text:
    Donald Ray POLSGROVE, Appellant, v. KENTUCKY BUREAU OF CORRECTIONS, Appellee.
    Court of Appeals of Kentucky.
    Feb. 4, 1977.
    Discretionary Review Granted May 17, 1977.

      David E. Murrell, Deputy Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., George Geoghegan, III, Asst. Atty. Gen., Ray Corns, Commonwealth Atty., 48th Judicial Dist., Frankfort, for appellee.
    Before GANT, COOPER and HOWER-TON, JJ.
   GANT, Judge.

The Appellant, Donald Ray Polsgrove, was arrested on an unspecified charge on November 19, 1974, and lodged in the Jefferson County Jail. He was subsequently convicted of the crime for which he was indicted and sentenced on September 26, 1975, to five years in the penitentiary. In the interim, he had served 317 days in the Jefferson County Jail. Upon his incarceration in the penitentiary, the Jefferson Circuit Court gave to the Appellant the credit of 317 days on his maximum sentence and the Bureau of Corrections awarded him 230 days adjusted jail credit time, in accordance with the policies of the Bureau of Corrections.

Appellant filed a petition in the Franklin Circuit Court for a Declaratory Judgment, requesting that the Bureau of Corrections be required to award “good time” credit for his pre-sentence custody. The Appellee filed a Motion to Dismiss in the Franklin Circuit Court and on May 27, 1976, an order dismissing this petition was entered therein.

Appellant urges as error the dismissal of the Appellant’s petition on the ground that the Appellant was not entitled to “good time” credit under Ky.Rev.Stat. 532.120(3) and that the Trial Court’s dismissal of the Appellant’s petition denied him his right to equal protection under the Fourteenth Amendment to the Constitution of the United States.

Before deciding the case on the grounds urged by the Appellant, the Court must first determine whether or not this action was properly brought. The Honorable David E. Murrell, Deputy Public Defender, filed a brief herein and argued the case before the Court, but in his own work, Kentucky Criminal Practice, states as follows:

“If a defendant is seeking release on other grounds besides showing that the judgment is void, he must do so by Petition for Writ of Habeas Corpus. For example, if the defendant contends that the State has lost jurisdiction over the defendant by unlawfully transferring him to another state before he is rearrested and incarcerated within the State, he .must attack the legality of his detention through a Writ of Habeas Corpus. See Herndon v. Wingo, Ky., 399 S.W.2d 486 (1966) . . . Habeas corpus is the proper remedy in any case where the defendant is seeking immediate release from custody; and where he is attacking the legality of his detention on grounds other than that the judgment is void. See Spurlock v. Noe, Ky., 467 S.W.2d [320] 329 (1971); Bray v. Weaver, Ky., 453 S.W.2d 7 (1970); Murphy v. Cranfill, Ky., 416 S.W.2d 363 (1967).” (Emphasis added.)

While Mr. Murrell does not mention the case at bar and parenthetically the Court has found no State cases stating that habe-as corpus is the exclusive remedy in this type of action, the Federal cases seem to so hold. In Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), three New York State prisoners brought a civil rights action under 42 U.S.C. § 1983 in the United States District Court for the Northern District of New York, challenging the constitutionality of disciplinary action by the New York State Department of Correctional Services in depriving them of good conduct time credits. The prisoners had elected to participate in New York’s Conditional-Release Program by which a prisoner serving an indeterminate sentence may earn up to ten days per month good-behavior-time credits toward reduction of his maximum sentence. For in-prison disciplinary reasons the good-time credits of each were cancelled. In conjunction with the civil rights action, they brought a habeas corpus action claiming that their credits were unconstitutionally cancelled in seeking their restoration. They alleged no damages, but only that the deprivation of their good-conduct-time credits was causing or would cause them to be in illegal physical confinement. The Supreme Court stated the issue in the case as follows:

“The statute is a general one, and, despite the literal applicability of its terms, the question remains whether the specific federal habeas corpus statute, explicitly and historically designed to provide the means for a state prisoner to attack the validity of his confinement, must be understood to be the exclusive remedy available in a situation like this where it so clearly applies.”

The Court, in an opinion by Justice Stewart expressing the views of six members of the Court, held that when a state prisoner challenges the very fact or duration of his physical imprisonment and seeks immediate or speedier release from imprisonment his sole Federal remedy is a writ of habeas corpus which requires that he exhaust effective available state remedies and he cannot maintain a suit for such relief under 42 U.S.C. § 1983.

The Court gives some insight in how to answer the case at bar which is strikingly similar when it stated:

“It is clear to us that the result must be the same in the case of a state prisoner’s challenge to the fact or duration of his confinement, based, as here, upon the alleged unconstitutionality of state administrative action. Such a challenge is just as close to the core of habeas corpus as an attack on the prisoner’s conviction, for it goes directly to the constitutionality of his physical confinement itself and seeks either immediate release from that confinement or the shortening of its duration.”

The Court, in distinguishing the decisions upholding the right of state prisoners to bring Federal civil rights actions to challenge the conditions of their confinement, stated that:

“ . . . none of the state prisoners in those cases was challenging the fact or duration of his physical confinement itself, and none was seeking immediate or speedier release from that confinement— the heart of habeas corpus.”

A later case, Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) distinguished Rodriguez by stating that if the action brought challenging the prisoner’s illegal confinement seeks damages then habeas corpus is not the appropriate or available remedy but that a Declaratory Judgment Action would be proper. In the case at bar, Polsgrove did not seek damages but only to be released from his confinement. Therefore, it is our opinion that the case should be dismissed, since it was brought in an improper fashion.

However, the Court feels it would be remiss in not setting out proper guidelines in the event an habeas corpus action is brought in the Franklin Circuit Court. First, it is the opinion of this Court that the Kentucky Bureau of Corrections is the proper party herein. Ky.Rev.Stat. Chapter 197 is directed to the Bureau of Corrections and not to the circuit court, while Ky.Rev. Stat. Chapter 532 is directed toward the circuit court. In the instant case, the actual jail time of 317 days was credited by the court toward the service of the maximum term of imprisonment as required by Ky. Rev.Stat. 532.120(3). The following sentence relating to consideration of time spent in custody prior to the commencement of sentence can only be applied by the Bureau of Corrections pursuant to Ky.Rev. Stat. 197.045(1).

Second, it was brought to the attention of the Court during oral arguments that it has long been the policy of the Bureau of Corrections to automatically give credit for “good time” upon the admission of the prisoner to the penitentiary. We feel that this policy is beyond the contemplation of the Legislature as expressed in Ky.Rev. Stat. 197.045(1). It is our opinion that this time must be earned and not automatically given. In that section of the statutes the Legislature refers to “good time previously earned” and the “right to earn good time.” Obviously, this contemplates that the prisoner must first do something before the good time credited is given to him and that failure to abide by the laws of the institution or commission of any offense during confinement may result in revocation of previously earned good time or denying the prisoner the right to earn future good time based upon the type of conduct. We are informed that the Bureau of Corrections will cease this practice of its own volition, but we feel that it is necessary to comment upon this in this opinion.

It is the further opinion of this Court that there is no valid distinction since the adoption of the Penal Code in giving credit for good time while the prisoner is in the penitentiary and credit for good time on time spent in custody prior to the commencement of his sentence. Adequate investigation of the custodial performance of the prisoner prior to the commencement of his sentence must be made in connection with this and it must be ascertained that the “time spent in custody prior to the commencement of sentence” shall be free of any offense or any violation of the rules of the jail in which he was confined. Such investigation should be made prior to the commencement of his sentence in the State penal institution and a report made and filed in the record accompanying the prisoner.

For the reasons above stated, the order of the lower court is affirmed.

All concur.


source: Caselaw Access Project

author: WHITE, Judge:

license: Public Domain

text:
    L. E. COOKE CORPORATION, Appellant, v. Alpha HAYES, Appellee. L. E. COOKE CORPORATION, Appellant, v. Donald L. SHANNON and Linda Shannon, Appellees. L. E. COOKE CORPORATION, Appellant, v. Luther GARTIN and Mary Gartin, Appellees. L. E. COOKE CORPORATION, Appellant, v. Leroy PACK, Appellee. L. E. COOKE CORPORATION, Appellant, v. J. W. AKERS and Dorothy Akers, Appellees.
    Court of Appeals of Kentucky.
    Feb. 4, 1977.
    Discretionary Review Granted May 17, 1977.

      William S. Kendrick, Francis, Kazee & Francis, Prestonsburg, for appellant.
    Dan Ball, Grover D. Adkins, Louisa, for appellee.
    Before WHITE, WILHOIT and WIN-TERSHEIMER, JJ.
   WHITE, Judge:

The five above captioned cases are consolidated for purposes of this appeal since all involve common questions of law arising out of common factual situations. Each of the five individual leases were entered into the 1973 with L. E. Cooke Corporation as lessee and each of the five respective appel-lees as lessors. The leases provided for payments of twenty-five (25) cents per ton for each and every ton of coal mined and removed with a minimum royalty of one dollar ($1.00) per acre per year. There is another pertinent portion of this lease dealing with termination which states: “This lease shall remain in full force and effect for one year and thereafter until notice is given by lessee of its intention to cancel said lease.” No mining was ever done and consequently, no actual royalties were ever paid. When one year had elapsed and the appellant undertook to pay the minimum royalty, it was notified that the appellees considered the lease as terminated and they each, in turn, filed these actions to cancel said leases. Judgment was entered on the record as submitted and the leases were cancelled.

The trial court in its conclusions of law cited Killebrew v. Murray, 151 Ky. 345, 151 S.W. 662 (1912) as standing for the proposition that where a lease is terminable at the will of the lessee it is terminable at the will of the lessor. Appellees here insist that the trial court was correct in such holding.

When one closely reviews the Kil-lebrew case, it is quite apparent that the heart of the holding is directed to the necessity for good, sufficient and valid consideration to have passed between the parties. Failure at that point is what made the lease there a unilateral agreement. Thus, when it was said that a lease which is terminable at the will of one of the parties is also terminable at the will of the other, it was enunciating a correct principle of law regarding unilateral agreements. This is sound, and it is still the law today. But, where consideration is good and sufficient (and one dollar per acre per year is) then rights relative to termination may be expressly contracted by either party without bringing such instrument under the unilateral rule. See Cleveland Wrecking Co. v. Aetna Oil Co., 287 Ky. 542, 154 S.W.2d 31 (1941).

Here, we are confronted with instruments that are clear and definite. They are for a year, with annual renewals at the rate of one dollar per year per acre. There is nothing ambiguous about the lease; and, the appellees clearly have a remedy if they are so disposed to avail themselves of it.

In the case of Cameron v. Lebow, Ky., 338 S.W.2d 399 (1960), the law as applicable to situations such as those before us is quite adequately explicit. In the absence of contractual duty relative to commencing development, there is no obligation on the part of the lessee to commence the actual operations unless and until lessors have given sufficient notice demanding the same within a reasonable time thereafter; and, in addition thereto, the lessee fails to comply therewith, the lessor shall then have the right to seek an end to the contract. See also Monarch Oil, Gas & Coal Co. v. Richardson, 124 Ky. 602, 99 S.W. 668 (1907).

We have reviewed the letters sent by appellees to L. E. Cooke Corporation, and we do not feel that they in any wise comport with the definitions of notice as set forth in Cameron v. Lebow, supra, and for that reason the judgment of the trial court is reversed and remanded for further proceedings consistent with this opinion.

All concur.


author: WINTERSHEIMER, Judge.

text:
    Hershell Belmont MURRAY, Appellant, v. Florence MURRAY et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 18, 1977.
    Discretionary Review Granted May 17, 1977.
    William L. Montague, Stoll, Keenon & Park, Lexington, for appellant.

      Ralph N. Walter, West Liberty, Johnson & Johnson, Paintsville, for appellees.
    Before WINTERSHEIMER, LESTER and WILHOIT, JJ.
   WINTERSHEIMER, Judge.

The Appellant, Hershell Murray, instituted an appeal on July 26, 1968, in the Morgan Circuit Court of an order of probate from the Morgan County Court. After some procedural maneuvers, the Morgan Circuit Court sustained the Appellant’s motion for a dismissal of the appeal from the order of probate, but retained jurisdiction of the case to determine the issue of whether the Appellant was an heir at law of the decedent, and included the question of whether the Appellant was a legitimate child and the question of the right of an illegitimate child to inherit from his father or his father’s kindred as a constitutional question. Briefs and depositions were filed and the case was submitted to the court for judgment upon the record. On February 28, 1974, the trial court issued its judgment which ultimately found that the Appellant was not a lawful heir or issue of the decedent and dismissed the action. A notice of appeal was filed on March 26, 1974. On October 8, 1976, the Supreme Court of Kentucky transferred this case to the Court of Appeals. This Court affirms the judgment of the trial court.

The questions presented are as follows:

1. Was the Appellant entitled to take, pursuant to KRS 394.400 and/or 394.410(1), the share devised to Fred Murray under the will of Dr. Murray as a grandson?

2. Is the Appellant a legitimate child by reason of KRS 391.100(2)?

3. Are the Findings of Fact and Conclusions of Law of the trial court supported by substantial evidence?

4. Is KRS 391.090(2) constitutional under the Kentucky and Federal Constitutions?

Dr. Hershell B. Murray, a resident of Morgan County, was killed in a boating accident on May 21, 1967. His will, dated December 26,1944, was admitted to probate in Morgan County on April 22, 1968. The will is very short and reads as follows:

“All of my estate I devise and bequeath One-Half to Fred Murray and Lula B. Murray (Father & Mother) the other Half to Mrs. Florence B. Murray (Wife) for their own use and benefit forever, and I hereby appoint them my executors without bond, with full power to sell, mortgage, lease or in any other way dispose of the whole or any part of my estate.”

Fred Murray predeceased Dr. Murray and at the time of his death left Dr. Murray as his only surviving child, leaving no other child, issue or descendent surviving him. At the time of Dr. Murray’s death, he left surviving him his wife, Florence Murray; two adopted daughters; his mother, Lula; and the Appellant, Hershell Murray, as a natural child.

The record indicates that Dr. Murray was married to Florence in 1930, when he was a student at medical school in Louisville. Thereafter, he was called into the Armed Forces and stationed at a “CCC” camp in McKee, Kentucky. While at McKee, he met a local school teacher, Nora L. Moore. She testified that there was an alleged marriage ceremony and that she and Dr. Murray lived together for sometime thereafter. In 1937, Nora L. Moore went to Ashland, Kentucky, and had the couple’s child, Her-shell, the Appellant in this action. The birth certificate for the child indicates that Dr. Murray is the child’s father. Nora testified that she did not know until 1937 that Dr. Murray was married to someone else. She testified that she attempted to get a divorce and custody of the child. It is not disputed that Dr. Murray visited and supported the child.

It would appear that if the Appellant’s argument in respect to KRS 394.400 and 394.410(1) is to be given any credence, that the Appellant would be entitled to share in Dr. Murray’s estate to the extent of one-third of one-fourth or one-twelfth. There is a line of cases that now permits adoptive children to have the same rights as natural legitimate children. Adoptive children can now inherit from relations of their adoptive parents. Since Dr. Murray’s will was executed after 1940, and that at all times up to and after his death, adopted children were entitled to share in the same manner as natural and legitimate children, they too would qualify as “issue” or “descendents” of Fred Murray.

The Appellant is not capable of inheriting from his father or his father’s kindred by reason of KRS 891.090(2), and is accordingly not permitted to take under the anti-lapse provision of either KRS 394.400 or 394.410(1). This Court has interpreted the word “children” to exclude illegitimate children unless a clear intention is expressed in the will. Marguette v. Marguette’s Ex’r, 190 Ky. 182, 227 S.W. 157 (1921). The Appellant is excluded from taking under the decedent’s will because the decedent did not intend the Appellant to take. The Appellant contends that Dr. Murray was presumed to know the law. The Appellees correctly maintain that this certainly includes all of the laws and that accordingly, Dr. Murray, who had adopted two children, was capable of deciding on his own who would benefit from his estate. The will, written seven years after the Appellant’s birth, must be considered to reflect the intention of the testator. If Dr. Murray had wanted the Appellant to share in his estate, he could have named the Appellant a devisee or legitimatized him. Dr. Murray did not do so, and the Appellant should not share in his estate.

The Appellant maintains Hershell is a legitimate child. There is no dispute that the Appellant is a natural child and accordingly was entitled to support as a minor. The evidence and the record fails to support the contention that the relationship between Dr. Murray and Nora Moore ascended to the legally acceptable status of an “other illegal or void marriage” as provided in KRS 391.100(2). The evidence indicates serious questions as to the actual occurrence of such a marriage. The assertion that the birth certificate is prima facie evidence of legitimacy is not acceptable. The mother provides certain information to the record keeping agency in such instances. It strains the imagination to believe that Miss Moore was naive and inexperienced. She was a qualified school teacher, had worked as a court reporter, had held several different responsible jobs, and her father was a practicing attorney. Her background does not disclose naivety. The witness Moore attempts to inject the question of an attempted divorce. As with the marriage certificate, and the circumstances surrounding the alleged marriage, the divorce proceeding is also clouded by a lack of substantial evidence and a general vagueness as to the witness’ testimony.

Accordingly, the findings of facts and conclusions of law by the trial court are supported by substantial evidence. The Appellant has the burden of proof. The trial court did not believe that the Appellant met this burden with clear and convincing proof. The trial court simply did not believe the evidence presented by the Appellant from Nora L. Moore. The lower court indicates that witness Moore admitted that she used her “maiden name” and the Appellees maintain that her alleged marriage was in fact a secret. This Court has carefully examined the record and finds that it is in agreement with the conclusions of the trial court.

The Appellant maintains that this ease could have been decided without reaching the constitutional questions he raises. Perhaps it could. However, considering the question of KRS 391.090(2) as a constitutional issue, we find that the Supreme Court of the United States, as well as the Court of Appeals (now Supreme Court of Kentucky) have refused to directly consider the question of the right of illegitimate children to inherit from both parents. Although this Court may fully sympathize with the plight of an illegitimate child in a situation in which the right to inherit is denied, we must agree with the statement of Judge Patmore in Pendleton v. Pendleton, Ky., 531 S.W.2d 507 (1976), in which he says that the United States Supreme Court has not chosen to overrule its decision in Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971). In that case the Supreme Court held by a five to four vote that a Louisiana law barring an illegitimate child from inheriting from its father had legal basis and did not violate the equal protection clause of the 14th Amendment. The factual situation in this case does not appear to be sufficient to warrant any attempt to overrule either the Labine, supra, or the Pendleton case. In this instance the testator treated his adopted legitimate children exactly as he treated his natural illegitimate child. To permit the natural child to inherit through the grandfather without permitting such an inheritance by the adopted children would only compound any problem of discrimination.

There are a variety of means by which illegitimate children could achieve equal treatment. The Legislature of Kentucky certainly could enact appropriate legislation. In a proper case, either state or federal courts could also consider such a matter. It is the opinion of this Court that such a proper case does not exist in the matter we are now asked to decide.

It is our belief that Dr. Murray excluded the Appellant as an heir in his will as he did his adopted children. The will reflects the intention of the testator. Accordingly, the courts should not substitute their own judgment. The Appellant has failed to meet the burden of proof necessary to establish himself as a legitimate heir. Under existing law, KRS 391.090(2) is not unconstitutional.

The judgment of the trial court is affirmed.

ALL CONCUR.


author: VANCE, Judge:

text:
    CITY OF ST. MATTHEWS, Appellant, v. George L. BEHA et al., Appellees.
    Court of Appeals of Kentucky.
    April 15, 1977.
    J. W. Jones, Louisville, for appellant.
    Robert L. Sloss, Stuart E. Lampe, Sheryl G. Snyder, Wyatt, Grafton & Sloss, W. Wa-verly Townes, Nold, Mosley, Clare & Rogers, J. Bruce Miller, County Atty., Kyle Hubbard, William L. Hoge III, Nold, Mosley, Clare & Rogers, Louisville, for appel-lees.

      Before HOWARD, REYNOLDS and VANCE, JJ.
   VANCE, Judge:

This is an appeal from a summary judgment of Jefferson Circuit Court which invalidated an annexation of territory by the City of St. Matthews, Kentucky, upon the ground that the city failed to publish notice of the filing of the annexation suit as required by statute.

St. Matthews is a fourth-class city. The statutes which govern the publication of notice in annexation procedures in fourth-class cities are KRS 81.210 and 81.220, which provide as follows:

“81.210 (3483) Annexation or reduction of territory by fourth-class city.
“Whenever a fourth-class city desires to annex any territory or to reduce the boundaries of the city, the city legislative body shall, by ordinance, accurately define the boundary of the territory proposed to be annexed or stricken off. The ordinance shall be published pursuant to KRS Ch. 424. Within thirty days after the adoption, publication and advertisement of the ordinance, a petition shall be filed in the circuit court of the county within which the city is situated, in the name and on behalf of the city, setting forth the passage, publication and advertisement of the ordinance and its object and purposes, together with an accurate description by metes and bounds of the territory proposed to be annexed or stricken from the city, and praying for a judgment to annex the territory or strike it from the city. The petition shall be filed not less than twenty days before the first day of the next succeeding term of the circuit court in that county. Notice of the filing of the petition shall be given in the same manner as notice of passage of the ordinance. The circuit court shall not have jurisdiction of the proceedings unless the required publication or advertisement of the ordinance contains notice of the proposed proceedings in the court. If no defense is made at the first term of the court after the filing of the petition and notice and the court makes no order for granting future time for making defense, the court shall render judgment annexing or striking off the proposed territory. (Emphasis added.)
“81.220 (3483) Protest against annexation by fourth-class city; Trial; Judgment.
“(1) At the first term of the circuit court, or within the time fixed by the court by its order, any one or more of the resident voters of the territory proposed to be annexed or stricken off may file a defense in the proceeding, setting forth the reasons why the territory or any part of it should not be annexed to the city, or why the limits of the city should not be reduced. The case shall be tried by the court without the intervention of a jury. If the court, upon hearing, is satisfied that less than a majority of the resident voters of the territory sought to be annexed or stricken off have remonstrated against the proposed extension or reduction, and that the proposed extension or reduction of the limits of the city will be for the interest of the city and will cause no material injury to the owners of real estate in the limits of the proposed extension or reduction, the proposed extension or reduction shall be decreed. If the court finds that a majority of the resident voters in the territory to be affected, or the owners of the property if there are no resident voters, have remonstrated against the change, and that the change will cause material injury to the owners of real estate in the limits of the proposed extension or reduction, the extension or reduction shall be denied. Costs shall follow the judgment. An appeal shall lie from the judgment as in other cases.
“(2) if the judgment is in favor of the city, the clerk of the court shall certify the judgment to the city legislative body, which shall enter the judgment on its records and shall thereupon, by ordinance, annex to or strike from the city the territory described in the judgment.”

For some reason which does not appear of record the general assembly has prescribed for annexation in fourth-class cities a procedure entirely different from that used by cities of the first three classes. See KRS 81.100 and 81.110. In doing so it has enormously complicated the annexation procedures in fourth-class cities in counties where the circuit court is in continuous session.

In seeking to comply with the statutory procedure the St. Matthews City Council enacted an ordinance proposing annexation of certain territory. This ordinance was published one time in compliance with KRS 424.130(l)(a). The publication contained a notification that within thirty days the city would file in the Jefferson Circuit Court a petition asking for judgment to annex the territory. On February 21,1975, within the thirty-day limit, the city filed its petition to annex.

KRS 81.210 requires that notice of the filing of the petition be given in the same manner as notice of the passage of the ordinance. Notice of the passage of the ordinance was required to be given pursuant to KRS, Chapter 424 and was satisfied by one publication in a qualified newspaper within thirty days of passage.

Accordingly St. Matthews published on February 27, 1975, notice of filing of the petition. The notice contained a statement that any person who desired to protest the annexation could do so not later than March 31, 1975, by filing proper pleadings in the Jefferson Circuit Court.

St. Matthews contends that this publication gave notice of the filing of the petition in the same manner as it gave notice of the passage of the ordinance and therefore completely satisfied the requirements of KRS 81.210 and KRS 424.130(l)(a).

The appellees contend the purpose of the publication of the notice of filing the petition was to inform the populace of the time within which they could make a defense to the annexation petition and that by reason of KRS 424.130(l)(b) the notice was required to be published not more than twenty-one days nor less than seven days before the last day of the time to act.

This contention is predicated upon KRS 424.140(4) which provides as follows:

“Where any statute provides that, within a specified period of time after action by any governmental agency, unit or body, members of the public or anyone interested in or affected by such action shall or may act, and it is provided by statute that notice of such governmental action be published, the advertisement shall state the time and place when and where action may be taken.”

KRS 81.210 requires that notice of filing the petition be published. KRS 81.220 provides a specified period in which members of the public can remonstrate.

Appellees contend therefore that KRS 424.140(4) requires notification of the time to remonstrate and KRS 424.130(l)(b) requires this notice to be published not more than twenty-one days before the last day to remonstrate.

The time to remonstrate or file a defense is fixed by KRS 81.220 as any time during the first term of court or within the time fixed by the court by its order. The court did not by order fix a time for filing defense. It follows that defense could be made at any time during the next term of circuit court following the filing of the petition.

The difficulty with the statute in this case is that Jefferson Circuit Court is a court of continuous session and does not have fixed terms.

In selecting and advertising the last date to defend against the petition the city had two options. It could hazard a guess as to what the general assembly intended or it could have asked the judge of the circuit court to fix a date for remonstrance. It chose to hazard a guess and in its advertisement it fixed the last date of remonstrance as March 31, 1975. That would have been the last day of the March term of circuit court if Jefferson Circuit Court had a March term. Since Jefferson Circuit Court did not have a March term, appellant is reduced to the argument that its notice was a substantial compliance because citizens in the other five classes of cities are given thirty days by statute after the enactment of an annexation ordinance to remonstrate. As we have pointed out, however, for some unknown reason the general assembly has provided an entirely different annexation procedure for cities of the fourth class.

Even if we could hold that the allowance of a thirty-day period for remonstrance was a substantial compliance, the published notice runs afoul KRS 424.130(l)(b) because it was published more than twenty-one days before the time to remonstrate expired.

Appellant contends that KRS 424.-130(l)(a) rather than (l)(b) is applicable because KRS 81.210 requires that notice of the filing of the petition shall be given in the same manner as notice of the passage of the ordinance. Publication of notice of passage of the ordinance pursuant to KRS 424.130(l)(a) was sufficient, but it is obvious that the purpose of the notice of filing the petition was to inform citizens that within a certain time they had a right to respond to the petition. The notice was a form of constructive service of process and unless the statutory form was strictly complied with, the service was bad. See Booth v. Copley, 283 Ky. 23, 140 S.W.2d 662 (1940); Vincent v. Bowling Green, Ky., 349 S.W.2d 694 (1961).

We regard it unnecessary to speculate what period of time in a court of continuous session is the equivalent of a term in other courts because in any event the notice actually published in this case was published more than twenty-one days before the date fixed in the advertisement as the last day to remonstrate.

We agree with appellant that the statute is vague and is subject to more than one interpretation. It was within the power of appellant to comply with the statute, however, by the simple expedient of asking the court to fix by order the last day for remonstrance and publishing the notice of the filing of the petition not less than seven nor more than twenty-one days before the date so fixed.

The judgment is affirmed.

All concur.


author: WHITE, Judge.

text:
    MOTORISTS MUTUAL INSURANCE COMPANY, Appellant, v. M. Leroy HUNT, Appellee.
    Court of Appeals of Kentucky.
    April 15, 1977.

      Raymond 0. Harmon, William P. Swain, Wesley G. Gatlin, Boehl, Stopher, Graves & Deindoerfer, Louisville, for appellant.
    Hugh -K. Campbell, Louisville, for appel-lee.
    Before WHITE, GANT and HOWER-TON, JJ.
   WHITE, Judge.

This appeal is from a judgment entered on a jury verdict awarding the appellee, M. Leroy Hunt, recovery against the appellee’s insurance company on an uninsured motorist’s clause.

The suit arose out of an automobile accident which occurred on October 9, 1971, in Jefferson County, Kentucky, between the appellee and Henry A. Wheet, the alleged uninsured motorist. Several attempts were made by both appellee and appellant to serve Wheet with process, including the appointment of Special Bailiffs on three different occasions. All attempts were to no avail and Wheet was not served, did not appear, and was unavailable for trial.

The only evidence in the entire record that Wheet was uninsured was the testimony of the appellee at trial (T.E. at 16-17):

Q.12. Mr. Hunt, after the accident occurred, did you have a conversation with the operator, this boy?
A. Yes, sir.
******
Q.15. At that time did you discuss or inquire of him if he had liability insurance?
A. Yes, sir, I asked him.
Mr. Gatlin: Object to that as hearsay. Court: All right. I will take the objection, but I will let the witness answer.
A. I asked him if he had insurance, and he said, “None whatsoever.”
Q.16. Did you have any later conversation with him and ask the same question of him again?
Mr. Gatlin: Same objection.
Court: Okay. Same objection noted. Go ahead and answer, sir.
A. I called Mr. Wheet two or three times, and he said he didn’t have no insurance, and he was out of a job, and he couldn’t make no payments on my car or anything else.

The appellant made motions for a directed verdict at the conclusion of the plaintiff’s proof and at the conclusion of all the proof. These motions were overruled, and the case was submitted to the jury on an interrogatory as to the uninsured status of Wheet. The jury found for the appellee in the amount of $3,220.00.

The majority rule is that in an uninsured motorist case the insured bears the burden of proof that the adverse driver was in fact an uninsured motorist at the time of the accident. This is stated in 7 Am.Jur.2d Automobile Insurance § 136, at 463 (1964) as follows: “The burden of showing that the party responsible for the accident was uninsured is on the insured plaintiff attempting to recover under the uninsured motorist coverage.” See also Annot: Automobile Insurance: What Constitutes an “Uninsured” or “Unknown” Vehicle or Motorist, Within Uninsured Motorist Coverage, 26 A.L.R.3d 883, 892.

The only question left for our decision is whether the evidence presented by the ap-pellee is sufficient to meet this burden of proof. In so doing, we will keep in mind the following statement found in Mer chant’s Mutual Insurance Co. v. Schmid, 56 Misc.2d 360, 288 N.Y.S.2d 822 (1968):

Since the absence of insurance upon the offending vehicle and its driver is a condition precedent to the applicability of the uninsured driver endorsement, we hold that the burden of proving such absence is upon the claimant. However, we must keep in mind that proving a negative is always difficult and frequently impossible and that, consequently, the quantum of proof must merely be such as will convince the trier of facts that all reasonable efforts have been made to ascertain the existence of an applicable policy and that such efforts have proven fruitless. In such an event, and absent any affirmative proof by petitioner [the insurance company], the inference may be drawn that there is in fact no insurance policy in force which is applicable.

In the present case, the necessary quantum of proof depends upon the testimony of the appellee. Appellee’s testimony that Wheet told him he had no insurance is hearsay because it is an out of court statement offered to prove the truth of the matter asserted. In order for it to be admissible, it must come within one of the hearsay exceptions. It is not res gestae since the statement of Wheet as to insurance coverage, though spontaneous, does not “in some way elucidate, qualify, or characterize the act[s] in question.” Cook v. Hall, 308 Ky. 500, 214 S.W.2d 1017 (1948).

Neither is it the exception for admissions of a party-opponent because there was no personal service of summons on Wheet and he was not constructively summoned by the procedure set out in CR 4.05, 4.06, 4.07 and 4.08. Since Wheet was not a party for res judicata purposes, Barnett v. Commonwealth, Ky., 348 S.W.2d 834 (1961), we will not consider him a party within the admissions exception to the hearsay rule.

The only other exception to the hearsay rule which could apply is that of a declaration against interest. In this sense Wheet’s statement that he had no insurance would be against his pecuniary interest in that he would be personally liable for his tortious act. The Kentucky cases in which hearsay statements of this type have been found admissible have all involved declarations of deceased persons. See, e. g., Evans v. Payne, Ky., 258 S.W.2d 919 (1953).

» We note, however, that in most jurisdictions, any type of actual unavailability (including the situation at hand) is sufficient cause for the introduction of declarations against interest, Lawson, Kentucky Evidence Law Handbook, Sec. 8.40 (1976). It is also of interest that the new Federal Rules of Evidence [Rule 804(a)(5), (b)(3)] would allow Wheet’s statements to be substantive evidence of Wheet’s uninsured status because it was a declaration against interest.

We hold that, limited to the particular facts of this case, Wheet’s statements constitute declarations against interest which are admissible as an exception to the hearsay rule.

The judgment is affirmed.

All concur.


author: FINCH, Judge. PER CURIAM.

text:
    Jaurel FINCHER and Edna Fincher, Plaintiffs-Respondents, v. MILES HOMES OF MISSOURI, INC., and Dorsey Rayl, Sheriff of Pulaski County, Defendants-Appellants, and Lester Stacey, Defendant.
    No. 59655.
    Supreme Court of Missouri, en banc.
    March 14, 1977.
    Rehearing Denied May 10, 1977.

      Nicholas G. Gasaway, of Richeson, Roberts, Wegmann, Gasaway, Stewart & Schneider, P. C., Hillsboro, for defendants-appellants.
    William C. Morgan, Waynesville, for plaintiff s-respondents.
   FINCH, Judge.

This is an appeal from a judgment wherein the trial court quieted title in plaintiffs to a tract of land, invalidated a deed of trust thereon on the basis that the purchaser under a contract for a deed has no right to encumber the property, and impressed the tract with an equitable lien in favor of defendant Miles Homes of Missouri, Inc. for $1,883.03 for materials furnished for a house thereon. On appeal to the Missouri court of appeals, Springfield district, that court, contrary to the decision of the trial court, concluded that a purchaser under a contract for a deed has an interest in the property which may be mortgaged. Nevertheless, it affirmed, concluding that terms in this contract of sale prohibited Staceys from mortgaging their interest. Furthermore, said the court, even if rights did accrue thereunder, they were extinguished when the purchaser, having defaulted, surrendered his rights under the contract to seller. Thereafter, we ordered the case transferred to this court and we now decide it as though here on direct appeal. We reverse and remand.

On May 3, 1967, plaintiffs entered into a contract with defendant Lester Stacey and his wife, since deceased, to sell them a tract containing approximately one-half acre. By its terms, plaintiffs were to sell to buyers the tract described therein for $1,200, payable $200 down with the remainder payable in monthly installments of $47.50 each, which included interest. A few days later the same parties executed a second “Contract for Sale of Real Estate” dated May 11, 1967, by which the parcel described therein was to be sold on the same terms as to price and schedule of payments as those in the May 3, 1967 contract, with certain additional restrictions and conditions not spelled out in the prior agreement. This latter contract, according to the evidence, was intended to supercede the prior agreement and constitute the final agreement between the parties. The description in the contract of May 11, 1967, was more detailed and varied somewhat, as later noted, from the earlier description. Neither contract was recorded.

The Staceys also entered into an agreement with Miles Homes dated May 18, 1967, to buy a pre-cut home for erection on the tract purchased by them from plaintiffs. The contract for $6,378 covered materials for the house but no labor. In addition, the contract called for a charge for various loan services of $200. The Staceys paid $2 down, leaving a balance due Miles Homes of $6,576. To evidence that indebtedness, the Staceys executed a note to Miles Homes for $6,576 payable in monthly installments of $52 with the remaining unpaid balance due and payable November 30, 1970. The note was secured by a deed of trust on the tract described in the May 3 contract between Staceys and plaintiffs. That deed of trust was recorded June 2,1967. Pursuant to the contract, Miles Homes delivered materials to the site and the Staceys then erected a home thereon.

Staceys made payments to plaintiffs from time to time on the purchase price of the lot. On April 29, 1969, the balance due under the sale contract was $221.70. No further payments were made by Staceys to plaintiffs. Sometime thereafter, Mrs. Stacey died and in December 1971, Mr. Stacey vacated the premises. Plaintiffs meanwhile had visited the house to attempt to collect-additional payments from Stacey but to no avail. Finally, plaintiffs notified Stacey that if he did not pay the balance, they would be required to take action. Stacey then informed plaintiffs that he would have to let the property go. On March 1, 1972, at the request of plaintiffs, he signed on the bottom of the May 11, 1967, contract a statement entitled “Release by Buyers” which acknowledged his default and the fact that he had no remaining interest in the property. Stacey then removed his furniture from the house and plaintiffs took possession. They expended certain sums to complete and repair the house in certain respects, and thereafter they rented it for $110 per month.

Meanwhile, Staceys also had made payments to Miles Homes on their note. Total payments thereon amounted to $2,587.24.

In September 1973, plaintiffs instituted this action. Count One of their second amended petition, on which the ease was tried, sought to quiet title in plaintiffs. Count Two was in the nature of a declaratory judgment action which sought to have the court declare that the deed of trust given by Staceys to Miles Homes was not a lien on the property. Count Three, pleaded in the alternative, sought a money judgment if plaintiffs were found not to be the owners of the property.

In its answer and counterclaim, Miles Homes admitted that the plaintiffs had legal title to the tract in question, but alleged that equitable title had been vested in the Staceys as a result of the contract to purchase and that the Staceys had a right to execute a deed of trust on that equitable interest. Consequently, alleged Miles Homes, it had an interest in the property by virtue of the note and deed of trust from the Staceys. Miles Homes offered to pay the unpaid balance of the purchase price on the lot plus good faith improvements by plaintiffs and sought, on payment thereof, to receive a deed to the property, or, in the alternative, sought a decree that plaintiffs, while holding the legal title, did so with an obligation to pay Miles Homes the balance due on its note and deed of trust. Finally, Miles Homes pleaded that if its deed of trust was not enforceable, it was entitled to an award of the reasonable value of materials furnished, asserted to be $10,000.

The trial court first quieted title in the plaintiffs. It then held that the deed of trust given by Staceys to Miles Homes was not a valid lien on the real estate. The latter holding was based on conclusions that (1) Staceys had no right to execute a deed of trust on the tract, (2) that the real estate described in the deed of trust was not the same real estate described in the contract of May 11, 1967, and (3) that such interest, if any, as could have been conveyed by Sta-ceys under the deed of trust was extinguished when plaintiffs exercised their rights under the contract of sale to terminate that contract for default thereunder. The trial court went on, however, to hold that Miles Homes was entitled to receive the sum of $3,600, the reasonable value of materials furnished by it and located on the premises, less payments received, leaving a balance of $1,883.03 for which a lien on the property was established.

No complaint is made on appeal concerning the holding of the trial court that fee simple title was vested in plaintiffs. The objections made relate only to the legal conclusions of the trial court that for various reasons the deed of trust given by Sta-ceys to Miles Homes was not a valid lien on the premises.

1. Did Staceys have a right to execute a deed of trust on property which they had contracted to purchase under a contract for a deed?

We conclude that they did. In Lewis v. Gray, 356 Mo. 115, 201 S.W.2d 148 (1947), this court held that absent a valid and enforceable restriction to the contrary in a contract for the sale of land, a purchaser’s interest therein pursuant to such contract can be mortgaged. In other words, the court recognized that a purchaser with only equitable title to land can execute a note to a third party and give as security for that note a deed of trust on his interest under the terms of that contract. In so holding, the court said, 201 S.W.2d at 151:

“The instant issue is concerned with the interest acquired by the vendee under a contract for purchase, not the interest retained by the vendor. Absent a valid and enforceable restriction contra in the contract of sale and purchase: ‘The purchaser under an executory contract for the sale of land, or a bond for title, being in possession and having partly performed his part of the contract, although the legal title remains in the vendor, has an interest in the premises which he may mortgage to a third person.’ 41 C.J. 374, Secs. 161, 163. See also 41 C.J. 478, Sec. 394. We consider this has been the law of Missouri for many years when applied to transactions between private citizens, although some have been inclined to extend the statement relied upon by Gray beyond the vendor-vendee cases wherein it was made. * * *”

See also 59 C.J.S. Mortgages § 75e (1949).

Plaintiffs argue that even if such a deed of trust is permissible as a general proposition, it was prohibited in this instance because in paragraph seven of the contract dated May 11,1967, after providing that the agreement was binding on the parties and their heirs, executors, administrators, and assigns, the contract then stated, “provided, however, that Buyers may not assign their rights hereunder in whole or in part without written consent of Sellers”. Plaintiffs argue that the practical and legal effect of the deed of trust given by the Staceys to secure the note given to Miles Homes was to assign a portion of the Staceys’ rights in violation of the foregoing provision.

We conclude that the quoted language did not forbid the execution of the deed of trust by the Staceys. An assignment is to be distinguished from a mortgage or deed of trust. The rule is stated in 6A C.J.S. Assignments § 5 (1975) as follows:

“Whether or not a transfer of a particular right or interest is an assignment or some other transaction depends, not on the name by which it calls itself, but on the legal effect of its provisions, * * *
“A mortgage is not an assignment, and differs from an assignment in that it creates only a lien in favor of the mortgagee, whereas an assignment passes the whole interest in the thing assigned. . An assignment of property as security for a debt is usually regarded as constituting a mortgage of the property.”

Consistent with the foregoing rule is what this court said in R. L. Sweet Lumber Co. v. E. L. Lane, Inc., 513 S.W.2d 365, 368 (Mo. banc 1974), as follows:

“ ‘The nature of the title conveyed under a deed of trust was well set forth in City of St. Louis v. Koch, 156 S.W.2d 1, 5[3, 4] (Mo.App. 1941): “A deed of trust in the nature of a mortgage given on land to secure the payment of a debt is held to be ‘a lien and nothing more. * * So viewed, it is neither an estate in land, nor a right to any beneficial interest therein. It is neither jus in re nor jus ad rem. It is merely the right to have the debt, if not otherwise paid, satisfied out of the land. The debt is the essence of the mortgage, the lien a mere incident that follows it as a shadow (Lipscomb v. Talbott, 243 Mo. 1, 31, 147 S.W. 798).’ Missouri R.E. & Loan Co. v. Gibson, 282 Mo. 75, 220 S.W. 675, 676. We must hold, therefore, that appellant’s ownership of the deed of trust on the property did not constitute him the owner of the title to the property. He had ‘a lien and nothing more’, which gave him only ‘the right to have the debt, if not otherwise paid, satisfied out of the land.’ Missouri R.E. Loan Co. v. Mary J. Gibson et al., supra. See also Dickerson v. Bridges, 147 Mo. 235, 244, 48 S.W. 825.” * * *’”

See also In re Title Guaranty Trust Co., 113 S.W .2d 1053 (Mo.App. 1938), where the court said that “[i]n Missouri a mortgage or deed of trust is treated as a mere security for the payment of the debt and not as an outright conveyance of the title.” Id. at 1057.

2. Did the Stacey deed of trust contain a description so deficient that it failed to describe the lot sold by plaintiffs to Staceys on which the house was constructed?

The evidence discloses that in January of 1967, plaintiffs purchased a tract containing 50 acres more or less located in the N ½ of the SW ¾ and in the SE ¼ of the NW ¼ of Sec. 26, Twp. 36, Range 11 W in Pulaski County. The 50 acre tract was described by metes and bounds, a portion of the description running along the west side of a county road. They then subdivided a portion thereof (Fincher thought about six or seven acres) into 11 lots. One of these was the one plaintiffs contracted to sell to the Staceys.

On May 3, 1967, the first of the written agreements between plaintiffs and Staceys was executed. It was drafted by plaintiff Jaurel Fincher and described the property to be sold as follows:

“Lot being located along the west side of the County road and having a road frontage of 70 ft. and going back to the property line which is approximately 270 ft. All lying in a Pt. of the SE V* of the NW of the SW Vi of Sec. 26, Twp. 36, Range 11. The NE corner of the lot is 630 ft. S. of a corner established by a survey.”

On May 11, 1967, a second and more detailed contract of sale was executed by the same parties. It was drafted by the attorney for plaintiffs and described the property as follows:

“All that part of the Southeast quarter of the Northwest quarter of Section 26, Township 36 North, Range 11 West of 5th P.M. described as follows: Beginning at the Southwest corner of last said forty; thence East 277.9 feet along the South line of last said forty to intersection with the West line of County Road; thence N. 3° 14' W. 48 feet along the West line of said County Road; thence West parallel with the South line of said forty to the West line of said forty and to the true point of beginning of the tract herein described; thence East parallel with the South line of said forty to the West line of said County Road; thence N. 3° 14' W. 70 feet along the West line of said County Road; thence West parallel with the South line of said forty to the West line of said forty; thence South along the West line of said forty to the true point of beginning of the tract herein described. RESERVING, unto the Sellers, their heirs and assigns, an easement across the above described premises for water and sewer lines and facilities and for telephone and electrical lines, for installation and maintenance of the same.”

It is clear from the evidence that this contract was intended to be the final contract between the parties and that it was intended to cover the same lot which plaintiffs had intended to sell to Staceys by the May 3 contract.

The deed of trust from Staceys to Miles Homes contains precisely the same legal description as that in the May 3 contract. Plaintiffs now contend that this description is an incomplete and insufficient land description and that it does not cover the tract described by metes and bounds in the May 11 contract.

The courts of this state have followed the rule that “In general, any description in a deed is sufficient if it affords the means of identification of the property.” Hamburg Realty Co. v. Woods, 327 S.W.2d 138, 150 (Mo. 1959). In First National Bank of Cape Girardeau v. Socony Mobil Oil Co., 495 S.W.2d 424, 434 (Mo. 1973), the court said:

“The description was not well drawn but the court properly could find from the evidence that the property in question could be located. This would satisfy the rule that: ‘Although the description need not be technically accurate in order to make an instrument operative as a conveyance, it must identify the property sufficiently to enable a surveyor to locate it * * *. The description must be sufficiently certain to distinguish the land intended to be conveyed from all other land.” Eckhardt and Peterson, Possesso-ry Estate, Future Interests and Conveyances in Missouri, Volume 23, V.A.M.S. pp. 72, 73. * * *”

In commenting on the reluctance of Missouri courts to hold a description insufficient and void unless compelled to do so by its ambiguity and uncertainty, McCune Gill, a noted expert on Missouri titles, stated in volume IV of his Treatise on Real Property Law in Missouri 1474 (1954):

“ * * * It seems to be beyond the capabilities of the writers of descriptions in deeds, wills and court proceedings to put down accurate descriptions of property, or having put them down to observe the obvious precaution of reading them after they have been put down to correct any errors therein.
“But the courts, staffed as they are with sensible and understanding judges, have been most lenient in construing erroneous descriptions. They say that when a man tries to convey something that he owns and possesses he is really trying to convey it and not something that he does not own or possess, that when he tries to convey a building he intends to convey the building wherever it is, that when he makes mistakes or omissions they will be disregarded if there is enough other description to identify the property, that the parts of the description where he is least likely to make mistakes will govern, and finally that the title will be considered to comply even with the rather exacting requirements of marketability even though the description is mildly erroneous. * * *”

Is the description which Fincher prepared and put in the May 3 contract and which was then duplicated in the deed of trust to Miles Homes so deficient that it affords no means of identifying the lot intended to be described? Is it so bad that a surveyor could not locate it? We conclude that the answer to each question is no. In the first place, this is one of 11 lots which Fincher created by subdividing 6 or 7 acres in the 50 acre tract which he purchased January 12, 1967, from Ottber Prewitt and LaVena Prewitt, the deed to which is recorded in Book 204, p. 508 in the office of the recorder for Pulaski County. The description therein discloses that one boundary runs along the west side of a county road. The lot described in the May 3 contract fronts 70 feet on that county road and it runs to the back of the property line which is described as being approximately 270 feet. Thus, we have a lot which runs between the west side of the county road and the back property line, the lot being 70 feet in width by approximately 270 feet in depth. The description then indicates a starting point by telling us that the NE corner of the lot is 630 feet south of a corner established by a survey. It does not identify that survey but it is reasonable to conclude that Finch-er, in writing the description, was aware of the survey and the corner established by it. We cannot hold on the record before us that a surveyor could not locate it.

The description in the May 3 contract states that this lot lies in the SE ¼ of the NW ¼ of the SW ¼ of Sec. 26, Twp. 36, Range 11 whereas the May 11 contract described the lot as being in the SE ¼ of the NW ¼ of Sec. 26, Twp. 36 North, Range 11 West. Plaintiffs in their brief argue that the descriptions call for land in different quarter-quarter sections and that this makes the description bad. In McCormick v. Edwards, 351 Mo. 1017, 174 S.W.2d 826 (1943), the court dealt with a situation wherein the words “of the northwest quarter” were erroneously repeated in a description. The court so recognized and held the description good, omitting that extra call as surplusage. In this case Fincher undertook to describe this 70 foot lot taken from a 50 acre tract he had purchased. Part of that 50 acre tract was located in the SE ¼ of the NW ¼ and part was in the north half of the SW ¼, all in Sec. 26, Twp. 36, Range 11. In writing the description, he obviously wrote SE ¼ of the NW ¾, one of the calls and then added the reference to the SW ¾, the other call. He now seeks to take advantage of that error (his own) and say that a deed of trust which utilized that description is so bad that it is void or that it describes property other than the lot which he contracted to sell to the Staceys. We reject that contention and decline to hold in this case that the description in the deed of trust was so deficient as to invalidate the deed of trust.

3. Was Miles Homes’ lien under its deed of trust from the Staceys eliminated by the termination of Stacey’s rights under his purchase contract pursuant to the release he gave to sellers on March 1, 19721

This apparently is a question of first impression in Missouri. Necessarily, it requires consideration of all the pertinent facts as they relate to the equities of the situation. We restate them for that purpose.

Finchers in 1967 contracted to sell Sta-ceys a vacant lot for $1200, to be paid in installments. They did not utilize the standard procedure of conveying by deed, taking and recording a deed of trust for the unpaid balance. If they had and Finchers had foreclosed their deed of trust for nonpayment of the note, we would not have the problem which now confronts us. Instead they gave a contract for a deed, to be delivered upon payment of the total purchase price, and did not even record the contract. Staceys paid all of the purchase price except $221.70.

Meanwhile, Staceys had constructed thereon a house containing a living room, kitchen, 3 bedrooms and a bath. Pre-cut material for the house amounting to $6378 was purchased from Miles Homes and a deed of trust was given therefor. Some additional items for the house were purchased by Stacey on open account and Stacey then did the construction work.

On March 1, 1972, Finchers, on the basis of the unpaid balance of $221.70 plus interest thereon of $43.86, a total of $265.56, terminated Stacey’s rights in the property by having him so acknowledge on the bottom of the contract of sale. In this suit they have claimed that the surrender of Stacey’s rights had the effect of terminating Miles Homes’ rights as well.

It is undisputed that prior to the termination by Finchers of Stacey’s rights on March 1, 1972, no notice of any kind was given to Miles Homes as to what, it any, balance was due from Stacey to Finchers on the purchase price of the lot, or what, if any delinquency existed. Neither did Finchers give any notice to Miles Homes of an intention on their part to terminate Stacey’s rights and whatever rights Miles Homes had under its recorded deed of trust, even though the evidence of Fincher himself disclosed that he knew almost from the outset about Miles Homes’ selling Staceys the materials for a house which Staceys then constructed on this lot.

On April 14, 1972, Fincher wrote Miles Homes as follows: “I am writing in regard to a house plan you sold to Lester Stacy [sic] here. I have made a deal with Stacy [sic] and would like to talk withone [sic] of your representives [sic] and get this worked out if possible.
“Let me know when someone from your company will be in the area.”

This letter said nothing about any unpaid balance on the lot or terminating Stacey’s interest for default or any idea of foreclosing any rights of Miles Homes. It said nothing to indicate in any way that the balance on Stacey’s deed of trust was to the affected or was in jeopardy in any way.

Under such circumstances, should the agreement between Stacey and Finchers terminating Stacey’s rights under his purchase contract have the effect of destroying Miles Homes’ rights under its deed of trust, in effect giving plaintiffs a windfall of the house? In 59 C.J.S. Mortgages § 184, the following rule is stated:

“A mortgage given by one holding land under an executory contract for its purchase covers his interest, whatever it may be, at the date of the mortgage, giving the mortgagee the right to complete the purchase if his mortgagor refuses to do so; and the mortgagee cannot be ousted of his rights by a rescission of the contract of sale by the original parties to it. * * *” (Emphasis supplied.)

We agree with the view, expressed in the italicized language, that mere rescission of the original contract of sale by the parties thereto does not oust the mortgagee of his rights under a deed of trust taken from the purchaser in the executory contract of sale. To so permit would open the door to connivance for the purpose of eliminating the rights of a intervening party who might well, as here, have furnished in good faith property or money with which the property was improved and enhanced in value. Accordingly, we hold that the action of Stacey in releasing his interest in the purchase contract on March 1, 1972, did not terminate the rights of Miles Homes under its deed of trust of May 18, 1967.

The question, then, is whether for other reasons the mortgagee’s interest may have been terminated and if not, what rights the mortgagee possesses.

Several courts have decided cases which involved the resolution of rights of mortgagees under somewhat comparable situations. In Knauss v. Miles Homes, Inc., 173 N.W.2d 896 (N.D. 1969), a vendor in a contract for a deed sought to quiet title as against a mortgagee (Miles Homes) which had taken a deed of trust from the vendee in the contract of sale. Vendor had previously brought suit against vendee and had successfully terminated his rights for default under the contract. In that first action, the vendor, although he was found to have had knowledge of the erection of the house and of mortgagee’s interest, did not make Miles Homes a party. The court concluded that Miles Homes’ interest as mortgagee was not terminated by the original action between vendor and vendee. The court reversed the judgment of the trial court in favor of vendor and against Miles Homes, and remanded the case for resolution on equitable principles, with mortgagee to be given a reasonable time to make good the default of the vendee under the contract of sale, thereby protecting its interest under its deed of trust.

In First Mortgage Corp. of Stuart v. deGive, 177 So.2d 741 (Fla.App. 1965), the court actually reversed a summary judgment which the trial court had entered. In the course of its opinion, the court said at 746: “A mortgage given by one holding land under an executory contract for its purchase covers his interest, whatever it may be, at the date of the mortgage, and the mortgagee cannot be ousted of his rights by a subsequent rescission or recon-veyance by the original parties.” The court then expressed its views as to the rights of such mortgagee, saying:

“The mortgage by a purchaser of his interest in a contract for the sale of real property merely gives the mortgagee the right to complete the purchase if the mortgagor refuses to do so, and the mort gagee takes no greater rights than the purchaser had. In other words, the mortgagee acquires a right to purchase the property for the consideration stipulated in the contract of purchase, and the enforceability of the mortgage depends upon the condition that the contract be kept in force by the subsequent performance of its terms. Young v. Clay [139 Or. 427, 10 P.2d 602] supra; Sheehan v. McKinstry [105 Or. 473, 210 P. 167] supra; Nelson v. Bailey, 1959, 54 Wash.2d 161, 338 P.2d 757, 73 A.L.R.2d 1400; 59 C.J.S. Mortgages § 184.” Id.

In Norlin v. Montgomery, 59 Wash.2d 268, 367 P.2d 621 (1961), the court decided a case wherein a mortgagee had brought an action to foreclose a mortgage on the equitable interest of a purchaser under an installment contract to purchase land. The purchaser had defaulted on payments to the mortgagee and on payments to vendor under the contract of sale and had abandoned the property. Vendor cross-claimed, seeking to have title quieted in him. Citing an earlier case of Nelson v. Bailey, 54 Wash.2d 161, 338 P.2d 757, 73 A.L.R.2d 1400 (1959), as authority, the court upheld the mortgage on purchaser’s interest. However, the court held that the mortgagee had no right to possession until he was successful bidder at a foreclosure sale and received a sheriff’s deed to the property. It followed, said the court, that before that time the court should not require at mortgagee’s request an accounting of the rents and profits from the premises.

The same court subsequently had another case of this type, reported as Kendrick v. Davis, 75 Wash.2d 456, 452 P.2d 222 (banc 1969). The representative of the estate of a deceased vendor brought an action to quiet title to property covered by a forfeitable installment sale contract and sought to recover possession of the property. The purchaser under that contract had mortgaged his interest under the contract and thereafter defaulted on the contract to purchase. The trial court entered summary judgment against the contract purchasers but held that mortgagee was entitled to make payments to reinstate the contract of sale and could continue to make the monthly payments which would reinstate the mortgage on the property. On appeal the supreme court reversed, holding that the forfeiture was effective as to mortgagee as well as vendee. This conclusion was based on the proposition that vendor had no knowledge, actual or constructive, of the rights of mortgagee who had loaned money to vendee. Under such circumstances, the obligation was on mortgagee to give notice to vendor of his interest rather than vendor having an obligation to search the record and give notice to mortgagees thereby discovered. Since mortgagee did not do that, vendor had no obligation to give notice. However, in reaching that conclusion, the court said, at 226:

“If the plaintiff vendor had received actual notice of the interests of the mortgagees of the purchasers, he would be required to recognize their interests and give them notice of any intent to forfeit the contract. Scott v. Farnam, 55 Wash. 336, 104 P. 639 (1909). Further, under such circumstances, the mortgagees would have the right to make or tender the payments to the vendors necessary to protect their security, i.e., to keep the contract in effect. Scott v. Farnam, supra. However, the mortgagees would have no right to possession nor to require the transfer of title under the contract until they acquired the interests of the purchaser-mortgagor, either by foreclosure or by the purchaser’s conveyance thereof. RCW 7.28.230; Howard v. Edgren, 62 Wash.2d 884, 385 P.2d 41 (1963).”

On this question of the rights of a mortgagee of the rights of a purchaser under an executory contract of sale, 59 C.J.S. Mortgages § 184 says:

“* * * However, the mortgagee will take no other or greater rights than the vendee had, that is, he will acquire simply a right to purchase the property for the consideration stipulated in the contract of purchase, or to require a conveyance of the estate from the vendor according to the terms of the agreement, on completing the payment of the purchase price; and the enforceability of the mortgage depends on the condition that the contract be kept in force by the subsequent performance of its terms. When a conveyance is made to the mortgagor pursuant to the contract, the mortgage then attaches on the legal title thus vested in him.”

In citing and discussing the foregoing authorities, we should not be understood as adopting them as the law of this state. Rather, as indicated, we discuss them simply to illustrate what other courts and authorities have said on the subject. It is apparent that they are not uniform in their position as to mortgagee’s rights. We have considered them, of course, in reaching a conclusion as to the rights of the mortgagee herein.

In this ease, unlike the situation in Kendrick v. Davis, supra, vendors knew of the interest of Miles Homes. We hold that they did have an obligation to notify Miles Homes of the delinquency which existed and of their intention to forfeit the contract for that reason. That would have given Miles Homes an opportunity to protect its interest. That notice was not given and, hence, that which has occurred has not had the effect of terminating the rights of Miles Homes under its deed of trust.

Having so concluded, it follows that we must reverse the judgment of the trial court and remand the case in order that the rights of Miles Homes as mortgagee may be declared and enforced. To that end, the court on remand should determine the present unpaid balance on Stacey’s note and deed of trust to Miles Homes, taking further testimony for that purpose, if necessary.

When that has been done, Miles Homes is then entitled to have its deed of trust foreclosed and the decree should so provide. From the proceeds of such sale, the costs thereof should be paid, after which proceeds of the sale should be applied in this order: first, the unpaid balance due Finchers on their contract of sale to Staceys; second, reimbursement of Finchers for those sums necessarily and reasonably expended in order to complete or repair the house and put it in shape for rental; third, payment to Miles Homes of the amount due it on Stacey’s note and deed of trust; and finally, to Finchers as record title holders as well as successors in interest to the Staceys by reason of their cancellation of their contract to purchase and the surrender of their rights thereunder to Finchers.

We recognize that plaintiffs might prefer to pay the balance on the Miles Homes deed of trust rather than to have the property sold in a foreclosure sale. Accordingly, in fashioning its decree, the trial court may give to plaintiffs the option of paying Miles Homes the balance due them on their note and deed of trust after that balance has been determined. If plaintiffs avail themselves of that opportunity, they would then be entitled to have title quieted in them free and clear of any claim of Miles Homes. However, if plaintiffs do not so elect, the decree should direct that the foreclosure sale be conducted and the proceeds applied as indicated.

By their pleadings in this case, Miles Homes seeks an accounting of the rents and profits from the house while it has been in possession of plaintiffs and it also speaks in its pleadings of receiving a deed to the premises if it pays to plaintiffs the balance due them under the contract of sale, plus sums expended for good faith improvements. There are statements in some of the outstate cases to which we have referred and in 59 C.J.S. Mortgages, which indicate a recognition of such a right. However, we have concluded that Miles Homes is not entitled to receive a deed from plaintiffs by paying the balance on the contract of sale, plus sums expended for improvements. Miles Homes only held a security interest in the property. It held a note secured by a deed of trust. That entitles it to collect the amount which that lien secures, but does not entitle it to more than that. Plaintiffs as title holders and as successors to the rights of Stacey were entitled to the rents and profits and are entitled to the real estate in question, subject to the deed of trust held by Miles Homes.

The judgment is reversed and the cause remanded for further proceedings in accordance with the views expressed in this opinion.

REVERSED AND REMANDED.

SEILER, C. J., and MORGAN, BARD-GETT, HENLEY and DONNELLY, JJ., concur.

RENDLEN, J., not participating because not a member of the court when cause submitted.

PER CURIAM.

In their motion for rehearing, Finchers argue that the opinion as written will have the effect of permitting a purchaser at the foreclosure sale to acquire a greater interest in the real estate than Stacey possessed at the time the deed of trust was given. This contention is based on the proposition that the second contract for a deed dated May 11, 1967, which superceded the earlier contract of May 3, 1967, recited that the sellers (Finchers) reserved an easement across the tract “for water and sewer lines and facilities and for telephone and electrical lines, for installation and maintenance of the same”.

This question was not discussed or even mentioned in the briefs filed and was not addressed in the opinion filed. However, it is clear that if Finchers do not elect to pay the balance due to Miles Homes and foreclosure is necessary, the purchaser will take the property subject to the easements reserved by Finchers in their later contract with Stacey. The decree to be entered in the trial court on remand should so provide. If the trial court concludes, from evidence presented on remand, that the description contained in the second contract of sale is simply a more detailed description of the lot intended to be described in the first contract, the decree could order that the later description, including the reservation of easements, be used in the decree ordering the foreclosure sale.

Respondents’ motion for rehearing is overruled.

      . The May 3, 1967 instrument was captioned “Deposit, Receipt and Agreement for Sale.

      . Staceys had purchased additional materials as extras from Miles Homes but it does not claim that these are secured by its deed of trust dated May 18, 1967. Hence, it is not necessary in this case to be concerned with any amount due and owing from Stacey to Miles Homes on account of those extras.

      . Complaint is also made to the amount of the equitable lien allowed to Miles Homes as alternative relief. We need not consider that proposition, however, in view of our conclusion that the deed of trust was valid and that Miles Homes is entitled to relief thereunder.

      . We do not read plaintiffs’ petition to have so alleged. Rather, that petition alleged that “the said Deed of Trust is or may purport to be a lien on the real estate of plaintiffs described in Paragraph #1” of plaintiffs’ petition which was the description taken from the May 11 contract.


author: SEILER, Chief Judge.

text:
    Delores GLOVER, Respondent, v. The HERALD COMPANY d/b/a Globe-Democrat Publishing Company, Appellant.
    No. 59804.
    Supreme Court of Missouri, En Banc.
    April 11, 1977.
    Rehearing Denied May 10, 1977.

      Lon Hocker, Clayton, for appellant.
    George D. Chopin, St. Louis, for respondent.
    John T. Martin, Kansas City, for amici Kansas City Star Co., and others.
    Robert Hoemeke, Evans, Hoemeke & Casey, St. Louis, for amici Pulitizer Pub. Co.
   SEILER, Chief Judge.

This is a libel action in which respondent Glover was awarded $4,000 actual and $3,000 punitive damages from appellant, The Herald Company, which publishes the St. Louis Globe-Democrat, a general circulation newspaper, which will hereinafter be referred to as the Globe-Democrat. The Globe-Democrat appealed the judgment to the court of appeals, St. Louis district, where Division Four, by a divided court, affirmed the judgment and then sustained appellant’s motion to transfer, Rule 83.02. We will determine this case as on original appeal. Mo.Const. Art. V, § 10; Rule 83.09. We reverse.

Mrs. Glover is the duly elected alderwoman representing the third ward of the city of St. Louis. In this capacity she attended a meeting of the Board of Aldermen on July 6,1973, at which members of the board debated the merits of a bill to regulate the equipment required at clinics performing abortions. Mrs. Glover, although an opponent of abortion, did not speak to the issue at this meeting. During the course of this debate, alderwoman Lerel Stewart voiced her objection to the proposed ordinance, declaring that on the basis of personal knowledge, having had two abortions, she believed no such equipment was required. Alderwoman Stewart’s remarks caused something of a furor. Mrs. Glover, upset by the remarks of alderwoman Stewart’s personal experience, left the room momentarily to regain her composure. After the meeting it became clear that alderwoman Stewart had misspoken herself. Mrs. Glover overheard a conversation between alderwoman Stewart and Globe-Democrat reporter Marsha Canfield to the effect that alderwoman Stewart although stating in public debate that she had had two abortions, actually meant to say she had had two involuntary miscarriages. Reporter Canfield then telephoned the Globe-Democrat with her story of the aldermanic debate and the votes cast by the individual members of the Board of Aldermen on the bill. Although Canfield accurately related the course of events and properly attributed alderwoman Stewart’s remarks and the later correction to Mrs. Stewart, the Globe-Democrat rewrite man, Andrew Wilson, who received reporter Canfield’s telephone call, confused the names of the participants in the news story and incorrectly attributed alderwoman Stewart’s remarks to Mrs. Glover. Wilson testified:

“I was working on a deadline, and I had a bundle of names in the story, and we talked about it, and how some of the people voted, and it was just a personal mistake on my part. I was given the correct information by Marsha. On my typewritten notes, I had Mrs. Glover’s name a couple of lines above Mrs. Stewart’s name, and in reading over the .notes, I didn’t notice Mrs. Stewart’s name and saw Mrs. Glover’s name, and I attributed the wrong remark to the wrong person.”

The city editor of the Globe-Democrat, who had no reason to question the accuracy of the report as rewritten by Wilson, passed the story for publication after having read it. The story appeared in the next day’s edition on Saturday as written by rewrite man Wilson and attributed the remarks of alderwoman Stewart concerning abortion to Mrs. Glover. Upon reading the article, Mrs. Glover became upset to such a degree that she required sedation. A retraction was immediately demanded of the Globe-Democrat, which responded by publishing a retraction in its editions on its next publishing day, Monday. Mrs. Glover testified that as a further consequence of the Globe-Democrat story, she received numerous anonymous obscene telephone calls for a period of two weeks following publication of the story and two letters detailing the horrors of abortion.

We hold that notwithstanding the obvious and regrettable upset suffered by Mrs. Glover, as a public official she has failed as a matter of law to demonstrate that the Globe-Democrat published its story with the actual malice required to overcome the qualified constitutional privilege recognized in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and therefore, the judgment and verdict in the circuit court are reversed.

The modern source for the law of defamation of public officials is New York Times Co. v. Sullivan. The alleged libel in that case was contained in an advertisement placed in the New York Times to solicit funds to defend the Rev. Dr. Martin Luther King, Jr., against charges of perjury. The advertisement incorrectly portrayed the reaction of Montgomery, Alabama, police to a demonstration held at an Alabama state college campus. The New York Times made no effort to substantiate the accuracy of the advertisement although the correct information was available from the Times’ news files. The Montgomery City commissioner with authority over the police sued to redress this alleged libel.

The Supreme Court recognized the sensitive nature of the question presented and the inevitable stress generated by a contest between the law of libel and the First Amendment’s explicitly guaranteed protection of free speech. Moreover, the court recognized the crucial role the press plays when reporting the affairs of government and public officials by deciding the New York Times case

“against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

New York Times Co. v. Sullivan, supra at 270, 84 S.Ct. at 721.

To this end, the Supreme Court articulated a constitutional standard prohibiting a public official from recovering for

“a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ —that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

Id. at 279-80, 84 S.Ct. at 726.

Respondent misapprehends the quality of knowledge required by this standard to overcome the constitutional protection. As a public official, which there can be no doubt she was, respondent’s case is bottomed upon the presumption that Wilson knew that the story as published was false because he had originally received the correct information from reporter Canfield, and therefore, respondent maintains she has satisfied the New York Times standard by establishing actual malice. Although the error in respondent’s interpretation of actual malice is demonstrable by reference to New York Times Co. v. Sullivan alone, this conclusion is further compelled by more recent United States Supreme Court cases that refine the standard articulated in New York Times Co.

By the language of New York Times Co., (1) actual malice is to be measured at the time of publication, (2) the state of mind necessary to establish actual malice requires that this knowledge “be brought home to the persons . . . having responsibility for the publication”, and (3) negligence is “constitutionally insufficient to show the recklessness that is required for a finding of actual malice.” New York Times Co., supra at 286-88, 84 S.Ct. at 730.

In Garrison v. Louisiana, 379 U.S. 64, 74-75, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), the Supreme Court explained that the qualified privilege articulated in New York Times Co. could grant a public official a

“civil remedy only if he establishes that the utterance was false and that it was made with knowledge of its falsity or in reckless disregard of whether it was false or true. . . . And since ‘. erroneous statement is inevitable in free debate, and ... it must be protected if the freedoms of expression are to have the “breathing space” that they “need ... to survive” . . .,’ 376 U.S. at 271-272, 84 S.Ct. at 721, only those false statements made with the high degree of awareness of their probable falsity demanded by New York Times may be the subject of either civil or criminal sanctions. For speech concerning public affairs is more than self-expression; it is the essence of self-government.
“Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity. . Hence the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.”

The Supreme Court took the further opportunity to disavow any desire to base New York Times Co. upon a negligence standard, id. at 79, 85 S.Ct. 209. Thus it becomes increasingly clear that Wilson did not have the requisite intent. Although initially he was presented the facts, Andrew Wilson was unaware of the falsity of the story. The most that can be said is that he was negligent, regrettably, in preparing the story of the aldermanic debates. There is no evidence of a high degree of awareness on his part of probable falsity in what he wrote. Consequently, here as in New York Times, the evidence against the Globe-Democrat “supports at most a finding of negligence in failing to discover the misstatements, and is constitutionally insufficient to show the recklessness that is required for a finding of actual malice.” 376 U.S. at 288, 84 S.Ct. at 730.

In Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 84, 88 S.Ct. 197, 199, 19 L.Ed.2d 248 (1967) the court reaffirmed the New York Times Co. standard requiring a “high degree of awareness of . probable falsity.” In St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968), the court stated that “[t]here must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.” In 1971, three cases reiterated the New York Times Co. standard requiring clear and convincing proof, Monitor Patriot Co. v. Roy, 401 U.S. 265, 275-76, 91 S.Ct. 621, 28 L.Ed.2d 35, of publication of knowing falsehood, Ocala Star-Banner Co. v. Damron, 401 U.S. 295, 300, 91 S.Ct. 628, 28 L.Ed.2d 57, not just negligent error of fact, Time, Inc. v. Pape, 401 U.S. 279, 291, 91 S.Ct. 633, 28 L.Ed.2d 45.

The Ocala case is of particular interest. In that case, a newspaper published a story that the mayor who was running for a different elective office, had been charged with perjury. Actually, the story was false about the mayor but substantially correct about his brother. Apparently the reporter telephoning the story into the area editor had correctly identified the brother, but the editor, never having heard of the brother, inadvertently substituted the name of the mayor. The Supreme Court reversed the judgment which had been awarded to the mayor, because recovery had been allowed without a finding that the article was published with reckless disregard of its truth or falsity. Ocala Star-Banner Co. v. Damron, supra, 401 U.S. at 300, 91 S.Ct. at 628.

Last, in Gertz v. Robert Welch, Inc., 418 U.S. 323, 334-35 n. 6, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the Supreme Court once again embraced New York Times Co. and St. Amant v. Thompson, among others.

“In New York Times the Court held that under the circumstances the newspaper’s failure to check the accuracy of the advertisement against news stories in its own files did not establish reckless disregard for the truth. ... In St. Amant v. Thompson . . . the Court equated reckless disregard of the truth with subjective awareness of probable falsity: ‘There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.’ ”

In view of the foregoing cases, there can be no doubt that appellant did not possess the requisite state of mind at the time of publication so as to enable respondent to overcome the constitutional limitations. The judgment is reversed.

MORGAN, BARDGETT, HENLEY, FINCH and DONNELLY, JJ., and SHAN-GLER, Special Judge, concur.

RENDLEN, J., not sitting.

      . It has come to be recognized that a public official must establish this proof with convincing clarity. Monitor Patriot Co. v. Roy, 401 U.S. 265, 275-76, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971); New York Times Co. v. Sullivan, 376 U.S. 254, 285-86, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).