author: ALMON, Justice.

text:
    Carolyn McCreary PRITCHETT and Wilsie McCreary Gillespie v. Mary Elizabeth M. TURNER, etc., et al.
    81-741.
    Supreme Court of Alabama.
    Aug. 5, 1983.
    George R. Fusner, Jr., Jackson, Tenn., and J. Milton Coxwell of Coxwell & Cox-well, Monroeville, for appellants.
    David T. Hyde, Jr., Evergreen, and Broox G. Garrett, Sr., Brewton, for appellees.
   ALMON, Justice.

This is an appeal from a summary judgment, rendered in a declaratory judgment action, in which certain conditions annexed to a devise of real property were held void.

Wynell McCreary and Wilson Ashley McCreary were married from 1946 until their divorce on March 24, 1975. Two children were born during their marriage, namely, Lynn Ashley McCreary, a son, and Mary Elizabeth M. Turner, a daughter.

On November 5, 1977, Wilson died testate. His will was admitted to probate in Conecuh County, Alabama, with his daughter Mary serving as administratrix. The disputed section of the will provided as follows:

“I will and devise unto my two children, Lynn Ashley McCreary and Mary Elizabeth McCreary Abbott [now Mary Elizabeth M. Turner], jointly, share and share alike equally, all of my real estate owned by me at the time of my death, or to which I may be entitled, absolutely and in fee simple. TO HAVE AND TO HOLD unto my said two children, jointly, share and share alike, equally, absolutely and in fee simple, forever.
“PROVIDED, HOWEVER, that the above devise is made subject to the following conditions: If at any time after my death my said two children, or either of them, should attempt to convey any part of my said lands to their mother (my ex-wife), or should they, or either of them, allow to her the right of possession or use or benefit of said lands, or any part thereof, then and in any of said events, the devise herein made to said child or children shall be and become void, and the interest herein devised unto said child or children shall vest in my two sisters, Carolyn McCreary Pritchett and Wilsie McCreary Gillespie, jointly, share and share alike, absolutely and in fee simple.”

On April 23, 1979, Lynn McCreary died intestate, leaving as his only heirs at law his mother, Wynell, and his sister, Mary, who was also appointed as administratrix of his estate.

On November 6, 1979, an action for declaratory judgment was filed on behalf of both Mary, as administratrix of the estates of her father and brother, and Wynell, individually, against Wilson’s sisters, Carolyn McCreary Pritchett and Wilsie McCreary Gillespie. The plaintiffs sought a determination of the rights of the parties under the second section of Wilson’s will. The complaint stated that:

“5. A juticiable [sic] controversy exist [sic] between the parties in that the defendants are purported to claim an interest in the estate of Lynn Ashley McCreary by virtue of the provision of the will of Wilson Ashley McCreary providing for divestiture of title. As Lynn Ashley McCreary died intestate, with his only heirs at law being his sister, Elizabeth M. Turner, and his mother, Wynell McCreary, [the latter] would be entitled to an undivided one half interest in the estate of Lynn Ashley McCreary, and as such would be entitled to an undivided one fourth interest in the estate of Wilson Ashley McCreary under the laws of descent and distribution of the State of Alabama. However, because of the said provision referred to in said will the plaintiff Elizabeth M. Turner, as representative of the estate of Wilson Ashley McCreary and Lynn Ashley McCreary, is unable to ascertain how to disburse any settlements from the estates of Wilson Ashley McCreary and Lynn Ashley McCreary. Also, because of the provision referred to above in said will, there is a cloud on the title to the real estate owned by Wilson Ashley McCreary at the time of his death, and Elizabeth M. Turner is unable to sell or mortgage said property, as an individual or as the representative of said estates, because of the cloud on the title to said property.”

Motions for summary judgment were filed by both the plaintiffs and defendants. The trial court granted the plaintiffs’ motion, finding that the second paragraph of the second section of Wilson’s will (hereinafter referred to as the divesting provision) was void as a matter of law.

We quote in part from the trial court’s judgment:

“8. The plaintiffs contend that said provision is invalid as being an absolute restraint on alienation. This Court agrees with this contention of the plaintiffs. Should this provision be held valid, no one could purchase said property or take a mortgage on said property from Mary Elizabeth M. Turner or Wynell McCreary with the certain knowledge that the provision had not been breached. With the provision in effect, the title to said lands is completely unmarketable because the title to the property would be unsettled for as long as Wynell McCreary lived. If the provision is valid, no judicial action could ever finally settle the title as this case, if tried on the present facts, would not be res judicata as to any later acts which the defendants might claim breached the will. The law in Alabama is that once a fee simple estate has been devised, an absolute restraint on the power of alienation is void as against public policy. Libby v. Winston, 207 Ala. 681, 93 So. 631 (1922). Because of the said provision, no intending purchaser or mortgagee from Mrs. Turner or Mrs. McCreary could know with certainty that the provision had not been breached in some manner or would [not] subsequently be breached in some manner, thus preventing said intending purchaser or mortgagee from receiving a good and valid fee simple title. Therefore, the said provision must be held null and void. This Court has found no Alabama cases on this point, but the Minnesota case of Morse v. Blood; 68 Minn. 442, 71 N.W. 682 (1892) concerned a provision in a will that was very similar to the provision in the McCreary will. The testator in the Minnesota case provided that the devisee should ‘in no case give or bequeath one cent of said estate to any member of my family, or to any relation of her own’. In Morse, the Court held as follows:
“ ‘If the condition is good, any purchaser from plaintiff [of any] parcel takes it at the peril of subsequent forfeiture by any act done by plaintiff after the purchase amounting to a breach of the condition. Thus, plaintiff might give one of her relatives or one of the testator’s family a meal of victuals out of the property left to her by her deceased husband, and it would forfeit the whole estate so devised to her, as well as that part of it which she had conveyed away to strangers as that part which she still held.’
“Should Mary Elizabeth M. Turner convey to a stranger her interest in all of the land with the exception of one acre, and subsequent to that conveyance she conveyed to her mother the one remaining acre, or allowed to her the right of possession or use or benefit of the one acre, then the conveyance to the stranger would fail if the provision is valid. This would be so even though there had been no breach of the provision at the time of the conveyance to the stranger. The Court further finds that this restraint clause of the will could be interpreted in such a manner that, if Lynn A. McCreary had, during his lifetime, and in spite of the strenuous objection of his sister, Mary Elizabeth M. Turner, conveyed one acre of said lands to his mother and placed her in possession of same, such action on his part would have divested him and his protesting sister of this inheritance as well and voided and/or forfeited all prior conveyances by either of them to strangers. Therefore, the Court finds that these provisions of said will create an absolute restraint of alienation.
“9. This Court further finds that the provision providing for forfeiture is null and void because of vagueness and uncertainty. The acts that would constitute ‘the right of possession or use or benefit of said lands’ are uncertain. This phrase has no definite legal construction or interpretation and can mean many things to many people. Title to real estate should not be subject to forfeiture on such uncertain, indefinite and vague conditions.
“WHEREFORE, the premises considered, it is ORDERED and ADJUDGED as follows:
“1. That the second paragraph of paragraph SECOND of the Last Will and Testament of Wilson Ashley McCreary, deceased, dated April 8,1975, is held to be null and void and of no effect, and any interest present, future, contingent or otherwise allegedly created by said paragraph SECOND in said will in favor of Carolyn McCreary Pritchett or Wilsie McCreary Gillespie is likewise cancelled and held for naught.
“2. That Lynn Ashley McCreary and Mary Elizabeth McCreary Abbott took title to all real estate, owned by Wilson Ashley McCreary at the time of his death, or to which he was entitled, in fee simple absolute, without restriction upon said fee simple estate.
“3. That Wynell McCreary and Mary Elizabeth M. Turner inherited an undivided one-half (½) interest each in the estate of Lynn Ashley McCreary, deceased, according to the laws of descent and distribution in effect in Alabama at the time of his death.... ”

We initially find that the trial court improperly designated the divesting provision as an “absolute” restraint on alienation. We associate the modifier “absolute” with a provision which, without qualification, undertakes to deny the devisee of a legal estate in fee simple the power to alienate his acquired estate, or which, without qualification, undertakes to render such an estate forfeitable on any attempted alienation. See, 6 R. Powell and P. Rohan, The Law of Real Property, §§ 839, 840 (1981).

The divesting provision is qualified so that it does not completely prohibit the legal power to alienate. Only the mother, Wynell, is excluded as a permissible alienee: “If at any time after my death my said two children, or either of them, should attempt to convey any part of my said lands to their mother (my ex-wife).... ” In addition, the divesting provision poses prohibitions against the mother’s possession and use of the land which only incidentally restrain alienation. We conclude that these portions of the divesting provision created respectively a “direct” and an “indirect” restraint on alienation.

“A direct restraint on alienation is a provision in a deed, will, contract or other instrument which, by its express terms, or by implication of fact, purports to prohibit or penalize the exercise of the power of alienation.... An indirect restraint on alienation, arises when an attempt is made to accomplish some purpose other than the restraint of alienability, but with the incidental result that the instrument, if valid, would restrain practical alienability. Indirect restraints on alienation arise on the creation of future interests and of trusts.”

L. Simes and A. Smith, The Law of Future Interests, § 1112 (2d ed. 1956) (hereinafter cited as Simes).

The direct restraint herein is the type which purports to penalize the exercise of the power of alienation. Qualified so as to only prohibit alienation to the mother, this restraint was exerted in the form of an estate in fee simple defeasible with an exec-utory limitation. Should the children attempt to alienate to their mother, an execu-tory interest held by Wilson’s sisters will vest in derogation of the estate devised to said child or children.

“Alabama has long recognized the existence and viability of the estate in fee simple defeasible. McRee’s Adm’rs v. Means, 34 Ala. 349 (1859); Flinn v. Davis, 18 Ala. 132 (1850). It has been defined as ‘ “an estate in fee simple which is subject to a special limitation, a condition subsequent, an executory limitation, or a combination of such restrictions.” ’ Brashier v. Burkett, 350 So.2d 309, 313 (Ala.1977). Restatement, Property, § 16. An execu-tory interest or limitation is a nonvested interest in a transferee which is so limited that it will vest on the happening of a condition ... or on the occurrence of an event which is certain to take place, and which vests in derogation of a vested interest. Simes, Handbook of the Law of Future Interests, § 12, p. 25 (2d ed. 1966). It has also been defined as any future interest which is created in a person other than the transferor [and which] is not a remainder. Bergin and Haskell, Preface to Estates in Land and Future Interests, Ch. 3, p. 83 (1966).
“Such interests are denominated execu-tory interests rather than contingent remainders because there can be no contingent remainders after a fee simple. Simes on Future Interests, supra, § 12.”

Bradley v. Eskridge, 361 So.2d 100, 101 (Ala.1978).

The indirect restraint on alienation arose out of Wilson’s attempt to discourage his children from allowing their mother to possess, use, or benefit from the devised lands. Again, the fee simple defeasible with an executory interest was the device employed: “... should they, or either of them, allow to her the right of possession or use or benefit of said lands, or any part thereof ... the devise ... shall be and become void, and the interest ... shall vest in my two sisters.... ” Undoubtedly, this provision was not aimed at restraining the chil-drens’ ability to alienate. In practice, however, few persons would be interested in buying or taking a mortgage on the land without first obtaining a conveyance of the future interest held by Wilson’s sisters. Alienability is indirectly restrained because the possibility of forfeiture impairs the marketability of the property. •

Having so classified these restraints on alienation, we turn now to the trial court’s decision that the restraints rendered the divesting provision void. Simes, at § 1148, addresses generally the type of direct restraint involved here:

“A condition subsequent, special limitation, or executory limitation to the effect that a fee simple shall be forfeited or shall terminate on alienation is generally held void. This would appear to be true though the condition or limitation is attached to an otherwise defeasible fee simple. Here, however, we find a somewhat stronger minority view than in the case of directions not to alienate the fee. An Alabama decision sustains a condition subsequent to the effect that conveyance was permissible only with the consent of the grantors or their legal representatives.” (Emphasis added; footnotes omitted.)

The Alabama decision cited in Simes is Libby v. Winston, 207 Ala. 681, 93 So. 631 (1922). In Libby, this Court sustained a direct restraint on alienation because it was attempted by means of a defeasible estate.

Desiring to keep with the rationale of Libby, supra, and authorities cited therein, we hold that the direct restraint upon the childrens’ power to alienate to their mother was “validly interposed” by means of a defeasible estate. We quote from Libby, supra, 207 Ala. at 683-84, 93 So. 631, as follows:

“The rule — stated in Hill v. Gray, 160 Ala. 273, 276, 49 South. 676, and in Graves v. Wheeler, 180 Ala. 412, 416, 61 South. 341 — which pronounces void clauses in deeds or devises in absolute, not partial, restraint of the power of alienation of land conveyed or devised, is predicated of a grant or devise in fee simple. The essence of the stated rule is that the attempted restraint upon the power of alienation is inconsistent with the grant, the power to sell or lease being an inseparable incident of an estate in unqualified fee; and to allow such restraint would offend public policy. Mandlebaum v. McDonell, 29 Mich. 78, 18 Am.Rep. 61, 73, et seq., contains a discriminative and instructive treatment of the subject.!! ...
The application of the rule to the instrument under consideration depends upon its character as a conveyance. If it is not a grant in fee, the rule of Hill v. Gray, supra, is inapplicable. The conclusion upon this question turns, of course, upon the character of the grant, the instrument’s construction and its effect in that aspect.... [Emphasis added.]
“This grantor, Winston, through the use of the phrase, in the granting clause ‘hath upon the conditions hereinafter mentioned,’ and through the further confirmatory phrase, as expressive of the grantee’s convenant and agreement, that ‘this sale and conveyance shall hold good and valid only upon the compliance by the grantee and ‘her lawful representatives with the following conditions’ conveyed to the grantee a conditional fee only, a defeasible estate, subject to divestiture upon breach of conditions. Carter v. Chaudron, 21 Ala. 72, 89, 90; Hitt Lbr. Co. v. Cullman Coal Co., 200 Ala. 415, 416, 417, 76 South. 347. The grantor’s intent to convey a defeasible estate only is clear and unequivocal. His language leaves no doubt of his purpose in that respect....
“Consistent with the observations of Christiancy, J., in Mandlebaum v. McDonell, 29 Mich. 78, 88, 18 Am.Rep. 61, 68, that many restrictions or qualifications upon the rights of devisees or grantees may be validly interposed ‘by making the estate itself dependent upon such condition,’ the annotation to Latimer v. Waddell, 3 L.R.A. (N.S.) pp. 676, 677, contains many illustrations of this means by which offense to the rule against suspension of the power of alienation has been held to be avoided....
“The instrument not being a grant in unqualified fee, but a grant of an estate defeasible upon breach of condition subsequent defined therein, the condition in restraint of alienation is not offensive to the rule against the suspension of the power of alienation stated in Hill v. Gray, 160 Ala. 273, 276, 49 South. 676....”

Beginning with an excerpt from Mand-lebaum v. McDonell, supra, we quote from the annotation to Latimer v. Waddell, 3 L.R.A. (N.S.) 676:

“ ‘Nor does the question involve an inquiry how far a somewhat similar object might have been accomplished by making this estate in fee in these devisees defea-sible, upon the condition of their executing, before a certain period, a conveyance, ... the property being limited over to another, or to be forfeited and revert on breach of the condition. In these cases there would be some party besides these devisees interested in the observance of the condition, with a right to take advantage of the breach, viz., the heirs of the devisor or the person to whom the property was limited over. It is quite possible that many restrictions or qualifications upon the right of devisees or grantees may be made effectual by making the estate itself dependent upon such condition, to which it could not be subjected if the estate given is absolute.’ ... [Emphasis added.]
“It is said, arguendo, in Congor [Conger] v. Lowe, 124 Ind. 368, 9 L.R.A. 165, 24 N.E. 889, that even estates in fee simple may be subjected to valid limitations over, upon condition that the grantee or devisee convey it; that the foundation of the power to restrain alienation rests upon the fact that there remains, or is vested, in someone, a valid remainder or reversion, who is entitled to take advantage of the prohibited act.
“After a review of analogous English decisions, the court, in Fawlkes [Fowlkes] v. Wagoner (Tenn.Ch.App.) 46 S.W. 586, draws from them the following conclusion: That, in order to make a restriction upon alienation, even for a limited time, good, there must be a provision for the cessor of the estate upon violation of the restricting clause; and that this may be done by annexing a. clause that, upon breach of the condition restraining alienation, the grantor or his heirs at law may enter, or that the estate will cease, which is another form of the same thing; and that, in default of this appearing clearly, the restriction will be void for repugnan-cy-
“Then, after reviewing a number of the leading American decisions, the same court, in the same case, declares that the conflict among the American eases is more in terms than in substance; that the vital point in all of them is that, in order to make the provision undertaking to create a partial restraint upon alienation legal, there must be, in some form, a provision for cessor upon violation of the restraining clause; that this may be done either by a condition annexed to the estate, or by a conditional limitation; that, under the form óf a condition annexed, or breach thereof the grantor or his heirs may enter; that, under the form of a conditional limitation, the same result may occur, or the estate may go over according to the terms of the limitation; and that the confusion in the American authorities has arisen from a failure to note the two forms in which the restriction may appear. ... [Emphasis added.]
“A clause restraining a devisee from selling the lands devised before she became forty years of age, and giving a remainder over in case of her death under forty, was upheld upon the ground that a conditional fee was thereby created, in Matlock v. Lock (Ind.App.) [38 Ind.App. 281] 73 N.E. 171.
“It is fully admitted in Anderson v. Cary, 36 Ohio St. 506, 38 Am.Rep. 602, that a grantor may restrain or limit the enjoyment of land granted by trusts, conditions, or covenants, or transfer an estate therein, less than the whole; but the court makes a distinction between such conveyances and an attempt to convey a fee simple and then take from it its inherent alienable quality by a clause restraining its alienation for a limited period.”

We note that Simes, at § 1151, goes on to specifically discuss the type of direct restraint created here:

“It is uncertain what the courts would hold if the condition were against alienation to one named person. It may be said that in some cases the courts do apparently discriminate as to the degree of restraint of alienability, and that to restrict alienation only as to a small class of persons does not affect the marketability of property greatly. Doubtless that is true. But the great difficulty would be to know where to draw the line. If a condition against alienation to a single person is permissible, then why not allow it as to two persons, or a dozen persons, or as to all the members of a given race? And, if that were permitted, it would be but a step farther to recognize a condition restraining alienation as to a class consisting of all members of the human race except X. Obviously, this last would be bad. Yet if the line be drawn at any intermediate point, it would seem to be more or less arbitrary.” (Footnote omitted.)

Taking heed of this observation, we will rely upon the authorities cited above and forego any attempt at conditioning the validity of the direct restraint upon the fact that only Wynell McCreary was excluded as a permissible alienee.

As for the indirect restraint on alienation arising from this defeasible estate, the rule against perpetuities serves as the restricting rule.

“Although the rules relating to direct and indirect restraints have a common objective — to keep land freely alienable— they do not work in quite the same way. Indirect restraints are curbed by the rule against perpetuities and rules analogous thereto. In general, this rule lays down a period within which an interest must vest in order to be valid. Since it is the creation of the future interests which gives rise to the inalienability, the total remedy would be to prevent all future interests. Such a remedy, however, is too drastic and would eliminate the freedom of disposition now possible. The rule is thus a partial remedy, preventing only the creation of interests which are too remote, and thus tolerating some degree of practical inalienability arising from the existence of valid future interests....
“American law appears to single out two types of indirect restrainst for special regulation: That which is involved in the contingent or executory future interest and that which is involved in the indestructible private trust. At least in so far as the future interest is concerned, the restricting rule is everywhere known as the rule against perpetuities. And whether the indestructible trust or the future interest is involved, the restraint would appear to be void unless it is certain to be removed within a life or lives in being and twenty-one years beyond.”

Simes, at §§ 1116, 1202 (footnotes omitted; emphasis added).

In this case, however, we need not consider whether the indirect restraint will be removed within the period specified by the rule against perpetuities. We find that the wording of the conditions which indirectly restrain alienation — forfeiture of ownership should the children allow to their mother “the right of possession or use or benefit” of the land — is too vague to be enforced.

Perhaps the trial court said it best: “the acts that would constitute ‘the right of possession or use or benefit of said lands’ are uncertain. This phrase has no definite legal construction or interpretation and can mean many things to many people.” The rule is settled that an estate in fee simple cannot be made defeasible upon such vague and uncertain conditions.

“Where the estate or interest is created in one clause of a will in clear and decisive terms, that interest cannot be taken away or diminished by raising a doubt upon the extent and meaning of subsequent clauses, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving the interest or estate. Austin v. Pepperman, 278 Ala. 551, 179 So.2d 299 (1965); Sewell v. Byars, 271 Ala. 148, 122 So.2d 398 (1960).”

Bradley v. Eskridge, supra, at 102. (Emphasis added.)

Arguably, the other condition within the divesting provision — forfeiture of ownership should the children “attempt to convey” to their mother — is also uncertain. Conceivably, activity which is only preliminary to an actual conveyance of title (negotiation, making an offer, contacting an attorney, etc.) could be construed as an “attempt.” Our view is that “attempt to convey” is not indefinite in meaning. Rather, it is the language which most accurately describes an actual transfer of title. Under the operation of the divesting provision, any conveyance of title by the children to their mother would be ineffective. Such a transfer could never be more than an “attempt.”

In conclusion, then, we hold that the divesting provision does not improperly restrain alienation. At the same time, we hold that the wording of the provision is vague and unenforceable insofar as the condition against the mother’s “right of possession or use or benefit.”

The remaining condition — that the children not convey to their mother — is definite and enforceable, but has not yet occurred. The sisters claim that this condition has been fulfilled because the son attempted to convey the property to his mother by dying intestate. The trial court adequately answered this contention as a matter of law: “As Lynn A. McCreary has no control over his own death or over the laws of intestate succession of the State of Alabama, this Court finds no merit in such argument.” They also argue that by adding her mother’s name to the suit, Mary is attempting to convey the property to her. The trial court also answered this contention by stating that “The filing of a declaratory judgment action to determine these rights cannot be found to be a breach of said provision.”

Upon Wilson’s death, his two children each received half of an estate in fee simple defeasible in all of his real property. Because the children have never violated the condition against conveyance, the son, Lynn, died possessed of his undivided one-half interest in the land. His sister, Mary, and his mother, Wynell, then inherited equal shares of this interest under the laws of descent and distribution.

Thus, the summary judgment in favor of plaintiffs-appellees is due to be affirmed in part and reversed in part, and the cause remanded.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

FAULKNER, EMBRY and ADAMS, JJ., concur.

TORBERT, C.J., concurs in the result.

      . In Mandlebaum, the Michigan Supreme Court held invalid a restriction upon the alienation by devisees of an absolute vested remainder in fee.

      . In Latimer v. Waddell, 119 N.C. 370, 26 S.E. 122 (1896), the North Carolina Supreme Court held void a condition, annexed to a conveyance in fee simple, which forbade alienation for a period of five years.

      . While the estate herein is defeasible by operation of an executory interest, rather than a condition subsequent as in Libby, supra, we find no restrictions in Libby as to the form in which the defeasible estate must appear.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Carl MATHIS v. SOUTHERN RAILWAY COMPANY, a corporation.
    82-157.
    Supreme Court of Alabama.
    Aug. 19, 1983.
    David Q. Haag of Jones, Granger, Haag & Tramuto, Houston, Tex., and G. William Noble of Barnett, Tingle, Noble & Sexton, Birmingham, for appellant.
    Charles E. Sharp and Mac B. Greaves of Sadler, Sullivan, Sharp & Stutts, Birmingham, for appellee.
   PER CURIAM.

This is a Federal Employers Liability Act case in which the jury returned a verdict in favor of the defendant railroad.

Plaintiff raises three issues here:

(1) That the trial court erred in admitting into evidence the fact that plaintiff received collateral source benefits.

(2) The admission into evidence of the railroad’s film depicting the operation of the crane which caused the injury to the plaintiff.

(3) The denial of the plaintiff’s motion to inspect and photograph by videotape the operation of the crane which caused the injury to the plaintiff.

As to Issues No. 1 and No. 3, our careful and detailed review of the record discloses that these alleged errors were not properly preserved for appellate review. Record Data International, Inc. v. Nichols, 381 So.2d 1 (Ala.1979).

As to Issue No. 2, the judgment below is affirmed on the authority of Ex parte Old Mountain Properties, Ltd., 415 So.2d 1048 (Ala.1982).

AFFIRMED.

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


text:
    Sharon BROWN and Joseph Collins Wakefield, IV v. Charlotte WAKEFIELD.
    82-199.
    Supreme Court of Alabama.
    Aug. 19, 1983.
    T.J. Carnes of Carnes & Carnes, Albert-ville, for appellants.
    Robert Sellers Smith of Smith, Huckaby & Graves, Huntsville, for appellee.
   PER CURIAM.

The judgment is reversed and the cause remanded on the authority of Land v. Bowyer, - So.2d -(Ala.1983) [MS. Aug. 12, 1983],

REVERSED AND REMANDED.

MADDOX, FAULKNER, JONES, AL-MON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.


author: MADDOX, Justice.

text:
    Ralph H. SILK and Sylvia C. Silk v. MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., a corporation, et al.
    82-621.
    Supreme Court of Alabama.
    Aug. 19, 1983.

      Ralph H. Ford and William B. Tatum of Ford, Caldwell, Ford & Payne, Huntsville, for appellants.
    Ernest L. Potter, Huntsville, for appel-lees.
   MADDOX, Justice.

The dispositive issue raised on appeal is whether the trial court properly granted defendants’ motion for summary judgment. We conclude the trial court’s judgment was proper.

The operative facts of this case are undisputed. On November 26, 1981, Ralph E. Silk, plaintiff/appellant, accepted four checks from Warrior Energy Corporation (“Warrior”). The four checks, which totaled $37,500, were all drawn on the Central Bank of Alabama, N.A., Haleyville, Alabama (“Central Bank”) in payment of a debt. At the insistence of Warrior, Silk agreed not to deposit the checks until Warrior had sufficient funds in the account to cover them. Because Warrior agreed to pay Silk interest on the $37,500 loan, Silk decided to keep the checks dated November 26, 1981, instead of accepting from Warrior updated checks as substitutes for the original checks.

On or about February 4, 1982, Silk'endorsed the checks and deposited them into a cash management account administered by Merrill Lynch, defendant/appellee, following assurances by Warrior that there were sufficient funds in its account to pay the checks. Merrill Lynch, after receiving the four checks, deposited the checks with its bank, First Alabama Bank of Huntsville (“First Alabama Bank”), which in turn presented the checks to the drawee bank, Central Bank, for payment. Central Bank refused to honor the checks because of insufficient funds. Copies of the cancelled checks, which appear as a part of the record, indicate that First Alabama Bank can-celled its “endorsement” on February 11, 1982.

On March 1,1982, Silk closed out his cash management account with Merrill Lynch by purchasing 5,000 shares of SCI Systems, Inc. stock. Prior to the purchase, Silk received confirmation from Merrill Lynch that his account balance was over $80,000. This balance included the $37,500 Silk had deposited on February 4, 1982. The total purchase price of the 5,000 shares of stock was approximately $102,000. Silk purchased the stock with the proceeds of his money fund shares in his Merrill Lynch cash management account and went on margin for the balance of the purchase price.

On April 15, 1982, Merrill Lynch notified Silk that Warrior’s checks had been returned for insufficient funds and, accordingly, debited his margin account for the amount of the checks. In an affidavit, John Niedergeses, the operations manager of the Huntsville office of Merrill Lynch, stated that the “first notice” that his office had that the checks had been returned for insufficient funds was on April 13, 1982, and that Ralph Silk was notified on April 15, 1982, that his margin account was to be debited in the amount of $37,500 for the returned checks. Consequently, the debit balance in Silk’s margin account was increased to approximately $59,000. Silk, feeling apprehension about the possibility of a margin call, sold the stock to eliminate the debit balance in his account, though after the sale the value of the stock increased.

Ralph Silk and Sylvia Silk brought action against Merrill Lynch for wrongfully debiting their cash management account. After its motion to dismiss was overruled, and after filing an answer, Merrill Lynch filed a motion for summary judgment which contained the affidavit of John Niedergeses. The Silks also filed a motion for summary judgment which included an affidavit of Ralph Silk. The court granted Merrill Lynch’s motion for summary judgment and entered judgment in its favor. This appeal followed.

The usual rules governing our review of summary judgment apply here. The standard for summary judgment as set forth in Rule 56, Ala.R.Civ.P., has two basic parts: the trial court must determine (1) that there is no genuine issue of material fact, and (2) that the moving party is entitled to judgment as a matter of law. Houston v. McClure, 425 So.2d 1114, 1116 (Ala.1983). Furthermore, this standard is conjunctive. Houston v. McClure, supra; McGuire v. Wilson, 372 So.2d 1297 (Ala.1979). The burden is upon the moving party to clearly show that there is no genuine issue of a material fact, and all reasonable doubts concerning the genuine issue of material fact must be resolved against the moving party. Fountain v. Phillips, 404 So.2d 614, 618 (Ala.1981); Butler v. Michigan Mut. Ins. Co., 402 So.2d 949, 951 (Ala.1981). The burden is further increased by the scintilla evidence rule, which requires that summary judgment not be granted if there is a scintilla of evidence supporting the position of the non-movant. Fountain v. Phillips, supra; Browning v. Birmingham News, 348 So.2d 455 (Ala.1978).

When an instrument has been indorsed, the indorser “engages [unless the indorsement provides otherwise] that upon dishon- or and any necessary notice of dishonor and protest that he will pay the instrument according to its tenor at the time of the indorsement to the holder....” Code 1975, § 7-3-414. As a secondary party, an in-dorser’s liability is subject to the conditions precedent of presentment, and proper notice of dishonor or protest. §§ 7 — 3— 102(l)(d), 7-3-501(l)(b), and 7-3-501(2)(a). “Where without excuse any necessary presentment or notice of dishonor is delayed beyond the time when it is due ... [the] indorser is discharged.” § 7-3-502. See also §§ 7-3-508(2) and 7-3-511.

The Silks contend that the liability of indorsement has been discharged in this case because Merrill Lynch failed to give them timely notice of dishonor of the four checks. They further assert that had good business practices been followed, and “due diligence” been exercised, i.e., reading monthly banking statements, reviewing all returned checks, etc., Merrill Lynch would have had “notice or notification” prior to the lapse of seventy days that the checks had not cleared the drawer’s bank. See § 7-1-201(27).

Merrill Lynch submits that it complied with the notice of dishonor requirements of § 7-3-508(2), by giving notice of the checks’ dishonor before midnight of the third business day after it allegedly received notice of the dishonor. Merrill Lynch further posits that under the circumstances of this case, however, the notice of dishonor requirement was not applicable, citing § 7-3-501(4), which reads: “Notwithstanding any provision of this section, neither presentment nor notice of dishonor nor protest is necessary to charge an indorser who has indorsed an instrument after maturity.” (Emphasis added.)

The term “maturity” is not defined within the definitional provisions of the Uniform Commercial Code (UCC). Referring to decisions of courts from other jurisdictions as guidance in our interpretation as to what constitutes “after maturity,” we have located but one case, and that case, as cited by Merrill Lynch in its brief, is Chandler Motors, Inc. v. Dunham, 127 N.J.Super. 320, 317 A.2d 386 (1974). In Chandler Motors, the New Jersey Superior Court ruled:

“Timely notice of dishonor was required to be given the indorsers, NJSA 12A:3-501(2)(a), there being no legally recognized excuse for not giving it. See NJSA 12A:3-511. The failure to give timely notice of dishonor discharged the indorsers from any liability on the draft. 12A:3-502(l)(a).
“Plaintiff’s argument that no notice of dishonor was required because allegedly the indorsements made by defendants were made ‘after maturity,’ see NJSA 12A:3-501(4), lacks merit. The last cited section applies only where the indorsement was made after the instrument was ‘overdue’, a situation which did not exist in this case where the draft was indorsed by defendants within three days of its date of issue and 18 days before it was presented for acceptance. Here defendants had indorsed the draft before, not after, maturity.”

127 N.J. at 128, 317 A.2d at 387.

Construing the phrase “after maturity” to mean “overdue,” as did the New Jersey court, appears reasonable. The term “overdue,” though not specifically defined, is nonetheless employed in sections of the UCC relative to checks which give it a more precise meaning. For example, one of the requirements for a holder in due course status is that the holder must take an instrument “without notice that it is overdue.” § 7-3-302. An instrument is considered overdue after more than a “reasonable length of time after its issue,” which is presumed to be thirty days. § 7-3-304(3)(c). Paragraph 7 of the Official Comment states in pertinent part: “The ‘reasonable time after issue’ is retained from original section 53, but paragraph (c) adds a presumption, as that term is defined in this act (7-1-201), that a domestic check is stale after thirty days.” Indeed the thirty-day period is but a rebuttable presumption. One treatise on commercial paper notes:

“Section 3-501(4) provides as an absolute that an endorser taking an instrument after maturity is not entitled to fulfillment of the conditions precedent of presentment, notice or protest. No doubt this is based upon the rationale that the endorser could assume dishonor at that time. For demand instruments the maturity of which is a reasonable time after issuance, it may become debatable whether the endorser endorsed after maturity. For a check, Section 3-304(3)(c) creates a presumption that a holder has notice that the check is overdue if taken more than thirty days after issuance or date. This does not fix thirty days as presumptive of maturity except by indirection. Further, the presumption is rebuttable and, in any event, does not apply to noncheck drafts or to demand notes. Courts might reasonably develop a rule of thumb that endorsers who endorse any demand instrument after thirty days have the burden of showing that the instrument had not ‘matured’ when they took it.”

Hart and Wilier, 2 Commercial Paper Under U.C.C. § 9.23 (Bender’s Uniform Commercial Code Service 1983).

It is argued by the Silks that the checks were not indorsed after maturity because presentment on February 4, 1982, was pursuant to a verbal agreement between the drawer and the payee that the checks would not be presented when originally issued. This Court has held, however, that a demand instrument may not be altered or varied as to its maturity date by a parol agreement between the parties to the instrument. Jackson v. Sample, 234 Ala. 75, 77, 173 So. 510, 512 (1938); Flintkote Co. v. Grimes, 281 Ala. 707, 709, 208 So.2d 87, 89 (1968). By the terms of § 7-3-104(2)(b), a check is considered a demand instrument.

In count 2 of their complaint, the Silks claim that Merrill Lynch breached the written agreement between the parties by debiting their account after a reasonable period of time had passed. After thoroughly reviewing the terms of the signed “Cash Management Account Agreement” between Merrill Lynch and the Silks, we do not find that the agreement precluded Merrill Lynch in this instance from debiting the Silks’ account for the returned checks; therefore, Merrill Lynch did not breach the agreement as the Silks claimed.

The Court is of the opinion that summary judgment is appropriate in the instant case. The fact that summary judgment was properly granted, however, does not leave the Silks without the benefit of a remedy. By virtue of § 7-3-802, the Silks may seek recovery on the underlying obligation, i.e., the debt of Warrior Energy Corporation, which the checks were originally drawn to satisfy. Consequently, the judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    Billy Joe TAPSCOTT and Jerry Tapscott v. William Carlton FOWLER, et al.
    82-641.
    Supreme Court of Alabama.
    Aug. 19, 1983.

      Charles Cleveland of Gordon, Silberman, Loeb, Cleveland & Gordon, Birmingham, for appellants.
    Albert P. Brewer of Brewer, Lentz, Nelson & Whitmire, Decatur, for appellees.
   MADDOX, Justice.

Billy Joe Tapscott and Jerry Tapscott, plaintiffs/appellants in this case, were two of nine defendants against whom the circuit court for Morgan County, on behalf of numerous landowners, entered an injunction to restrain them from continuing their allegedly illegal deer hunting activities. The Tapscotts appealed to this Court and this Court reversed the circuit court in Anders v. Fowler, 423 So.2d 838 (Ala.1982), because the circuit court did not require the plaintiffs to post security for costs as mandated by Rule 65(c), Ala.R.Civ.P. The Tapscotts, having prevailed here, then filed an action for malicious prosecution, abuse of process, and conspiracy against the parties obtaining the injunction. The circuit court granted the defendants’ motion to dismiss on the ground that the Tapscotts had failed to state a claim upon which relief could be granted. This appeal followed.

I

The Tapscotts contend in this appeal that their complaint sufficiently states a valid cause of action, thereby making a motion to dismiss inappropriate. As the Tapscotts correctly state, the elements of a cause of action for malicious prosecution which must appear in the complaint are: (1) a judicial proceeding initiated by the defendants), (2) want of probable cause, (3) malice on the part of the defendants), (4) termination of the judicial proceedings favorably to the plaintiff(s), and (5) damages. Alabama Power Co. v. Neighbors, 402 So.2d 958, 962 (Ala.1981); accord Boothby Realty Co. v. Haygood, 269 Ala. 549, 553, 114 So.2d 555, 558 (1959). The Tapscotts assert that the complaint alleges each of these elements in general terms.

The appellees argue, however, that two essential elements of the cause of action for malicious prosecution are absent in this case, namely, want of probable cause and termination of the proceedings favorably to the plaintiffs.

In the case of Boothby Realty Co., supra, this Court stated and adopted the majority rule as to the probable cause element in malicious prosecution actions: “[Ujnless a judgment or decree in prior civil proceedings against the malicious prosecution plaintiff was obtained by fraud, perjury or other improper means, the judgment or decree establishes or shows conclusively the existence of probable cause for bringing the former action even though it was subsequently set aside .... ” (Emphasis added.) 269 Ala. at 554, 114 So.2d at 560. The Tapscotts maintain, however, that the conclusive presumption rule adopted by this Court in Boothby Realty Co., supra, should not be applied here because the complaint in this case alleges that the injunction was obtained as a result of a conspiracy. Furthermore, the Tapscotts urge this Court not to extend the conclusive presumption rule, which is applied in cases involving a civil judgment, to orders which issue preliminary injunctions. The Tapscotts state that “[i]f an order issuing a preliminary injunction is a conclusive presumption of probable cause for its issuance, one who is damaged by the wrongful issuance of an injunction where no bond is posted, or the amount of bond is inadequate, is effectively deprived of any remedy.”

We first address the Tapscotts’ insistence that the conclusive presumption rule should not be applied in cases of preliminary injunctions. We will discuss in Section III the Tapscotts’ contention that because the complaint alleges conspiracy, the conclusive presumption of probable cause is inapplicable in this case.

Regarding the Tapscott’s contention that injunction cases should be treated differently, we cannot conclude that there is a legal and just reason for treating in-junctive actions differently from other civil actions. But assuming there was a difference, the Tapscotts prevailed initially because of the fact the circuit court, upon issuing the injunction, failed to require that security be given by the plaintiffs as required by Rule 65(c). Furthermore, the propriety of refusing or granting an injunction is discretionary with the trial court. See, e.g., Alabama Ed. Assn. v. University of Alabama, 374 So.2d 258, 260 (Ala.1979). In short, the circuit court’s failure to require security for the injunction’s issuance was an error of law by the court for which we reversed, and is in no manner related to the relevancy of probable cause or whether the appellees were, or were not, deserving and entitled to an injunction at the time they filed a complaint seeking such relief. In Jordan v. Empiregas Inc. of Belle Mina, 337 So.2d 732 (Ala.1976), we stated:

“When it comes to a determination of the existence of probable cause, an erroneous lower court decree based on an improper interpretation of law, under the facts and law involved in this case, should not be afforded a different status than that given an erroneous finding of facts by an inferior court, as occurred in Booth-by Realty Co. [supra].”

337 So.2d at 735.

While we have held that this presumption does not apply to a judgment which was obtained by “... fraud, perjury, or other means ...” we do not perceive the facts as alleged in the Tapscotts’ complaint to be sufficient to cloud the otherwise conclusive presumption of probable cause. Hence, we see no reason to discuss whether this Court’s reversal of the circuit court in Anders v. Fowler, supra, constituted a termination of judicial proceedings favorable to the Tapscotts.

II

The Tapscotts next insist that their complaint alleges a cause of action for an abuse of process. A cause of action for an abuse of process is distinguished from one for malicious prosecution in that the former rests upon the improper use of a regularly issued process, while the latter has reference to the wrong in the issuance of the process. Clikos v. Long, 231 Ala. 424, 426, 165 So. 394, 396 (1936). Essential elements of a cause of action for abuse of process include (1) malice, (2) the existence of an ulterior purpose, and (3) an act in the use of process not proper in the regular prosecution of the proceedings. See Clikos v. Long, supra, 231 Ala. at 428, 165 So. at 397; see also Duncan v. Kent, 370 So.2d 288, 290 (Ala.1979). Like an action for malicious prosecution, this Court has stated that want of probable cause is an element of a cause of action for abuse of process which must be averred and proved. Tarver v. Household Finance Corp., 291 Ala. 25, 26, 277 So.2d 330, 333-334 (1973).

With regard to the cause of action for abuse of process, the Tapscotts’ complaint fails to allege that the injunction sought was brought for any ulterior or collateral purpose. See Duncan v. Kent, 370 So.2d 288, 290 (Ala.1979). Moreover, because there is a conclusive presumption of probable cause under the facts of this case as noted earlier, the complaint is also deficient as to this cause of action for abuse of process.

III

Conspiracy is the final allegation appearing in the Tapscotts’ complaint. As the appellees’ note, the gist of an action in civil conspiracy is not the conspiracy alleged, but the wrong committed. Snyder v. Faget, 295 Ala. 197, 201, 326 So.2d 113, 116 (1976); O’Dell v. State, 270 Ala. 236, 240, 117 So.2d 164, 168 (1959). Although a great quantum of detail need not be alleged, because of the general latitude permitted in pleading the formation and existence of a conspiracy, O’Dell v. State, supra, 270 Ala. at 240-241, 117 So.2d at 168, this Court held that “[t]o support the action of conspiracy to prosecute a suit or proceeding maliciously, all facts necessary to support an action for malicious prosecution must be shown, including want of probable cause .... ” Gaines v. Malone, 244 Ala. 490, 492, 13 So.2d 870, 872 (1943).

Because the element of probable causé was lacking as to the causes of action for both malicious prosecution and abuse of process, accordingly, the Tapscotts’ complaint fails to state a cause of action for conspiracy for the same reason we discussed earlier.

IV

We conclude that dismissal by the circuit court under Rule 12(b)(6), Ala.R.Civ.P., was proper because it is evident under the facts presented that the Tapscotts have no claim upon which relief can be granted according to a cognizable theory of law. See Weeks v. East Ala. Water, Sewer and Fire Protection Disk, 401 So.2d 26, 28 (Ala.1981). Consequently, the judgment of the circuit court is affirmed.

AFFIRMED.

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


text:
    Phillip P. KARAGAN v. CITY OF MOBILE, etc., et al.
    82-682.
    Supreme Court of Alabama.
    Aug. 19, 1983.
    Phillip P. Karagan, pro se.
    William R. Lauten, Mobile, for appellees.
   MADDOX, Justice.

This appeal involves a single issue: Whether the trial court properly granted summary judgment in a case involving the city’s refusal to rezone a specific parcel of land within its corporate boundaries. We conclude that the trial court’s judgment was improper and we reverse.

This is the second time this case has been before us. See Karagan v. City of Mobile, 420 So.2d 57 (Ala.1982). In that decision, we reversed the trial court, which had granted the city’s motion to dismiss for failure to state a claim upon which relief might be granted. The facts as recited in that opinion are pertinent here and we quote them:

“Phillip P. Karagan is the owner of a 23.5 acre parcel of realty situated on Howells Ferry Road and Colonial Lane in the City of Mobile, Alabama. On or about May 15, 1981, Karagan submitted to the Mobile City Planning Commission an application requesting that his property be rezoned from Residence-Agriculture District (R-A) to Two-Family Residence District (R-2).
“On June 4,1981, the Mobile City Planning Commission held a public hearing as required by the zoning ordinance of the City of Mobile. At this time, Karagan testified as to the alleged propriety of his proposed development [a 120 unit duplex development]. Additionally, Karagan submitted a report of Courtney and Morris Appraisals, Inc., to the effect that the project in question would not negatively influence property values in the area, and that such rezoning would be appropriate. At this same hearing, a petition signed by some 69 persons opposing such rezoning was also presented to and accepted by the Commission.
“Subsequently, the Planning Commission voted [7-0 against rezoning, with one abstention] to recommend denial of Kara-gan’s zoning amendment, citing as grounds therefor: (1) a development of the density proposed should be located on a major street or at least a secondary street; and (2) the proposed development would be out of character with the neighboring single-family residential areas.
“Thereafter, the report of the Planning Commission was transmitted to the Mobile Board of Commissioners, which took no action within 30 days from its receipt thereof, thereby denying Karagan’s application to rezone.”

420 So.2d at 58-59.

Following a remand of the first case, Karagan filed a motion for summary judgment. The city and the planning commission responded and filed their motion for summary judgment and dismissal of the case. Attached to the city’s and planning commission’s motion for summary judgment was the affidavit of Arch Winter, the city’s planning consultant for more than thirty years, which stated, in essence, that the decision of the board of commissioners not to rezone was not arbitrary or capricious, as the question was one which was “fairly debatable.”

The trial court granted the city’s and planning commission’s motion for summary judgment, pursuant to Rule 54(b), Ala.R. Civ.P., and denied Karagan’s motion for summary judgment. From this final judgment, Karagan appeals.

Karagan asserts, inter alia, that due process requires that valid grounds be given by the Mobile Planning Commission to the board of commissioners when making a recommendation concerning a proposed zoning ordinance. Regarding the proposed zoning amendments, Mobile Zoning Ordinance IX-5 provides in pertinent part that “... the [Planning] Commission shall prepare a record of its proceedings in each case.. .. [A] certified copy of the record, together with the Planning Commission’s recommendation and the grounds therefor, shall be transmitted to the Board of Commissioners for further action.” (Emphasis added.) Karagan, citing Lynwood Property Owners Assn. v. Lands Described, 359 So.2d 357 (Ala.1978), argues that an invalid act by the planning commission, i.e., the recommendation of rezoning for invalid reasons, cannot be made valid by ratification of the board of commissioners.

The two grounds given by the planning commission for recommending denial of Karagan’s application were: (1) a development of the density proposed should be located on a major street, or at least a secondary street and (2) the proposed development would be out of character with neighboring single-family residential areas. The city’s response to a request for admissions concedes, however, that Howells Ferry Road, one of the streets servicing the property, is a secondary road.

Summary judgment shall be rendered if the pleadings, depositions, interrogatory answers, or affidavits show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56(c), Ala.R. Civ.P., Ray v. Montgomery, 399 So.2d 230, 232 (Ala.1980). The burden is on the moving party to establish that there is no genuine issue of a material fact and if there is a scintilla of evidence supporting the position of the party against whom the motion is made, summary judgment cannot be granted. Rule 56(c), Ala.R.Civ.P., Committee Comments; Fountain v. Phillips, 404 So.2d 614, 618 (Ala.1981); Ray v. Montgomery, 399 So.2d 230, 232 (Ala.1980).

The city’s admission that Howells Ferry Road was in fact a secondary street is at least a scintilla of evidence that at least one of the two reasons expressed by the planning commission in support of its recommendation to the board of commissioners for denial of rezoning was arbitrary. Because the city failed to establish that there was no genuine issue as to any material fact, the city was not entitled to summary judgment. Consequently, under these circumstances, summary judgment was inappropriate. By. so holding, however, we should not be understood as deciding whether the rezoning issue was “fairly debatable”; we only decide that Karagan is entitled to a trial on this issue.

The judgment of the trial court is therefore reversed and the cause rerhanded.

REVERSED AND REMANDED.

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

      . See Waters v. City of Birmingham, 282 Ala. 104, 209 So.2d 388 (1968), wherein we stated in regard to zoning amendments: “[I]f the adoption of the ordinance raises questions upon which reasonable differences may exist.in view of all the circumstances, and the wisdom of the ordinance is fairly debatable, then the action of the municipal governing body in adopting the ordinance will not be deemed arbitrary. ...” 282 Ala. at 108, 209 So.2d at 391.


text:
    Juanita MITCHELL v. Ricky J. MITCHELL.
    Civ. 3084.
    Court of Civil Appeals of Alabama.
    June 9, 1982.
    Rehearing Denied July 14, 1982.
    Certiorari Quashed Sept. 16, 1983 Alabama Supreme Court 81-904.

      James S. Ward of Stuart & Ward, Birmingham, for appellant.
    J.H. McEniry, III of McEniry, McEniry & McEniry, Bessemer, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is an interstate child custody case, the issues of which being largely governed by the provisions of the Parental Kidnapping Prevention Act of 1980 (the federal act) as is now codified in 28 U.S.C. § 1738A.

Mrs. Juanita Mitchell, the defendant mother, sought a writ of habeas corpus in an Alabama circuit court in an attempt to obtain custody of the child of the parties by the enforcement of a prior judgment of a Texas court which had granted the daughter’s custody to her. After an ore tenus hearing before the Alabama court on July 7, 1981, that court rendered its September 3,1981 judgment, which made the following findings:

“The Plaintiff (father) is presently a resident of the Bessemer Division of Jefferson County, the Defendant (mother).is presently a resident of Harris County, Texas.
“The parties were married July 1977 in Houston, Texas. Shortly thereafter the parties moved to Birmingham where they resided for approximately IV2 years. In the latter part of 1978 or the early part of 1979, the parties moved to Florence, AL where they lived for an additional 1½ years until July 1980. At that time the parties moved to Houston, Texas where the Plaintiff went into business with the Defendant’s father. In the middle of August 1980, the parties moved to a home in Houston where they resided through the month of November 1980. A child was born to the parties on November 3, 1980, and the parties separated around the middle of November 1980 with the Plaintiff returning to his parent’s home in Alabama November 17, 1980.
“The Plaintiff returned to Texas with the evidence being in conflict as to whether or not that return was in December 1980 or January 1981, the Court however reconciling the conflict in the testimony to that of the Plaintiff’s testimony and that was the Plaintiff returned to Houston, Texas January 6 or 7,1981, and remained in Houston until January 18, 1981. The Plaintiff went to the Defendant’s home in Houston on January 18, 1981, and although it is conflict what occurred at the time of the Plaintiffs arrival it is not controverted that the Plaintiff left the Defendant’s residence with the minor child without the Defendant’s permission and returned to the State of Alabama.
“Subsequently the Defendant filed for divorce in the State of Texas January 29, 1981, amended the petition for divorce March 31, 1981, service was obtained on the Plaintiff in the State of Alabama on April 21, 1981, and default was taken June 6, 1981. The Texas Court divorced the parties and granted custody of the minor child to the Defendant. Meanwhile the Plaintiff on March 13, 1981, filed a petition for custody in this Court alleging that the whereabouts of the Defendant was unknown and obtained a pendente lite order of custody on the 13th day of March, 1981, awarding care, custody, and control of the minor child to the Plaintiff.
“This is a case to be decided under the Uniform Child Custody Jurisdiction Act which passed the legislature in the regular session 1980 and the previous case decisions which are not in conflict with this act.
“The Court hereby makes the following findings of fact:
“1. That the Plaintiff and the child were residing within the State of Alabama at the time the order granting temporary custody to the Plaintiff entered on March 13,1981, which also was the initial decree affecting custody of the minor child.
“2. That the Plaintiff and Defendant resided within the State of Texas in marital cohabitation, that the parties separated while living in Texas and that the Defendant was a resident of the State for six months and the county for 90 days prior to the filing of the petition for divorce as required by Texas law.
“3. That jurisdiction properly rests before the Texas Court in Harris County, Texas to dissolve the marriage.
“4. Although this Court has determined that Texas was the proper forum and had jurisdiction to render the Decree of divorce, it is the further finding of this Court that concurrent jurisdiction exists to determine the question of custody in that an immediate emergency to protect the child exists where the proof supports that the Defendant and her parents requested the sum of $10,000.00 in order to give custody of the minor child to the Plaintiff.
“5. That the child is in a good home and is being properly cared for and loved and that the best interest of the child would be served by awarding care, custody, and control of the child to the Plaintiff.
“IT IS, THEREFORE, ORDERED, CONSIDERED, ADJUDGED, AND DECREED AS FOLLOWS:
“1. That care, custody, and control of the minor child, Natalie Norell Mitchell, is hereby awarded to the Plaintiff Ricky J. Mitchell with visitation granted to the Defendant.”

The federal act became effective on July 1, 1981, which was before the habea; corpus hearing and the final judgment ir. the trial court of Alabama. Hence, it applies to this case and, in any conflicting areas, takes preference over the Uniform Child Custody Jurisdiction Act as that uniform act appears in § 30-3-20, et seq., of the Code of Alabama (1975). Because of the issues here involved, we must examine and apply the federal act almost exclusively in order to properly decide the two primary questions, i.e., first, whether the Texas judgment was entitled to full faith and credit and was, therefore, required to' be enforced and, second, whether the Alabama court had jurisdiction to grant custody of the child to the father. A number of issues were here argued by counsel but these two problem areas substantially and adequately cover all material matters raised.

Alabama’s courts are required by the federal act to extend full faith and credit to a sister state’s child custody determination, which was rendered consistently with the federal act, by enforcing the judgment according to its terms and without modification. § 1738A(a). If the Texas custody judgment comported with the federal law, the judgment must be enforced. On the other hand, if it did not conform therewith, it is not entitled to full faith and credit and it is not mandatory under that act that it be enforced. Accordingly, when confronted with an enforcement problem concerning a foreign custody judgment, the first inquiry, if raised (as was here done), should be whether the sister state had jurisdiction under any of the provisions contained in the federal act. The critical date in ascertaining such compliance, or noncompliance, is the date of the filing of the proceeding in the Texas court, January 29, 1981, not the date of the rendition of the Texas judgment. § 1738A(c)(2)(A). Pitts v. Sutter, 408 So.2d 105 (Ala.Civ.App.1981), cert. denied, 408 So.2d 114 (Ala.1982).

The federal act details when a state’s child custody determination is consistent with the act. One of the conditions which is stated and defined therein and which confers jurisdiction upon a court to render an enforceable interstate custody judgment is home state status, which means, in the case of a child who is less than six months old, the state in which the baby lived from birth with his parents, a parent, or a person acting as a parent. § 1738A(b)(4) and § 1738A(c)(2)(A). Those two subsections must be read and construed together. When so done, the Texas court had jurisdiction under the provisions of the federal act because, when the proceedings were instituted in Texas, that state had been the child’s home state within the preceding six months and the child was absent from Texas only because of her removal by her father. The mother continued to reside in Texas.

The federal act does not, and, constitutionally, probably could not, provide the procedure to be followed in enforcement proceedings in state courts. The applicable procedure in UCCJA cases was generally discussed, by dicta, in Wyatt v. Falhsing, 396 So.2d 1069 (Ala.Civ.App.1981). No valid reason exists as to why the following procedure, as outlined in the Wyatt case, should not apply to full faith and credit interstate custody enforcement matters:

It (a sister state’s judgment) can be enforced by habeas corpus, contempt, injunction, a civil action, a petition or motion, or any other method available under the law of this state for the enforcement of a custody judgment rendered by a court of this state. State ex rel, Butler v. Morgan, 34 Or.App. 393, 578 P.2d 814 (1978) ....
A prompt hearing should be held as to whether the Act requires that the sister state’s custody judgment be recognized and enforced. The party seeking to enforce the judgment of another state normally would meet their initial burden of proof at that limited hearing by the introduction into evidence of a properly authenticated copy of the judgment relied upon. At such hearing, the parent contesting the foreign judgment would have the right to specifically plead in defense thereto and to present evidence as to the nonexistence of jurisdiction of the sister state rendering the judgment ...
Ordinarily, at such initial and limited hearing, the circumstances of the child or children is not then an issue before the court and evidence pertaining thereto is not admissible. State ex rel. Butler v. Morgan, supra. Should the trial court determine after such hearing that such a judgment must be recognized, the court would then enforce the other state’s judgment without further proceedings.

Wyatt v. Falhsing, supra, at 1073.

Almost exclusive child custody jurisdiction is initially granted to the home state by the federal act, while the uniform act grants alternative jurisdiction. For example, the federal law dictates that jurisdiction under the significant connection section has no application if another state is the child’s home state; but the uniform act contains no such proviso. Here, Texas was the home state and the Alabama court could not proceed because of a significant connection. The federal act is more rigid, allows less judicial discretion, and has attempted to provide more certainty as to the jurisdiction of courts. It eliminates many instances of concurrent jurisdiction which can, and did, occur under the uniform act, but which more readily occurred under court decisions which governed this area prior to the adoption of the uniform act.

The federal act further provides that in those instances where custody cases as to the same child are pending in different states at the same time, the court in the last case filed shall not exercise any jurisdiction if the other state’s proceedings (which were first filed) are being exercised consistently with that act. § 1738A(g).

There is no controversy over the fact that the Texas court had domestic jurisdiction under Texas law. As previously noted, Texas had jurisdiction under the federal law. Also, the Texas case was first filed and its proceedings were exercised pursuant to the federal act. The Texas judgment was entitled to full faith and credit and should have been enforced according to its terms pursuant to the dictates of Congress through the federal act. The Alabama ex parte temporary custody judgment was without federal jurisdictional foundation and could not be utilized to prevent the enforcement of the Texas judgment.

Section 1738A(f) of the federal act provides as follows as to modification of the Texas judgment by the Alabama court:

(f) A court of a State may modify a determination of the custody of the same child made by a court of another State, if—
(1) it has jurisdiction to make such a child custody determination; and
(2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.

Here, the Texas court continued to have jurisdiction. “Continuing jurisdiction exists when the initial custody order was rendered in compliance with the PKPA and the child or any contestant continues to reside in the state.” Flannery v. Stephenson, 416 So.2d 1034 (Ala.Civ.App.1982); § 1738A(d). The mother has continued to reside in Texas and the proper court of that state has not declined to exercise modification jurisdiction. Therefore, the Alabama court had no authority under the federal act to modify the Texas judgment.

That act of Congress does not recognize an emergency as granting modification authority, but it expressly states that a sister state’s judgment can only be modified as is provided in § 1738A(f), supra. § 1738A(a). This is not to say that either the best interest rule or the emergency rules as to custody were abolished by the federal act. Congress, however, established the proper forum for the determination of such issues in modification proceedings. In this case the federal act dictates that a judicial decision as to those issues remains with the Texas court rather than being assumed by the Alabama court. In any event, the facts as found by the trial court do not justify a conclusion that a legal emergency existed.

Since both critical decisional issues were expressly covered by the federal act, it is not necessary to also apply the provisions of the uniform act to the present facts.

For the foregoing reasons, the judgment of the learned trial court is reversed and this cause is remanded to that court for the prompt rendition of a judgment enforcing the Texas judgment according to its terms and without modification.

The foregoing opinion was prepared by retired circuit judge EDWARD N. SCRUGGS while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama of 1975, and this opinion is hereby adopted as that of the court.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.

WRIGHT, P.J., recuses himself.


author: WRIGHT, Presiding Judge.

text:
    Betty L. SMITHERMAN v. Bobby N. SMITHERMAN.
    Civ. 3637.
    Court of Civil Appeals of Alabama.
    May 11, 1983.
    Rehearing Denied June 1, 1983.
    Certiorari Denied Aug. 26, 1983 Alabama Supreme Court 82-857.
    William M. Dawson, Birmingham, for appellant.
    Eason Mitchell, Alabaster, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case.

Betty L. and Bobby N. Smitherman were married on June 22, 1956. Divorce was granted on December 1, 1982, on the grounds of incompatibility and adultery. In its decree the court granted the husband ownership of a 1973 Ford Torino and a 1966 Chevrolet pickup truck which were in his possession. It granted the wife the 1977 Ford LTD which was in her possession. All personal property located in the marital home was awarded to the wife. The court further granted the wife a sixty-five percent (65%) interest in the house and land owned jointly by the parties. The husband was granted the remaining thirty-five percent (35%) interest. The court found the house and land to have a fair market value of $80,000, encumbered with a mortgage. The wife was given a period of sixty days to purchase husband’s interest in the house. If she failed to do so, the husband was given the next thirty days to purchase her interest. If neither party bought the other’s interest within the ninety-day period, the house was ordered to be sold. The wife was awarded $600 as attorney fees. No periodic alimony was awarded.

The wife appeals, contending an abuse of discretion in the division of property and failure to award periodic alimony. She submits that in view of the finding of fault of the husband (adultery), the property settlement was unjust and inequitable.

In reviewing the trial court’s judgment for abuse of discretion, we presume the court’s judgment to be correct and will only reverse if it is so unsupported by the evidence as to be arbitrary and unjust. Bryant v. Bryant, 401 So.2d 65 (Ala.Civ.App.), cert. denied, 401 So.2d 67 (Ala.1981); Robinson v. Robinson, 381 So.2d 637 (Ala. Civ.App.), cert. denied, 381 So.2d 641 (Ala.1980).

The husband largely built the house with his own labor. The parties each contributed to paying the cost. The land was obtained from the husband’s family. For eight years he shared in payment of the mortgage and did the maintenance work though the wife has paid all payments on the mortgage for the last three years, since the husband left the home.

It is the duty of the trial judge to weigh the evidence and determine the equity in every divorce case. Each case stands upon its own facts. The division of property and the award of alimony are matters for the exercise of the trial judge’s judicial discretion. We disturb its judgment only for an abuse of that discretion or for an absence of supportive evidence. Mullinax v. Mullinax, 56 Ala.App. 676, 325 So.2d 185 (Ala.Civ.App.1976).

The wife is a teacher and has taught continuously during her marriage. Her monthly income is greater than the husband’s. There are no minor children of the marriage. Viewing the judgment in light of the evidence and the presumption accompanying it, we find no abuse of discretion.

Though we might have reached a different decision had we been sitting as trial judge, such is not grounds for reversal. Thompson v. Thompson, 377 So.2d 141 (Ala.Civ.App.1979). We will not substitute our judgment for that of the trial court. Id. The judgment of the trial court is affirmed.

The request of appellant for attorney’s fees on appeal is denied.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: TYSON, Judge.

text:
    James Earnest INGRAM v. STATE of Alabama.
    6 Div. 585.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.
    Rehearing Denied Nov. 2, 1982.
    Certiorari Quashed Sept. 2,1983.

      George H. Jones, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   TYSON, Judge.

The indictment charged James Earnest Ingram with unlawfully breaking into the dwelling of Louise Laughlin with intent to commit a crime therein, to-wit, an assault, and after causing physical injury by striking her, fled therefrom, all in violation of § 13A-7-5, Code of Alabama.

The jury found the appellant “guilty of burglary in the first degree” and following a habitual offender hearing, at which three prior felonies were proven, the trial court set sentence at life without parole.

Louise Laughlin testified that on July 17, 1980, she lived in a first floor apartment at 5015 Court J, Camellia Terrace, in Birmingham. She indicated that she was separated at that point, pending a divorce.

She indicated that she went to sleep and that a dog that stayed with her awakened her shortly after eleven o’clock and that there was a night light on in the room. She stated that she heard some cats and as she looked out of the window, she saw the smoke of a cigarette and saw the head of a male looking through the window from outside. She stated that she called to him and asked what he was doing there. She stated that he was a white male, light skinned with a slight beard, that his hair was brown and fit closely to his neck and ears. She stated that the man replied that he was looking for his wife; that his wife was running around on him and he thought that she was with a man in one of the apartments. She stated that the man was still smoking a cigarette. He was wearing a tee shirt of a beige color with writing on the front. She told the man that his wife was not there and neither was the man that he was looking for and that if he did not leave he could get into trouble. She stated that he then asked for some water to which she replied that, if he desired a drink of water, there was a nearby McDonalds and that he should go there. She also stated to him that he was putting himself in a bad position, as he could be accused of being a “peeping tom” or worse. She stated the man then laughed at her and told her that she was not going to call the police. He then kicked open the screen and came into her bedroom.

At this point in her testimony, she made a positive in-court identification of the appellant, James Earnest Ingram.

Ms. Laughlin then stated that the appellant told her that she was not going to call the police, that he was an expert marksman and that if she did not do what he told her, he would “blow her head off.” She stated that he pulled the hammer back on a pistol, pointed it at her and told her to lie on the bed. He told her to turn over on her stomach. She stated that he struck her and she began screaming. He told her to, “Shut up, bitch” and that he struck her two more times in the face with the gun. He then got on top of her and hit her with his fists and, as she screamed, she could hear people running downstairs and that they rang her doorbell as she called for help. She said that as she heard the people beating on the door, he jumped through the window and left, and that she struggled to her feet, as she was dazed by the blows, and opened the door. She described the appellant as wearing khaki type jeans and that he had attempted to put his hand over her mouth and she noticed that he had left footprints on the sheets as he was barefooted.

She stated that the appellant must have been about 5' 9" tall and that she gave a description to the neighbors, who called Birmingham police. She stated that, after talking with the police, she was then taken to the hospital because she was bleeding from her forehead above her left eye, which cut required several stitches. After treatment at the hospital, on the following day, she met the evidence technician at her apartment and observed him lifting fingerprints from the window and wall where the appellant came in.

Ms. Laughlin also testified that subsequently she had appeared at a police lineup and identified the appellant who was in position three in the lineup. On cross-examination, Ms. Laughlin testified that she identified the appellant both by his appearance and his speech.

Birmingham Police Officer Ann Ballard stated that she conducted a lineup at police headquarters on September 15, 1980. She stated that she attempted to obtain five white males of approximately the same height and weight and general characteristics, and without pointing out appellant in any way, that Ms. Laughlin identified the appellant after having him repeat certain words which he spoke on the night of the burglary. She stated that a photograph was made of this lineup which showed the appellant in position three.

Ms. Laughlin was recalled and stated she remembered the appellant by his appearance and his speech, and that he had a “Spanish accent.” Photographs of the lineup were then placed in evidence.

Donny Todd, Birmingham Evidence Technician, stated that he went to the apartment of Ms. Laughlin at 5015 Court J, on July 17, 1980, and took some photographs and made some fingerprint lifts on the walls and window. He stated that certain areas, because of the texture and general cleanliness or rough finish prevented his being able to make accurate lifts. He stated that he did see a place on the sheets which “could have been” where a person stepped, as it was muddy. He stated that he turned over his fingerprint lifts to Sandra Triplett of that bureau.

Greg Bearden testified that he made certain photographs of the police lineup at police headquarters on September 15, 1980, and identified those.

Sandra Triplett testified that she was the senior fingerprint technician with the Identification Bureau for the City of Birmingham. She stated that at the request of the district attorney she made a comparison with known prints of James Earnest Ingram and that “the results were negative.” (R. 141).

Ms. Laughlin was then recalled and testified that the next day she went back to the apartment with her neighbors and that in her presence, the windows were closed by them.

The appellant’s motion to exclude the state’s evidence was overruled.

The appellant then presented the testimony of Linda Ingram, his wife, Cindy Ingram, his daughter and Tommy Ingram, his son, each of whom testified that on the night of July 16-17, 1980, appellant was at their home at 3016 Avenue H, Ensley.

I

Appellant first asserts as error the question propounded to fingerprint technician Sandra Triplett, indicating that the use of the term “known print card for the defendant” indicated evidence of other offenses and as such was error. The record (R. 138) reads as follows:

“Q. Miss Triplett, let me ask you pursuant to my request did you bring a known print card for the defendant in this case, James Ernest (sic) Ingram?
“A. Yes, I did.
“Q Do you have the original with you in the courtroom today?
“A. Yes, I do.
“Q. Just a few minutes ago did you have an occasion to make a xerox copy of the original?
“A. Yes, I did.
“Q. Have you had an occasion to compare the original to the copy?
“A. Yes, sir.
“Q. I’ve got the copy marked State’s Exhibit 12 for identification purposes. Does it truly and accurately depict the original as compared to the xerox copy? “A. Yes, sir.”

As may be seen in examining the above colloquy and subsequent pages, nowhere does the record show an objection to this line of questioning. Further, the witness gave a negative answer. (R. 141).

In addition to the above reasons, the mere mention of a known fingerprint card does not clearly indicate a conviction as evidence of other crimes. Many persons are fingerprinted at birth, in later years while attending school or upon joining various organizations, including the military services. Therefore the mere existence of a fingerprint card is not per se “evidence of another offense.”

Clearly, no error resulted in the above questioning.

II

We have carefully examined the testimony of the victim, Ms. Laughlin, and are clear to the conclusion that her testimony shows that her in-court identification was based upon her conversation with and observation of the appellant on the night he broke into her apartment on July 15, 1980, and struck her.

While it is true she stated she recognized him both by his general appearance and his speech, we do not find that her in-court identification was faulty or the product of an unduly suggestive police lineup. Ms. Laughlin testified that she not only conversed with the appellant both outside and inside her apartment for a period of ten to fifteen minutes at close range, but during this period had an opportunity to observe his clothing, height, weight, coloring and hair style.

From the totality of circumstances developed in this record, we find that her testimony was reliable and that her in-court identification of appellant was properly admitted into evidence. The use of voice identification and appearance identification in no way infringed upon appellant’s constitutional rights. Donahoo v. State, 371 So.2d 68 (Ala.Cr.App.), cert. denied, Ala. 371 So.2d 74 (1979), and authorities therein cited.

III

The appellant challenges the use of convictions which occurred prior to the date of the Alabama Habitual Offender Statute, as being an infringement upon appellant’s constitutional rights.

This court has upheld the Alabama Habitual Offender Statute in an opinion by Judge DeCarlo in Watson v. State, 392 So.2d 1274 (Ala.Cr.App.), cert. denied, Ala., 392 So.2d 1280 (1980). We have also answered the appellant’s contentions with reference this statute in additional opinions of this court, particularly, Serritt v. State, 401 So.2d 248 (Ala.Cr.App.), cert. denied, Ala. 401 So.2d 251 (1981) and Smith v. State, 401 So.2d 251, (Ala.Cr.App.), cert. denied, Ala. 401 So.2d 257 (1981).

IV

Appellant also asserts that the admission into evidence at the habitual offender hearing of entries from trial docket sheets within Jefferson County was error in this cause.

This argument overlooks the provisions of Act Number 1037, Acts of Alabama 1971 Legislature, which specifically authorizes the admissions of these Jefferson County records into evidence without having same reduced to being “minute entries.” Likewise, the notations entered thereon were also properly considered by the trial court in Jefferson County as proof of the matters contained herein.

This court has specifically proved this practice in Julius v. State, 407 So.2d 141 (Ala.Cr.App.), reversed on other grounds, Ala. 407 So.2d 152 (1980).

We have carefully considered each argument of the appellant and find same to be without merit. This record is free of error.

The judgment of the trial court is therefore due to be, and is hereby affirmed.

AFFIRMED.

All the Judges concur.