text:
    Edward H. CREEL, Jr. v. Johnny MARTIN, et al.
    83-241.
    Supreme Court of Alabama.
    July 20, 1984.

      Clifford W. Hardy, Jr., Bessemer, for appellant.
    William J. McCrevan, Birmingham, Guardian ad Litem for minors.
    James M. Tingle of Barnett, Tingle, Noble & Sexton, Birmingham, for appellee Central Baptist Church.
   SHORES, Justice.

Edward H. Creel, Jr., appeals from a decree appointing the Central Baptist Church as successor trustee of the Keith/Central Baptist Church Cemetery and the grant of a permanent injunction barring Creel from interfering with the operation of the cemetery. We affirm.

The Central Baptist Church was organized in 1852 and acquired title to an acre of land near Argo, Alabama, on which the church was established, from Lemuel Keith on November 20, 1852. Since that time, the church has continued to grow and prosper.

On November 16, 1898, Jefferson Keith and his wife, V.E. Keith, by deed to James A. Glenn and A.M. Keith, dedicated property to be used as a public cemetery. This cemetery is separated from the church property by Highway 11. This property had been used for a number of years as a cemetery site prior to the formal dedication of the land for use as a public cemetery. The earliest tombstone markers date as far .back as May 1860. Since the 1930’s, the church and its members have maintained the cemetery through a cemetery committee established solely for that purpose.

The present litigation arose after Creel buried his mother in the cemetery without first contacting the cemetery committee for approval of the burial site or the payment of the $250 burial fee. He further refused to abide by any of the rules and regulations of the cemetery committee. Creel claimed he and the other heirs of James A. Glenn and A.M. Keith are the proper trustees of the cemetery, and he took possession of it and placed “no trespassing” signs at the cemetery fence. The church filed suit against the appellant, Creel, seeking injunc-tive relief and $5,000 punitive damages for the trespass of the appellant and his interference with the operation of the cemetery by the church cemetery committee. Creel counterclaimed, seeking to be named as trustee of the cemetery and to be given the authority to oversee the maintenance of the cemetery’s perpetual care fund. In his counterclaim, the appellant claimed title to the cemetery lands, based on the fact that he is a descendant of the original trustees of the cemetery. He also claimed title to the church property, based on the activation of a reversionary clause contained in the original deed to the church. Various amendments were made to both the complaint and the counterclaim, and the church sought a preliminary injunction prohibiting Creel from interfering or harrassing the church in the operation of the cemetery. The preliminary injunction was granted, and a guardian ad litem was appointed to represent the unknown heirs and devisees of James A. Glenn, deceased, and A.M. Keith, deceased.

Following a trial on the merits at which voluminous testimony was taken, the trial judge entered a decree appointing the Central Baptist Church as successor trustee of the cemetery. The findings of the trial court in support of the decree are as follows:

“The Court finds that a formal dedication of the cemetery occurred on November 16, 1898, when the owner of the real estate, Jefferson Keith, conveyed the same to James A. Glenn and A.M. Keith and to their successors, to have and to hold, for a public burial ground, said deed being recorded in Volume 329, page 102 in the Probate Office of Jefferson County, Alabama. The Court concludes that by virtue of the foregoing instrument, the tract of land became dedicated as a public cemetery and that the named grantees were the original trustees thereof. The Court further finds that numerous burials occurred in the cemetery down through the years, including several descendants of A.M. Keith. The deed dedicating the cemetery contained no provision for successor trustees and none were officially designated or appointed. After the death of A.M. Keith, the evidence was that the cemetery gradually deteriorated and in the late 1920’s or early 1930s, certain members of the plaintiff church formed a committee and took on the task of taking care of the cemetery, finally culminating in a more formal cemetery committee being formed, which in effect became a de fac-to trustee of the cemetery. The Court concludes that the church Cemetery Committee performed such duties and responsibilities as a de facto trustee for many years. In recent years, the church Cemetery Committee began a drive to collect funds to create an endowment fund for the perpetual care of the cemetery and had on hand at the time of the trial in a segregated account over $16,-000.00. In the year 1973, plaintiff church had formally filed a proceeding in this Circuit Court, case number 178-333, against certain defendants and heirs and devisees of Jefferson Keith, Deceased, resulting in a final decree rendered granting the church the sole right, authority and control of the operation, supervision and maintenance of the cemetery, said Decree being dated December 6, 1973.”

The trial judge permanently enjoined Creel from interfering with the church in carrying out its duties as trustee of the cemetery. He also denied the relief sought by Creel in his counterclaim and denied his claim to the church property. The trial judge declared that the reversionary clauses in the original deed and a subsequent deed in 1965 were effectively removed by a corrective deed executed in 1966 by the heirs of Lemuel Keith.

Creel appeals from the final judgment. There is apparently no dispute as to the ownership of the church property. The only question before us pertains to the appointment of the church as successor trustee of the cemetery.

The appellant’s only claim to the cemetery property is that he is one of the descendants of the original trustees of the cemetery, and, therefore, that the interest of those original trustees should have passed to him by will or inheritance. He contends that the use of the words “their successors” in the 1898 deed established the right of the original grantees’ heirs to act as trustees of the cemetery. The granting clause of the 1898 deed is as follows: “[Ujnto the said James A. Glenn and A.M. Keith and to their Successors .... ” The habendum clause states: “To have and to hold to the said James A. Glenn and A.M. Keith for a public burial ground....”

Creel’s argument is not the rule in Alabama. Under § 35-4-258, Ala. Code 1975, on the death of a surviving trustee of an express trust, the trust estate does not descend to that trustee’s heirs. The fee, on the death of all the trustees of an express trust, is in abeyance until new trustees are appointed, though at common law the fee is never in abeyance and descends to the trustee’s heirs. Lecroix v. Malone, 157 Ala. 434, 47 So. 725 (1908).

The 1898 deed dedicated, in trust, the property to be used as a public cemetery, and we agree with the trial court that the original grantees were the original trustees of the cemetery. The deed contained no provision for successor trustees, and none were officially appointed. The trial judge was correct in holding that for many years the church, through its cemetery committee, had acted as a de facto trustee and had consistently performed the duties of a trustee.

A trust will not be allowed to fail for the lack of a trustee. In re Welch’s Estate, 243 Ala. 337, 10 So.2d 5 (1942); Tilley v. Letcher, 203 Ala. 277, 82 So. 527 (1919). Sections 19-3-250 and 19-3-251, Ala.Code 1975, give circuit courts in Alabama the power to appoint a successor trustee when a vacancy arises, and the trust instrument does not provide a method for appointing a successor trustee. The trial judge in the present case acted in keeping with this statutory authority by appointing a successor trustee for the Keith/Central Baptist Church Cemetery.

We also agree with the trial judge’s selection of a successor trustee. For almost fifty years, the Central Baptist Church has acted in the capacity of a de facto trustee of the cemetery. It was logical that the entity responsible for the cemetery’s present well-kept state be the one selected to continue to oversee the property’s maintenance.

The trial testimony was presented ore tenus. There is a presumption of correctness in the trial court’s findings in any case presented ore tenus. We will not disturb those findings unless they are palpably wrong, without supporting evidence, or manifestly unjust. Skinner v. Florence, 439 So.2d 118 (Ala.1983); Chaffin v. Hall, 439 So.2d 67 (Ala.1983). We find that the trial court’s findings were supported by the evidence and reflected the court’s consideration of all the evidence and testimony prior to reaching its decision.

Therefore, the judgment of the trial court is hereby affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: ADAMS, Justice.

license: Public Domain

text:
    HOWELL PIPELINE CO., INC. v. TERRA RESOURCES, INC. & Natural Resources Corporation.
    83-243.
    Supreme Court of Alabama.
    July 20, 1984.

      Thomas W. Christian, Thomas A. Carra-way, and Robert E. Cooper of Rives & Peterson, Birmingham, and William 0. Kirk of Curry & Kirk, Carrollton, for appellant.
    Rae M. Crowe, Dabney E. Bragg, and Edward A. Dean of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellees.

       Although not sitting during oral arguments, Maddox, J., has listened to the tapes made of the oral arguments and has considered the briefs and the record.

   ADAMS, Justice.

This is an appeal from an order of the Circuit Court of Fayette County granting appellees, Terra Resources, Inc., and Natural Resources Corporation (plaintiffs), a preliminary injunction against appellant, Howell Pipeline Co., Inc. (defendant), enjoining defendant from failing to honor a contract between the parties.

The dispositive issue on this appeal is whether the trial court was correct in ruling that plaintiffs successfully proved the necessary requirements for relief in the form of a preliminary injunction. After a review of the evidence before the trial court, we find that the court was correct. The judgment of the trial court is affirmed.

Two witnesses were called by the plaintiffs in their effort to obtain injunctive relief. From the testimony of these two witnesses come the facts of the case, which follow.

Plaintiffs own partial interest in some natural gas wells in Fayette and Lamar Counties, Alabama. Of the 100 wells in question, plaintiff Terra Resources, Inc., is responsible for the operation of approximately 70. Plaintiffs do not own an entire 100% interest in any of these wells. The pipelines to which these wells are connected are owned by defendant, and there are no other pipelines available for plaintiffs to use. The gas taken from plaintiffs wells is primarily purchased by defendant.

The contract which governs these gas sales is contained in two documents. December 31, 1995, is the announced expiration date of the contract, but if neither party gives notice to cancel, the contract may then extend from year to year.

Defendant agreed to extract and pay for a minimum daily volume of gas, the volume and price being established in the contract. Defendant is required to inform plaintiffs of how much gas was taken during the previous month, and subsequently pay plaintiffs the amount owed them for the gas. This the defendant did until September 1983. Defendant did not pay plaintiffs for the gas that was taken in August. A similar apparent breach of the contract happened again in October. It was then that defendant’s vice-president advised plaintiffs that they would receive no more payments, either for the gas already taken, or for any taken in the future. No payments were made following this notification, even though defendant continues to pump the gas and sell it to Alagasco.

Plaintiffs seem to be without an adequate legal remedy in this case. They have entered into royalty agreements to which they are bound, and are unable to stop the flow of gas due to the fact that they do not own all of the well stream. Even if plaintiffs could get the other owners to agree to shut-in the wells, there is evidence that drainage across lease lines would occur, causing plaintiffs to lose an uncertain amount of gas.

Plaintiffs testified that the amount of money owed by defendant for the gas actually taken was approximately $2,000,-000.00. Since the gas was flowing, the plaintiffs were also forced to pay royalties of $469,000.00. During the same two-month period, plaintiffs paid $195,975.00 to the State of Alabama for severance taxes on the gas taken by defendant but not paid for, as well as $589,304.00 in operating costs. The total negative cash flow to plaintiffs for the two-month period was approximately $3,250,000.00.

Plaintiffs sought an order from the court to enjoin defendant from breaching the contract, and defendant made no motions at that time, but simply “rested.” An answer was not yet on file at the time of the hearing.

In a preliminary injunction action, the trial court’s decision will not be disturbed on appeal, absent a gross abuse of discretion. Alabama Education Association v. Board of Trustees, 374 So.2d 258 (Ala.1979). The result of this abuse must be of a type that would constitute a manifest injustice unless corrected on appeal. Id. Having determined that the issuance of a preliminary injunction is within the mature discretion of the trial court, we now consider what evidence and issues were before the trial judge, in order to determine if the court abused its discretion in this case.

Defendant urges that since it was not shown to be in any financial difficulty or insolvency, and since the plaintiffs have not contended that they will have any problem proving money damages, that plaintiffs have an adequate remedy at law and are thus not entitled to injunctive relief. Defendant maintains that plaintiffs seek the payment of money, and cites several cases in support of its contention that an, injunction is not the proper remedy for plaintiffs who can be adequately compensated through the award of money damages. In such a case, defendant argues, an injunction will not lie unless one of two exceptions is present: the defendant is insolvent, or the legal remedy is inadequate, resulting from inability to prove the extent of the injury with the certainty required for a recovery of damages at law. Shelton v. Shelton, 238 Ala. 489, 493, 192 So. 55, 58 (1939). Here the court has not ordered the payment of money to relieve a past debt, but has merely enjoined the defendant from breaching a contract. In Medical Society of Mobile County v. Walker, 245 Ala. 135, 16 So.2d 321 (1944), this court stated:

A court of equity will endeavor to the extent of its powers to bind men’s conscience so far as they can be bound to a true and literal performance of their agreements, and will not suffer them to depart from their contracts at pleasure, leaving the party with whom they have contracted to the mere chance of any damage which a jury may assess.

245 Ala. at 140, 16 So.2d at 325. Since defendant’s contention is inapplicable in this case, the court will have to look to case law for a standard by which it can decide this case.

A three-pronged test has developed in this state by which the trial court can review an application for a preliminary injunction:

1. “... if [the trial judge] finds that the party has presented a fair question as to the existence of the right to be protected, and further finds that temporary interference to preserve the status quo is convenient and expedient, then he may exercise his discretion and grant the injunction.”
2. “... An injunction should not be granted unless it is necessary to prevent irreparable injury.”
3. “Injunctions ... will not be granted merely to allay apprehension of injury; the injury must be both imminent and irreparable in a court of law.”

Double C. Productions, Inc. v. Exposition Enterprises, 404 So.2d 52, 54 (Ala.1981). “In measuring the relief sought by a complainant against this standard, the trial court, then, in its discretion and under the individual facts and circumstances of each case, ‘... may consider and weigh the relative degree of injury or benefit to the respective parties_’” Id., citing Valley Heating, Cooling and Electric Company v. Alabama Gas Corporation, 286 Ala. [79] at 82, 237 So.2d [470] at 472 [ (1970) ].

1.

We agree with the trial court that plaintiffs presented a fair question as to the existence of a right to be protected. At the hearing, plaintiffs established a prima facie case that defendant was taking gas under the contract and selling it, but not paying plaintiffs for the gas taken. Also, plaintiffs offered proof that defendant’s vice-president directly advised plaintiffs that defendant would not pay for gas taken in the future. Under these circumstances plaintiffs demonstrated the existence of a right to be protected; namely, the right to payment for gas taken by defendant pursuant to the contract.

We also agree that temporary interference to maintain the status quo is warranted. The injunction here simply ordered the defendant to comply with the terms of the contract and pay for the gas which was taken from plaintiffs’ wells. In this manner, the relative financial positions of plaintiffs and defendant are preserved until a final decision on the merits can be reached.

2.

Defendant relies on Teleprompter of Mobile v. Bayou Cable TV, 428 So.2d 17 (Ala.1983), in support of its assertion that a temporary loss of income can be fully redressed by money damages, and, therefore, does not constitute irreparable injury. What plaintiffs suffer here, however, is not a temporary loss of income, but rather, a continuing wrong at the hands of the defendant. Since plaintiffs do not own 100% of the well stream, they are unable to shut-in the wells and sue defendant for the money owed them. Even if the other owners allowed a shut-in, plaintiffs would run the risk of drainage and the subsequent loss of leases. Their only alternative, without the aid of injunctive relief, is to continue to have their gas taken by defendant, and then sue monthly, as the payments come due, to recover from defendant the money to which they are entitled pursuant to the contract. Plaintiffs, however, are under an obligation to continue their drilling and exploration. They are also liable for severance taxes and royalty payments on the gas taken by defendant, so these monthly lawsuits would not even serve to make them whole.

This court has long recognized the rule that, where the injury is a constantly recurring grievance, a court of equity will interfere by injunction. Ogletree v. McQuaggs, 67 Ala. 580 (1880). It has been said that a trial court:

... interferes only where there is immediate pressing necessity for the prevention of injury, incapable of adequate compensation in damages at law, or such as from its continuance or permanent mischief must occasion a constantly recurring grievance which cannot be otherwise prevented but by an injunction. [Emphasis added.]

43 C.J.S. Injunctions § 30 (1978). Plaintiffs cite Mobile and O.R. Co. v. Zimmern, 206 Ala. 37, 89 So. 475 (1921), for the same proposition. In that case, the plaintiff shipped coal over defendant’s railroad pursuant to a contract. Defendant regularly confiscated quantities of plaintiff’s coal, admitted that he had done so, and stated that he would continue to do so in the future.

Defendant here contends that this case is distinguishable from Zimmern in that the Zimmern case involved the tort of conversion, while the case at bar involves the breach of a contract. This, however, is not the ease, as the court in Zimmern also enjoined a breach of contract. See Mobile and O.R. Co. v. Zimmern, 206 Ala. at 39, 89 So. at 477. According to W. Prosser, Handbook of the Law of Torts, § 15 (4th ed. 1971), where one party to a contract takes property belonging to the other party, and states that he has no intention to pay for it, the taking is tortious. This is the very situation here. Defendant’s attempt to distinguish the two cases, then, is erroneous.

This court reached a similar conclusion in Tidwell v. H.H. Hitt Lumber Company, 198 Ala. 236, 73 So. 486 (1916). This case involved the cutting and removal of timber from plaintiff’s land by defendant timber company. The activities were governed by a contract between the two parties. Plaintiff sought injunctive relief, and defendant argued that plaintiff possessed an adequate remedy at law. The trial court granted the injunction, stating:

The injunction is granted, not merely because the injury is essentially destructive, but because, being continuous or repeated, the full compensation for the entire wrong cannot be obtained in one action at law for damages.

Tidwell v. H.H. Hitt Lumber Company, 198 Ala. 236, 242, 73 So. 486, 489 (1916).

Defendant attempts to explain away this holding by arguing that, while money damages may not adequately compensate for the destruction of timbered Blackacre, money damages will clearly compensate for the loss of money. Defendant’s assertion is incorrect, because, as plaintiffs point out, this court has used the rules set forth in Tidwell in cases in which the natural resources had agreed values. Dean v. Coosa County Lumber Co., 232 Ala. 177, 167 So. 566 (1936); Wadsworth v. Goree, 96 Ala. 227, 10 So. 848 (1892). These cases stand for the proposition that it is not the resulting damage to the resource which produces the irreparable harm, but defendant’s intervention in plaintiffs (owner’s) right to determine the disposition of the natural resource he possesses.

Finally, the court must consider whether the injury is both imminent and irreparable, and it is here that the court engages in a balancing process. At trial, plaintiffs demonstrated the irreparable harm that would befall them should the injunction not be granted. Defendant did not respond with any evidence. The trial judge was able to find that the plaintiffs would suffer irreparable and imminent injury should the injunction not be granted, while injury to defendant would be slight if there were any at all. The injunction would simply have the defendant pay plaintiffs out of the proceeds of the gas taken from plaintiffs’ wells, which proceeds plaintiffs were entitled to pursuant to the contract.

The issue before us here is the correctness of the order granting the preliminary injunction; we are not reviewing a final judgment on a hearing of the case on its merits. The evidence may show that plaintiffs are not entitled to a permanent injunction. We merely hold that preliminarily enjoining the defendant from failing to honor the contract was a valid exercise of discretion by the trial court, and affirm the judgment of the trial court.

AFFIRMED.

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


author: BEATTY, Justice.

text:
    Fred O. HENDERSON, Jr. v. Grace J. WINKLER.
    83-475.
    Supreme Court of Alabama.
    July 20, 1984.

      Donald R. Harrison, Montgomery, for appellant.
    Jack Crenshaw, Montgomery, for appel-lee.
   BEATTY, Justice.

The plaintiff, Fred 0. Henderson, Jr., filed an action against Grace J. Winkler for specific performance of a contract to com vey real property and for dámages for breach of that contract. The trial court granted the defendant’s motion for summary judgment, and the plaintiff appealed. We affirm.

Desiring to sell a parcel of land she owned in Montgomery, Grace Winkler contracted with J.L. Todd Auction Company (Todd) to sell the property at auction for at least $300,000, payable according to terms of “25% down; balance over 15 years at 12% interest.” Fred Henderson attended the auction and submitted the highest bid on the property, but his bid of $125,000 was rejected. Nevertheless, negotiations ensued between Mr. Henderson and Todd, as agent for Mrs. Winkler, during which Mr. Henderson agreed to increase his bid by $20,000 in exchange for better payment terms. The agreement they reached provided that Mr. Henderson would pay $20,-000 down and the “balance in 30 annual payments with interest at 12%, with Buyer having prepayment privilege. (Annual payment approximately $15,400.00).”

Todd convinced Mrs. Winkler to accept these terms by stressing the fact that, even though the purchase price was lower than she had previously insisted upon, she would recover the difference and more in interest. With that understanding, Mrs. Winkler, who was 79 years old, signed the contract. It was not until later, after Mrs. Winkler returned home and began to analyze the contract, that she realized that she would not receive this interest unless she lived to be 109 years old. Moreover, because of the prepayment privilege, she was not assured of receiving any interest at all except for the first year.

Upon realizing these facts, she telephoned Mr. Henderson and told him that she did not want to go through with the sale, explaining her dissatisfaction with the payment terms. In his deposition, Mr. Henderson admitted the following in response to questions pertaining to his conversation with Mrs. Winkler:

“Q. After then, did you receive a long distance call from Mrs. Winkler?
“A. Yes, I did.
“Q. How long after that?
“A. I think the auction was on Friday. And I think Ms. Winkler called me Monday or Tuesday. I’m not sure exactly-
“Q. And what did she say?
“A. She just told me she didn’t want to go through with it.
“Q. And what did you say?
“A. I told her I didn’t want to make her do anything she didn’t want to do.
“Q. Didn’t you tell her that you understood; that you also had a mother?
“A. Yes, I sure did.
“Q. And that you wouldn’t make her do anything she didn’t want to do?
“A. That’s correct.”

Thereafter, Mr. Henderson requested Todd to return his $20,000 down payment, which the company did on August 25, 1983.

Subsequently, Mr. Henderson filed a complaint for specific performance of the contract and asked for damages, stating:

“3. Plaintiff made a down payment, timely tendered the purchase price to Defendant and requested a conveyance of the real property described in the contract and continues to stand ready to tender the purchase price, but Defendant refused and continues to refuse to accept the tender or make the conveyance.”

Mrs. Winkler filed a motion to dismiss, and, after the trial court denied her motion, she filed an answer alleging that the parties had reached an agreement to terminate the contract. She further alleged that Mr. Henderson had demanded and received the return of his down payment, which was inconsistent with his claim to a right of specific performance.

Next, Mrs. Winkler filed a motion for summary judgment along with her affidavit, Mr. Henderson’s deposition, and a request for admission of facts and response, all in support of the motion. In her affidavit, Mrs. Winkler stated that, based on her telephone conversation with Mr. Henderson, she understood that she and Mr. Henderson “had agreed that the contract was terminated and would not be enforced. I understand that Henderson then made Todd Auction Company give back his purchase price.” Mr. Henderson filed no affidavit contesting any of the statements in Mrs. Winkler’s affidavit or any other documents in opposition to the motion for summary judgment, apparently relying on his pleadings and the contention made in his deposition that he was merely “considering letting [Mrs. Winkler] out of the contract.” After an oral hearing, the court granted Mrs. Winkler’s motion. Mr. Henderson then filed a motion to reconsider along with a motion to separate claims and to amend the complaint, both of which were denied.

The sole issue for review by this Court is whether the trial court erred in granting the motion for summary judgment.

Mr. Henderson contends in brief that a material issue of fact existed concerning whether or not in his conversation with Mrs. Winkler he agreed to a rescission of the contract, and, consequently, that the trial court erred in granting Mrs. Winkler’s motion for summary judgment. Mrs. Winkler argues that not only did Mr. Henderson orally agree to rescind the contract, but he also recognized the rescission by demanding and receiving the return of his down payment, and, therefore, summary judgment was correct in this case. We agree.

“In reviewing a summary judgment, we must determine whether there exists any genuine issue of material fact and, if not, whether the substantive law was correctly applied to the undisputed facts.” Watts Construction Co. v. Cullman County, 382 So.2d 520, 522 (Ala.1980). The moving party must clearly show that no genuine issue as to any material fact exists and that the movant is entitled to judgment as a matter of law before summary judgment may be granted. If, however, there is a scintilla of evidence supporting the position of the party against whom the motion is made, summary judgment may not be granted. Savage v. Wright, 439 So.2d 120 (Ala.1983); Haynes v. Ford Motor Co., 435 So.2d 1227 (Ala.1983). In determining whether there was a scintilla of evidence that Henderson had not intended to rescind, the facts presented to the trial court on the motion, and all reasonable inferences therefrom, must be viewed most favorably toward Mr. Henderson. Pittman v. Martin, 429 So.2d 976 (Ala.1983).

It is well settled that parties to a written contract may by mutual consent and without other consideration rescind their contract. Watson v. McGee, 348 So.2d 461 (Ala.1977). Whether the parties rescinded their contract poses a question of fact to be determined from their intent as clearly manifested in their words, acts, or conduct. San-Ann Service, Inc. v. Beding-field, 293 Ala. 469, 305 So.2d 374 (1974). Furthermore, where the acts and conduct of one party are inconsistent with the existence of a contract and are acquiesced in by the other, such contract will be treated as abandoned or rescinded. Watts Construction Co. v. Cullman County, supra.

In the instant case, the parties’ words, acts, and conduct, as evidenced in Mrs. Winkler’s affidavit and Mr. Henderson’s deposition, are not in dispute and are not subject to differing inferences and conclusions. Mr. Henderson told Mrs. Winkler that he “wouldn’t make her do anything she didn’t want to do” in response to her request not to go through with the sale. Moreover, the conclusion is clear from statements made by Mr. Henderson in his deposition, set forth below, that the day he spoke with Mrs. Winkler he agreed to let her out of the contract, i.e., to rescind it, since his wife, who had not yet seen the property, was upset that he had contracted to buy the land without her knowledge or consent. However, later that night, after his wife told him she had looked at the property and very much wanted to live there, Mr. Henderson changed his mind and decided to hold Mrs. Winkler to the contract:

“Q. You have testified — When Ms. Winkler called you, did you say I won’t make you do anything you don’t want to do?
“A. I don’t recall the exact words, but it was to I don’t want to make you do anything you don’t want to do.
“Q. Did you enter into any kind of contract with her to make her do it?
“A. No. That was a verbal explanation, and I would like to clarify why I said that. At that point in time — Let me say this. I went to the auction to bid on the property if it was within reason. But at that point in time my wife hadn’t seen it, hadn’t laid eyes on it. And when I went home and told her what I’d done, we had a little bit of an argument because she didn’t like the idea of me doing something like that without her knowing about it. And I was under the impression that she did not want to buy the property. But that day when I was talking to Ms. Winkler, at that point as far as I knew, my wife had never seen the property. When I came home that night, my wife had been to the property with her mother. And they were excited. They were real tickled about it. And she wanted to move out there. And that’s, you know — I told her I’d talked to Ms. Winkler earlier that day and told her I was considering letting her out of the contract. That’s when my wife got into it and said she wanted to move out there and live out there.”

There is also no dispute that Mr. Henderson demanded and accepted return of his $20,000 down payment. The general rule is that the right of a person to specific performance of his contract may be lost by his abandonment thereof, by his acquiescence in a breach of it, or by conduct inconsistent with the right' to relief, which amounts to a waiver or an estoppel. Dean v. Sneed, 392 So.2d 1169 (Ala.1981). See also 81 C.J.S. Specific Performance § 25 at p. 753 (1977): “[S]pecific performance may be denied a vendee who has brought a prior action to recover a deposit or earnest money under the contract.” With stronger reason, one who has actually obtained such a refund, voluntarily and without suit, is precluded from seeking specific performance. Thus, accepting the return of his down payment, Mr. Henderson’s conduct, vis-a-vis the property, was inconsistent with a claim for specific performance. Dean v. Sneed, supra.

Thus, construing the evidence most favorably toward Mr. Henderson, his actions in this case demand a finding that he intended to rescind the contract as made, notwithstanding his denial that he so intended.

Furthermore, concluding that the contract was rescinded by the parties, we find no merit in Mr. Henderson’s contention that the trial court erred in granting summary judgment on the question of his right to recover damages as an alternate remedy for breach of contract. Where the parties have by mutual agreement rescinded a contract, one of the parties thereto cannot recover damages in an action for breach of contract. Watts Construction Co. v. Cullman County, supra; Thomas v. Smoot, 2 Ala.App. 407, 56 So. 1 (1911).

For the foregoing reasons, we find the trial judge was correct in granting Mrs. Winkler’s motion for summary judgment, and the judgment is due to be affirmed. It is so ordered.

AFFIRMED.

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


text:
    Rufus WEBB, Jr., and B.M. & R. Enterprises, Inc., a Corporation v. Frank MARTORANA.
    82-1031.
    Supreme Court of Alabama.
    July 27, 1984.

      Russell L. Irby, Eufaula, for appellants. Jimmy S. Calton, Eufaula, for appellee.
   ADAMS, Justice.

Two close friends and business associates found it necessary to bring their business disagreement to court. Rufus Webb, Jr., is an airplane pilot and Frank Martora-na is an entrepreneur. These men were accustomed to dealing in large sums— sometimes measured in cash and sometimes in gold. It is not unheard of in the world of high finance that deals are sometimes sealed with a mere handshake.

On October 7, 1980, Martorana wired Webb $20,000.00. The wire was from the Community Bank of Homestead, Florida, to be credited to the account of Rufus Webb, No. 14029, at the Eufaula Bank and Trust Company. There is nothing in the wire to indicate what was to be done with the money and it certainly was not signed by Webb, the party sought to be charged, but instead was signed by Frank Martorana. Martorana claims that he had an oral agreement with Webb that $15,000.00 of this money would be used to purchase an airplane which the parties would use to open a charter flight service in Eufaula.

On October 15, 1980, Webb purchased an airplane in his own name and filed an aircraft registration application. He also executed a note and security agreement on the airplane as president of his corporation, B.M. & R., and personally guaranteed payment of the indebtedness on the plane to Commercial Credit. The down payment on the airplane was $30,000.00 and the time balance was $155,000.00. Monthly payments were $3,213.67. According to Mar-torana, $5,000.00 of the $20,000.00 was to be used for operating capital. Webb claims that the $20,000.00 was payment to him by Martorana for work done by Webb in the Florida lime groves. Other witnesses testified that Webb had been paid for this work.

Martorana also testified that one of the principal incentives for the deal was the obtaining of tax write-offs. Webb was to obtain a tax write-off during the first year of the charter service and Martorana was to obtain the tax write-off the second year, alternating as their needs required. There was undisputed evidence that Webb obtained a tax write-off of $42,000.00 during the first year of the business arrangement and Martorana claimed a bad debt of $20,-000.00 during the same period.

Martorana claims that the fact that the title was in the name of Webb, or his corporation, was not inconsistent with the deal. The first year Webb would take the tax deduction and then he would allow Mar-torana to buy all the stock of the corporation and then Martorana would write the airplane off for the second year. It is undisputed that Webb had possession and use of the airplane from October 1980 until June 1981; however, the parties dispute who was making the payments during that period. Webb claims that he made all the payments and introduced evidence in the form of cancelled checks to back up his statement. Martorana claims he made one-half the payments.

According to Martorana, Webb called him in October 1981, and stated that he could not keep up the payments on the airplane and wanted to sell his one-half interest therein. Martorana agreed to purchase the one-half interest for $15,000.00 and sent Webb $10,000.00 and immediately following receipt of the $10,000.00, Webb delivered the airplane to Martorana.

The parties dispute as to the exact time when the remaining $5,000.00 was to be paid. Martorana claims that it was to be paid as soon as he received the paperwork transferring the airplane into his name. Webb claims that he was waiting for the $5,000.00 before he would make the transfer. The parties do agree, however, that Martorana alone made the payments for June, July, and August in the amount of $3,213.67 each. Martorana claims that although he was making these payments, he kept asking Webb when he would produce the papers giving him title to the airplane. He states that he had no inkling that Webb was not going to perform his promise, until September 1981, when Webb, without the benefit of any security agreement and even though the sale agreement was not in default, went to the airport in Florida and took possession of the airplane by cutting the prop lock and flying it back to Alabama.

During the time that Martorana had possession of the airplane, he performed what is known in aviation terms as an “annual.” This means that the airplane was completely examined for its airworthiness and any defect in the airplane was repaired. This cost Martorana some $7,500.00. Webb claims that during the time Martorana had the airplane, he logged some 40 hours of flying time — and that at $300.00 an hour Martorana owes him $12,000.00 if, in fact, he had no equitable or legal title to the airplane.

After Webb secured the airplane by repossession, it was stolen from Webb and taken to Mexico. It was during the time that it was still located in Mexico and in the hands of the Mexican government that Martorana filed suit in assumpsit against Webb, asking for all monies paid to him as a result of the gentlemen’s agreement, as well as the second agreement, and punitive damages for fraud in obtaining money from him under the pretense that he was to have a one-half interest in the airplane when, in fact, Webb never intended for him to have any interest in the airplane. Webb counterclaimed, claiming conversion by Martorana of the airplane and claiming damages because Martorana refused to turn over to Webb the airplane logs and manuals, thus diminishing the value of the airplane by at least $100,000.00. After a two and one-half day trial, the circuit court entered a judgment for Martorana in the amount of $39,641.01. The court gave no relief to the plaintiff in his claim for damages for fraud. The $39,641.01 represented $20,000.00 paid by Martorana on October 7, 1980, $10,000.00 paid in June 1981 and three full payments of $3,213.67 each paid in June, July, and August 1981. The court denied relief to Webb on his counterclaim.

Webb raises the following issues as grounds for reversal of the trial court’s judgment:

1. Was the original transaction of October 7,1980, between Mr. Webb and Mr. Martorana void and unenforceable because it violated the Statute of Frauds?
2. Did the statute of limitations, § 6-2-3, Code 1975, bar the plaintiffs cause of action for fraud?
3. Did the trial court err by ordering a refund of the money from Mr. Webb to Mr. Martorana for the second transaction entered into by said parties in June 1981?
4. Did the trial court err by failing to give Mr. Webb any relief on his counterclaim for detinue, conversion, and other relief?

We are of the opinion that this case is essentially a case governed by the ore ten-us rule and, therefore, that the trial court’s judgment in matters dealing with witnesses’ credibility is due to be affirmed.

Although Webb raises two serious legal claims, we are of the opinion that they have no applicability in this case, where the plaintiff has premised his theory of liability on common law assumpsit or money had and received.

Section 7-1-206, Code of Alabama 1975 (part of Alabama’s version of the Uniform Commercial Code), provides that:

“... a contract for the sale of personal property is not enforceable by way of action or defense beyond $5,000.00 in amount or value of remedy unless there is some writing which indicates that a contract for sale has been made between the parties at a defined or stated price, reasonably identifies the subject matter and is signed by the party against whom enforcement is sought or by his authorized agent.”

In addition, § 8-9-2, Code of Alabama, provides that:

“... every agreement is void unless such agreement or some note or memorandum thereof expressing the consideration is in writing and subscribed by the party to be charged therewith or some other person by him thereunto lawfully authorized in writing:
(1) every agreement which, by its terms, is not to be performed within one year from the making thereof....”

It is clear that the agreements involved in this case were for more than $5,000.00, and that the terms could not be performed within one year from the making thereof. Furthermore, they were not signed by a party to be charged, nor his authorized agent. Obviously, they are not in writing. But all of this is of no avail to the defendant. The plaintiff is not seeking to enforce the contract to get a one-half interest in the airplane, or to get a complete interest in the airplane as called for by the second agreement; the plaintiff seeks now to obtain all monies paid by him under an agreement which he says the defendant never intended to perform.

This court has been consistent in its policy of preventing a litigant from having his cake and eating it too. Here, the defendant obtained possession of, and had already claimed title to, the airplane. He will not be allowed to hide behind the Statute of Frauds to keep money admittedly received by him for the purpose of obtaining a legal interest in the airplane. This court said in Alabama Dry Dock & Shipbuilding Co. v. Ward, 32 Ala.App. 535, 540, 27 So.2d 710, 713 (1946):

Courts generally have committed themselves to the doctrine that the action for money had and received should not be labored with strict legal rules; that because of its equitable character great latitude should be permitted in its use; that it should be favored by our courts to the end that justice may be attained; that “what is just and right is the law of laws.” Farmers' Bank & Trust Co. v. Shut & Keihn, 192 Ala. 53, 68 So. 363, 366; Allen v. M. Mendelsohn & Son, 207 Ala. 527, 93 So. 416, 31 A.L.R. 1063; Young et at v. Garber, 149 Ala. 196, 42 So. 867.

The law gives to the party who has been deceived in a contract the right to rescind the contract and obtain the consideration offered. Here, pláintiff attempted to obtain the money paid, as well as punitive damages for the deceit. The court, in its judgment, only required a portion of the expenditures refunded. (It did not give any compensation for the $7,500.00 paid for the airplane’s annual.) It allowed no damages for the deceit, and plaintiff has not appealed to us on this point. We think, under the circumstances, that its judgment is more than just. See, also, Donald v. Reynolds, 228 Ala. 513, 154 So. 530 (1934); Johnson v. Maness, 241 Ala. 157, 1 So.2d 655 (1941); Looker v. Allen, 22 Ala.App. 305, 115 So. 147 (1928); 2 A. Corbin, Corbin On Contracts, Ch. 18 (1952).

Defendant also claims that the statute of limitations is applicable in this case. Alabama’s statute of limitations in a fraud action is one year. Defendant claims that since he put title to the airplane in his name on October 15,1980, and suit was not filed until October 26, 1981, plaintiff’s claim is barred by the statute of limitations. Webb says that a reasonable man would have known that he did not intend for Martorana to have one-half interest in the airplane when he put full title to the aircraft in his name alone. But another' view of this evidence is consistent with the nature of the deal entered into by the parties. Martorana stated that, essentially, the deal was one to obtain tax write-offs. If this is true, it may have been absolutely necessary that title not be in both names at the time the write-off was attempted. Inasmuch as it is obvious that the facts in this case are subject to more than one interpretation, we cannot say that the trial court abused its discretion in interpreting them in a way which is different from that urged by the defendant.

As we have previously stated, we believe that this case is essentially an ore tenus case. Our general rule holds that in a nonjury case presented ore tenus, a trial court will not be reversed unless its findings on the evidence are clearly and palpably wrong and to allow its judgment to stand would be manifestly unjust. First Alabama Bank v. Coker, 408 So.2d 510 (Ala.1982); Eagerton v. Courtaulds North America, Inc., 421 So.2d 104 (Ala.1982); Chism v. Hicks, 423 So.2d 143 (Ala.1982).

Some points were fairly close—for instance, the credit to be allowed for the alleged 40 hours of flying time logged by the aircraft while in the possession of Mar-torana. After reviewing the record in the case, we are of the opinion that this amount was not clearly established and, therefore, the trial judge had the authority to resolve the conflicting evidence in favor of Martorana. Many other factual conflicts were properly resolved by the trial judge.

After much consideration, we agree with the trial judge that if Webb is to have title to the airplane, exclusively, then Mar-torana is entitled to a return of his money. Consistent with this logic, Webb is also entitled to the logs and manuals, and the trial court is instructed to return them to defendant on due receipt of the mandate of this court.

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

AFFIRMED.

TORBERT, C.J., and ALMON, SHORES and EMBRY, JJ., concur.


author: ALMON, Justice.

text:
    Robert W. GAFNEA and Gwen Gafnea v. PASQUALE FOOD COMPANY, INC.
    82-1291.
    Supreme Court of Alabama.
    July 27, 1984.

      W. Eugene Rutledge and Kay S. Kelly, Birmingham, for appellants.
    William D. Hasty, Jr. of Vincent & Hasty, Birmingham, Philip F. Zeidman, David J. Butler and Pamela J. Mills of Brownstein, Zeidman & Schomer, Washington, D.C., Joseph L. Tucker, Jr., of Holli-man, Tucker, Kincaid & Ladner, Bessemer, for appellee.
   ALMON, Justice.

This case involves a covenant not to compete. The trial court granted an injunction against the appellants, ordering them to discontinue, for the remaining period of the covenant, operating the restaurant they had opened in violation of the covenant. Appellants argue that the covenant is void as a restraint of trade, or if not, that their restaurant operation was not violating the covenant, at least at the time the trial court entered the injunction.

On January 6, 1972, Robert W. Gafnea and Gwen Gafnea signed a franchise agreement with Pasquale Food Company, Inc., whereby the Gafneas were to operate a Pasquale’s pizza restaurant in Bessemer, Alabama. The agreement was to last ten years, and had specific provisions for renewal:

“If this Agreement has not terminated prior [to the end of the ten-year period], then Franchisee may, no sooner than one hundred twenty (120) days nor later than thirty (30) days prior to the expiration of the above ten-year period, make written request to the Franchisor for a new Agreement. In the event (and only in the event) such written request is made, Franchisee may continue to operate the outlet for a period of ninety (90) days following the expiration of the above ten-year period.”

The renewal provision continued with conditions and procedures for renewing the franchise agreement, not material to this appeal.

Upon the expiration of the ten-year period on January 6, 1982, neither the Gafneas nor Pasquale had performed any of the conditions or procedures specified in the agreement relative to renewing it, but the Gafneas continued to operate their fran-ehise in Bessemer. On or about May 30, 1982, the Gafneas ceased making royalty payments to Pasquale. On November 29, Robert Gafnea wrote Pasquale offering to sell it the building and equipment for $275,-000. Pasquale’s president wrote back on December 7, rejecting the offer.

On December 31, 1982, the Gafneas closed their restaurant. They had extensive remodeling done to the building and reopened in March 1983 as a “Village Inn Pizza ’n’ Pasta” restaurant. Pasquale filed this suit on April 13, 1983, requesting the court to enjoin the Gafneas from operating a pizza restaurant within five miles of the location of their former Pasquale’s restaurant for a period of eighteen months following the time they stopped operating as a Pasquale franchise. Pasquale based this request on the following provision of the franchise agreement:

“On termination of this Agreement, whether by expiration of the term, default in performance, or any other cause or contingency, Franchisee shall forthwith discontinue the use of Franchisor’s service marks, trademarks, and trade names.... Franchisee further agrees not to engage directly or indirectly in the same or similar business anywhere within a radius of five (5) miles of premises described herein for a period of eighteen months following termination of this Agreement for any reason.”

After a hearing on the merits, the trial court granted the injunction on September 7, 1983, to run for the remainder of the eighteen-month period beginning December 31, 1982. The Gafneas sought and obtained a stay of the injunction pending appeal to this Court. In granting the stay, the trial court stated, “It is the intent of this Court in staying said injunction that the time shall be tolled pending appeal effective September 1, 1983. There remains a period of approximately ten (10) months under which the injunction shall issue against the Defendant upon affirmance of the order entered.”

The Gafneas argue that the covenant not to compete is void under the terms of Code 1975, § 8-1-1:

“(a) Every contract by which anyone is restrained from exercising a lawful profession, trade or business of any kind otherwise than is provided by this section is to that extent void.
“(b) One who sells the good will of a business may agree with the buyer and one who is employed as an agent, servant or employee may agree with his employer to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a specified county, city or part thereof so long as the buyer, or any person deriving title to the good will from him, or employer carries on a like business therein.
“(c) Upon or in anticipation of a dissolution of the partnership, partners may agree that none of them will carry on a similar business within the same county, city or town, or within a specified part thereof, where the partnership business has been transacted.”

The Gafneas argue that because this contract does not fall within any of the exceptions in this statute, the covenant not to compete is void.

Pasquale replies, and the trial court held, that the covenant not to compete is not voided by § 8-1-1, because it is only a partial restraint of trade. It has long been the law in this state that partial restraints of trade may be upheld “when properly restricted as to territory, time and persons, where they are supported by sufficient consideration.” Terre Haute Brewing Co. v. McGeever, 198 Ala. 474, 480, 73 So. 889 (1916). This Court has applied this rule in such cases as Famex, Inc. v. .Century Ins. Services, Inc., 425 So.2d 1053 (Ala.1982); Reed v. Herren, 423 So.2d 139 (Ala.1982); Hibbett Sporting Goods, Inc. v. Biern-baum, 391 So.2d 1027 (Ala.1980); Alabama-Tennessee Natural Gas Co. v. City of Huntsville, 275 Ala. 184, 153 So.2d 619 (1963); and Buckalew v. Niehuss, 249 Ala.585, 32 So.2d 299 (1947).

The Court in Terre Haute Brewing Co. held that

“[t]he test as to whether a contract in restraint of trade is reasonable or partial and valid or is general and unreasonable is whether it affords fair protection to the parties’ interests, without being so extensive in its operation as to violate the law in its execution, or as to interfere with the interest of the public, as distinguished from private interests.”

198 Ala. at 481, 73 So. at 892.

Clearly the covenant in this case is not too extensive: it merely prohibits the Gaf-neas from operating a pizza restaurant in a narrowly confined location for a short period of time. The covenant is necessary to afford fair protection to the parties’ interests. The Gafneas have gained experience and built a clientele using the Pasquale reputation and the benefits of their franchise with Pasquale. Pasquale must be able to protect its franchise system by the minimal restrictions designed to prevent franchisees from taking unfair advantage of the benefits Pasquale provides. If Pasquale is forced to suffer this sort of drain on its established business, it may not be able to continue to market its franchise operations or its products and services, which would clearly be detrimental to other franchisees under contracts such as the one under which the Gafneas operated. Finally, it does not interfere with the public interest to allow limited covenants against competition between franchisors and franchisees.

For the above reasons, wé agree with the trial court that the covenant not to compete is only a partial restraint of trade and thus § 8-1-1 does not operate to void the covenant. The Gafneas also argue, however, that the contract expired by its terms on January 6, 1982, so the eighteen-month period of the covenant not to compete expired on July 6, 1983, before the trial court issued the injunction.

The trial court held that, by the continued operation of the Gafneas’ franchise after the expiration of the franchise agreement, the parties mutually agreed to a new contract with terms to be measured by the provisions of the previous contract. In support of this holding, the trial court cited Blalock v. Perfect Subscription Co., 458 F.Supp. 123 (S.D.Ala.1978). We cite with approval the following excerpt from that case:

“It is a general rule of law that where parties who have entered into a contract continue their respective performances under the terms of the contract beyond the expiration date of the contract, the parties are deemed to have mutually agreed to a new implied contract encompassing the same terms. A. Corbin, Contracts, § 684; W. Williston, Contracts, § 90. While there is no Alabama authority directly in point, the Alabama cases recognizing that a contract may be implied in fact from circumstances demonstrating a mutual intent to so contract indicate to this Court that Alabama would follow the majority rule set out above. See, e.g., Sims v. Etowah County Board of Education, 337 So.2d 1310 (Ala.1976); Montgomery Water Works and Sanitary Sewer Board v. Norman, 282 Ala. 41, 208 So.2d 788 (1968); Broyles v. Brown Engineering Company, 275 Ala. 35, 151 So.2d 767 (1963).”

Id., 458 F.Supp. at 126.

We note that the court in Blalock held that a covenant not to compete between a franchisor and a franchisee was void under § 8-1-1. The court did not discuss the question of partial restraints of trade upon which we base our holding to the contrary.

The Gafneas assert that if the covenant not to compete is allowed to run beginning with the expiration of an implied contract, the covenant will be void under the Statute of Frauds, Code 1975, § 8-9-2(1), as an agreement not in writing which is not to be performed within one year. This argument overlooks the fact that the original contract is in writing and indicates the terms of the new implied contract.

Finally, the Gafneas argue that the trial court abused its discretion in granting the injunction because Pasquale did not prove irreparable injury or inadequacy of remedy at law. We think the discussion regarding the protection of the rights of the parties under the restraint-of-trade issue adequately answers this contention.

The judgment of the trial court is affirmed.

AFFIRMED.

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


author: FAULKNER, Justice.

text:
    Frank C. BROWN v. PIGGLY-WIGGLY STORES and Kenny Poffenbarger.
    83-166.
    Supreme Court of Alabama.
    July 27, 1984.

      George L. Simons, Mobile, for appellant.
    W. Boyd Reeves and Edward A. Dean of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellee Pig-gly-Wiggly Stores.
    Jerry A. McDowell and Kathryn A. Eck-erlein of Hand, Arendall, Bessole, Greaves & Johnston, Mobile, for appellee Kenny Poffenbarger.
   FAULKNER, Justice.

The plaintiff, Frank C. Brown, appeals from a summary judgment entered against him in favor of Piggly-Wiggly Stores and Kenny Poffenbarger in a personal injury suit. We affirm.

The facts are as follows: On February 10, 1983, Brown went shopping at the Pig-gly-Wiggly store located in Citronelle, Alabama. After purchasing his groceries and placing them in his pickup truck, Brown proceeded to return his shopping cart to the area designated for cart returns. En route, Brown bumped a motorcycle which had been parked on the sidewalk approximately thirty-two feet from the store entrance. The motorcycle fell on Brown and broke his leg.

The motorcycle was owned by one of the defendants, Kenny Poffenbarger, who was employed by the Piggly-Wiggly store as a second assistant manager. The store’s manager, Craig McLendon, had authorized Poffenbarger to park his motorcycle on the sidewalk in front of the store.

Brown filed suit in Mobile County Circuit Court, alleging that Poffenbarger, with Piggly-Wiggly’s authorization, had negligently parked his vehicle so as to create an unsafe and dangerous condition which caused Brown’s injury. After allowing Brown several opportunities to amend his complaint, the trial court entered summary judgment against him.

The first issue raised on appeal is whether the trial court committed reversible error by converting the defendants’ A.R. Civ.P. 12(b)(6) motions to dismiss into A.R. Civ.P. 56(b) motions and entering judgment thereon, without giving the plaintiff sufficient opportunity to respond.

On July 18, 1983, and August 26, 1983, Piggly-Wiggly and Poffenbarger both filed motions to dismiss Brown’s suit for failure to state a claim upon which relief could be granted. On September 16, 1983, both motions to dismiss were converted by the trial court into motions for summary judgment. The trial court entered summary judgment in favor of both defendants after hearing arguments on that same day.

Brown argues on appeal that the trial court’s rulings violate the notice requirements of A.R.Civ.P. 12(b) and 56(c). It is true that failure to comply with the ten-day notice requirement articulated in A.R.Civ.P. 56(c) denies the opposing party an opportunity to present adverse evidence and therefore constitutes reversible error. Hales v. First National Bank of Mobile, 380 So.2d 797 (Ala.1980). It is equally true, however, that an objection for failure to comply with the provisions of A.R.Civ.P. 56(c) may not be raised for the first time on appeal. Chestnut Hills Civic Association v. Dobbins, 361 So.2d 1043 (Ala.1978); Holleman v. Elmwood. Cemetery Corp., 295 Ala. 267, 327 So.2d 716 (1976). We note that the record is devoid of any objection concerning the Rule 56(c) notice requirement. Accordingly, Brown may not now complain on appeal.

The second issue raised by Brown concerns whether the trial court properly entered summary judgment in favor of Pig-gly-Wiggly and Poffenbarger. Our review must consider whether the moving parties have shown that there is no genuine issue of material fact and that they are entitled to a judgment as a matter of law. A.R. Civ.P. 56(c); Ragland v. Alabama Power Co., 366 So.2d 1097, 1099 (Ala.1978). After reviewing the record in its entirety, we conclude that the defendants have met their burden.

Under the laws of Alabama, a plaintiff cannot recover in a negligence suit where plaintiff’s own negligence is shown to have proximately contributed to his damage, notwithstanding a showing of negligence on the part of the defendant. Alabama Power Company v. Scholz, 283 Ala. 232, 238, 215 So.2d 447 (1968). Of course, this principle applies only where contributory negligence has been raised as an affirmative defense. A.R.Civ.P. (8)(c); Jackson v. Waller, 410 So.2d 98 (Ala.Civ.App.1982).

In order to prove contributory negligence, the defendant must show that the party charged: (1) had knowledge of the condition; (2) had an appreciation of the danger under the surrounding circumstances; and (3) failed to exercise reasonable care, by placing himself in the way of danger. Hatton v. Chem-Haulers, Inc., 393 So.2d 950 (Ala.1980); Baptist Medical Center v. Byars, 289 Ala. 713, 271 So.2d 847 (1972).

The question of contributory negligence is normally one for the jury. However, where the facts are such that all reasonable men must reach the same conclusion, contributory negligence may be found as a matter of law. Hatton v. Chem-Haulers, Inc., 393 So.2d at 954. This is such a case.

By all accounts, the motorcycle in question was in plain view, both from within and without the store. It was parked approximately two feet from the store front on a sidewalk which was nine feet wide. Brown had already walked past the vehicle once, moments before the accident. By his own admission, the motorcycle fell on him only after he had bumped it. The record is devoid of any evidence indicating that Brown bumped the motorcycle for any reason other than his own inattention. We find that reasonable men could reach no other conclusion than that: (1) Brown knew the motorcycle was parked by the wall; (2) Brown appreciated the danger inherent in a two-wheeled vehicle resting on a kickstand, specifically, that it may fall if disturbed; and (3) Brown nevertheless put himself in the way of the danger by carelessly bumping the motorcycle. Therefore, without regard to the negligence vel non of the defendants, we hold that Brown’s injuries were the proximate result of his failure to exercise reasonable care when he bumped a parked motorcycle. It follows that there was no genuine issue as to a material fact and summary judgment was properly entered against Brown. Ragland v. Alabama Power Co., 366 So.2d 1097, 1099 (Ala.1978). Accordingly, the judgment of the trial court is due to be, and it is hereby, affirmed.

AFFIRMED.

TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur.


author: EMBRY, Justice.

text:
    MILLER TRANSPORTERS, INC., a Corporation, and Redwing Carriers, Inc., a Corporation v. ALABAMA PUBLIC SERVICE COMMISSION, et al.
    83-190.
    Supreme Court of Alabama.
    July 27, 1984.

      J. Douglas Harris of Harris & Harris, Montgomery, and Gerald D. Colvin, Jr. of Bishop, Colvin & Johnson, Birmingham, for appellants.
    Stanley W. Foy, Montgomery, and Russell C. Stoddard, Asst. Atty. Gen., for ap-pellee Alabama Public Service Commission.
    John W. Cooper, Mentone, for appellee Southern Haulers, Inc.
   EMBRY, Justice.

This appeal is from a judgment of the Circuit Court of Montgomery County affirming an order of the Alabama Public Service Commission (APSC) which held that a certificate of public convenience and necessity would not be required for certain interstate, transportation of bulk commodities transferred from exempt for-hire barge shipments. We affirm. The order provides:

“IT IS THEREFORE, ORDERED BY THE COMMISSION, that a certificate of public convenience and necessity shall not be required for motor carrier transportation within Alabama following exempt, for-hire ex barge shipments in bulk, where the barge shipments were made from out of state points and the shipper had the original and persisting intent for the cargo to move to the motor carrier destination point. Such motor carrier transportation may be conducted by a carrier registered with this Commission for interstate operations.”

In re Ex Barge Shipments — Informal Docket C-4636, APSC (10 Dec. 1982). The issue before this court on appeal is whether the APSC erred in holding that the particular trucking operations of Southern Haulers, Inc., under scrutiny here, are interstate in nature and therefore exempt from its regulation. § 37-3-3, Code 1975; § 37-3-10, Code 1975; Buck v. Kuykendall, 267 U.S. 307, 45 S.Ct. 324, 69 L.Ed. 623 (1925).

Appellants, Miller Transporters, Inc., and Redwing Carriers, Inc., are motor carriers with intrastate authority from the APSC. They contend the activity of Southern Haulers is intrastate in character. They would have this court overturn the decision of, and compel, the APSC to exercise jurisdiction over Southern Haulers. They also contend the circuit court committed reversible error by its consideration of an affidavit in evidence before it on the hearing of the appeal from the APSC.

The APSC, Southern Haulers, Decatur Transit, Commercial Hauling Company, Pine Flat Gravel, and the Port of Decatur contend the shipments are interstate in character, under the facts of this case; therefore, the order of the APSC is correct. Furthermore, they say, to adopt the position of Miller and Redwing would create an anticompetitive situation restricting competition.

I

STANDARD OF REVIEW

Review by this court is under § 37-1-124, Code 1975:

“The commission’s order shall be taken as prima facie just and reasonable. No new or additional evidence may be introduced in the circuit court, except as to fraud or misconduct of some person engaged in the administration of this title and affecting the order, ruling or award appealed form, but the court shall otherwise hear the case upon the certified record and shall set aside the order if the court finds that:
“(1) The commission erred to the prejudice of appellant’s substantial rights in its application of the law; or
“(2) The order, decision or award was procured by fraud or was based upon a finding of facts contrary to the substantial weight of the evidence.
“However, the court may, instead of setting aside the order, remand the case to the commission for further proceedings in conformity with the direction of the court. The court may, in advance of judgment and upon a sufficient showing, remand the case to the commission for the purpose of taking additional testimony or other proceedings.”

Miller and Redwing contend the APSC has erred to the prejudice of their substantial rights in its application of the law.

Here, Miller and Redwing have the burden of demonstrating that the evidence of record does not sustain the conclusions reached by the APSC. Alabama Gas Corp. v. Wallace, 293 Ala. 594, 308 So.2d 674 (1975). In this regard, findings of the APSC will not be overturned if supported by legal evidence of substantial weight and probative force. North Ala. Motor Express, Inc. v. Rookis, 244 Ala. 137,12 So.2d 183 (1943).

Appellants’ task is even more burdensome because we view the commission as a “body of experts” which made its decision based on evidence weighed in the light of experience. Alabama Power Co. v. Alabama Public Service Commission, 278 Ala. 597, 179 So.2d 725 (1965).

II

INTERSTATE OR INTRASTATE COMMERCE?

The term interstate commerce is distinguished from other commerce by the phrase “among the several states” as found in the commerce clause of the U.S. Constitution. It is not a term which lends itself to a definition simplistically applied in all cases:

‘Interstate commerce’ is not a technical legal conception, but a practical one drawn from the course of business, and what falls within it must be determined upon consideration of established facts and known commercial methods; there is no single concept of interstate commerce which can be applied to every federal statute regulating commerce.”

15A Am.Jur.2d Commerce § 4 (1976).

The APSC determined that the shipper maintains an “original and persisting intent” to transfer the bulk cargo from an out-of-stát.e origin to a final destination in Alabama. The shipment takes place in stages, the first of which is transport by barge to a port facility in Alabama, where the barge is unloaded. The final stage entails the use of motor carrier transport to get the bulk commodity from the port facility to its final destination. Consequently, the entire second stage of the journey takes place entirely within the borders of Alabama.

On the basis of the facts found by the APSC, the entire movement of this bulk commodity falls squarely within the classic definition of interstate commerce. It is commerce “among the several states.” However, the barge movements, under the facts of this case, are obviously exempt from I.C.C. regulation:

“(a)(1) The Interstate Commerce Commission does not have jurisdiction under this subchapter over transportation by a water carrier of commodities in bulk that, under an existing custom of the trade in the handling and transportation of commodities in bulk as of June 1, 1939—
“(A) are loaded and carried without wrappers or containers; and “(B) are received and delivered by the carrier without transportation mark or count.”

49 U.S.C.S. § 10542 (Law Co-op. 1982 & Supp.1984). The section does not refer to transport by motor carrier.

Miller and Redwing contend the hauling by motor carrier in this case is not exempt under the Interstate Commerce Act and it is not, standing alone, subject to regulation by the I.C.C. Therefore, they assert, this activity is not preempted by the Constitution or Congress and therefore regulation is to be exercised by the APSC because the Alabama Motor Carrier Act extends to operations of motor carriers of freight that are not regulated under the Federal Act.

“[T]he present act is modeled after the Federal Motor Carrier Act of 1935, 49 U.S.C.A. § 301 et seq., recast, however, to cover intrastate instead of interstate carriers, confer supervisory powers upon our Public Service Commission, and provide for judicial review....”

North Alabama Motor Express, Inc. v. Rookis, 244 Ala. 137, 139, 12 So.2d 183, 185 (1943). Appellees say it would be unfair and inappropriate to artificially bracket a portion of the journey in that manner where the shipper contemplates at the outset that the shipment will be by continuous movement from the point of origin to the point of destination, with travel through two or more states:

“It is well settled that, in determining whether a particular movement of freight is interstate or intrastate or foreign commerce, the intention existing at the time the movement starts governs and fixes the character of the shipment. ...”

State of Texas v. Anderson, Clayton & Co., 92 F.2d 104, 107 (5th Cir.), cert. denied, 302 U.S. 747, 58 S.Ct. 265, 82 L.Ed. 578 (1937). The facts support appellees’ position.

The Interstate Commerce Commission has refrained from regulating motor carrier movements within a single state when they are preceded by an exempt interstate movement such as for-hire ex barge shipments in bulk. See Pennsylvania Railroad Co. v. Public Utilities Commission of Ohio, 298 U.S. 170, 56 S.Ct. 687) 80 L.Ed. 1130 (1936) (intrastate rail movements preceded by a private carriage); Behnken Truck Service, Inc., Extension v. Ex Barge Traffic, 103 M.C.C. 787 (1967) (intrastate motor carriage preceded by exempt for-hire barge movements). That the Interstate Commerce Commission has relaxed regulation under those special circumstances does not in any way alter the interstate character of the commerce involved, nor does it remove any portion of the journey from federal jurisdiction:

“Apart from the established precedents, effective regulation by the Commission, obliges us to assert jurisdiction over transportation performed within a single State that precedes or follows exempt for-hire transportation in interstate or foreign commerce....”

Monsanto Company v. The Alton & Southern Railway Co., 339 I.C.C. 319, 323 (1971).

Appellants further contend the trial court erred because it considered an affidavit in support of memorandum of law submitted to show that the Commissions of the States of Georgia, Tennessee and Mississippi consider a shipment moving from a point out of state to a point in state to be an interstate shipment. It was not error to consider it as it would not be to consider an unsworn memorandum of law.

We find no error in the judgment of the trial court or the order of the Alabama Public Service Commission; therefore, the judgment below is due to be and is hereby affirmed.

AFFIRMED.

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


text:
    William E. ARMSTRONG, Doras Armstrong and James David Armstrong, by and through his father and next friend, William E. Armstrong v. The LIFE INSURANCE COMPANY OF VIRGINIA; Jonathan S. Shouse, Ronald DeZego, et al.
    83-346.
    Supreme Court of Alabama.
    July 27, 1984.
    Patrick M. Sigler, Mobile, for appellants.

      A. Danner Frazer, Jr. of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellees.
   FAULKNER, Justice.

This is an appeal by plaintiffs, William E. Armstrong, Doras Armstrong, and James David Armstrong, from a summary judgment in favor of the defendants, Life Insurance Company of Virginia (Virginia Life) and Jonathan S. Shouse. The action involved a claim for major medical insurance benefits under a group policy. We affirm.

A major medical group insurance policy was existing and in force between the Arm-strongs and Life on March 27, 1980, when James David Armstrong, a dependent of William and Doras Armstrong, suffered injuries arising out of an electrical shock on the tennis courts of the Country Club of Mobile, in Mobile, Alabama. The injury to Armstrong was an accidental bodily injury arising out of or in the course of his employment.

Insurance claims for Armstrong’s medical expenses were submitted pursuant to the group policy without any indication that the accident was work related. Between July and September of 1980, Virginia Life paid out a sum exceeding $21,000.00 toward satisfaction of these claims. In October of 1980, after discovering that the accident arose out of employment, Virginia Life denied coverage of any further bills and demanded reimbursement of the amount paid out. Denial of coverage was made pursuant to the Limitations Section of the policy, specifically Section IV, paragraph 8, which provides as follows:

“The Benefits provided under these Major Medical Expense Insurance Provisions will not be payable for the following care, services, treatments or supplies:
“8. Those which result from an accidental bodily injury arising out of or in the course of employment or a sickness entitling the insured individual to benefits under a Workmen’s Compensation Act or similar legislation.”

The Armstrongs asserted that a Virginia Life agent represented to them at the time they purchased the policy that coverage would • apply to dependents even if they were employed, as long as workmen's compensation benefits were not provided. The agent for Virginia Life admitted that this representation was made because that was his understanding of the policy provision. Neither the Armstrongs nor the agent, who was no longer employed with Virginia Life at the time of the accident, conveyed to Virginia Life information that the representation had been made.

The Armstrongs’ complaint contained four causes of action: (1) claim for benefits due under the insurance policy; (2) negligence in denying coverage; (3) fraud and misrepresentation; and (4) bad faith denial of coverage. Both parties filed motions for summary judgment based upon the pleadings, the depositions, and the affidavits submitted. The trial court held that the policy provided coverage but denied the other claims of fraud, misrepresentation, negligence, and bad faith. In denying the bad faith claim the court found that Life had a legitimate reason for denial of coverage.

The Armstrongs raise the following issues on appeal:

(1) whether the trial court erred in granting a summary judgment in favor of Virginia Life on the fraud and misrepresentation claim; (2) whether the trial court erred in granting a summary judgment in favor of Virginia Life on the negligence claim; (3) whether the trial court erred in granting a summary judgment in favor of Virginia Life on the bad faith claim.

A motion for summary judgment is proper only when, after reviewing the evidence in favor of the nonmoving party, there is no genuine issue as to any material fact. Robertson v. City of Tuscaloosa, 413 So.2d 1064 (Ala.1982).

We first address the claim that the trial court erred in granting a summary judgment for Virginia Life with regard to bad faith. Recently, Justice Beatty in Nation al Security Fire & Cas. Co. v. Vintson, 454 So.2d 942 (Ala.1984), set out the rules of bad faith as they have progressed. By referring to the Vintson ease for a discussion of those rules, we shall apply them to the present case.

The lower court found the Arm-strongs were entitled to a judgment on the contract claim as a matter of law; and this finding is not appealed by Virginia Life. This Court has held that “a plaintiff, in the normal case, must be entitled to a directed verdict on the contract claim as a matter of law in order to make out a prima facie case of bad faith refusal to pay an insurance claim.” National Savings Life Ins. Co. v. Dutton, 419 So.2d 1357, 1359 (Ala.1982). We note that the standards of review for a directed verdict and a summary judgment are essentially the same. Both are proper only where there is a complete absence of proof on a material issue or where there are no disputed questions of fact on which reasonable people could differ. Coggin v. Starke Bros. Realty Co., 391 So.2d 111 (Ala.1980); Ritch v. Waldrop, 428 So.2d 1 (Ala.1982); Houston v. McClure, 425 So.2d 1114 (Ala.1983).

While it is true that the Armstrongs were granted a summary judgment on the contract claim, they must still present some evidence of tortious conduct in order to get the issue of bad faith before the jury. The evidence showed that Life had a reasonable basis for denying coverage based on the information before it at the time the decision was made. Cf. Dutton, 419 So.2d at 1362. Virginia Life was not aware of the representations made to the Armstrongs when coverage was denied, but based its decision on a literal reading of the policy language. Thus, the trial court was correct in granting a summary judgment in favor of Virginia Life on the issue of bad faith.

The Armstrongs did not present any conflicting testimony that would establish a jury question on the issues of fraud, misrepresentation, and negligence. Testimony was presented that the Armstrongs were told that dependents would be covered while they were employed, as long as workmen’s compensation was not provided. However, the agent for Virginia Life who made that representation believed it to be true, and no evidence of intent not to perform was presented. Cf. Clanton v. Bains Oil Co., 417 So.2d 149 (Ala.1982).

The Armstrongs argued in their brief that there had been a negligent or wanton failure to procure insurance coverage. A suit based on such a failure is not an action based on contract between the insured and the insurance company, but an action based on an agency relationship between the insured and the agent who represents the insurance company. Riddle-Duckworth, Inc. v. Sullivan, 253 S.C. 411, 171 S.E.2d 486, 492 (1969). This claim of negligence is barred by the one-year statute of limitations. Alabama Code (1975), § 6-2-39. A negligence cause of action accrues as soon as the plaintiff is entitled to maintain an action, regardless of whether the full amount of damages is apparent at the time of the first legal injury. Home Insurance Co. v. Stuart-McCorkle, Inc., 291 Ala. 601, 285 So.2d 468 (1973).

In Moore v. United States Pipe & Foundry Co., 384 So.2d 1108 (Ala.Civ.App. 1980), a life insurance policy lapsed and a suit was brought by the beneficiary after the death of the insured. The court held the claim barred by the statute of limitations, because the cause of action accrued on the date the policy lapsed, rather than the date of the insured’s death. Id. at 1110.

By analogy, the Armstrongs suffered legal injury on the date Virginia Life failed to provide a policy in accordance with their expectations. This action was not filed until 1981. The policy became effective on May 1, 1976; thus, the statute of limitations expired within one year of that date.

The allegation in the complaint stated that Virginia Life negligently and wantonly denied coverage, which is essentially a tor-tious breach of contract allegation. There was no evidence of a tortious breach of contract, since Virginia Life had a reasonable basis for denial of coverage. Virginia Life was unaware of the representations made to the Armstrongs.

“The essential elements necessary to establish actionable negligence are: (1) The existence of a duty on the part of the defendant; (2) A failure by the defendant to perform that duty; and (3) An injury to the plaintiff from such failure of the defendant.” Calvert Fire Insurance Co. v. Green, 278 Ala. 673, 180 So.2d 269 (1965).

Virginia Life had a duty to pay benefits according to its policy and it did not pay, based on the policy language, which, given its lack of knowledge of its agent’s representations, was a legitimate reason for not doing so. Thus, a breach of duty was not shown. Furthermore, this court has refused to recognize a negligence cause of action for improper handling of insurance claims. Id.

For all of the above reasons, the trial court was correct in granting a summary judgment in favor of Life on the issues of fraud, misrepresentation, negligence, and bad faith. Accordingly, the judgment is hereby affirmed.

AFFIRMED.

TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur.


text:
    Percy W. MARINO and Vilai Marino v. Angelina SMITH, et al.
    83-783.
    Supreme Court of Alabama.
    July 27, 1984.

      T.M. Brantley, Bay Minette, for appellants.
    Kenneth Cooper, Bay Minette, for appel-lees.
   FAULKNER, Justice.

Percy W. Marino and Vilai Marino appeal from a final judgment in favor of the plaintiffs, Angelina Smith, Senry Boler and Charlotte Douglas, in a suit in ejectment. We affirm.

Part of the testimony in this case was presented by deposition and part was presented ore tenus before a circuit judge. He recused himself before making a decision. This case was then assigned to another circuit judge, who took further ore tenus testimony. He failed to make a decision and this case was submitted to still another circuit judge on the depositions taken and the transcripts of testimony taken before the other judges.

Where the evidence was presented orally upon original submission, but the decree before this court for review was rendered by a judge who did not hear the testimony, the ore tenus rule does not apply, and it is the reviewing court’s duty to consider the case de novo. McCulloch v. Roberts, 292 Ala. 451, 296 So.2d 163 (1974).

After considerable study of the record, we conclude that the judgment below is well founded. The following is a recital of the evidence as disclosed by the record: The land involved in this dispute is described as follows:

“From the NW corner of Section 20, Township 5 South, Range 2 East, run East 100 rods; South 60 rods to the point of beginning; run East 20 rods; North 24 rods; West 20 rods; South 25 rods to the point of beginning, containing 3 acres more or less, and lying in Baldwin County, Alabama.”

Herman Boler purchased the land in 1924 and he and his wife Liddie lived on it until his death in 1933. The couple had no children and the sole heirs of Herman Boler were his brother and two sisters. The plaintiffs are his brother Senry Boler, his sister Angelina Smith, and Charlotte Douglas, the daughter of his now deceased sister Susan Boler. Liddie continued to live on the property after Herman’s death. A few years later she remarried and she and her new husband, Isaac Crandall, lived on the property. In 1952, Liddie sold the property to her sister, Alice McKinley, who lived on the land periodically until 1963, when she sold the land back to Liddie. In 1961, which was during the period McKinley had title to the property, Liddie conveyed a portion of the land to Mattie Crosby. Crosby never lived on the land, but had partially completed a house on it, which was hidden from sight by trees. During this entire period Liddie continued to live on the land in the house she and Herman Boler had built. Neither Angelina Smith nor Senry Boler knew that the land had been sold to McKinley or Crosby.

Liddie has assessed the property and paid the taxes since Herman Boler’s death and did so even during the period McKinley had title. Liddie’s brother also lived on the property for several years in two different houses until he moved to a nursing home a few years ago. Boler’s heirs knew that the brother had lived there. In 1978, a few years after Isaac Crandall’s death, Liddie sold the property to Percy Marino, who began to make improvements on the land. However, Marino verbally agreed to allow Liddie to remain on the property until her death.

Upon the death of a husband, a widow has a right of dower, which is not a property right but an equity; and it does not become a property interest until there has been an assignment thereof. Gillian v. Gillian, 340 So.2d 785 (Ala.1976); United States v. Hiles, 318 F.2d 56 (5th Cir. 1963); Alabama Code (1975), § 43-8-114. Dower does not vest automatically in the widow but is allocated only on petition of the widow, heirs, or other interested parties. Gillian, 340 So.2d at 787. Liddie not only failed to have her husband’s estate probated, but she also failed to have her dower set aside.

The widow is entitled to quarantine as an incidental right to dower. Hale v. Cox, 240 Ala. 622, 200 So. 772 (1941). The right of quarantine exists before dower is assigned and continues during the widow’s lifetime. Id. Failure to have dower assigned, and permitting the widow to retain possession without more, does not deprive the owner of the fee in the land. Lunch v. Jackson, 235 Ala. 90, 177 So. 347 (1937).

It has been recognized that a widow retaining possession by virtue of her quarantine rights may acquire title by adverse possession. Taylor v. Russell, 369 So.2d 537 (Ala.1979); White v. Williams, 260 Ala. 182, 69 So.2d 847 (1954); Branford v. Shirley, 241 Ala. 314, 2 So.2d 403 (1941). However, a widow whose dower remains unassigned cannot acquire title by adverse possession as against heirs simply by remaining in possession of her husband’s land. Taylor, 369 So.2d at 541.

In order for the widow to obtain title by adverse possession she must repudiate the title of her husband and disavow any claim to such title and give notice of the disavowal, and that notice must be brought home to the heirs. Id. If possession is open, notorious, and visible, a presumption of notice may arise. Id. at 542. However, it should be noted that all presumptions are favorable to the title, and possessions are not presumed to be hostile to it. White, 260 Ala. at 187, 69 So.2d at 851. To change a permissive or otherwise nonhostile possession into one that is hostile, there must be either actual notice of the hostile claim or acts or declarations of hostility so manifest and notorious that actual notice will be presumed. Id.

Liddie did not repudiate her husband’s title to the property, nor did she disavow any claim to such title by her husband’s heirs. Thus, we must consider whether her actions were so open and notorious as to constitute actual notice to the heirs. The heirs were not aware of Lid-die’s sale of the land to McKinley or Crosby. Since Liddie continued to live on the land there were no acts which put the heirs on notice of her claim to the title. It was not until after Liddie had sold the land to Marino that the heirs noticed that trees had been cut and that a bulldozer had been on the land.

The ten-year period of limitations required to establish adverse possession begins to run from the date of notice of hostility and it is not operative before hostility is shown. Bell v. Pritchard, 273 Ala. 289, 139 So.2d 596 (1962); Alabama Code (1975), § 6-5-200. The heirs were not on notice of the sale to Marino until sometime after September 1978. This suit was filed in September 1980. Thus, a sufficient period of hostility was not shown.

We note that the heirs were aware of the fact that Liddie’s brother lived on the property; however, this does not establish Lid-die’s disavowal of the heirs’ claim, especially since Liddie continued to live on the property as well.

Reviewing the evidence, we find no acts so open and notorious as to establish title by adverse possession. Accordingly, the judgment is hereby affirmed.

AFFIRMED.

TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur.

      . The Alabama Legislature enacted sweeping changes in our probate system effective on January 1, 1983. Cf. Ala.Code § 43-8-1, et seq. We note that Ala.Code (1975), § 43-8-57, abolished the estates of dower and curtesy; nevertheless, this section does not affect the rights of dower in existence prior to January 1, 1983.


author: PER CURIAM.

text:
    Dudley L. GODWIN v. The CITY COUNCIL OF the CITY OF McKENZIE, Alabama, et al.
    No. 82-1180.
    Supreme Court of Alabama.
    Aug. 24, 1984.
   ON RETURN TO REMAND

PER CURIAM.

On remand, 449 So.2d 1231 (Ala.1984), the trial court held another hearing at which additional evidence was introduced that supports the trial court’s finding that Godwin was not the chief of police. Consequently, this case is affirmed on the authority of Mountain v. Collins, 430 So.2d 430 (Ala.1983).

AFFIRMED.

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