author: ALMON, Justice.

text:
    Sara SELLERS and John T. Porter v. Tonya THOMPSON.
    82-514.
    Supreme Court of Alabama.
    May 11, 1984.
    Sterling G. Culpepper, Jr. and David R. Boyd of Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, for appellants.
    E.E. Ball of Owen & Ball, Bay Minette, for appellee.
   ALMON, Justice.

This is an interlocutory appeal, under Rule 5, A.R.A.P., from the circuit court order denying the motion for summary judgment of two members of the Board of Pardons and Paroles who claimed immunity under state and federal law from liability for the criminal acts of a parolee.

In 1967, Arthur Jones was charged with assault with intent to murder, murder in the first degree, robbery, and arson in the first degree. In addition to these charges, Jones had four burglary convictions, a disorderly conduct conviction, and two burglary charges outstanding. In a March 1970 plea bargain agreement, Jones pleaded guilty to the robbery charge and received a sentence of life imprisonment. Jones then became eligible for parole on or after March 27, 1978.

At the time of Jones’s parole eligibility in 1978, Sara Sellers, John T. Porter, and William Robinson were the members of the Alabama State Board of Pardons and Paroles (the Board). Sellers and Porter became Board members in 1975 and 1977, respectively. On June 26, 1978, Sellers and Porter voted to parole Jones, based upon a review of reports on his personal and social background, his prior offenses, his present offense, and the recommendations of various prison officials. Robinson cast the sole vote to deny Jones’s parole. At the time of their votes, no psychiatric report on Jones’s mental condition existed.

Jones was paroled on June 26, 1978, and was released from active supervision on February 2, 1980. Jones was subsequently charged with the September 14, 1981, robbery and murder of Gregory V. Thompson, a Spanish Fort store clerk. Jones was convicted of this capital murder and sentenced to death on January 29, 1982. At the time of this conviction, Jones was also charged with the August 17, 1981, robbery and murder of William H. Weyman, a Mobile taxi cab driver.

Tonya Thompson, the wife of the deceased Gregory Thompson, filed suit against individual Board members Sellers, Porter, and Robinson. The final amended complaint contained the following allegations: 1) Sellers, Porter, and Robinson, while acting within the scope of their authority, negligently paroled Jones, proximately causing fatal injuries to her husband; 2) Sellers, Porter, and Robinson, while acting within the scope of their authority, wantonly paroled Jones, proximately causing fatal injuries to her husband; 3) Sellers, Porter, and Robinson exceeded their statutory authority in paroling Jones, proximately causing fatal injuries to her husband; and 4) Sellers, Porter, and Robinson, while acting under color of state law, deprived her husband of his life and liberty without due process of law, in violation of 42 U.S.C. § 1983.

The Board members filed a motion for summary judgment, which was granted on behalf of Robinson, who had voted against parole, but which was denied with respect to Sellers and Porter. The circuit court certified its order in accordance with Rule 5, A.R.A.P. This Court granted the petition by Sellers and Porter for permission to appeal this interlocutory order.

To determine whether the circuit court erred in denying the motion for summary judgment on behalf of Sellers and Porter, we must address the following subsidiary issues: 1) whether Code 1975, § 15-22-25, imposed a non-discretionary duty upon Board members Sellers and Porter to obtain and review a psychiatric report on Jones prior to their ultimate discretionary parole decision, thereby precluding their invocation of discretionary function immunity under Ala. Const, art. I, § 14; and 2) whether Sellers and Porter are also afforded immunity from suit under the federal Civil Rights Act of 1871, 42 U.S.C. § 1983.

Neither party disputes the fact that under our holding in Gill v. Sewell, 356 So.2d 1196 (Ala.1978), the Board members’ ultimate decision to grant or deny parole constitutes the exercise of a discretionary function within the ambit of the immunity shield of Ala. Const, art. I, § 14. Sellers and Porter may thus invoke this discretionary function immunity to preclude personal liability for their allegedly negligent or wanton parole of Jones, and summary judgment should have been granted in their behalf as to these allegations of Thompson's final amended complaint.

Yet the point of departure in the Gill opinion — the failure to allege that a state official sued in his individual capacity exceeded his statutory authority so as to preclude his invocation of this immunity shield — is precisely the question presently before us. We must determine whether Code 1975, § 15-22-25, imposes a non-discretionary duty upon Board members to obtain and review a psychiatric report on prospective parolees prior to making their ultimate discretionary parole decision.

Section 15-22-25, Code 1975, prescribes the investigative procedure which the Board of Pardons and Paroles follows prior to a parole decision:

“(a) As to each prisoner sentenced and received in the jails and prisons of the state of Alabama, it shall be the duty of the board of pardons and paroles, while the case is still recent, to cause to be obtained and filed information as complete as may be obtainable at that time with regard to each such prisoner. Such information shall include a complete statement of the crime for which he is' then sentenced, the circumstances of such crime, the nature of his sentence, the court in which he was sentenced, the name of the judge and district attorney and copies of such probation reports as may have been made as well as reports as to the prisoner’s social, physical, mental and psychiatric condition and history. It shall be the duty of the clerk of the court and of all probation officers and other appropriate officials to send such information as may be in their possession or under their control to the board upon request. The board shall also at that time obtain and file a copy of the complete criminal record of such prisoner that may exist. When all such existing available records have been assembled, they shall be presented to the board or to some officer designated by it, who shall determine whether any further investigation of such prisoner is necessary at that time and, if so, the nature of such investigation, and the board shall thereupon order it to be made. Such investigation shall be made while the case is still recent, and the results of it with all other information shall be filed in the office of the board so as to be readily available when the parole of such prisoner is being considered.
“(b) The board shall not act on any application or case until a complete investigation of the prisoner’s social and criminal record has been made by a parole officer and a written report thereof made a part of the prisoner’s file.”

Sellers and Porter contend that their decision to parole Jones without first obtaining and reviewing his psychiatric profile was clearly within the protections of the discretionary function immunity shield. In support of this proposition, the Board members posit three arguments:

First, they contend that Code 1975, § 15-22-25, only requires that “existing available records” be assembled. Thus, because no psychiatric report on Jones existed, the Board members conclude that they were under no duty to obtain such a report.

Second, the Board members argue that even if such a duty exists, the duty only embraces individuals who serve on the Board while the prisoner’s case “is still recent.” Because Jones’s 1970 case was no longer “recent” when Sellers and Porter became Board members in 1975 and 1977, respectively, the Board members contend that such a duty did not extend to them.

Finally, the Board members argue that because only a written report of the prisoner’s social and criminal record must be included in the prisoner’s file before the actual parole decision, they were under no duty to obtain or review a psychiatric report on a prospective parolee.

Thompson contends, however, that the mandatory language “[s]uch information shall include ... reports as to the prisoner’s ... psychiatric condition and history” clearly imposes a nondiscretionary duty upon the Board members to obtain and review such a report prior to their ultimate parole decision. Because Sellers and Porter exceeded this statutory authority in failing to obtain and review such a report before paroling Jones, Thompson concludes that they are precluded from invoking the discretionary function immunity shield.

We do not read § 15-22-25 to require a psychiatric evaluation of a prisoner before the Board may act on his request for parole. So far as we can ascertain from the record, a psychiatric evaluation was never made on this prisoner, and apparently no report on his mental condition exists. The statute requires the Board to obtain and file “information as complete as may be obtainable.” This statute also provides that when “all such existing available records have been assembled,” they shall be presented to the Board or to some officer designated by it, who shall determine whether any further investigation is necessary. Arguably, the statute could be read to authorize the Board, assuming it had the means to do so, to cause a psychiatric evaluation to be made, but that does not necessitate the conclusion that the Board members have violated the statute because they failed to order an evaluation. To hold otherwise would require the Board to have or procure a psychiatric report on all inmates who could be considered for parole. We do not think the legislature intended this result.

Sellers and Porter are therefore immune under Ala. Const, art. I, § 14, from personal liability for exercising a discretionary function in paroling Jones without first obtaining and reviewing a psychiatric report on him, and they are also entitled to judgment as a matter of law as to this allegation of Thompson’s final amended complaint.

We must now determine whether Sellers and Porter are also afforded immunity from suit under the federal Civil Rights Act of 1871, 42 U.S.C. § 1983. This question has recently been addressed in two federal cases.

In Pate v. Alabama Bd. of Pardons and Paroles, 409 F.Supp. 478 (M.D.Ala.1976), aff'd, 548 F.2d 354 (5th Cir.1977), the members of the Alabama Board of Pardons and Paroles were given immunity from suit under 42 U.S.C. § 1983 by virtue of the Eleventh Amendment to the United States Constitution and the doctrine of official immunity. Comparing the function of the Board of Pardons and Paroles to that of a judge imposing sentence or granting or denying probation, the district court concluded that the present system of rehabilitation would be virtually emasculated absent such an immunity.

Moreover, in Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481, reh’g denied, 445 U.S. 920, 100 S.Ct. 1285, 63 L.Ed.2d 606 (1980), the United States Supreme Court held that California officials responsible for the release of a parolee who murdered a fifteen-year old girl only five months thereafter were immune from liability under 42 U.S.C. § 1983 due to the absence of state action. The Court reasoned that the decedent’s death was too remote a consequence of the parole officials’ act to hold them responsible under the federal civil rights law.

Under the authority of the Pate and Martinez decisions, we hold that the Board members who voted to parole Jones are likewise immune from personal liability under 42 U.S.C. § 1983. It was therefore error for the trial court to deny summary judgment in their behalf on the § 1983 claim also.

The order of the circuit court denying the motion for summary judgment on behalf of Sara Sellers and John T. Porter is reversed and the cause is remanded.

REVERSED AND REMANDED.

All the Justices concur.

      . Although Thompson also included as defendants the State of Alabama and the State Board of Pardons and Paroles, these defendants were later dismissed from the lawsuit on the motion of Thompson.
      In a second amended complaint, Thompson added Jones as a defendant and alleged that he wantonly caused the death of her husband. Because Jones did not file a motion for summary judgment, the claim against him remains pending in circuit court.

      . Article I, § 14 of the Alabama Constitution prohibits the State and its agencies from being made defendants to a suit. Section 14 does not, however, necessarily immunize State officials and agents from individual civil liability. Finnell v. Pitts, 222 Ala. 290, 132 So. 2 (1930).
      In Gill v. Sewell, 356 So.2d 1196, 1198 (Ala.1978), we construed § 14 to prohibit suit against the Commissioner of the State Board of Corrections in his individual capacity where the complaint alleged only negligent performance of a statutory duty in transferring a dangerous felon to a minimum security institution. Later, we clarified the Gill holding, consistent with the Restatement (Second) of Torts, § 895D, Public Officers (1974), by determining that the Commissioner was immune from individual tort liability because he was engaged in the exercise of a discretionary function. DeStafney v. Universi

        ty of Alabama, 413 So.2d 391 (Ala.1982) (on rehearing).

      . In Deal v. Tannehill Furnace & Foundry Comm’n, 443 So.2d 1213 (Ala.1983), we expanded the scope of discretionary function immunity to include allegations of wantonness on the part of State officials sued in their individual capacities where, as here, there was no evidence of bad faith on the part of the officials.

      . We note that Thompson’s reliance upon Payton v. United States, 679 F.2d 475 (5th Cir.1982), is misplaced. Payton involved the breach of a statutory duty on the part of the Bureau of Prisons to provide the parole board with existing records on a prospective parolee — clearly not the issue in this case.

      . This statute provides that
      “[ejvery person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

      . In light of these decisions, we decline to address the doctrine of qualified immunity, recently articulated in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).


source: Caselaw Access Project

author: ADAMS, Justice.

license: Public Domain

text:
    FIRST ALABAMA BANK OF DOTHAN v. Robert RENFRO, as Trustee of Donald Earl Crawford.
    82-612-CER.
    Supreme Court of Alabama.
    May 11, 1984.

      Barry Bledsoe of Byrd & Carter, Dothan, for appellant.
    C.H. Espy, Jr. of Farmer, Price, Espy & Smith, Dothan, for appellee.
   Certified Question from the United States District Court for the Middle District of Alabama

ADAMS, Justice.

Pursuant to Rule 18, A.R.A.P., the United States District Court for the Middle District of Alabama requests this court to answer questions of law which are deemed determinative of an action before that court and as to which there is no clear controlling precedent in the decisions of this court.

In support of the certificate, the federal district court submits the following:

“1. STYLE OF THE CASE: The style of the case in which this certificate is made is First Alabama Bank of Dothan vs. Robert Renfro, as Trustee of Donald Earl Crawford, being Civil Action No. 82-220-S, United States District Court for the Middle District of Alabama.

“2. STATEMENT OF THE FACTS: Prior to February 20, 1981, Donald Earl Crawford owned a Flamingo mobile home, Serial No. 9053. This mobile home was not attached to real property and is not claimed by Crawford to be real property. Instead, the parties agree the mobile home is personal property.

“On February 20, 1981, and before that date, Crawford’s Flamingo mobile home was the principal residence of Crawford and his wife. On February 20, 1981, Crawford, along with his brother, mother and father, signed a promissory note in the amount of $115,325.07 with the Plaintiff-Appellant, First Alabama Bank of Dothan. As security for this note, Crawford signed a security agreement offering, among other things, his Flamingo mobile home as collateral for said loan. The $115,325.07 note contains the standard waiver of homestead exemption language. The Bank properly recorded a UCC-1 financing statement in February, 1981, showing the Flamingo mobile home as collateral. The Bank had a perfected security interest in the Flamingo mobile home on the date Crawford filed his Petition in Bankruptcy. The Bank’s security interest in Crawford’s Flamingo mobile home is not a purchase money security interest.

“The Bank does not have a waiver of homestead by separate instrument executed by Crawford, and the Bank does not have a separate acknowledgment or execution of any waiver of homestead exemption by Crawford’s wife. The only waiver of homestead exemption is contained in the commercial note executed by Crawford. Crawford’s Flamingo mobile home has been, and is through the date of these proceedings, the principal residence of Crawford and his wife. The fair market value of the Flamingo mobile home is less than $3,000.00, and the debt owed to the Bank exceeds the value of the mobile home. Except for the right to assert his homestead exemption, Crawford has no equity in the mobile home.

“On or about March 2, 1982, Crawford filed a Chapter 7 Petition in the United States Bankruptcy Court for the Middle District of Alabama. In May, 1982, the Bank filed a Petition for Reclamation of Crawford’s Flamingo mobile home. The Bank’s petition was heard on July 14, 1982. At the hearing held on July 14, 1982, after consulting with the Bank’s attorney concerning the Bank’s having obtained the proper waiver of exemption, Crawford’s attorney withdrew Crawford’s claim that the Flamingo mobile home was exempt, that the Bank had no purchase money security interest and that it was a homestead.

“By Order dated July 16,1982, the Bankruptcy Court granted the Bank’s Petition for Reclamation and ordered Crawford to turn over the property to the Bank within 14 days from the July 16, 1982, Order. On or about July 21, 1982, Crawford filed a motion to reconsider the Bankruptcy Court’s Order of July 16,1982. The motion to reconsider was set down for hearing before Judge Rodney R. Steele on September 8, 1982. On September 8, 1982, a hearing was duly held on Crawford’s motion to reconsider. Prior to this hearing, the parties entered into a written stipulation of facts that was presented to Judge Steele for his consideration. In addition to the written stipulation of facts, there were certain other facts orally stipulated that have been incorporated in this Statement of the Facts.

“On October 8, 1982, Judge Steele entered an Order in which he ruled that the Bank’s security interest is totally void as against the Flamingo mobile home claimed exempt by Crawford and that Crawford have this mobile home in the bankruptcy proceedings free and clear of the lien of the Bank.

“The Bank timely filed its Notice of Appeal to the United States District Court for the Middle District of Alabama on October 18, 1982. The Bank contends that, since the mobile home was admittedly personal property owned solely by the Bankrupt at the time the security instrument was executed but in which the Bankrupt had no current equity or interest, either the Bankrupt (Crawford) has no homestead exemption or the waiver of exemption stated in the note pursuant to CODE OF ALABAMA, § 6-10-121, validly waived the exemption as to the Bank’s claim. CODE OF ALABAMA, § 6-10-6, provides that the personal property of a resident of Alabama to the extent of $3,000.00 in value, and otherwise as to matters not here pertinent, is exempt. CODE OF ALABAMA, § 6-10-121, provides that a waiver of a personal property exemption may be made by separate instrument or it may be included in a promissory note, as was done in this case, or otherwise in ways not here pertinent. CODE OF ALABAMA, § 6-10-2, limits the homestead exemption to “the extent of any interest” of the homesteader.

The defendant Trustee contends that, since the mobile home was Crawford’s homestead (even though Crawford had no equity in it), the mobile home was exempted to Crawford pursuant to CODE OF ALABAMA, § 6-10-2 and that waiver of that exemption was void because it was not executed pursuant to CODE OF ALABAMA, §§ 6-10-3 and 6-10-122. Section 6-10-2 provides in pertinent part:

“ ‘The homestead ... with the improvements and appurtenances, not exceeding in value $5,000.00 and in area 160 acres, shall be, to the extent of any interest he or she may have therein, whether a fee or less estate or whether held in common or in severalty, [is] exempt_ For purposes of this section and sections 6-10-38 and 6-10-40, a mobile home ... if the principal place of residence of the individual claiming the exemption, shall be deemed a homestead.’
“Section 6-10-3 provides, in part:
‘“No mortgage, deed or other conveyance of the homestead by a married person shall be valid without the voluntary signature and assent of the husband or wife, ... ’ duly acknowledged.
“Section 6-10-122 provides, in part:
“ ‘As to the homestead, the waiver must be by a separate instrument in writing, subscribed by the party ... and attested by one witness. If such party is a married man, such waiver shall not be valid without the voluntary signature and assent of the wife and acknowledgment by her before an officer authorized to take acknowledgments, .... ’

“It is conceded that the conveyance and the waiver of the claimed exemption were not executed in accordance with thé law pertinent to homestead exemptions but that they were executed in accordance with the law pertinent to personal property exemptions. It is also conceded that Crawford has no remaining equity in the mobile home, but the Defendant Trustee contends that Crawford, nonetheless, has an ‘interest therein within the meaning of the phrase in § 6-10-2 limiting the homestead exemption to the extent [of any interest] he or she may have therein.’

“3. THIS COURT, THEREFORE, CERTIFIES THE FOLLOWING QUESTIONS TO THE SUPREME COURT OF ALABAMA: A. Does the maker of a security instrument on personalty in which he has no equity have an interest in the personalty within the meaning of the word “interest” as used in the clause of the homestead exemption law, CODE OF ALABAMA, § 6-10-2, whereby the homestead exemption is limited ‘to the extent of any'interest' the maker may have therein?

“B. Is a mobile home, which is personal property but is occupied as the principal place of residence of the individual claiming the exemption and, therefore, under the provisions of CODE OF ALABAMA, § 6-10-2, a ‘homestead’ for the purposes of §§ 6-10-2, 6-10-38 and 6-10-40, also to be considered a ‘homestead’ for purposes of §§ 6-10-121, 6-10-3 and 6-10-122, that is, for purposes of determining whether it may be alienated pursuant to the provisions of law pertinent to alienating personal property [§ 6-10-121] or to those laws pertinent to alienating the homestead [§§ 6-10-3 and 6-10-122]?”

The answer to the first question must be “no.” For purposes of this question, we look to the first part of § 6-10-2:

The homestead of every resident ... with the improvements and appurtenances, not exceeding in value $5,000.00 and in area 160 acres, shall be, to the extent of any interest he or she may have therein, whether a fee or less estate or whether held in common or in severalty, exempt ....

The facts of this case indicate that the fair market value of the mobile home offered by Crawford as security for the loan in question is less than $3,000.00, while the debt owed to the bank exceeds that amount. Thus, if the bank’s security interest in the mobile home is valid, Crawford has no equity in the mobile home to provide him with an interest to which the homestead exemption could attach. This conclusion is consistent with this court’s holding in Franklin v. Comer, 170 Ala. 229, 54 So. 430 (1911). In that case this court held:

There being a valid and subsisting in-cumbrance on the homestead, the defendant had only an interest therein subject to said incumbrance, the amount of which was properly deducted from the value of said homestead; and if his interest, after deducting the amount of the mortgage, did not exceed $2,000 in value, it was exempt from the payment of his debt.... Of course, if the incumbrance is inferior to the homestead right, it should not be deducted; but, if it is a valid and subsisting claim or lien on the homestead, it should be deducted in ascertaining the interest of the debtor in the property.

Franklin v. Comer, 170 Ala. at 231, 54 So. at 431. See also Brock Candy Company v. Elson, 211 Ala. 244, 100 So. 94 (1924); In re Bradley, 19 B.R. 265 (Bkrtcy.S.D.Ala.1982).

The answer to the first question being “no,” Crawford’s possession of an “interest” in the mobile home to which a homestead exemption might attach depends on the answer to the second question. If a mobile home which is occupied as the principal place of residence of the person claiming the exemption may not be considered a homestead for purposes of § 6-10-3, then there is a valid incumbrance on the mobile home to the full extent of its value, and Crawford has no interest in it to which the homestead exemption can attach, regardless of whether § 6-10-121 or § 6-10-122 applies concerning waiver of exemptions. However, we hold that this is not the case. We answer the second question “yes.”

In deciding that the homestead status of a mobile home as defined in § 6-10-2 also applies for purposes of §§ 6-10-3, 6-10-121, and 6-10-122, we must look to the intent of the legislature at the time § 6-10-2 was enacted. McDonald’s Corporation v. De Venney, 415 So.2d 1075 (Ala.1982). It is also appropriate to look to the purposes and objects of the legislation and any evil sought to be remedied or avoided by the legislation. McCullough v. State ex rel. Burrell, 352 So.2d 1121 (Ala.1977); Alabama State Board of Health ex rel. Baxley v. Chambers County, 335 So.2d 653 (Ala.1976). Statutes intended for the public benefit are to be construed most favorably to the public. Gant v. Warr, 286 Ala. 387, 240 So.2d 353 (1970). Regarding homestead, this court has said:

Homestead laws are based upon a public policy which recognizes the value of securing to the householder a home for himself and family regardless of his financial condition. The preservation of the home is of paramount importance because there the family may be sheltered and preserved. Home ownership tends to inculcate a spirit of independence which is essential to the maintenance of free institutions.

Walker v. Hayes, 248 Ala. 492, 494, 28 So.2d 413, 415 (1947). The law looks with favor on the homestead, and homestead statutes are to be construed liberally in furtherance of the public policy they express. W.T. Rawleigh Co. v. Patterson, 239 Ala. 309, 195 So. 729 (1940).

The preamble to the Act by which the legislature amended § 6-10-2 in 1980 refers to it as “an act ... deeming a mobile home or similar dwelling to be a homestead for homestead exemption purposes.... ” 1980 Ala. Acts 80-569, p. 879. It is clear that, in amending § 6-10-2 so as to include mobile homes, the legislature, recognizing the increasing numbers of Alabama citizens having mobile homes as their principal place of residence, intended to provide these citizens with those protections that the homestead exemption laws previously provided only to residents of homes fixed upon real estate. Although the statute does not specifically state that a mobile home shall be deemed a homestead for purposes of §§ 6-10-3, 6-10-121, and 6-10-122, it is unreasonable to conclude otherwise. If homestead laws are for the purpose of securing to the householder a home for himself and his family, and this security is extended to residents of mobile homes, then the purpose of the legislation is defeated by not allowing the protection of the spouse provided by § 6-10-3 to apply when the dwelling place is a mobile home, as well as the protection of the homestead exemption itself provided by § 6-10-122.

This court in Watkins v. Pennell, 285 Ala. 208, 231 So.2d 83 (1970), quoted with approval from Lazenby v. Lazenby, 229 Ala. 426, 157 So. 670 (1934):

“In the case of Thompson v. New England Mortgage Security Co. [110 Ala. 400, 18 So. 315], supra, Judge Head, in speaking for the court, observed: ‘The purpose of the statutes in securing an exempt homestead to every resident of the state, and in requiring the wife’s voluntary signature and assent to any alienation thereof, when belonging to the husband, is to protect the wife, and through her the family, in the enjoyment of a dwelling place. Turner v. Bernheimer, 95 Ala. 241, 10 So. 750 [36 Am.St.Rep. 207]. This court, as well as those in other states having a similar system, has adopted a strict rule on this subject, in accordance with which it is generally held that, to convey the homestead, there must be a strict compliance with the statutory mode of alienation....’”

Watkins v. Pennell, 285 Ala. at 208, 231 So.2d at 85.

Sections 6-10-3 and 6-10-122 both refer by their language not to “real estate,” but to “homestead.” It would seem infinitely unjust to recognize the homestead rights of mobile home dwellers as is done in § 6-10-2, on the one hand, and then deny them the protection of those rights afforded by §§ 6-10-3 and 6-10-122, on the other.

While one rule of construction utilized by this court in construing statutes is that when a statute enumerates certain things on which it is to operate it is construed as excluding from its effect those things not expressly mentioned (see, e.g., Geohagan v. General Motors Corporation, 291 Ala. 167, 279 So.2d 436 (1973)), this court has also recognized that there are occasions when courts must correct or ignore obvious inadvertences in order to give a law the effect which was plainly intended by the legislature. Hamilton v. Smith, 264 Ala. 199, 86 So.2d 283 (1956). We find that this is one of those occasions.

Moreover, we find that the legislature expressly provided that waiver of the homestead exemption in a mobile home must meet the statutory requirements of § 6-10-3. Section 6-10-40, which was expressly amended by Act 80-569, states:

When the homestead, after being reduced to the lowest practicable area, exceeds $5,000.00 in value and the husband or wife has aliened the same by deed, mortgage or other conveyance without the voluntary signature and assent of the spouse, shown and acknowledged as required by law, the alienor or, if he or she fails to act, the spouse or, if there is no spouse or if he or she fails to act, their minor child or children may, by filing a complaint, have the land sold and the homestead interest separated from that of the alienee.

(Emphasis added.) The language requires that the voluntary signature of the spouse must be shown and acknowledged as required by law. We take this passage to refer plainly to the acknowledgment requirements of homestead exemptions contained elsewhere in the chapter. Any other meaning or reference to other statutes outside the chapter would logically require a specific reference to the outside law. Therefore, § 6-10-40 effectively incorporates and applies the acknowledgment requirements of § 6-10-3 to mobile homes. Given this express attempt to apply homestead procedure to mobile homes, we find the legislature must also have intended to extend the complete protection of homestead exemption requirements to mobile homes, including the separate acknowledgment of waiver under § 6-10-122. Again, any other conclusion would create inconsistent homestead procedures because of an omission of the legislature. We cannot endorse such a result.

Thus, we hold that mobile homes deemed to be homesteads for purposes of §§ 6-10-2, 6-10-38, and 6-10-40 shall also be considered homesteads for purposes of §§ 6-10-3, 6-10-121, and 6-10-122. That being the case, we find that the security interest of the Bank in the mobile home of Crawford, not being in conformity with § 6-10-3, is void. Therefore, there being no valid encumbrance on the homestead, Crawford has an interest in the .homestead to which his exemption may attach. The waiver of exemptions, not being in conformity with § 6-10-122, is likewise invalid.

QUESTIONS ANSWERED.

TORBERT, C.J., and MADDOX, FAULKNER, JONES and EMBRY, JJ., concur.

ALMON, SHORES and BEATTY, JJ., dissent.


author: SHORES, Justice.

text:
    Deborah WEAVER, as Executrix for the Estate of George C. Calkins v. AMERICAN NATIONAL BANK.
    83-259.
    Supreme Court of Alabama.
    May 25, 1984.

      William H. Card, Jr. and Rose A. McPhil-lips and William H. Card, Jr., Mobile, for appellant.
    James W. Tarlton III and Craig S. Pittman of Hamilton, Butler, Riddick, Tarlton & Allen, Mobile, for appellee.
   SHORES, Justice.

This is an appeal from an order dismissing the plaintiffs complaint pursuant to a motion under A.R.Civ.P., Rule 12. Deborah Weaver, executrix for the estate of George Calkins, filed a complaint against American National Bank (bank), seeking damages arising out of the sale of collateral held by it as security for an installment loan. (Hereinafter, executrix Weaver will be referred to as the debtor.)

The complaint, as amended, contains four counts:

“COUNT ONE
“1. George C. Calkins secured an installment loan # 146599 from American National Bank and placed as collateral for the loan a Kamatsu dozer [bulldozer].
“2. On or about March 31, 1981, the aforesaid bank repossessed the Kamatsu dozer from the Estate of George C. Cal-kins.
“3. On or about May 15, 1981, the American National Bank sent a certified notice to the Estate that the dozer would be sold on May 28, 1981.
“4. Said notice did not specify the time or place of such sale as required by law in order to allow the plaintiff opportunity to protect the interest of the estate.
“5. The aforementioned dozer was sold on a bid of $22,000, leaving a deficiency of $7,237.13.
“6. The notice afforded to the Estate of George C. Calkins was not reasonable notification as required by law.
“[Ad damnum clause omitted.]
“COUNT TWO
“1. Plaintiff incorporates Paragraphs 1 through 4 of Count One as though fully set forth.
“2. The defendant accepted a bid of $22,000.00 on the dozer even though it was valued in excess of $40,000.00.
“3. The unfairly low price obtained as evidenced by the large discrepancy between the sale and the fair market value was not commercially reasonable as required by law.
“4. The defendant failed to sell the dozer at a fair and commercially reasonable value to the detriment of the plaintiff.
“[Ad damnum clause omitted.]
“COUNT THREE
“1. Plaintiff incorporates Paragraphs 1 through 4 of Count Two as though fully set forth.
“2. On or about March 25, 1980, George C. Calkins secured a loan for $27,609.75 with American National Bank by executing a mortgage on Lots 1 and 2 of Schillinger Heights, First Unit.
“3. During late 1981, negotiations were occurring in regard to the sale of the aforementioned property.
“4. On or about November 18, 1981, W.C. Doty, Executive Vice President of American National Bank, wrote Alan B. Weissinger, President of Realty Title Company of Mobile, and requested payment to the bank on the sale of the property as follows:
“Principal $18,032.44
“Interest (to 12/4/81) 894.49
“Deficiency on Sale of Dozer 7,237.13
“$26,164.06
to include an additional daily charge of $4.76 for every day beyond December 4, 1981.
“5. The deficiency on the dozer was required by American National Bank as part of the mortgage payoff.
“6. On or about December 9, 1981, the sale of the real property was completed and American National Bank received $26,192.69 as payoff on the mortgage.
“7. The Bank used its power as mortgage holder of the real property for a purpose other than to secure repayment on the real property mortgage to effect means and purposes of its own.
“8. The Bank used its power to enable it to acquire proceeds to which it was not entitled under the sale of the real property.
“9. The deficiency of the dozer should not have been required by American National Bank as part of the mortgage payoff.
“10. American National Bank used its power as mortgage holder on the property for a purpose foreign to the legitimate purposes for which it was intended and such action constituted fraud in the exercise of power.
“[Ad damnum clause omitted.]
“COUNT FOUR
“1. Plaintiff incorporates Paragraphs 1 through 6 of Count Three as though fully set forth.
“2. On or about January 21, 1982, William R. Seifert, II, of the American National Bank forwarded to the plaintiff an insurance check made payable to both the plaintiff and the defendant which was from Thomas-King-Roebuck in the amount of $232.34.
“3. The aforesaid insurance check was the rebate of a premium made on insurance coverage on the property on Schillinger’s Road after said insurance policy was cancelled.
“4. American National Bank through the note of William R. Seifert, II, dated January 21, 1982, requested endorsement of the check by plaintiff and its return to the bank.
“5. The Bank refused to endorse said check over to the plaintiff.
“6. The monies owed on the mortgage having been through the sale of the land, American National Bank was not entitled to the proceeds of the check.
“7. Such action by the Bank constitutes a conversion of funds which belong to plaintiff.
“[Ad damnum clause omitted.]”

The Bank moved to dismiss the complaint under A.R.Civ.P., Rule 12, as amended, on the grounds that none of the counts stated a claim for which relief could be granted and that each possible claim was barred by the applicable statute of limitations. The motion was granted, and judgment was entered for the bank. The debtor appeals. We reverse and remand.

A motion to dismiss, under Rule 12, A.R.Civ.P., should be granted only if it appears beyond a doubt that the plaintiff can prove no set of facts which would entitle her to relief. Dempsey v. Denman, 442 So.2d 63 (Ala.1983), quoting Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Roberts v. Meeks, 397 So.2d 111 (Ala.1981). When considering a motion to dismiss under A.R.Civ.P., Rule 12(b)(6), the pleadings should be construed by the trial court so as to do substantial justice. A.R. Civ.P., Rule 8(f). Our rules of civil procedure require only notice pleading, Dempsey v. Denman, supra; A.R.Civ.P., Rule 8(a). Strict rules of technicality and form may be disregarded. A.R.Civ.P., Rule 8, Committee Comments. A complaint is sufficient if it puts the defendant on notice of the actions against which it must defend.

In the present action, each of the counts stated a claim for which relief could be granted, and it was, therefore, reversible error to dismiss any one of them.

Section 7-9-507(1), Ala.Code 1975, gives the debtor the “right to recover from the secured party [the bank in this case] any loss caused by a failure to comply with the provisions of this part [§ 7-9-501, et seq.].” In Count One, the debtor alleges that the bank failed to provide timely and complete notice of the sale of the dozer, in violation of § 7-9-504(3) of the Alabama Code (1983 Supp.), which -requires that “reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor.” Specifically, the debtor alleges that the sale notice failed to state the time and place of the sale and was mailed only thirteen days before the sale date. This is sufficient to state a claim for relief under § 7-9-507(1).

Count Two also seeks damages under § 7-9-507(1). In this count, the debtor alleges that the sale price of $22,-000.00 for a dozer reportedly worth $40,-000.00 is commercially unreasonable. Section 7-9-504(3) mandates that “every aspect of the disposition [of the collateral] including the method, manner, time, place and terms must be commercially reasonable.” The price at which the collateral is sold is a term of the sale. The debtor has stated a claim in Count Two under § 7-9-507(1) for violation of provisions of § 7-9-504(3).

It is true that a low price is, of itself, insufficient to establish commercial unreasonableness. Ala.Code 1975, § 7-9-507(2); First Alabama Bank of Dothan v. Rikki Tikki Tavi, Inc., 445 So.2d 889 (Ala.1984). However, whether the debtor has established commercial unreasonableness is not the issue before us. Similarly, we need not determine whether the debtor has proven the other elements of her actions to recover under § 7-9-507(1). See First Alabama Bank of Dothan v. Rikki Tikki Tavi, supra, and First Alabama Bank of Montgomery v. Parsons, 426 So.2d 416 (Ala.1982). The issue before us is whether she has stated a claim upon which relief may be granted. This we answer in the affirmative.

In addition, it was error to grant the bank's motion to dismiss Counts One and Two on the grounds that these claims, filed on November 3, 1982, for violations occurring in May 1981, were barred by the one-year statute of limitations. The bank contends that these claims under § 7-9-507(1) are ex delicto, and barred by the one-year statute of limitations applicable to such actions. Ala.Code 1975, § 6-2-39(a) (5). We do not agree. The debtor correctly argues that this action is ex contractu, and is, therefore, governed by the six-year statute of limitations contained in § 6-2-34 (9), Ala.Code 1975 (actions upon a simple contract).

The requirements of § 7-9-504(3) are imposed by law upon every secured transaction covered by Article 9 of the U.C.C.; Ala.Code (1983 Supp.), § 7-9-501(3). By statute, they become terms of the security agreement. Breach of the notice requirement is breach of the contract. Therefore, the action under § 7-9-507(1) for damages for violation of these requirements is, in essence, a suit for breach of contract. The applicable statute of limitations is § 6-2-34(9). The actions contained in the first two counts were brought within one and a half years of the sale of the collateral, well within the six-year period of limitations, and are not time barred.

In the third count, the debtor alleges that the bank obtained payment of the deficiency remaining on the installment loan after the sale through fraud. It is well settled that one who pays more than he owes may recover the excess if the 'payment was involuntary or was procured through fraud, duress, or misrepresentation. H.A. Edwards Insurance Agency v. Jones, 242 Ala. 624, 7 So.2d 567 (1942); Bell v. Barnes, 238 Ala. 248, 190 So. 273 (1939); Roney v. Commercial Union Fire Insurance Co., 225 Ala. 367, 143 So. 571 (1932). See, also, Magness v. Loyola Federal Savings and Loan Association, 186 Md. 569, 47 A.2d 769 (1946); National Bank of Montana v. Bingham, 91 Mont. 62, 5 P.2d 554 (1931); Kilpatrick v. Germania Life Insurance Co., 183 N.Y. 163, 75 N.E. 1124 (1905); Manning v. Poling, 114 Iowa 20, 83 N.W. 895 (1900).

The debtor has stated a claim for which relief may be granted against the bank for recovery of the money the bank received through its allegedly fraudulent actions. The debtor alleges that she paid the bank more than was owed on the mortgage. It is alleged that the excess payment was procured through fraud and was. “required as part of the mortgage payoff.” Again, we need not determine whether the debtor has produced evidence which would entitle her to recover under this claim. We are reviewing the grant of a motion to dismiss, and the only question before us is whether the complaint alleges facts upon which relief may be granted.

In Count Four, the debtor seeks damages for the conversion by the bank of a check made payable to the debtor and the bank. The debtor alleges that the proceeds of the check belonged to her, as executrix for the estate, but that the bank wrongfully refused to endorse the check and turn it over to her.

To state a cause of action in conversion, the debtor must allege that she has a general or special title to, or the immediate right to possession of, the property in question, and that the bank has exercised dominion over her property to her exclusion or in defiance of her rights. McCain v. P.A. Partners, Ltd., 445 So.2d 271 (Ala.1984).

The bank argues that because the debtor is a co-payee on the check she has no superior right of possession to the check or its proceeds and, therefore, has no actionable claim for conversion.

“It is a general rule that a conversion action will not lie in favor of one coten-ant against another who has taken possession of the common property, unless it can be shown that the latter did so with an intent to appropriate it to himself or otherwise to deprive the plaintiff of its use or value. This doctrine is based on the theory that the foundation of the action is the right of possession and that where two or more persons are equally entitled to possession, the one who has it cannot be guilty of a conversion by retaining it. But the rule can have no reasonable application in respect of things that are readily divisible into portions absolutely alike in quality, such as grain, money, etc. As to such things, the general view is that the action will lie whenever a cotenant in possession uses more than his share or refuses to permit his eotenant to take his proper moiety. Thus, when a cotenant is entitled to demand a share of crops raised and wrongfully withheld or disposed of, the action may properly be one in tort for conversion.”

20 Am.Jur.2d Cotenancy and Joint Ownership, § 85 (1965).

This is also the law in Alabama. Gore v. Gore, 250 Ala. 417, 34 So.2d 580 (1948).

The debtor has stated a claim for conversion of the check and has brought the action within one year of the date of the alleged conversion. This is well within the applicable six-year period of limitations. Ala.Code.1975, § 6-2-34(3).

As to each count, it was error to grant the bank’s motion to dismiss. Accordingly, the judgment is reversed, and the cause remanded.

REVERSED AND REMANDED.

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


author: EMBRY, Justice.

text:
    Loyle Wayne SASSER v. SPARTAN FOODS SYSTEMS, INC., et al.
    82-961.
    Supreme Court of Alabama.
    June 1, 1984.
    J. Knox Argo and Laird R. Jones of Argo & Enslen, Montgomery, for appellant.
    Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, Montgomery, for ap-pellees.
   EMBRY, Justice.

This is an appeal from a decision rendered in a nonjury action involving consolidated cases. The two cases, styled Sasser v. Spartan Food Systems, Inc., Civil Action No. CV-82-658-P and Aronov v. Sas-ser, Civil Action No. CV-82-686-P, were consolidated, since they present a single issue for resolution: whether an easement claimed by Loyle Wayne Sasser remains valid and in existence. After hearing the case without a jury, the trial court found that the claimed easement was no longer valid or in existence. We affirm.

The facts of this case were submitted to the trial court by a joint stipulation which reads as follows:

“STIPULATED FACTS
“1. The easement in controversy was created by instrument dated March 22, 1949, whereby Robert and Jo M. Bonner granted to Richard and Elizabeth Duffell an easement for a right-of-way 25 feet in width along the north line of Lot 37, according to the plat of Primrose Heights, as recorded in Plat book 4 at page 58. This instrument further recited: ‘It is the purpose and intention hereof to provide a means of ingress and egress and space for water line and sewerage to and from Ann Street or to and from the proposed extension of Spruce Street to the property presently owned by the Grantees and to specifically define such right of way.’ ...
“2. In December 1949 the plat of Bonner Apartments, Inc. (then the owner of the property over which the Duffell easement crossed) was approved by the City of Montgomery and depicted the easement which was described as a ‘25’ easement for driveway to Duffell property.’ ... The Spruce Street extension referenced in the easement grant and shown on the plat was completed in approximately 1951. Through subsequent conveyances, L. Wayne Sasser became owner of the Duffell property (the Grantee of the easement). Through other conveyances hereafter described, Aaron Ar-onov, individually and as Trustee under certain trusts, became owner of a portion of the Bonner property (the Grantor of the easement).
“3. In the early 1960s the State of Alabama began acquiring, by purchase and by condemnation, property in the area of the land on which the easement existed for purposes of constructing Interstate Highway 85. After negotiations with the State, Bonner Apartments, Inc. conveyed to the State certain of its land, including the property over which the easement crossed....
“4. In 1966 the State began negotiations for acquisition of a portion of the Duffell property which was then owned by Georgette Mallet and Marcelle Brake Sasser. L. Wayne Sasser is the husband of Marcelle Brake Sasser who is now deceased. Georgette Mallet, who is also deceased, was the mother of Marcelle Brake Sasser. In connection with the acquisition of a portion of the Sasser property, an appraisal of the land that was to be acquired was prepared.... The Plaintiff strongly objects to the admissibility of the appraisal report as being barred by the Dead man’s Statute and is hearsay. The Defendant Aronov insists that the appraisal report is admissible. In the appraisal it is noted that the property owner had an easement off Spruce Street along the north property line but that this easement would be extinguished as a result of the proposed acquisition. The appraiser noted: ‘The acquisition will sever all egress and ingress off Spruce Street and the only egress and ingress will be from the dead end of Bay Street along the West property line.’ The appraisal further noted that, as a part of the taking, the State would provide a 20' wide, all-weather road and/or driveway from the dead end of Bay Street to the rear of the residence to provide a means of ingress and egress. The driveway from the dead end of Bay Street to the rear of the residence was constructed by the State of Alabama, Highway Department, and provides a means of ingress and egress to Bay Street from the residence at the present time.
“5. The State of Alabama and the owners of the Sasser property reached an agreement for conveyance of the property sought by the State and, on November 29, 1966, entered into an agreement wherein the land owners conveyed a portion of their property to the State in return for the sum of $6,175.00. This agreement ... was executed by Georgette C. Mallet and provided for a ‘partial taking of land and access.’ In connection with this conveyance, a warranty deed was executed on March 11, 1966, by Georgette Mallet, Marcelle Brake Sasser, and L. Wayne Sasser_ The deed contained the following terms:
“ ‘This conveyance is made for the purpose of a controlled access facility and adjacent service road or roads and the grantor hereby releases and relinquishes to the grantee any and all abutter’s rights appurtenant to grantor’s remaining property in and to said controlled access facility, provided however that there is hereby reserved [the right of ingress to and egress from the property to Bay Street].’
“6. In November 1968, the City Commission of Montgomery authorized the State of Alabama Highway Department to close permanently certain streets in connection with the 1-85 project, one of which was Spruce Street. Spruce Street was closed sometime between 1968 and 1971. On or before July 2, 1971, the State of Alabama erected a fence along the right of way of the on-ramp to 1-85 West. This fence denied access to Ann Street along the easement.
“7. In February 1976, Aaron Aronov, individually, and as Trustee under Trust ‘B’ of the Last Will and Testament of Herman Aronov and as Trustee under Trust ‘A’ of the last Will and Testament of Hilliard Aronov, purchased from the state of Alabama, Highway Department, that portion of the Bonner property over which the easement is claimed to exist. Aronov leased a portion of the property to Exxon Corporation, the successor in interest to Humble Oil & Refining Company, for erection of a sign. Thereafter, the property was leased to Spartan Foods, Inc. and a Quincy’s restaurant was erected on the property....”

As a general rule, when evidence is presented to a trial court sitting without a jury, its findings will be presumed correct and will not be reversed on appeal in the absence of plain and palpable error. Ford v. Alabama By-Products Corp., 392 So.2d 217 (Ala.1980). However, where the evidence before the trial court is undisputed, as in the present case, this court shall consider the evidence de novo, indulging no presumptions in favor of the trial court’s determinations. Stiles v. Brown, 380 So.2d 792 (Ala.1980).

The easement in question was created by express grant in an instrument of conveyance on 22 March 1949. By the terms of the instrument, the easement traverses the “Bonner” property, providing a means of ingress to and egress from the “Duffell” property. Obviously, the “Bonner” property is a servient tenement and the “Duffell” property a dominant tenement. Accordingly, the trial court correctly found the easement in question to be an easement appurtenant. See 28 C.J.S. Easements, § 4 (1941).

In order to determine whether the easement claimed by Sasser remains valid and in existence, it is first necessary to look to the terms of the conveying instrument so as to determine the intent of the parties. Financial Investment Corp. v. Tukabatchee Area Council, Inc., Boy Scouts of America, 353 So.2d 1389 (Ala.1977).

The stated purpose of the conveyance is to provide a means of ingress and egress “to and from Ann Street or to and from the proposed extension of Spruce Street.” (Emphasis added.) The use of the word or evidences an intent by the parties to create only one easement. Likewise, the reference to the proposed extension of Spruce Street denotes that the parties knew the extension of Spruce Street would necessarily intersect with the metes and bounds of the easement described in the instrument. Accordingly, if the proposed extension of Spruce Street was constructed, any easement running along a metes and bounds description contained in the conveyancing instrument would first intersect with Spruce Street, not Ann Street. We must conclude that the intention of the parties as evidenced by the terms of the entire conveyance was to provide a means of ingress to and egress from the “Duffell” property to the closest dedicated street to the east. Thus, when the proposed extension of Spruce Street became a reality, the easement in question ran only to Spruce Street, and not to Ann Street.

Sasser contends that once the Spruce Street extension was closed, under the terms of the conveyance, an easement running from the “Duffell” property to Ann Street continued in existence. We do not agree.

As we have indicated earlier, once the contemplated Spruce Street extension was constructed, the easement in question ran only from the “Duffell” property to the closest dedicated street to the east, Spruce Street. Accordingly, the superfluous portion of the easement running from Spruce Street to Ann Street was extinguished by the terms of the conveyance as well as by operation of law.

The general rule is that an easement which is given for a specific purpose terminates as soon as such purpose ceases to exist, is abandoned, or is rendered impossible of accomplishment. See e.g., Trustees of Howard College v. McNabb, 288 Ala. 564, 574, 263 So.2d 664 (1972). Once the Spruce Street extension was completed, the purpose of providing a means of ingress to and egress from the “Duffell” property to Ann Street ceased to exist, since Spruce Street became the closest dedicated street to the east. Accordingly, the easement extending from the “Duffell” property to Ann Street was forever extinguished. See 25 Am.Jur.2d Easements and Licenses, § 114 (1966).

Similarly, once the Spruce Street extension was closed, the existing easement from the “Duffell” property to Spruce Street was forever extinguished. See Trustees of Howard College v. McNabb, supra.

Accordingly, the judgment of the trial court is due to be, and it is hereby, affirmed.

AFFIRMED.

TORBERT, C.J., and FAULKNER, AL-MON and ADAMS, JJ., concur.


text:
    RUSSELLVILLE FLOWER CRAFT, INC. v. Olen SEARCY.
    82-1188.
    Supreme Court of Alabama.
    June 1, 1984.

      William M. Bouldin of Guin, Bouldin & Alexander, Russellville, for appellant.
    Eddie Beason of Fine & Associates, Rus-sellville, for appellee.
   EMBRY, Justice.

Appellant-defendant, Russellville Flower Craft, Inc. (Flower Craft), was found by a jury to be liable to appellee-plaintiff, Olen Searcy, for breach of a written contract for the lease of motor vehicles. Damages to Searcy were assessed by the jury and judgment was entered by the trial court in accordance with the jury’s verdict. Flower Craft appeals from that judgment.

Facts

Olen Searcy began, in approximately 1954, to lease trucks to Flower Craft for the transportation of artificial flowers and floral supplies to various locations. During the period between 1954 and 1971, the parties operated pursuant to an oral contract. The parties first entered into a written contract in 1971. In October of 1973, Sear-cy and Flower Craft entered- into a written agreement that Searcy provide for Flower Craft the use of six (6) vehicles. Payment to Searcy was to be made according to the mileage. The contract guaranteed mileage of 325,000 at a rate of twenty-six cents per mile with some provisions for fluctuations in fuel prices.

Flower Craft terminated the lease in October of 1974 when 281,076 miles had been logged on the trucks and paid for by Flower Craft. Searcy sued to recover monies he contended were due him under the guaranteed mileage clause.

At trial, the central dispute between the parties was whether the 1973 contract between Searcy and Flower Craft provided the trucks were to be used exclusively by Flower Craft. Flower Craft contended Se-arcy had breached their agreement by “backhauling,” the practice of loading the trucks with goods belonging to other merchants for the return trips. Searcy contended the contract was not exclusive and allowed for this practice.

I

The first, and primary, issue raised by Flower Craft on appeal is whether the trial court erred by admitting extrinsic evidence to aid in the interpretation of the 1973 written contract.

It is axiomatic that rulings as to the admissibility of evidence rest largely within the discretion of the trial court. Such rulings will not be disturbed on appeal in the absence of a gross abuse of discretion. Dorcal, Inc. v. Xerox, 398 So.2d 665 (Ala.1981). We conclude that there was, in this case, no such abuse of discretion by the trial court.

While the trial court made no express finding that the contract was ambiguous, it, over objection by Flower Craft, allowed evidence regarding prior and subsequent contracts to be admitted to clarify the issue of exclusivity. In cases where there is no express finding by the trial court on a necessary matter, this court will presume such a finding was made if supported by the evidence. Matter of Estate of Amason, 369 So.2d 786 (Ala.1979); White v. White, 350 So.2d 326 (Ala.1977). The record reveals that, at least as to the practice of “backhauling,” the 1973 contract was ambiguous.

The record further reveals that extrinsic evidence was admitted for a limited purpose and the jury was adequately instructed that that evidence was to be considered in order to determine the intention of the parties in entering into the 1973 contract, and only for that limited purpose. For instance, the jury was instructed as follows regarding their proper consideration of the 1971 contract offered by the plaintiff as evidence:

“There were 2 other contracts that were offered in evidence, and I want to instruct you that the case is based upon Plaintiffs Exhibit 1, that contract. There are 2 other contracts. There’s Plaintiff’s Exhibit 2, and Plaintiff’s Exhibit 5. Ladies and gentlemen, I want to tell you that Plaintiff’s Exhibit 5 was limited. That is, the contract dated January 1, 1971, and it is admitted into evidence for a very limited purpose. You are to consider that in the light of what was the dealings between the parties, what was there gives you some information concerning their background and théir common in dealing with one another, but it is not what the lawsuit is based on. It is Plaintiff’s Exhibit 1 that the lawsuit arises over, and so you are only to consider Plaintiff’s Exhibit 5 for that limited purpose.”

A more involved instruction was given the jury regarding the proper consideration of other extrinsic evidence admitted by the trial court:

“Ladies and gentlemen, there is here an issue concerning the interpretation of the contract, or what does it mean, or what do certain provisions of the contract mean. What did the parties intend when they entered into this contract? Obviously, the contract speaks for itself and is in evidence. Ladies and gentlemen, the intent of the parties to a contract is determined by considering the relationship of the parties and what they said and what they did in all the surrounding circumstances. You will consider the nature of the contract, facts and circumstances leading up to the execution and attending the execution of the contract. The relation and condition of the party. The nature and condition of the subject matter, and the apparent purpose for making the contract. From a careful consideration of all of these matters, ladies and gentlemen, you will determine from the evidence the intention of the parties at the time of the execution of the contract, and render a verdict based upon the intention of the parties. You will not attempt to alter the expressed intentions of the parties if they are clear and unambiguous. A person’s secret intention in this section has no bearing, and only the intent that is indicated by his words and acts may be considered by you. Ladies and gentlemen, stated another way, if the words and the language of the contract are ambiguous or uncertain in any respect, then the surrounding circumstances including the construction placed on the language by the parties are to be taken into consideration by you so as to carry out the intention of the parties. Circumstances surrounding the contract are only considered when the terms are ambiguous and any ambiguity should be interpreted against the party drawing the contract, if the circumstances surrounding the contract do not make the terms of the contract clear.”

Taken as a whole, the record reveals the trial court properly determined the 1973 contract was ambiguous regarding the practice by the plaintiff of “backhauling,” and the trial court properly admitted extrinsic evidence for the limited purpose of determining the intention of the parties where the terms of the contract at issue were ambiguous.

II

Second, Flower Craft contends the trial court erred by instructing the jury that it was to determine whether the contract was ambiguous. Where there is no conflict in the evidence as to what the terms of a contract are, its construction is for the court. However, when a contract is found to be ambiguous, but not void for uncertainty, it is within the province of the jury to ascertain the facts and draw inferences from them to determine the meaning of the contract. See McFadden v. Henderson, 128 Ala. 221, 29 So. 640 (1901); and Dunlap v. Macke, 233 Ala. 297, 171 So. 721 (1937). It is clear from the trial court’s evidentiary rulings that it determined certain terms of the 1973 contract were ambiguous. Therefore, it properly submitted the issue of its construction to the jury.

m

Third, Flower Craft argues the trial court erred by commenting on the evidence to the jury. Certainly the trial court cannot charge the jury upon the effect of the evidence. Bolton v. State, 23 Ala.App. 470, 127 So. 255 (1930).

Specifically, Flower Craft complains of the trial court’s instruction to the jury that “[t]he whole contract is in evidence, but I direct your attention to the provisions contained under Sec. VIII and sub Sec. b and d of the contract. Plaintiff’s Exhibit ‘1,’ dated October 15, 1983.” These sections of the contract provide that Searcy was to be paid twenty-six cents per mile for a minimum of 325,000 miles. Flower Craft contends that, because those were the contractual clauses on which the plaintiff mainly relied, that particular instruction to the jury was a charge on the effect of the evidence violative of § 12-16-11, Code 1975.

We are not convinced by Flower Craft’s argument that the trial court’s instruction indicated bias or constituted a direction to the jury as to what their findings on the issue presented should be.

While Searcy’s case against Flower Craft was clearly based on those clauses of the contract pointed out by the trial court, the record reveals the primary issue at trial was whether Searcy had breached an exclusive lease agreement with Flower Craft by “backhauling” so that Flower Craft was not liable to Searcy for the amounts complained of. The jury was instructed: “the first issue for your determination is whether there was performance under the terms of that contract by the Plaintiff, the Plaintiff being Olen Searcy.” It is clear to this court that, when considered in light of the entire record, the charge to the jury whereby the trial court drew its attention to specific portions of the contract relied on by the plaintiff created no discernible prejudice against Flower Craft, and did not constitute a comment on the evidence by the trial court.

Because the record before this court reveals no reversible error, the judgment of the court below is due to be, and it is hereby, affirmed.

AFFIRMED.

TORBERT, C.J., and FAULKNER, AL-MON and ADAMS, JJ., concur.


author: MADDOX, Justice.

text:
    ST. PAUL TITLE INSURANCE CORPORATION, as Subrogee of GECC Financial Services v. Albert Moore OWEN, et al.
    82-1293.
    Supreme Court of Alabama.
    June 1, 1984.

      Thomas P. Ollinger, Jr. of Wilkins & Druhan, Mobile, for appellant.
    E.E. Ball and David A. Simon of Owen & Ball, Bay Minette, for appellees.
   MADDOX, Justice.

The question here is what liability do grantors have to remote grantees or their assigns under a warranty deed and a statutory warranty deed where certain covenants of title contained in the deeds are found to run with the land?

On February 18, 1976, Albert M. Owen, an unmarried man, executed a warranty deed purporting to convey certain real property in Baldwin County to his brother and sister-in-law, James R. Owen, Jr., and Cheryl C. Owen. The deed, which was recorded on March 8, 1976, in Baldwin County, contained the following covenants of title:

“The party of the first part [Albert Owen] for himself, his heirs, executors and administrators, hereby covenants and warrants to and with the said parties of the second part [James and Cheryl Owen], their heirs and assigns, that he is seized of an indefeasible estate in and to the said property; that he has a good right to convey the same as herein contained; that he will guarantee the peaceable possession thereof; that the said property is free from all liens and encumbrances, and that he will, and his heirs, executors and administrators will foreever warrant and defend the same unto the said parties of the second part, their heirs and assigns, against the lawful claims of all persons.”

The warranty deed form was obtained from the law office of James R. Owen, Sr., the father of Albert and James Owen.

Subsequently, James and Cheryl Owen conveyed the Baldwin County property, purportedly conveyed to them, by statutory warranty deed to Dennis C. Carlisle Jr., the brother of Cheryl Owén. The property was conveyed June 6, 1976, and the deed recorded in Baldwin County on July 14, 1976.

On June 10, 1976, Dennis Carlisle mortgaged the property to United Companies Mortgage and Investment of Mobile # 2, Inc., for $17,159.52. This mortgage was recorded on July 14, 1976, in both Mobile and Baldwin counties.

Dennis Carlisle mortgaged the property to GECC Financial Services (GECC) for $17,671.29, on November 8, 1977, apparently substituting mortgages and paying off the original mortgage. The mortgage to GECC was recorded in Baldwin County and a policy of title insurance naming GECC as the insured was issued shortly thereafter by Eastern Shore Title Insurance Corp., of Daphne, the agent for St. Paul Title Insurance Corp. (St. Paul Title). The title insurance was issued at the request of Dennis Carlisle.

When Dennis Carlisle subsequently defaulted on his mortgage payments, GECC attempted to foreclose on the property. The Circuit Court of Baldwin County found, however, that because Dennis Car-lisle held no right, title, or interest in or to any of the property on the day the mortgage was executed, GECC was not entitled to foreclose on the property. GECC then brought suit against St. Paul Title, to collect its debt, and in addition the costs of litigation involved, all as provided for under the terms of the title insurance policy.

St. Paul Title, as subrogee of GECC, then filed a complaint against Albert Owen, James R. Owen, Jr., and Cheryl Owne, wherein St. Paul alleged that they had breached the covenants of title contained in the deeds executed and delivered by them. The trial court, after a non-jury trial, entered a judgment on behalf of the defendants. St. Paul appeals.

I. The Liability of Albert Owen under the express covenants of title contained in his warranty deed.

The deed executed by Albert Owen, an unmarried man, purporting to convey property to James and Cheryl Owen, contained the following express covenants of title: a covenant of seizin; a covenant of right to convey; a covenant for quiet enjoyment; a covenant against encumbrances; and a covenant of warranty. See Wolff v. Woodruff 258 Ala. 1, 61 So.2d 69 (1952); Blaum v. May, 245 Ala. 156, 16 So.2d 329 (1944); Russell v. Belsher, 221 Ala. 360, 128 So. 452 (1930); Mackintosh v. Stewart, 181 Ala. 328, 61 So. 956 (1913); Tuskegee Land & Security Co. v. Birmingham Realty Co., 161 Ala. 542, 49 So. 378 (1909). See also 21 C.J.S. Covenants §§ 40, 41, 42, 45 and 47 (1940). Of these covenants, however, only the covenants of quiet enjoyment and warranty are said to operate in futuro for the benefit of the ultimate grantee. Musgrove v. Cordova Coal, Land & Improvement Co., 191 Ala. 419, 422, 67 So. 582, 583 (1914). Until broken, these two covenants run with the land to the heirs of the grantee, or if the land is conveyed or assigned, to the assign-ee, so that when they are broken, the heir or assignee injured by the breach can maintain an action against the covenantor. 20 Am.Jur.2d, Covenants, Conditions, Etc., § 51 (1965), Cummings v. Alexander, 233 Ala. 10, 169 So. 310 (1936); Prestwood v. McGowin, 128 Ala. 267, 29 So. 386 (1900). Thus, it is generally recognized and held that when a covenant of title runs with the land, all grantors, back to and including the original grantor-covenantor, become liable upon a breach of the covenant to the as-signee or grantee in possession or entitled to the possession at the time, and the latter may sue the original or remote grantor, regardless of whether he has taken from the immediate grantor with a warranty. 21 Am.Jur.2d, Covenants, Conditions, Etc. § 119 (1965).

Because the covenants of quiet enjoyment and of warranty are virtually identical in operation, whatever constitutes a breach of one covenant is a breach of the other. Prestwood v. McGowin, supra, 128 Ala. at 272, 29 So. at 388; 20 Am.Jur.2d, Covenants, Conditions, Etc. § 50 (1965). Neither covenant is breached until there is an eviction under paramount title. Blaum v. May, supra, 245 Ala. at 158, 16 So.2d at 331. The eviction may be either actual or constructive. Prestwood v. McGowin, supra, 128 Ala. at 272, 29 So. at 388.

It has been said that an outstanding title that could be asserted in a judicial proceeding against the party in possession is equivalent to an eviction. Musgrove v. Cordova Coal, Land & Improvement Co., 191 Ala. at 423, 67 So. at 583. Likewise, a final judgment or decree adverse to the covenantee’s title or right to possession constitutes a sufficient constructive eviction to entitle the covenantee to sue for breach of the covenant of warranty. 20 Am.Jur.2d, Covenants, Conditions, Etc., § 62 (1965).

Here, the breach occurred when the trial court ruled in the foreclosure proceedings that Dennis Carlisle possessed no interest in the property which had been mortgaged, thereby frustrating GECC’s attempt to foreclose on the property purportedly conveyed to Carlisle in fee simple.

We hold that the covenant of quiet enjoyment and warranty provided by the terms of the warranty deed executed by Albert Owen ran with the land purportedly conveyed by that instrument. We further hold that because someone other than the original grantor-covenantor in fact possessed paramount title, appellant is entitled to assert a claim for the breach of the covenants of title, as its subrogor was the ultimate grantee or assignee who was in possession at the time the covenants were broken.

II. The liability of James and Cheryl Owen under the covenants of title contained in their statutory warranty deed.

The deed executed by James and Cheryl Owen contained no express covenants of title, but it did use the words, “grant, bargain, sell and convey.” In all conveyances of estates in fee where the words “grant, bargain, and sell” appear, the deed is construed by statute as containing the following covenants of title: a covenant of seizin; a covenant against encumbrances; and a covenant of quiet enjoyment. Code 1975, § 35-4-271.

Appellant asserts that James and Cheryl Owen are liable for a breach of the implied covenant of quiet enjoyment contained in the statutory warranty deed, and that such a covenant runs with the land so as to benefit a remote grantee or assign. Unlike the express covenants of title found in a general warranty deed, however, the implied covenants of title contained in a statutory warranty deed are more limited in effect.

In the early case of Heflin v. Phillips, 96 Ala. 561, 11 So. 729 (1892), the Court noted: “In construing this statute [predecessor of § 35-4-271] this Court declared that the words ‘grant, bargain, sell’ do not import an absolute general covenant of seizin against incumbrances and for quiet enjoyment, but that they amount to a covenant only against acts done or suffered by the grantor and his heirs.” 96 Ala. at 562, 11 So. 730. (Emphasis added.) See also Griffin v. Reynolds, 17 Ala. 198 (1850). More than twenty years after Heflin, the Court remarked: “All authorities hold that the covenants implied by statute are limited to the acts of the grantor and those claiming under him, and do not extend to defects of title anterior to the conveyance to him.” Mackintosh v. Stewart, 181 Ala. 328, 333, 61 So. 956, 958 (1913).

In Mackintosh, the immediate grantee (Stewart), prevailed in enforcing the implied warranty of seizin contained in a statutory warranty deed against the grantor (Mackintosh). The grantor had allowed part of the subject property to be adversely possessed during his period of ownership. Although the grantee succeeded in showing that adverse possession took place at least partially during the period in which the grantor held title to the property, the Court suggested the outcome of the case could have been different had the grantor pleaded and proved that adverse possession had ripened into title prior to the grantor’s laying claim to the subject property. 181 Ala. at 337, 61 So. at 959. This result would have ensued in that instance, because the defect in the title would have been anterior to the conveyance to Mackintosh by his grantor. Although Mackintosh would have been without good title to convey to Stewart, Mackintosh would not have been liable to Stewart under the statutory warranty deed’s inplied covenants of title because Mackintosh would not have suffered or caused any of the title problems.

James and Cheryl Owen conveyed their complete, albeit non-existent interest, in the subject property to Dennis Carlisle by statutory warranty deed. By so doing, they merely warranted that they had not conveyed title to anyone else; that they had not allowed the property to become encumbered while they held purported title; and that they had not caused or suffered anyone to do anything that would interfere with the property’s quiet enjoyment by the grantee, the grantee’s heirs or assigns. Because the record indicates that James and Cheryl did nothing to affect the purported title they conveyed, they did not breach any of the covenants of title contained in the statutory warranty deed delivered to Dennis Carlisle and are therefore not liable to the appellant, as subrogee of GECC.

III. Damages for breach of covenants of title.

Appellant asserts that it is entitled to recover, as damages, the amount of mortgage proceeds paid to Dennis Carlisle by its subrogor, plus litigation costs and interest. Appellant further contends its recovery should neither be barred nor be limited to merely nominal damages, even though appellees received no consideration for their conveyances.

In situations where there has been a complete failure of title and a grantee has sought recovery from his immediate grantor, the maximum recovery allowed has been the purchase price paid. Allinder v. Bessemer C.I. & L. Co., 164 Ala. 275, 277, 51 So. 234, 235 (1909). With respect to an action against a remote grantor, however, there appears to be a difference of opinion as to whether damages are to be determined by the consideration paid by the grantee bringing the suit to his immediate grantor or by the consideration paid to the original grantor or covenantor, not exceeding in either case, however, the consideration paid for the conveyance by the defendant in the action. 20 Am.Jur.2d Covenants, Conditions, Etc., § 163 (1965). Here, however, the facts indicate that no consideration was ever paid to or received by any of the appellees, Albert Moore Owen, James R. Owen, Jr., or Cheryl C. Owen. Consequently, since there was no evidence that the remote grantors received any consideration for their conveyances purportedly conveying title to the subject property, appellant, as subrogee of GECC, is entitled to an award of nominal damages only, for the breach of the covenant of quiet enjoyment contained in Albert Owen’s deed, and not the amount of the mortgage made by GECC. See 20 Am. Jur.2d Covenants, Conditions, Etc., § 163 (1965). Furthermore, appellant is not entitled to recover an award of legal fees under the covenant of warranty by Albert Owen to defend the title of the grantee and his successor against all lawful claims. In Chicago, Mobile Development Co. v. G.C. Coggin Co., 259 Ala. 152, 66 So.2d 151 (1953), the Court held:

“The duty to warrant and defend the title conveyed to the [grantees] against the lawful claims of all persons does not justify a charge for attorneys’ fees whenever that title is brought into question in a court proceeding. As we have shown, it is no more than a warranty for quiet enjoyment. There is no authority which holds, so far as we can find, that under that warranty a duty arises to pay the expenses of litigation whenever that title is involved, but only in a suit with the claimant of an outstanding superior right, usually seeking to obtain possession in order to profit by that right. But even on the theory insisted on by the [grantees], this suit did not seek to call into question their warranty to complainant. Complainant neither sought nor obtained a decree against the [grantees] nor a decision as to any right against them on their warranty. But if it had done so, the warranty of appellant to defend them did not cover such a situation so far as we are able to discover in the law. No such authority has come to our attention. On the other hand, there is authority opposed to that theory. 21 C.J.S., Covenants, § 150, p. 1030, note 84. The cases noted are directly in point. Smith v. Nussbaum, Mo.App., 71 S.W.2d 82, 87; Myers v. Munson, 65 Iowa 423, 21 N.W. 759; see, 61 A.L.R. 167 et seq.”

259 Ala. at 162, 66 So.2d at 158.

The facts of this ease reveal that the legal actions here were not an attack on title by a third party possessing paramount title, but instead, were instigated by appellant or its subrogor, GECC. Thus, attorneys’ fees in this instance are precluded under Chicago, Mobile Development Co. v. G.C. Coggin Co., supra.

The judgment of the trial court is hereby reversed and the cause remanded to that court for a determination of the amount of nominal damages appellant is entitled to recover as consistent with the holding of this opinion.

REVERSED AND REMANDED.

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

      . The deed provided that "... the Grantee, does hereby Grant, Bargain, Sell and Convey unto said Grantee ....”