salta-formaggio. Saltaformaggio then hired Mike Cassady to survey his lot again to determine if Richardson’s findings were correct. The Cassady survey used 90 0 angle lot lines and showed an encroachment of the piling and steps of the Saltaformag-gio house onto Lot 8 owned by the Duanes. The survey further showed that the Salta-formaggios’ bulkhead encroaches onto the Duanes’ lot approximately nine feet. Further the survey shows that a considerable portion of the house of Saltaformaggio is encroaching on the minimum six-foot side lot restricted by the deeds to both lots.

Cassady testified at the trial for the Duanes. His methodology consisted of first locating as many of the primary subdivision corners as he could find that were indicated in the original subdivision plat for Block 12. He found one at the corner where Audubon and Elm Lane intersect on Lot 1 and verified it for angle and distance. He located a second corner 150 feet down Audubon Lane from the intersection, which also checked for angle and distance. Cas-sady then measured down Elm Lane to a third primary point between Lots 12 and 13, and checked this for angle and distance. These three monuments combined to form a 90 ° angle. He then located 80 to 90 percent of the front corners along Elm Street and they all measured within a few tenths of a foot for distance.

Once Cassady verified the accuracy of the location of the primary monuments and, with the measurements of the plat showing that the lot lines extend back from the street at a 90 ° angle, he proceeded to locate the auxiliary monuments set 100 feet back. He found some iron rods about 100 feet back which fixed the side lot lines of Lots 1, 2 and 3. These rods formed perpendicular lines with the corresponding corners on Elm Lane, and the distances between the rods on Lots 1, 2 and 3 corresponded to the plat.

However, when he got to Lot 4, the 55-foot width in the plat did not check. He found an iron rod at 58 feet. On Lot 5, another 55-foot wide lot, he found an iron rod at 58 feet. The combined effect of these two errors was to offset the remainder of the 100-foot marks by approximately 6 feet. This caused the Saltaformaggios’ side lot lines to stand at approximately a 93 0 angle from Elm Lane. If this 93 0 angle formed by the erroneously placed stakes were used for all the lots, there would be a six-foot increase in the width of Lot 1 and a six-foot decrease in Lot 12. Based on this survey and the numbers shown in the plat, he concluded that the intent of the original surveyor was for the lot lines to be perpendicular back from the street. Cassady testified that his theory in land surveying problems of this type is “the monuments that are in harmony control and the conflicting monuments have to be eliminated.”

Joe Clarke also testified at the trial for the Duanes. Clarke’s survey confirmed Cassady’s findings. In Clarke’s opinion as a surveyor, there was a conflict between the primary subdivision markers he located and the 100 foot markers beginning with Lots 4 and 5. In his opinion, the three pipes set along Elm and Audubon Lane were the original corners set by the original surveyor. He considered the 100-foot marks to be accessory points. In resolving this conflict, Clarke testified that he relied upon an accepted surveyor’s text Brown, Boundary Control and Legal Principles, p. 158 (2d ed.), which he stated gives controlling effect to the intention of the surveyor platting the subdivision. It was his professional opinion that where there is conflicting evidence between corners that are given equal weight, the corners most in harmony in angle and distance to the area shall govern.

Marks testified at the trial for the Salta-formaggios. Based upon his experience as a surveyor, he conceded that the reason that the courses on the lot lines of Lots 1 through 10 were left out on the original plat is because they are parallel to the course for Audubon Lane. As a surveyor, Marks would assume that the angle of the lot lines would be 90 ° based on the courses of Audubon and Elm Lanes. He disagreed with both Cassady and Clarke that the mark at the rear corner of Lot 1 along Audubon Lane was one of the primary subdivision marks. He admitted that, had he used a 90 ° angle, this corner on Lot 1 would be correctly placed, but he stated that this was a mark he considered off. He stated that he gave this corner mark no greater importance than the ones he found along the 100-foot line. He also stated that he disagreed with the mark he found the second time between Lots 3 and 4 which, taken with the disturbed mark between Lots 4 and 5, would have created 58-foot widths for Lots 4 and 5. The basis for his disagreement was that he had ten other 100-foot marks which matched the widths on the plat. He admitted that if the angle formed by these 100-foot marks were used it would cause a 6-foot increase in the width of Lot 1 and a 6-foot decrease in Lot 11. He stated that he considered this to be a case of conflict between monuments and courses and distances, so that the general rule that monuments prevail over courses and distances would apply.

The chancellor, in his opinion rendered at the conclusion of the trial, said:

The Court, after hearing testimony and receiving evidence in the above styled and numbered cause, is of the opinion that the crux of this matter is whether or not a recorded plat prevails over artificial monuments in the layout of the real property described in that plat.
The Court is of the opinion that the normal rule is that courses and distances are controlled by and must yield to monuments, whether natural or artificial. While there is no case in this state dealing with a variation between the courses and distances contained on a recorded plat and the actual location of artificial monuments designated on the plat, the Court is of the opinion that the normal rule would apply.
“Thus, where the lines have in fact been located and designated by monuments and there is a discrepancy between the calls for these monuments and courses and distances shown by a plan referred to in the conveyance, the normal rule as to the controlling effect of calls for monuments will be followed.”
12 Am.Jur.2d, [Boundaries], § 76, p. 618.
Therefore, the Court is of the opinion that the one-half inch iron rods are artificial monuments and do control over the calls and distances contained in the plat referred to in the property description.'

With that finding, the chancellor dismissed the complaint with prejudice.

The Duanes’ assignments of error taken in a more logical order are:

1. Did the trial court err in failing to hold that where parties take property by reference to a recorded plat, the recorded plat determines the dimensions of their lot?

2. Did the trial court err in finding that there was a conflict between course and monuments when in fact there was a conflict between monuments?

3. Did the trial court err in finding that the erroneously placed artificial monuments took precedence over the official plat of record?

It is well settled that this Court will reverse a chancellor only when he is manifestly wrong. Ivy v. Department of Public Welfare, 449 So.2d 779, 783 (Miss. 1984); Richardson v. Riley, 355 So.2d 667 (Miss.1978). The chancellor’s finding of fact is equivalent to a jury verdict upon conflicting evidence and will not be reversed unless it is manifestly wrong. Voss v. Stewart, 420 So.2d 761, 765 (Miss.1982).

The uncontested facts show as follows: The official plat under which the parties took title calls for 90 ° angle lot lines from Elm Street. All of the surveyors found iron rods upon Lots 4 and 5, which would displace by 6 feet the rest of the iron stakes down through Lot 12, including the Saltaformaggio and Duane lots. Surveyor Marks found at least two rear monuments on Lot 1 and between Lots 3 and 4, which would create a 90 ° angle from Elm Lane. Significantly, this marker on Lot 1 is in the same location given by the official plat for a primary subdivision corner. The angle created by the three primary subdivision corners located in the ground on Block 12 is 90 °.

The chancellor apparently concluded that the iron rods 100 feet back that fixed the side lot lines in the official plat, which are actually placed on the lot, are better indicia of the dimensions of the lot than the remaining information given in the official plat and verified by surveys. In this case, the chancellor had undisputed testimony that not only did the official plat contemplate 90 0 angle lot lines , from Elm Street, but that at least two of the rear monuments found by all of the surveyors would create 90 ° angle lot lines.

We proceed from the premise that a court should give controlling consideration to the intent of the parties in applying rules for the construction of deeds. In Welborn v. Henry, 252 So.2d 779, 780 (Miss.1971), this Court said:

In construing a deed, it is necessary that it be considered as a whole and that the intent of the parties be gathered from its language. The intent is to be gathered from a fair consideration of the entire instrument along with the words employed therein.

The parties’ deeds incorporate the official plat to particularly describe the lot conveyed. Therefore, all the descriptive information in the plat should be considered and harmonized as far as possible to achieve the intent of the grantor.

We have no quarrel with appellees’ cases which state our general rule of law that in case of conflict in description courses and distances are controlled by, and must yield to, monuments whether natural or artificial. In Holcomb v. McClure, 211 Miss. 849, 853, 52 So.2d 922, 924 (1951), the Court held:

When monuments and distances are both given the monuments control and the distances must be lengthened or shortened if necessary to prevent inconsistency.

In Ball v. The City of Louisville, 218 Miss. 867, 875, 56 So.2d 4, 5 (1952), the Court held:

In cases of conflicting descriptions, courses and distances are controlled by and must yield to monuments, whether natural or artificial.

Holcomb involved a conflict between the distance and the monument used as the starting point for the description. The Court shortened the distance and followed the monument. In Ball the description of proposed extension to municipal boundaries contained a call for a westerly course along a street which turned toward the north at the very end. The court held that the direction of the street controlled over the course called for in the description.

Neither Holcomb nor Ball involved boundary disputes over property described in an official recorded plat. Also, both cases involved conflict between a monument and a call for courses or distances, not a conflict between monuments, such as this one. Therefore, they would not be controlling precedent under these facts.

The question then becomes whether it was manifest error for the chancellor to conclude that the monuments fixed in the ground established the boundaries according to the true intention of the parties, despite the fact that they created an angle inconsistent with the intent of the official plat because they were six feet out of place.

In O’Herrin v. Brooks, 67 Miss. 266, 6 So. 844 (1889), this Court said that when a lot is in a platted subdivision the plat will control over an erroneous monument. The Court stated at 67 Miss. 274, 6 So. 845:

Moreover, while it is true that a call for natural or artificial monuments will prevail over courses and distances in discrepancies in deeds, yet it must not be forgotten that where it is a mistaken call for monument the rule does not apply.

In O’Herrin the deed described the property both by lot number and by reference to a monument. We ruled that the call for the lot itself must prevail over any description, by courses, distances and over any calls for monuments because the lot itself is the prominent object. However, O’Her-rin did not involve a variation between an erroneously placed marker and courses and distances given in the plat.

From those general principles 12 Am. Jur.2d, Boundaries, § 67, p. 605, states:

Courses and distances and other inferior calls may control monuments and natural objects in cases of clear mistake, where the calls for monuments are inconsistent with each other .... The doctrine that monuments prevail over courses and distances is never adhered to where it would lead to an absurdity or where it would defeat a grant when, by rejecting a call for one or more monuments, the deed may be upheld and the manifest intent of the parties made effectual.

From the facts in this case it appears that here is a rare instance where courses and distances should prevail over monuments because the monuments are incorrectly located and conflict with other primary subdivision markers. For that reason, we find that the trial court erred as a matter of law in holding that the erroneously placed monuments took precedence over the official plat of record and that the determination that there was a conflict between courses and monuments was in error because the conflict presented by the testimony in this case is one between monuments.

For these reasons, the judgment of the trial court is reversed and a mandatory injunction enjoining the maintenance of the Saltaformaggio structure as it exists in violation of the deed description and restrictive covenants of said subdivision is rendered here.

REVERSED AND RENDERED.

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

PATTERSON, C.J., not participating.

APPENDIX 1

APPENDIX 2

APPENDIX 3

      . See Appendix 1.

      . See Appendix 2.

      . See Appendix 3.


author: ROBERTSON, Justice, for the court:

text:
    Marcus MARTIN v. Robert M. WINFIELD and Juanita Gayle Winfield.
    No. 55065.
    Supreme Court of Mississippi.
    Aug. 22, 1984.
    Michael P. Younger, Johnston & Younger, Brandon, for appellant.
    William H. Jones, Petal, for appellees.
    Before ROY NOBLE LEE, P.J., and ROBERTSON and SULLIVAN, JJ.
   ROBERTSON, Justice, for the court:

I.

This action has been brought by the payees on a $16,800.00 sight draft made and delivered by an experienced lessee of oil and gas rights. The maker admits delivery of the draft and that it was intended as payment of the agreed-upon rental, but charges affirmatively that it was procured by fraudulent misrepresentation.

A Rankin County jury rejected the maker’s fraud defense and returned a verdict in favor of the payee holders. Finding in the record substantial evidence supporting the verdict of the jury, we affirm.

II.

A.

Marcus E. Martin is an insurance agent and attorney who for the last 20 years has bought and sold gas and oil property. His general method of operation has been to locate an area where there is active leasing or oil and gas activity. He then contacts land owners and tells them that, whatever the highest offer is for the lease on their land, he, Martin, will pay them $10.00 more per acre than that offered. After acquiring a lease, Martin generally resells the lease to the large company which has bought up most of the area.

The Winfields had been making inquiries about the possible leasing of the oil, gas and other minerals on lands owned by them in Simpson County, Mississippi. Martin heard about the availability of a lease on the Winfield property. Martin contacted Winfield by telephone.

Here the testimony begins to conflict. Martin says that he asked Mr. Winfield what his best bona fide offer for a lease on the property had been and that Winfield told him it was $200.00 per acre. Martin says that on the basis of this offer, he offered Winfield $210.00 per acre which Winfield accepted. Mr. Winfield’s version of the negotiations is slightly different. First of all, it does not appear that Winfield is sensitive to the difference between a bona fide contractual offer for his minerals and a general estimate of the value of his minerals. Winfield says that he told Martin “it was between $150.00, $200.00, an acre”. This statement by Winfield to Martin was apparently based on what he had been told by minerals leasing agent named Frank Prescatory.

Martin testified further that Winfield had assured him that leasing was going on in the section where the Winfields’ land was situated, and that drilling was occurring within a mile of his property. Win-field testified that it was quite possible that he had relayed on to Martin such information regarding leases and drilling and that his belief in such information was based on what Mr. Prescatory had told him.

Through these negotiations, the stage was set. On January 25, 1982, Martin, purportedly relying upon representations regarding offers and leasing/drilling activity made by layman Winfield and having made no independent investigation of the matter, drove to a restaurant in Hatties-burg to close the deal. The Winfields, assuming they had reached a fair price for their lease with an experienced oil man, arrived at the same restaurant. The Win-fields executed the mineral lease prepared by Martin and delivered it to Martin, who in exchange tendered to the Winfields a 15 day sight draft which provides as follows:

Upon approval of title but not later than 15 days after sight.

Martin went to the office of the Chancery Clerk of Simpson County to record the lease. When he got there, Martin asked about and found that there was no leasing or drilling activity whatsoever going on in the Winfields’ area. Martin decided not to record the lease. In the days following, Martin contacted several oil leasing interests and inquired if they would be interested in buying the Winfield lease. He found no takers. During this same time, Martin cancelled payment on the draft he had given the Winfields. Martin never returned the executed lease to the Winfields nor did he tell them the lease was rescinded.

B.

On June 18, 1982, the Winfields commenced in the Circuit Court of Simpson County an action against Martin predicated on the unpaid sight draft. In due course thereafter, the venue was changed to Rankin County, Martin being a resident of that county. Martin then filed an answer denying the essential allegations of the complaint and setting up an affirmative defense of fraud.

Trial was held on August 18, 1983, in the Circuit Court of Rankin County, R.L. Goza presiding and sitting with a jury. That same day the jury returned a verdict in favor of the Winfields and against Martin in the full sum of $16,800.00.

Martin thereafter timely filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, which was promptly overruled. On August 25, 1983, the Circuit Court entered final judgment on the jury's verdict. This appeal has followed, where Martin’s sole complaint (though couched in four assignment of error) is that on the record before it the Circuit Court was required as a matter of law to sustain his affirmative defense of fraud.

III.

Reduced to its essence, this is an action by the payee of an instrument against its maker. On its face, the only condition in the instrument is that title be approved. The record containing not the slightest suggestion of any defect in title, the Winfields, as payees and holders of the instrument, are entitled subject only to any defenses which may be available in law to enforce it against Martin according to its tenor. Cf Figg v. Cupit, 401 So.2d 722 (Miss.1981) (restriction in instrument pertains only to title).

Miss.Code Ann. § 75-3-306(b) (Supp. 1983) provides that Martin has “all defenses of any party which would be available in an action on a simple contract”. Bank of Crystal Springs v. First National Bank of Jackson, 427 So.2d 968, 970 (Miss.1983). One such defense is fraud in the procurement of the instrument. McCorkle v. Hughes, 244 So.2d 386, 388 (Miss.1971); see also Austin v. Atlas Subsidiaries of Mississippi, Inc., 223 So.2d 297, 299 (Miss.1969) (concurring opinion recognizing that fraud of payee would be defense in suit by payee against maker but not in suit by holder in due course). Cases under the Uniform Commercial Code from • other states recognize fraud as a defense to an action by a holder/payee not a holder in due course. Viracola v. Dallas International Bank, 508 S.W.2d 472 (Tex.Civ.App.1974); Thompson v. First National Bank and Trust Co., 142 Ga.App. 174, 235 S.E.2d 582 (1977), reversed on other grounds, 240 Ga. 494, 241 S.E.2d 253; Brown v. Scales, 109 Ga.App. 138, 135 S.E.2d 525 (1964).

Martin denies liability on the instrument via an affirmative defense of fraud. Martin charges that the Winfields made fraudulent misrepresentations which induced him to enter into the agreement and to execute and deliver the instrument sued upon.

The elements of a claim or defense of fraud in this state are well established. They include: (1) a representation, (2) its falsity, (3) its materiality, (4) the speaker’s knowledge of its falsity or ignorance of its truth, (5) his intent that it should be acted upon by the person and in the manner reasonably contemplated, (6) the hearer’s ignorance of its falsity, (7) his reliance on its truth, (8) his right to rely thereon, and (9) his consequent and proximate injury. Gardner v. State, 235 Miss. 119, 130, 108 So.2d 592, 594 (1959); see Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss. 1984) (citing Gardner on this issue); Johnson v. Brewer, 427 So.2d 118, 120-21 (Miss. 1983) (same); Franklin v. Lovitt Equipment Co., 420 So.2d 1370, 1373 (Miss.1982) (same); Crawford v. Smith Brothers Lumber Co., 274 So.2d 675, 678 (Miss.1973) (same); Anderson Dunham, Inc. v. Aiken, 241 Miss. 756, 761, 133 So.2d 527, 529 (1961) (same); see also Hamilton v. McGill, 352 So.2d 825, 831 (Miss.1977) (formulation of fraud similar to Gardner); McMahon v. McMahon, 247 Miss. 822, 836, 157 So.2d 494, 499-500 (1963) (same).

Proving fraud is difficult, as it ought to be. Clear and convincing evidence is required. Cotton v. McConnell, 435 So.2d 683, 685-689 (Miss.1983); Franklin v. Lovitt Equipment Co., Inc., 420 So.2d 1370, 1373 (Miss.1982).

Here Martin has an even more difficult hill to climb in that he is appealing from an adverse jury verdict. Fraud is essentially a question of fact. Specifically, our question is whether Martin has proved by clear and convincing evidence the nine elements of his affirmative defense. On review we must presume that all conflicts in the evidence have been resolved in favor of the Winfields. City of Jackson v. Locklar, 431 So.2d 475, 478-79 (Miss.1983); Paymaster Oil Co. v. Mitchell, 319 So.2d 652, 656-57 (Miss.1975); General Tire & Rubber Co. v. Darnell, 221 So.2d 104, 105-07 (Miss.1969). The question is not whether we think Martin was defrauded but whether the evidence of fraud is so clear that no hypothetical reasonable juror hearing the proof could conclude otherwise.

Considering the facts as we must in the light most favorable to the Winfields, there are any number of the elements of fraud Martin has not established. For example, Winfield thought Martin was asking the general value of the oil, gas and minerals beneath the surface of his property and thought he was merely giving a value estimate when he told Martin “it was between $150, $200 an acre”. The evidence does not establish without dispute that Winfield represented that he had received a bona fide offer of $200 per acre.

The elements of materiality (# 3) and intent-to-deceive (# 5) are also highly debatable. The application of these two elements to the representations made by the Win-fields to Martin is dependent upon the assumption that the Winfields thoroughly understood the mineral-leasing business practices employed by Martin. The Winfields would need to understand not just that Martin bought leases from people who had been made offers in areas where leasing and drilling was going on, but they would also have to understand the rationale for Martin’s pricing, the geological basis for his distance restrictions, the financial interactions which take place between lease holders in the same area, and other general mineral-leasing practices. Martin failed to prove any such understanding on the part of the Winfields. In this context, it is unreasonable to believe that the Winfields had any idea that their representations were of significance or that they made these representations for the purpose of fraudulently inducing Martin to enter the lease. In any event the evidence at worst (from the Winfields’ standpoint) created a jury issue.

Look further at the matter of Martin’s right to rely upon representations made by the Winfields (element #8). We have frequently considered fraud cases where persons with special knowledge or expertise employ sharp practices and deceptions to take advantage of unknbwledgeable victims.

“... this Court has been liberal in reviewing transactions, where one party might have the advantage over another in experience, knowledge, and wisdom, to determine whether an overreaching, deceit or fraud has been practiced on the disadvantaged person. In the case of Fornea v. Goodyear Yellow Pine Co., 181 Miss. 50, 178 So. 914 (1938), this Court said:
In the light of the fact that people are not prudent, and may at times be unjustifiably imposed upon, this Court has been liberal in reviewing transactions where one party might have the advantage over another party in experience, knowledge, and wisdom; but in the absence of fraud, deceit, or fiduciary relations of some kind, the Court cannot relieve a person from the consequences of his acts merely because he had not acted prudently or diligently about his contracts or other matters. (181 Miss, at 65-66, 178 So. at 918). (Emphasis added).”

Parker v. Howarth, 340 So.2d 434, 437 (Miss.1976); see also Johnson v. Brewer, 427 So.2d 118, 119 (Miss.1983) (25-year old Millsaps graduate with several years experience with oil and gas companies dealing with 80-year old man with a sixth grade education and limited reading ability); Hunt Oil Co. v. Berry, 227 Miss. 234, 244-45, 86 So.2d 7, 10-11 (1956) (oil company agent inaccurately explained lease to man who “couldn’t understand by a reading of it”).

The irony in this case is that Martin, an attorney with 20 years experience in the mineral leasing business, claims he was defrauded by a housewife and her husband who has a twelfth grade education, works at Enterprise Products in Petal, Mississippi, and inherited the property in question from his grandmother. Martin — the party who can by telephone consult regarding drilling and leasing with A.A. Energy Fuels, Browning and Welch, Petroleums Management, Hunt Petroleum, Callón Petroleum, and Energetics — undertook no independent investigation on his own but relied solely upon the representations by the Win-fields. There is no evidence that Martin after hearing these representations inquired of the Winfields what was the basis for their statement nor did he directly emphasize to them that these representations were crucial to his desire to obtain a mineral lease for their property. That Martin discovered the true situation by a mere visit to the Simpson County courthouse shows how easily Martin could have protected himself against his present plight.

In summary, we hold that the evidence adduced at trial was such that, when viewed in the light most favorable to the Winfields, we cannot say that the minds of reasonable jurors could not have reached the conclusion that Martin failed to prove by clear and convincing evidence one or more of the elements of his affirmative defense of fraud. No other defense having been tendered by Martin, the Winfields are entitled to judgment on the instrument according to its tenor. The judgment of the Circuit Court to that effect will be affirmed.

For the sake of continuity in the law, we note that today’s holding that the jury verdict in favor of the Winfields is sufficient to withstand Martin’s appellate attack, is consistent with our prior holdings in fraud cases. Compare Crawford v. Smith Brothers Lumber Co., 274 So.2d 675, 678 (Miss.1973) (no fraud could be claimed by purchaser who relied on quantity estimates in prospectus once specifically told that there was no guarantee on the quantity of timber) with Johnson v. Brewer, 427 So.2d 118, 120, 127 (Miss.1983) (fraud found where oil expert misrepresented lease to old man who could not read); First American National Bank of Iuka v. Mitchell, 359 So.2d 1376, 1377-79 (Miss.1978) (fraud found where bank officer altered loan terms to force debtor to sell property); Baggett v. Furst Corp., 357 So.2d 321, 322-23 (Miss.1978) (fraud found where corporate officer misrepresented that the deed contained the same provisions as the prior agreement); Parker v. Howarth, 340 So.2d 434, 437 (Miss.1976) (fraud found when insurance adjuster had indigent, illiterate man sign release while in the hospital under medication); Hunt Oil Co. v. Berry, 227 Miss. 234, 244-45, 86 So.2d 7, 10-11 (1956) (fraud found where oil company agent misrepresented lease to property owner who could not understand lease by reading it); Mississippi Power Co. v. Bennett, 173 Miss. 109, 128-29, 161 So. 301, 306 (1935) (fraud found where company promised to refund invested money but never intended to do so).

AFFIRMED.

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

PATTERSON, C.J., not participating.


author: HAWKINS, Justice for the court:

text:
    Allen James BANECK v. Jean Clare BANECK.
    No. 54376.
    Supreme Court of Mississippi.
    Aug. 22, 1984.

      Jack R. Jones, Ronald L. Taylor, Taylor & Whitwell, Southaven, for appellant.
    Dudley Bridgforth, Bridgforth, Woods, Buntin & Snyder, Southaven, for appellee.
    Before WALKER, P.J., and BOWLING and HAWKINS, JJ.
   HAWKINS, Justice for the court:

This is an appeal by Allen James Baneck from a final decree awarding his wife custody of their two-and-one-half-year-old son. Because the chancellor based his decision upon a misapprehension of our decisions, we reverse and remand to permit a review and hearing for custody, based solely upon the best interest of the child.

Baneck and his wife, Jean Clare Baneck, were married July 26, 1974. During their marriage she had a miscarriage, they had a little girl who died when she was just a few months old, and their son, Raymond William Baneck, the subject of the custody hearing, was born September 6, 1979.

They separated October 6, 1981. This suit was filed October 21, 1981. Both the parties are Catholics, and both are natives of Memphis. Their entire married life, however, was spent in Walls, Mississippi, where he had purchased a house trailer. He held a regular job in Memphis, and she worked at various jobs off and on.

Mr. and Mrs. Baneck were incompatible. She committed an act of adultery resulting in á pregnancy from which she miscarried. Her housekeeping left a great deal to be desired. As with most marriages, Baneck was not entirely without fault either. From the record she appears an alert and restless individual; he, plodding, taciturn. Because this case will be remanded, there is no occasion to stress these parties’ personalities or conduct.

The chancellor awarded Baneck the divorce and some months later conducted a hearing on child custody. It is clear the chancellor gave great attention, care and concern in this case. He found there was no showing Mrs. Baneck was morally unfit to have custody of the child. In his opinion the chancellor stated:

In order for the Court to remove custody from the mother — before I go forward, let me say this. In the first place, it is not even at issue the fitness of the father. The fitness of the mother is at issue. And it has been raised. And the Court is of the opinion that we have a very sad situation here of judgment— poor judgment and a lot of instances on Mrs. Baneck’s part. But in saying that, it is not to say she is morally unfit to have the care, custody, and control of Raymond.
The Court, because it feels the burden necessary to prove this lady morally unfit has not been met, is going to award paramount custody of this baby to the mother, with the father having the right of reasonable visitation. And that visitation is to be liberal — every other weekend, at least 30 days during the summer to be agreed on by the parties, and at such other times, at other reasonable times as the parties can mutually agree. [R. 776-778]

It appears to this Court that the chancellor, having found that Mrs. Baneck was not morally unfit to have custody, considered the law required custody to be awarded her.

A chancellor sitting in a child custody case cannot ignore biology in deciding whether an infant should ordinarily be with the father or mother. Yet, he is under no legal obligation to give any one factor more consideration than the facts of the particular case justify. The mere fact that a mother is morally fit gives her no legal edge in a child custody case. Her sex may give a biological edge, which the chancellor is free to consider. It is, however, but one factor, which may be more important in one case than in another. All circumstances should be considered and given the weight the chancellor deems they deserve, and in the end he reach a decision which he determines is in the best interest of that child. See: Albright v. Albright, 437 So.2d 1003 (Miss.1983).

We regret the delay in child custody cases for appellate review; custody cases may well be some of the best examples of “justice delayed is justice denied”. In this case it has been over two years since the custody decree was rendered. We trust the wisdom of the chancellor on remand to take into consideration all present circumstances of the parties and the child. We note, finally, the parties are fortunate in having sensible, experienced attorneys. They can be of immeasurable benefit to the chancellor; we are confident they will do so.

REVERSED AND REMANDED.

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

PATTERSON, C.J., not participating.


text:
    Sara Robinson SISTRUNK v. Gerald Finleigh McKENZIE.
    No. 54310.
    Supreme Court of Mississippi.
    Aug. 22, 1984.
    James P. Knight, Jr., Jackson, for appellant.
    Otis Johnson, Jr., James W. Nobles, Jr., Gregory L. Harper, Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and ROBERTSON and DAN M. LEE, JJ.
   ROY NOBLE LEE, Presiding Justice, for the court:

The Chancery Court of the First Judicial District, Hinds County, Honorable Paul Alexander, presiding, entered a decree July 2, 1982, modifying as to child custody a divorce decree rendered September 20, 1978, divorcing Sara (McKenzie) Sistrunk and Gerald Finleigh McKenzie. Sara Sistrunk has appealed from that modification decree and assigns two (2) errors in the trial below:

(1) The original decree cannot be modified in the absence of a material change in circumstances; and

(2) The court improperly failed to consider the best interest of the minor child in scheduling visitation rights.

The September 20, 1978, decree, in addition to granting a divorce between the parties, set out child support and custody. The three (3) children of the parties are Gerald Kenneth McKenzie, born February 20, 1963, Sara Katherine McKenzie, born February 20, 1963 (twins); and Laura Leigh McKenzie, born February 2, 1970. Permanent custody of the children was fixed in appellant and appellee was granted reasonable visitation rights with said children. Apparently, finances constitute no problem for the parties. Although appellee agreed to send the children to a senior college after their graduation from high school, if the children attended college in the State of Mississippi, the two older children chose not to attend college in the state. One is enrolled at Southern Methodist University and the other attends the University of Arkansas.

The record reflects bitterness, hard feelings and strife have prevailed between appellant and appellee since their divorce. Even though appellee was granted reasonable rights of visitation with the children September 20, 1978, it is obvious from the record that the bitter feeling of appellant toward appellee has spilled over to the two oldest children. They have seen appellee infrequently since the divorce and do not care about seeing or having contact with him now. Appellant has married again and lives with her husband in Birmingham; Alabama, where they have established a home for the three children.

The youngest child, Laura, is now fourteen (14) years of age. Appellee has had minimal contacts with her since the divorce, and, certainly, it cannot be said that he has had reasonable rights of visitation with her. The parties evidently cannot agree on any type of visitation, and appellant has ignored the provision of the September 20, 1978, decree granting him reasonable rights of visitation with the children. In that situation and the dilemma presented by it, surely the chancery court has the power to enforce its solemn decree. In so doing, the chancery court must find and set out what constitutes reasonable visitation.

Appellant contends that there has not been a material change in the circumstances surrounding the parties and the children and that the original decree, therefore, cannot be modified. She relies upon O’Neal v. Warden, 345 So.2d 610, 612 (Miss.1977), where the rule was stated again:

This Court has repeatedly held that when a decree has been entered and has become final which awards custody of a child to one parent that it cannot be materially modified or altered unless subsequent thereto there has been a material change of circumstances and then only after a finding based on substantial evidence that such change or circumstance materially affects the children’s welfare adversely. [Citations omitted].

See Brocato v. Walker, 220 So.2d 340 (Miss.1969).

In Tighe v. Moore, 246 Miss. 649, 151 So.2d 910 (1963), the only change in circumstances was that the children had grown older. The chancellor changed the times involved and reduced the total amount of time granted to the father. This Court said:

The mere fact that the children were older at the time the decree appealed from was entered would not in itself constitute such change in circumstances and surroundings as to justify a change in the general or permanent custody of the children from one party to the other. But the issue which the chancellor was called upon to decide did not involve the permanent custody of the children, but only a change in dates and periods of time during which the appellant was to have the temporary care and custody of the children for the purpose of visitation. The question which the chancellor was called upon to decide was whether or not the circumstances and surroundings of the children at the time of the hearing on the petition to modify the agreed decree were such as to require a change in the schedule of visitation established by that decree. [246 Miss, at 663-664, 151 So.2d at 915].

And, discussing Evans v. Evans, 195 Miss. 320, 15 So.2d 698 (1943), the Court further said:

The changes in the custody decree in that case, as in the case that we have here, were of a minor nature, in that the changes did not affect in any material way the permanent custody which had been awarded to the mother. As stated by Judge Griffith in his specially concurring opinion in that case, “The modern rule is that it is only when there is a substantial modification of the custody decree that a substantial change of circumstances must first be shown. And time out of mind the chancellors of this state have so construed their powers under what is now Section 1421, Code 1930; they have modified custody decrees in matters of minor detail when experience under a former decree has shown the modification to be to the child’s interest, and this although the general situation of the parties remained substantially the same, and in this they are within their authority.” [246 Miss, at 665-666, 151 So.2d at 916-917].

We are of the opinion, and so hold, that under the facts of this case, it is not necessary for us to determine whether or not there has been a material change in the circumstances surrounding the parties and the fourteen-year-old child because the permanent custody of the child was not involved. The chancellor simply defined and fixed reasonable visitation rights upon which the parties could not agree. In the modification decree, the chancellor set out clearly and succinctly the times during Christmas and Thanksgiving holidays, weekends, Fourth of July, and summer vacations when appellee could visit with his child and have her visit with him. The chancellor, recognizing that the two older children could not be required to visit with their father, continued the provisions of the decree as to them, viz, reasonable rights of visitation.

We are of the opinion that there was no error in the trial below, and the decree of the lower court is affirmed.

AFFIRMED.

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

PATTERSON, C.J., not participating.