author: PRATHER, Justice,

text:
    FIRST NATIONAL BANK OF JACKSON, Mississippi v. Willie E. HUFF, et al.
    No. 53585.
    Supreme Court of Mississippi.
    Nov. 23, 1983.
    Stuart Robinson and Robert C. Grenfell, Jackson, for appellant.
    E. Stephen Williams and Young, Scanlon & Sessums, Jackson, for appellees.
    Before PATTERSON, ROY NOBLE LEE and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

Willie E. Huff filed this suit in Hinds County Chancery Court First Judicial District, to reinstate real estate trust deed executed by James E. Barrett in Huff’s favor which was mistakenly cancelled of record by the First National Bank of Jackson (Bank). The Bank, the heirs of James E. Barrett, deceased, and Charles W. Taylor, et ux., the purchasers from the Bar-retts, were named defendants. After paying the amount of the trust deed wrongfully cancelled by it, the Bank seeks through its cross-bill to be subrogated to Huff’s rights and to have the lien of the trust deed reinstated and foreclosed. From an adverse ruling on its cross-bill, the Bank appeals assigning as error that the trial court erred (1) in denying the bank its right to be subrogated to Huff’s position because of its own negligence and (2) in failing to establish a constructive trust and equitable lien in favor of the Bank against the Taylors’ deed of trust to the Barrett heirs.

I.

On November 23, 1973, Willie Huff sold 19.7 acres of land in Hinds County to James Barrett and Eugene Fowler. In return, Barrett and Fowler executed a promissory note and a deed of trust to Willie Huff in the amount of $29,947 as partial consideration for the purchase of the property. Thereafter in a totally different transaction on July 1, 1974, Willie Huff borrowed $12,-000 from the First National Bank of Jackson, and as security for this loan, the bank required that Huff assign the Barrett-Fowler note and deed of trust. On November 1, 1974, Fowler conveyed to Barrett his interest in the 19.7 acres of land, and Barrett assumed the Barrett-Fowler note and deed of trust originally due to Willie Huff, but now assigned to the First National Bank of Jackson.

On March 2,1977, Willie Huff paid in full his $12,000 note with the bank. Upon payment of this note a bank employee mistakenly cancelled the Barrett-Fowler deed of trust given to the bank as security. This was done on March 7, 1977.

Mr. Barrett had made the monthly payment from 1973, and had continued to make monthly payments on the promissory note to Willie Huff until his death on June 8, 1977. Barrett’s widow, Mrs. Louis Barrett, continued to make the monthly payments through her husband’s estate after his death.

Mrs. Louise Barrett probated her husband’s will on July 5,1977. The first publication of the notice to creditors to probate claims in Barrett’s estate was published on July 18, 1977, causing all claims against Barrett’s estate to be filed within the 90 day period ending October 18, 1977. During this 90 day period, Willie Huff made no attempt to probate his claim against Barrett’s estate since the monthly payments on the promissory note were being kept current by Mrs. Louise Barrett, and Huff’s ignorance of the mistaken cancellation of record.

On December 1, 1977, Mrs. Barrett made a payment to Willie Huff on the note, but discontinued them thereafter on her attorney’s advice to cease making payments. The advice was based upon the fact that the 90 day period for probating claims had expired and the deed of trust securing the note had been cancelled by the bank. It was after this discontinuance of payments that the bank’s error in cancelling the Barrett deed of trust was discovered. On March 14, 1978, Harris Collier, Vice President with the bank, wrote to the Barrett estate attorney and asked him to consult with Mrs. Barrett about having the deed of trust reinstated and the past due note payments brought current. The request of the bank was reported to Mrs. Barrett, but she communicated her refusal by letter dated March 20, 1978.

Mrs. Barrett entered into a contract on March 29,1978, for the sale of the 19.7 acres of land to the Taylors. A chancery court order authorizing the administratrix to sell this property was entered on April 20,1978, and the executrix did convey the property to the Taylors on April 28, 1978, for a purchase price of $75,000. In return, the Taylors executed a deed of trust for the benefit of the Barrett estate, securing a promissory note in the amount of $56,250.

Since Mrs. Barrett discontinued her monthly payments on the note, Willie Huff sued the First National Bank on January 19, 1979, in the Circuit Court of Hinds County for negligence in cancelling the Barrett deed of trust in March of 1977. On February 20,1979, the estate of James Barrett was closed, and on March 1, 1979, the administratrix assigned the balance due on the Taylor note to herself individually.

On April 8, 1980, a judgment was rendered in favor of Willie Huff against the First National Bank for wrongful cancellation of the Barrett deed of trust. The amount of the jury award was $28,583.53 as damages for the unpaid principal and interest owed on the Barrett deed of trust to Willie Huff. Additionally, $15,000 was awarded for general damages against the bank making a total judgment of $43,583.53 in Huff’s favor.

On April 22, 1980, Huff filed the present lawsuit in the Chancery Court of the First Judicial District of Hinds County requesting that the Barrett deed of trust be reinstated and the Taylor deed of trust be subordinated to the Barrett deed of trust and the Barrett deed of trust be foreclosed. The defendant parties to this chancery action included Mrs. Barrett, the Taylors, the bank, and the two trustees in the two deeds of trust. After the filing of this chancery suit on June 9, 1980, the First National Bank paid the judgment awarded to Huff in the circuit court action (and did not appeal). However, the bank did file a cross-bill in the chancery court matter seeking subrogation of all rights and claims Huff had against the remaining defendants since the bank had now paid the obligation under the Barrett note and deed of trust. The bank requested the court to impose a constructive trust or equitable lien in favor of the bank as to the Taylor deed of trust. At the trial neither Huff nor his counsel appeared. The only disputed matter remaining was the bank’s cross-bill for subro-gation and establishment of a trust.

The chancellor held that the bank was not entitled to the equitable doctrine of subrogation since it had paid the Barrett obligation as a result of its own negligence. Further, the trial court concluded that even so, Huff had lost all his rights since the security of the trust deed was cancelled of record by the bank and the unsecured claim of the promissory note was not probated in the estate. Therefore, the bank’s cross-bill was dismissed.

II.

Is the bank entitled to be subrogated to Huff’s position where it paid a debt caused by its own negligence?

Subrogation has been defined as the “substitution of one person in place of another, whether as a creditor or as the possessor of any rightful claim so that he who is substituted succeeds to the rights of the other in relation to the debt or claim, and its rights, remedies, or securities. Words and Phrases Vol. 7, p. 6722.” Trust Company v. Peters, 72 Miss. 1058, 18 So. 497, 30 L.R.A. 829.

The equitable doctrine of subrogation applies whenever any person, other than a mere volunteer, pays a debt or demand which in equity and good conscience should have been paid by another, or where one finds it necessary for his own protection to pay the debt for which another is liable. Prestridge v. Lazar, 132 Miss. 168, 95 So. 837 (1923).

However, subrogation cannot be invoked by one who has been required to pay the debt of another when the requirement was caused by his own wrongful conduct and when to require the debtor to pay under the peculiar circumstances of the case, would be unjust to the debtor. Lyon et al. v. Colonial United States Mortgage Company, 129 Miss. 54, 91 So. 708 (1922). The conduct described in the Lyon case, supra, suggests wrongful conduct as precluding equitable relief.

The determination of whether sub-rogation is applicable is a factual determination of each particular case with consideration of fairness and justice as its guiding principles. Some other jurisdictions do not bar the application of subrogation for negligence alone. Accord, Castleman Construction Company v. Pennington, 222 Tenn. 82, 432 S.W.2d 669 (1968) (ordinary negligence alone will not be a complete bar to subrogation where in spite of such negligence the equities are still in favor of the subrogee); Federal Land Bank v. Joynes, 179 Va. 394, 18 S.E.2d 917 (1942) (negligence should be chiefly of significance when there are subsequently intervening rights involved which would be prejudiced if subrogation were allowed); Home Owners’ Loan Corp. v. Papara, 241 Wis. 112, 3 ,N.W.2d 730 (1942) (where debtors received benefit in payment of existing mortgage against their interests and none of them has changed his position by reason of said payment, subrogation would be invoked in spite of negligence of payor); G. Osborne, Handbook on the Law of Mortgages, 572 (2d Ed.1970) (where no one has been misled or injured thereby, negligence of any sort should be entirely immaterial).

In the instant case, Mr. Huff has collected his contract price for the 19.7 acres he sold. In turn, Mrs. Barrett has however received both cash and the Taylor promissory note for the value of the 19.7 acres of land without paying the substantial portion of the original obligation on the property. And, the bank has paid $24,-685.01 in principal, plus interest of $3,398.52 which Barrett was obligated to pay Huff and additionally $15,500.00 damages. Certainly, the equities are in favor of the bank as opposed to Mrs. Barrett since she has been unjustly enriched. Under the Lyon case, supra, subrogation may be barred if two conditions occur: (1) wrongful conduct by the subrogee, and (2) injustice to the debtor. Under these facts we see no injustice to the Barretts. As a result, the bank should have been allowed any rights which the doctrine of subrogation could provide. We hold that ordinary negligence will not per se bar subrogation, and that the bank is entitled to subrogation to Huffs position.

m.

The second issue to be considered is what claim or rights the bank has as a subrogee. In such situations, the subrogee is substituted in place of the creditor (Huff) and is entitled to assert any rights that the latter may have had by way of proceeding against the debtor (Barrett). Stribling Brothers Corp. v. Euclid Memphis Sales, 235 So.2d 239 (Miss.1970); Restatement of Restitution § 162 (1937). An analysis of Huffs rights is necessary.

The appellees claim that Huff has no rights against Mrs. Barrett because he failed to probate his claim against the Barrett estate within the time period prescribed by section 91-7-151 of the Mississippi Code Annotated (Supp.1982). That section provides in pertinent part that:

All claims against the estate of deceased persons, whether due or not, shall be registered, probated and allowed in the court in which the letters testamentary or of administration were granted within ninety (90) days after the first publication of notice to creditors to present their claim. Otherwise, the same shall be barred and a suit shall not be maintained thereon in any court, even though the existence of the claim may have been known to the executor or administrator.

However, section 91-7-151 must be read in conjunction with section 91-7-167 of the Mississippi Code Annotated (1972), which provides the following qualification of section 91-7-151:

A creditor of a decedent who has a lien of any kind on property of the decedent shall not be barred of his right to enforce the lien against the property by a failure to present his claim and have it probated and registered, but shall be barred of all claim to be satisfied out of the assets not affected by such lien....

If Huff, (and the bank as its subrogee) had a lien, legal or equitable, against this property, his cause of action would still be viable.

Huff’s right of action to correct this inequity arose at the time of the cancellation of trust deed, and at that time he would have been entitled to reinstate the deed of trust to prevent unjust enrichment of Barrett. A constructive trust and equitable lien arose by operation of law at that point in time. The real estate was then burdened with a constructive trust and equitable lien.

[T]he trust was not created by the decree of the court below declaring its existence, as contended by appellant, but the lien of the trust arose by operation of law from the misapplication of the funds by the testator in acquiring the particular property, and existed from the time of such misappropriation, and the heirs and devi-sees acquired and held the property subject to the trust. The statute authorizes the enforcement of any and every kind of lien against the particular property affected thereby, without the necessity of probating the claim, and, in the absence of intervening rights of a bona fide purchaser for value without notice, the lien of the trust impressed upon the property here involved may be enforced against the property, without first probating the claim against the decedent’s estate. [Sandy, et al v. Crump, 139 Miss. 163, 103 So. 804 (1925)].

At Barrett’s death, his heirs inherited the land subject to the same trust and lien. Huff’s election to probate and register the promissory note in the estate was not pursued and was lost at the end of the ninety (90) day limitation period. However, the election to pursue the trust or lien establishment against the specific real estate was still available under section 91-7-151 as that statute applies to “liens of any kind” and provides that those liens are not barred within the ninety (90) day period. Huff sought in this chancery suit to “reinstate” the trust deed of record, and he clearly would have been entitled to relief, as against the estate, under the authority of Sandy, supra, and also Box v. Early, 181 Miss. 19, 178 So. 793 (1938), which states:

Neither does the presumption that a lien secured by a deed of trust is extinguished by the cancellation thereof on the record, nor the presumption of payment that arises from the possession by the makers of a note and deed of trust given to evidence a purchase money or other lien, prevent a court of equity from reviving and enforcing the lien, where there are no intervening equities, when necessary to do so in order that right and justice may prevail. (181 Miss, at 32, 178 So. at 796)

Haraway v. Planters Agricultural Credit Corporation, 178 Miss. 489, 173 So. 448 (1937) addresses our law on equitable liens insofar as the burden of proof in these actions. To reform a deed of trust containing a mistake and establish an equitable lien the evidence must be clear and convincing. Huff’s cancelled trust deed would have clearly established the proof of the terms of the parties’ agreement to obtain reinstatement of the trust deed or to obtain an express equitable lien.

Addressing more specifically now the request for a constructive trust we note its definition:

A constructive trust arises where a person who holds title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it. Scott on Trusts, Vol. V § 462 p. 3413.

Huff’s suit was filed after legal title was transferred to the Taylors from the Bar-retts. The Barretts do not hold legal title to the land upon which a constructive trust is sought, and the Taylors are innocent third parties. Additionally, the Taylors are under no duty to convey the land, nor are they unjustly enriched in this transaction.

Therefore, the transfer of title from the Barretts to the Taylors preclude the imposition of a constructive trust.

But the complaint here seeks also the imposition of an equitable lien. An equitable lien would have been available to Huff under the Haraway decision separate and apart from his request for a constructive trust. A leading treatise, Scott on Trusts, Vol. V, section 483, states:

In some situations the plaintiff is entitled to an equitable lien, but not to enforce a constructive trust. Thus where a person makes improvements upon property of another as a result of fraud or mistake of such a character that he is entitled to restitution, he can enforce an equitable lien upon the property to secure his right to restitution, but he cannot enforce a constructive trust of the property. (Id. at 3425).

Title having been transferred to the Taylors prevents the enforcement of a lien against the real estate itself. We now turn to this problem.

IV.

A growing development of law within the last century is the law of restitution, based on unjust enrichment, although its roots extend back to early English law.

As a part of this expanding field, the application of the technique of “tracing” is defined:

Through tracing, a person who in the first instance would be entitled to the restitution of money or other property is often permitted to assert his claim against a substituted asset — an asset which is traceable to or the product of such money or other property. (Id. at 175).

The end result of tracing could consist of a judgment for restitution of the traced asset, or for imposition of a lien, or a decree for subrogation. But occasionally a money judgment will be awarded where the substituted asset cannot be reached because of sale or consummation.

Such is the instant case. The real estate subject to an equitable lien has been sold to the Taylors and a substituted asset exists in the deed of trust form of the note for balance of the purchase price.

We reverse the chancery court and remand this case for the trial court’s determination of what form of relief would be most equitable. The trial court may consider, but is not limited to, granting of a judgment against the Barrett heirs in favor of the Bank, or the imposition of a lien upon the Taylor note and deed of trust in favor of the Bank in the amount of $28,583.53, plus interest as provided in the Huff deed of trust.

REVERSED AND REMANDED TO THE CHANCERY COURT OF HINDS COUNTY, FIRST JUDICIAL DISTRICT, FOR DETERMINATION OF APPROPRIATE REMEDY.

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

      . Restitution based upon unjust enrichment cuts across many brances of the law, including contract, tort, and fiduciary relationship, but it also occupies much territory that is its sole preserve. Thus, when one person mistakenly confers a benefit on another, as by paying a debt the other owed to a third person, the sole basis of liability is unjust enrichment and the only remedy available to the mistaken party is restitution at law or in equity. Law of Restitution, Palmer, Vol. I, section 1.1, p. 2.


source: Caselaw Access Project

author: DAN M. LEE, Justice,

license: Public Domain

text:
    Julian RILEY v. Jerry CLAYTON.
    No. 55118.
    Supreme Court of Mississippi.
    Nov. 23, 1983.
    Rehearing Denied Dec. 14, 1983.

      David O. Butts, Tupelo, for appellant.
    W.P. Mitchell, Mitchell, Eskridge, Voge, Clayton & Beasley, Dudley R. Carr, Carr & Goodman, Tupelo, for appellee.
   DAN M. LEE, Justice,

for the Court:

On August 23,1983, the second democratic election for the office of Chancery Clerk of Lee County, Mississippi was held. The parties to this suit were the candidates in that election. After tabulation of the votes, it was determined that Mr. Clayton was the winner. On September 26, 1983, after losing an appeal to the Lee County Democratic Executive Committee, Mr. Riley filed a petition for judicial review. A special tribunal consisting of Circuit Judge Carlson, and five election commissioners of Lee County denied Riley’s appeal. Riley then brought this appeal and alleges that certain absentee ballots cast in the election must be invalidated for two reasons: (1) the failure to follow certain statutory absentee balloting procedures, and (2) failure to secure the ballots in locked metal ballot boxes.

Riley also filed a petition for a writ of certiorari requesting this Court to command the official court reporter for the special tribunal to transcribe her notes and file the same with the Court. Riley alleges that Section 23-3-51 Mississippi Code Annotated (1972) unconstitutionally restricts this Court’s review of the facts as found by the special tribunal.

The special tribunal made a unanimous finding of fact which was concurred in by Judge Carlson who placed it into the record. Prior to that finding the parties had entered into stipulations concerning the number of votes involved in the contest. It was stipulated that there were 486 absentee votes, of which 306 were marked for Clayton and 180 for Riley. There were also 8,374 machine votes for Clayton and 8,419 for Riley. That made a total of 8,680 for Clayton and 8,599 for Riley. It was further stipulated that of the 274 absentee votes challenged in this suit, 256 are involved in the outcome of this election.

The findings of fact made by the Lee County Commissioners and Judge Carlson are that Mrs. Fay H. Estes had been Circuit Clerk and Registrar of Lee County for 18 years and had followed the same absentee voting procedure for approximately the last 10 of those years. When someone came into the office and wanted to vote an absentee ballot, the regular procedure was to check their eligibility as an elector and then provide them with a ballot, which would be marked outside of the clerk’s or deputy’s presence but within their sight. The clerk would then sign the attestation form as a witness and place the ballot in a small sealed envelope which was then placed in a large brown envelope. The large brown envelope was clamped but left unsealed. The large brown envelopes were kept behind the counter in the clerk’s office. Sometimes, they were locked up in a drawer at night, but that was not always the case. Regardless, the clerk’s office was locked at the end of each work day. As a general rule, no metal ballot boxes were used in Lee County.

In the case of a physically incapacitated voter, the request for an absentee ballot often was made over the phone. These requests came from either the absent voters themselves or from relatives, friends, and even candidates for various offices. After receiving such a telephone request for an absentee ballot for a physically incapacitated voter, the clerk verified that the voter was eligible to vote and either mailed an absentee ballot or personally delivered it to the elector. If the ballot was mailed, the registrar or her deputy enclosed the required instructions, application and envelope. When the mailed ballot was returned, the registrar followed the same procedure as when the absentee voter came to her office. In other words, she placed the sealed envelope with the ballot in it in a large brown precinct envelope. If the request was made by the absentee voter that the ballot be personally delivered, the registrar or her deputy made some notation of that fact and would at some point go to the house, hospital or nursing home where the absent voter was located and personally deliver the ballot. Once the ballot was delivered, essentially the same procedure would follow as when absentee voters voted in the clerk’s office. If the ballot was taken to the physically incapacitated voter during regular office hours, the registrar or her deputy would return to the office the same day and follow the same procedure by placing the sealed envelope with its contents in the designated large brown precinct envelope. If the ballot was taken to the physically incapacitated absent voter after regular office hours, the registrar or her deputy would take the sealed envelope home and return it to the registrar’s office the next working day. Whenever ballots were personally taken to the physically incapacitated absent voters, no written instructions were taken but the registrar or her deputy would verbally instruct the absentee voter as to the proper procedure in casting their ballot.

The special tribunal also found that in performing the function of voting absentee voters outside of the office by personally delivering their ballots, the registrar and her deputies felt they were rendering a necessary and vital service to the physically incapacitated citizens of the county. The tribunal specifically found that there were no allegations nor any proof that the registrar or her deputies exercised or attempted to exercise any influence upon absentee voters, nor were there any allegations or proof that any fraud or intentional wrongdoing was committed by the registrar or her deputies in following the above outlined procedure. This above described procedure was followed in all forty precincts and not limited to any particular area of the county.

We will first address Riley’s petition for writ of certiorari. In his petition, Riley alleges that the special tribunal excluded material facts in its finding of fact.

Section 23-3-51 Mississippi Code Annotated (1972) reads as follows:

Within three days after judgment rendered, unless a longer time not exceeding four additional days be granted by the trial judge, the contestant or contestee, or both, may file an appeal in the supreme court upon giving a cost bond in the sum of three hundred dollars, together with a bill of exceptions which shall state with appropriate fullness the point or points of law at issue with a sufficient synopsis of the facts to fully disclose the bearing and relevancy of the said points of law, the said bill of exceptions to be signed by the trial judge, or in case of his absence or refusal, or disability, by two disinterested attorneys, as is provided by law in other cases of bills of exception. If the findings of fact have been concurred in by all the commissioners in attendance, provided as many as three of the commissioners are and have been in attendance, the facts shall not be subject to review on appeal, and the bill of exceptions shall not set up the evidence upon which the facts have been determined. But if not so many as three of the commissioners are and have been in attendance or if one or more of the commissioners dissent, a transcript of the testimony may be filed with the bill of exceptions, or within such short time thereafter as the supreme court may allow, and the supreme court, upon a review thereof, may make such finding upon the facts as the evidence requires, giving only such consideration as the court may think warranted to the presumption of correctness of the conclusions of the trial judge. The appeal shall be immediately docketed in the supreme court and referred to the court en banc upon briefs without oral argument, unless the court shall call for oral argument, and shall be decided at the earliest possible date, as a preference case over all others, and such judgment shall be entered and certified as the trial tribunal shall have entered and certified, with the same effect as had such judgment been entered by the trial tribunal and no appeal had been taken therefrom.

Mr. Riley argues that this statute unconstitutionally limits this Court’s power of review. This Court has stated on numerous occasions that the right to appeal is a statutory privilege granted and defined by the legislature. Miller Transporters, Ltd. v. Johnson, 252 Miss. 244, 172 So.2d 542 (1965); State ex rel Patterson v. Autry, et al., 236 Miss. 316, 110 So.2d 377 (1959); McMahon v. Milam Mfg. Co., 237 Miss. 676, 115 So.2d 328 (1959); Jackson v. Gordon, 194 Miss. 268, 11 So.2d 901 (1943). We have also specifically addressed this Court’s appellate review in election contests. In Berryhill v. Smith, 380 So.2d 1278 (Miss.1980), this Court held that it would not review the facts as found by a special tribunal where three of the commissioners concurred in the presiding judge’s findings and one member was absent while another abstained. We held:

“The concurrence of the three commissioners who participated in the decision making process fulfilled the requirements of section 23-3-51, there having been no dissents, so that the findings of fact by the judge are not subject to review by this Court.”

380 So.2d at 1280.

Accord, Allen v. Funchess, 195 Miss. 486, 15 So.2d 343 (1943). In Allen the Court stated that it was statutorily barred from reviewing the facts of any election appeal where all of the commissioners in attendance have concurred in the findings of the special tribunal. The Court went on to say that

“In such a case the only recourse by an appellant would be to show that there was either (1) no evidence whatever to sustain the findings, or (2) what would amount to the same thing, that there was no substantial evidence in support of the findings.”

195 Miss, at 495, 15 So.2d at 345.

The instant statute is obviously designed to expedite the appeals process in an election case. The necessity for expediency is inherent in the nature of an election contest. By limiting appellate review, the legislature’s intent was obviously to hasten the final determination of the election contest while still permitting some form of appeal. That such procedure may at times fail is a matter for the legislature to address as this Court has so often stated that the right to appeal is a matter solely for the legislature to determine. Therefore, Riley’s petition for writ of certiorari is denied.

The next question presented is whether the registrar’s practice of personally delivering the absentee ballots to physically incapacitated voters is such a violation of the absentee voting statutes as to render those ballots void. Section 23-9-605 Mississippi Code Annotated (Supp.1983) reads:

Any elector desiring an absentee ballot as provided in this article may secure same if:
(1) Not more than fifteen (15) days nor later than 5:00 p.m. on the second day immediately prior to such election, he shall appear in person before the registrar of the county in which he resides, or, for municipal elections, he shall appear in person before the city clerk of the municipality in which he resides, and shall execute and file an application as provided by section 23-9-107.
(2) Within thirty days next prior to any election, any elector who cannot comply with subsection (1) of this section by reason of temporarily residing outside the county or by reason of being physically incapacitated, may make application for an absentee ballot by mailing the appropriate application to the registrar. Only persons temporarily residing out of the county of their residence or physically incapacitated persons may obtain absentee ballots by mail, under the provisions of this subsection. Such application shall be sworn to and subscribed before an official who is authorized to administer oaths or other official authorized to witness absentee balloting as provided in this chapter, said application to be accompanied by such verifying affidavits as is required by this article. The registrar shall send to such absent voter a proper absentee voter ballot within twenty-four hours, providing ballots are available, containing the names of all candidates who qualify or the proposition to be voted on in such election, and with such ballot there shall be sent an official envelope containing upon it in printed form the recitals and data hereinafter required.

This section authorizes the registrar to mail absentee ballots to voters temporarily residing out of the county and those who are physically incapacitated. We have previously held that unless a statute expressly declares that a particular act is essential to the validity of the election, or that its omission shall render the election void, the statute will be treated as directory, and not mandatory, provided such act of irregularity is not calculated to affect the integrity of the election. Gregory v. Sanders, 195 Miss. 508, 15 So.2d 432 (1943); Hunt v. Mann, 136 Miss. 590, 101 So. 369 (1924). Review of the wording of the statute does not reveal any language which expressly declares that the use of the postal service by which to send an absentee ballot to a voter is essential to the legislative scheme.

Section 23-9-409 Mississippi Code Annotated (Supp.1983) requires that if a ballot is mailed to an absentee voter, the registrar must enclose a copy of printed instructions. That section reads:

(1) The registrar shall enclose with each ballot sent to an absent elector separate printed instructions furnished by him containing the following:
(A) All absentee voters, excepting those physically incapacitated, who mark their ballots in the county of the residence shall use the registrar of that county as the witness. Said absentee voter shall come to the office of the registrar and neither the registrar nor his deputy shall be required to go out of the registrar’s office to serve as an attesting witness.
(B) Upon receipt of the enclosed ballot, you will not mark same except in view or sight of the attesting witness. In the sight or view of the attesting witness, mark the ballot according to instructions.
(C) After marking the ballot, fill out and sign the “Elector’s Certificate” on back of the envelope so that the signature shall be across the flap of the envelope so as to insure the integrity of the ballot. Have the attesting witness sign the “Attesting Witness Certificate” on back of the envelope. Place necessary postage on the envelope and deposit it in the post office or some government receptacle provided for deposit of mail so that the absent elector’s ballot, excepting presidential absentee balloting, will reach the registrar in which your precinct is located not later than twelve noon on the day preceding the date of the election or by personally delivering such ballot to the registrar’s office not later than 5:00 p.m. on the second day immediately preceding the election.
Any notary public, United States postmaster, United States postal supervisor, clerk in charge of a contract postal station, or any officer having authority to administer an oath or take an acknowledgment may be an attesting witness. If a postmaster, assistant postmaster, postal supervisor, or clerk in charge of a contract postal station acts as an attesting witness, his signature on the elector’s certificate must be authenticated by the cancellation stamp of their respective post offices. If one or the other officers herein named acts as attesting witness, his signature on the elector’s certificate, together with his title and address, but no seal, shall be required. Any affidavits made by an absent elector who is in the armed forces may be executed before a commissioned officer, warrant officer, or uncommissioned officer not lower in grade than sergeant rating, or any person authorized to administer oaths.
(D)When the application accompanies the ballot it shall not be returned in the same envelope as the ballot but shall be returned in a separate pre-addressed envelope provided by the registrar.
(2) The foregoing instructions required to be mailed by the registrar to the elector shall also constitute the substantive law pertaining to the handling of absentee ballots by the elector and registrar.

Although that section specifically states that “Neither the registrar nor his deputy shall be required to go out of the registrar’s office to serve as an attesting witness,” there is no specific prohibition against the personal delivery of absentee ballots.

Riley argues that section 23-9-613 requires that any elector obtaining an absentee ballot under the provisions of section 23-9-605(2) is required to return his ballot to the registrar by mail. Section 23-9-613 reads:

The elector obtaining an absentee ballot under the provisons of subsection (2) of section 23-9-605 shall appear before any official authorized to administer oaths or other official authorized to witness absentee balloting as provided in this chapter. The elector shall exhibit to such official his absentee ballot unmarked and thereupon proceed in secret to fill in his ballot. After the elector has properly marked the ballot and properly folded it, he shall deposit it in the envelope furnished him. After he has sealed the envelope he shall deliver it to the official before whom he is appearing and shall subscribe and swear to the affidavit provided for in section 23-9-611, which affidavit shall be printed on the back of the envelope.
After the completion of the requirements of this section, the elector shall mail the envelope containing the ballot to the registrar in the county wherein said elector is qualified to vote. Said ballots must be received by the registrar prior to twelve noon on the day preceding the election to be counted.

This statute has effect only when the elector appears before an official authorized to administer oaths or other official authorized to witness absentee ballots other than the registrar or her deputies. This statute has no purpose when the ballot is marked in the presence of the registrar or her deputies.

We hold that in the absence of any allegation or proof of fraud or tampering that the personal delivery of absentee ballots by the registrar or her deputies to physically incapacitated voters does not void those ballots.

Riley next complains that the failure of the Lee County Registrar to use metal ballot boxes in which to store the absentee ballots rendered those ballots void. Section 23-5-111 Mississippi Code Annotated (1972) states that the commissioners of elections in every county must procure a sufficient number of ballot boxes. The immediately following section, 23-5-113 states that

“The failure to distribute to the different voting places the poll books containing the alphabetical list of voters, or the ballot boxes provided for, shall not prevent the holding of an election, but in such case the managers shall proceed to hold the election without the books and ballot boxes, and shall provide some suitable substitute for the ballot boxes, and conform as nearly as possible to the law in the reception and disposition of the official ballot boxes.”

The key in deciding whether an act not in strict compliance with the statutory election procedures renders that election void is whether the act is such a total departure from the fundamental provisions of the statute as to destroy the integrity of the election and make the will of the qualified electors impossible to ascertain. Ulmer v. Currie, 245 Miss. 285, 147 So.2d 286 (1962); Sinclair v. Fortenberry, 213 Miss. 219, 56 So.2d 697 (1952); Gregory v. Sanders, 195 Miss. 508, 15 So.2d 432 (1943).

In the case of Barnes v. Ladner, 241 Miss. 606, 131 So.2d 458 (1961), this Court held that the use of cardboard boxes was a suitable substitute for the ballot boxes and was not such a total departure from the fundamental provisions of the statute as to destroy the integrity of the election. This Court certainly does not wish to encourage the substitution of manila envelopes for locked metal ballot boxes. To the contrary, we must strongly recommend that the Lee County Registrar obtain with all due haste a sufficient number of metal ballot boxes in which to retain absentee ballots. However, we cannot say that in the absence of allegations or proof of fraud that there has been such a total deviation from the statutory requirements as to destroy the integrity of the election.

Although there is a strong public policy in attempting to preserve the will of the electorate as reflected by the tabulation of all of the votes, we take this opportunity to remind registrars throughout the state that they invite election contests, uncertainty and the opportunity for fraud by failing to pay close heed to the election statutes whether they be mandatory or directive. Any expense or burden such compliance creates is trivial when compared to the value of the goal of maintaining our Republic. Integrity of our government can be no greater than the integrity of elections which put our governmental officials in office. It is therefore the duty of every registrar to endeavor to comply with the election statutes regardless of the personal inconvenience it may create.

Based on all of the foregoing, the decision of the Circuit Court is hereby affirmed.

AFFIRMED.

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