author: KELLY, Judge.

text:
    In re the MARRIAGE OF Harriet SCHULZ and Calvin W. Schulz. Harriet SCHULZ, Petitioner-Respondent, v. Calvin W. SCHULZ, Respondent-Appellant.
    No. 39408.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 29, 1979.

      Hollingsworth & Kramer, Alice L. C. Kramer, Farmington, for respondent-appellant.
    Gunn & Gunn, Donald Gunn, Sharon R. Wice, Donald Gunn, St. Louis, for petitioner-respondent.
   KELLY, Judge.

Calvin W. Schulz, appellant, appeals from a judgment of the Circuit Court of Jefferson County dissolving his marriage to Harriet Schulz, the respondent, ordering him to pay her $50.00 per week as maintenance and dividing marital property between the parties. On appeal he raises six grounds for reversal of the judgment; however, only one of them preserves anything for review. Neither party contests that part of the judgment which declares the marriage to be irretrievably broken. We affirm the judgment insofar as it grants the order of dissolution; however, for reasons hereinafter stated, we remand the cause to the trial court for further proceedings.

The major problem with this case is the attempt of the trial court to set apart the property, referred to in the transcript as the “family home” located at 2134 Lonedell Road in Arnold, Missouri, pursuant to the mandate of § 452.330 RSMo. Supp.1973. On the one hand, the respondent has contended throughout these proceedings that this property was conveyed by means of a quit claim deed dated May 28, 1975, to Ella Kober and Clara Rullkoetter (hereinafter “the sisters”) and was not marital property when this cause was instituted. Appellant, on the other hand, has contended throughout this proceeding that he did not join in the quit claim deed of May 28, 1975, and that what purports to be his signature on the deed is, in fact, a forgery. The trial court did not decide this issue; rather, it set aside to respondent, as her sole and exclusive property: “Any and all right, title and interest remaining in the parties” in this property.

As we understand this judgment, whether respondent has any interest in the property on Lonedell Road and receives anything of value by reason of this decree and judgment remains to be determined in some other proceeding. The trial court has not exhausted its jurisdiction and determined whether the Lonedell Road property is marital property, Anspach v. Anspach, 557 S.W.2d 3, 6[3] (Mo.App.1977).

Respondent instituted this dissolution of marriage proceeding on February 16, 1976. The cause was tried on her first amended petition and appellant’s amended answer and counterclaim. Neither respondent’s original petition nor first amended petition contained any request for a division of marital property. Appellant's answer and first amended answer and counterclaim did, however, allege the ownership of a “family home” and prayed that their property be divided between them “according to the contributions of each party to the marriage.”

The evidence at trial was that the parties were married on October 19, 1951, and that they lived together until August 18, 1975, when they separated. No children were born of this union. Although respondent had been employed as a “head checker” for Globe Drug and Sands Drug, she has not been employed since 1973 because of her age and arthritis. There is no evidence in the record concerning respondent’s earnings during that period of time in the marriage when she did work. At trial time, March 9, 1977, she was under the care of a physician because her arms, fingers and hips ached all the time.

Respondent testified that she had income of $225.00 per month. She paid rent of $100.00 per month. Her total expenses, including the rent were $888.00 monthly. Appellant had not given her any money since August, 1975. She continued living in the Lonedell property after she and appellant separated. Prior to their separation appellant gave her cash weekly, sometimes $170.00 and sometimes less.

There was testimony concerning three parcels of real estate. One parcel, Lot 1 of Werner’s Sunset Lake Subdivision in Ste. Genevieve County, Missouri, was purchased in December of 1965, for $750.00 and title was taken in respondent’s name alone. According to the respondent’s testimony, her uncle, Al Rosebeck, since deceased, gave her the money to purchase this parcel. Another parcel was a lot identified as the Table Rock property, which she conceded was marital property. Concerning the “family home” on Lonedell Road, respondent testified she sold it to the sisters who had been neighbors of the parties for more than 20 years, as previously noted hereinabove.

Respondent also testified that she owned one automobile, a 1969 Chevrolet Belair, and the appellant owned a 1975 Chevrolet pick-up truck. The house on Lonedell Road contained household furnishings and furniture which she asked the trial court to set aside for her. Her attorney also had in his possession an income tax refund of approximately $1400.00 on their 1975 federal income taxes.

Respondent owed her uncle’s estate $6,000.00, which she testified he lent her to pay off the old house and build the new one on Lonedell Road. In calculating her monthly expenses she included in that amount $250.00 a month to repay this loan. She owed back rent in the amount of $1600.00 to the sisters.

She testified that during the marriage she handled all of the finances; her husband would give her the money and she would pay the bills.

With respect to the quit claim deed to the Lonedell Road property, the respondent testified that sometime in December of 1974 and January of 1975 she and her husband discussed the conveyance of the property to their neighbor ladies. This discussion took place because he wasn’t working and the bank was calling her about the house payments. “We was going to lose the house.” They were three months behind in their payments. They did not discuss putting the house up for sale. She did not know its fair market value at the time although she did believe it was worth more than they received for it. In January, 1975, respondent, in her husband’s presence, discussed the conveyance of the property to the two sisters. Appellant “okayed” the conveyance and signed the quit claim deed in her presence. Sometime in February, 1975, Ms. Ko-ber paid off the $10,185.00 mortgage on the house; the respondent was with her when this was done at the Concord Bank. Ms. Kober was given the cancelled notes. Nevertheless, the quit claim deed conveying the property was not executed until May, 1975, when she and Ms. Kober went to an attorney in Hillsboro on May 9, 1975, and had him prepare the deed to convey the property. She paid the attorney to prepare the deed. The deed wps signed by the appellant in the kitchen of their home at a time when only he and respondent were there. She did not sign the deed at that time but signed it in the presence of the attorney who prepared it. She knew nothing about the notarization of the deed. In October, 1975, she entered into the rental agreement with the sisters and up to the time of trial she had paid them $600.00. Ms. Rullkoeter corroborated this and further testified that if the $1600.00 due on the rent was not paid soon she and her sister would have to evict respondent. Respondent testified that she did not consider the Lonedell Road property marital property because “it does not belong to either one of us.”

Over the 20 years that they have been friends and neighbors respondent has helped the sisters by cutting the grass, taking them to the doctor, doing grocery shopping for them, and during the summer she occasionally prepared bar-b-qued chicken for them. She denied that there was any agreement between her and the grantees under the quit claim deed to the Lonedell Road property that after this dissolution action was over they would convey the property back to her.

At the time of trial she had five rooms of household furniture, all of which was old and which she valued at about $500.00. This consisted of two twin beds and one double bed, three dressers, a living room set consisting of a couch and two chairs, an ice box, a washer, a dryer, two deep freezers, a refrigerator and a stove.

The appellant produced the attorney who prepared the quit claim deed for the Lone-dell property in his case. He testified that his independent recollection of the matter was somewhat faint. He “faintly” remembered the respondent when he saw her when he came to the courthouse to testify and looked at her prior to giving his testimony. From his file he fixed the date on which he prepared the quit claim deed as May 9,1975, because his fee for preparation of the deed was paid in cash on that date. He was not certain whether there was more than one person who came to his office when he obtained the information necessary for the preparation of the deed. His file contained a letter from respondent dated August 12, 1975, instructing him to record the deed and he did, on August 18, 1975. He could not recall who paid his fee for preparing the deed, but after he returned the recorded deed to respondent she paid him the recording costs. He knew nothing about the notarization of the deed.

The notary public whose signature appeared on the jurat to the quit claim deed testified that the date on which the deed was notarized by her — May 28, 1975 — she was employed at the First Missouri Bank, and identified her signature as the witnessing notary public on the deed. She had no remembrance of the circumstances surrounding her notarization of the document. She did not know either Calvin or Harriet Schulz and testified that she met Mrs. Schulz for the first time on February 14th at appellant’s counsel’s office.

Appellant testified that he was a cement mason and that his employment was seasonal and, depending on the weather, he. could lose as much as three months work because of rain and the winter months. At trial time he was employed by Sprinkman’s Insulating Company installing insulation at the Havana Power House in Havana, Illinois, earning $340.00 per week “take home” pay. In 1975 he earned about $17,000.00 and in 1974, $10,000.00. He did not know how much he earned in 1976 because he had not as yet received his W-2 Form. He had a room in St. Louis County for which he paid $35.00 per week, and while working in Havana, Illinois, he lived in a motel where he paid $45.70 for four days occupancy. His food cost him $9.00 per day. He hadn’t been sending respondent any support money since 1975.

He testified that he did not know whether there was a loan on the Lonedell Road property because respondent handled those affairs. He denied that respondent advised him in late 1974 or early 1975 that they were delinquent in their loan payments. He also denied executing the quit claim deed, but admitted that the signature on the deed looked like his signature. In his opinion the fair market value of the house on Lonedell Road was $40,000.00.

On cross-examination the appellant testified that signatures on two documents and a check looked like his, but said he did not remember signing them, and therefore he was not sure that they were his.

Appellant testified that he owned the Lonedell Road property, the lot at Table Rock, the Werner’s Lake property, and two cemetery lots. He knew nothing about respondent’s uncle paying off the mortgage on the first house on the property on Lone-dell. According to his account of the construction of the house on Lonedell, he and respondent owned 16+ acres in Otto, Missouri, and this property was sold for $5,000.00 to build the new house on the Lonedell location. He never met his wife’s uncle, A1 Rosebeck, and he was not sure whether she was loaned $6000.00 by Mr. Rosebeck as she had testified; he just did not know. The money she used to pay for the Werner Lake lot came from their monies. Why her name alone appeared on the deed to this lot he did not know. He had been the one to negotiate the purchase of this lot from Mr. Reinhold but he did not tell Mr. Reinhold in whose name title to the lot was to be taken; he told respondent to buy the property and it was to have been put in his name.

He considered that he had an interest in the furniture in the home and that he was entitled to half of it. He had an insurance policy at work on which respondent was the beneficiary; however, there was no evidence as to how much insurance was afforded by this policy. Although he was a member of the Cement Masons Local 527 he was working as a pipe insulator on a permit at that time. To maintain his membership in the Union he had to contribute $500.00 in dues a year and he could work only another four or five weeks on the job in Havana, Illinois, and still maintain his membership in the Cement Masons’ Union.

Sylvester Reinhold testified in appellant’s case that he knew the parties for about 25 years. He owned the lot in Werner’s Sunset Lake Subdivision in 1965 and at that time he mentioned selling the lot to appellant. He never remembered talking with respondent about this. He identified his signature on the deed to the property but said he did not recall signing it. He recalled that he received $750.00 for the property but did not recall who gave him the money. He testified that he did not know the notary public whose jurat was on the deed nor who prepared the deed, but he did not have it prepared. He had told appellant the price he-wanted for the lot and appellant agreed to buy it. He also identified his signature on Petitioner’s Exhibit No. 2 — a receipt dated September 24, 1965, acknowledging the receipt of $750.00 from respondent for the Werner’s Lake property. All of this receipt, except for the date, was handwritten in ink, the date, in pencil. He testified that the writing in ink was his handwriting, but that the pencilled date was not.

Clara Rullkoetter appeared as a witness in appellant’s case. She was 77 years of age at the time. According to her testimony she and her sister, Ella Kober, purchased the Lonedell Road property from the parties. She talked with respondent about purchasing the property in February, 1975, when respondent couldn’t make the payments. Although she never discussed this with the appellant she testified, without objection or motion to strike, that he knew about it. She furnished one half of the purchase price and her sister the other half. They gave the money to the respondent sometime in February, 1975, at the home of the parties. Ms. Kober and respondent then went to the bank with the money.

She had no idea of the value of the property, but they bought it because they thought it was a good investment. They never had the property appraised prior to purchasing it and did not employ a real estate agent to handle the purchase.

Ms. Kober and respondent were friends of at least 20 years standing. She and her sister relied on respondent for transportation to the doctor, the grocery store, the laundromat, the bank, etc.; no one else afforded these ladies that service. Respondent also prepared meals for them everyday; mowed their lawn during the summer and trimmed their hedges and around their trees. She had also loaned respondent $800.00.

Respondent had the deed to the Lonedell Road property prepared and gave it to Ms. Kober in February, 1975. She had kept the deed in a vault at the Concord Bank. She learned from respondent that appellant denied he executed the deed, but she did not recall when she was told this. She had no agreement with the respondent that she would reconvey the property back to her. After the sale of the property the respondent continued residing there and was still residing there when the witness testified. She and her sister agreed with respondent on a monthly rental of $100.00.

After the appellant’s testimony concerning whether his signature was on Petitioner’s Exhibits Nos. 10,11 and 12, respondent was recalled and testified that she was present at the time the appellant wrote his signature on Petitioner’s Exhibits Nos. 10 and 11 and that she saw him sign them. She was sure that the signature on each document was her husband’s. However, with respect to the check, Petitioner’s Exhibit No. 12, a check made payable to his dentist on which she filed in the dentist’s name in her handwriting, she was not present when the amount was filled in and the check signed because that was done at the dentist’s office.

William H. Storer, a document examiner, testified for Ms. Schulz and in giving his opinion testimony on the question of the genuineness of Mr. Schulz’s signature on the deed, stated that he had, prior to trial, compared the signatures on the quit claim deed with those on the two notes, Petitioner’s Exhibits Nos. 10 and 11. He described the method he employed in making these comparisons and the basis for his opinion. It was his conclusion that the person who executed the Calvin Schulz signatures on Petitioner’s Exhibits Nos. 10 and 11 also executed the Calvin Schulz signature on Petitioner’s Exhibit No. 9, the quit claim deed.

Since the enactment of the Dissolution of Marriage Act of 1973, a trial court is mandated to set apart to each spouse his property and to divide the marital property in such proportions as the trial court deems just after considering all relevant factors. Sec. 452.330 RSMo.Cum.Supp.1973. The statute lists four factors the trial court must consider in making the distribution of the marital property; however, the trial court may take into consideration factors other than those listed therein in determining the division of marital property in a proceeding under the Act. McLerran v. McLerran, 562 S.W.2d 710, 713[2] (Mo.App.1978). One purpose of § 452.330, supra, is to determine property interests of each spouse upon dissolution of marriage, to relieve parties from further litigation and to sever altogether the property relations between them. Forsythe v. Forsythe, 558 S.W.2d 675, 678[1] (Mo.App.1977). To the extent a trial court has jurisdiction to divide marital property, it must specifically make a division of the marital property upon dissolving the marriage. In re Marriage of Bradford, 557 S.W.2d 720, 730[19] (Mo.App.1977). However, it has no jurisdiction to enter a decree dividing property which does not belong to either of the parties to the action, V. M. v. L. M., 526 S.W.2d 947, 951[10] (Mo.App.1975), or which is not property acquired during the marriage or, having been acquired prior to the marriage or by gift, has not become so intermingled with the assets of the marriage partnership as to become marital property.

The trial court, so far as we can discern, did not make a determination whether the Lonedell property was marital property. This was the most hotly contested issue tried. The threshold question confronting the trial court was whether this property belonged to these parties or whether, as respondent contended, it belonged to the two grantees in the quit claim deed. The trial court did not decide this issue.

Neither party requested that the trial court make findings of fact and conclusions of law. However, the trial court, in a proceeding under the Dissolution of Marriage Act must determine the status of the property of the parties and, as to each asset or class of assets, must make a finding whether a particular item is property of a spouse individually or is marital property. § 452.-330, supra; Anspach v. Anspach, supra, 1. c. 5[2], The trial court did not comply with this mandate.

Under the statute all property acquired subsequent to the marriage and prior to the decree of dissolution is presumed to be marital property. All of the real property in evidence in this case was acquired by the parties subsequent to their marriage and prior to entry of the decree dissolving their marriage and, therefore, was presumptively marital property. Forsythe v. Forsythe, 558 S.W.2d 675, 678[2] (Mo.App.1977). The party attacking this presumption, regardless of the status of title to the property, has the burden of showing that the property falls within the statutory exception, Jaeger v. Jaeger, 547 S.W.2d 207, 210[2] (Mo.App.1977); Boyers v. Boyers, 565 S.W.2d 658, 660[8] (Mo.App.1978); and the trial court may look behind the deed for the property acquired during the marriage to determine if the property was acquired by gift to either spouse and so exempt from division. Forsythe v. Forsythe, supra, l.c. 678[6],

The Werner’s Sunset Lake property was acquired in 1965 while the parties were husband and wife. Appellant contended that it was marital property but respondent contended it was her sole property. The deed to this property was in respondent’s name only. The trial court did not decide whether it was her sole property or whether it was marital property. Nevertheless, it was awarded to respondent. There was no evidence with respect to its market value at trial time, although in 1965 it was purchased for $750.00.

The lot at Table Rock, admittedly marital property, was awarded appellant. The record contains no evidence of the purchase price for this lot nor what its market value was in 1977 at the time this cause was tried and this decree entered.

Appellant was awarded a 1975 Chevrolet pick-up truck, acquired during the marriage. This too is presumptively marital property although he claimed he owned it. There is nothing in this record from which we can ascertain its market value at time of purchase or at time of trial.

Respondent had a 1969 Chevrolet Belair automobile she claimed she owned. Although the record does not reveal when she purchased this car it too is presumptively martial property. The record is devoid of any evidence concerning the price paid for this motor vehicle or its fair market value at the time of trial. This vehicle was awarded respondent.

The household furnishings valued by respondent at $500.00 were awarded to her.

The sole remaining item, the “family home,” valued by the appellant at $40,-000.00 constitutes the most valuable asset acquired by these parties during their approximately twenty-five and one-half year marriage.

In an effort to arrive at some estimate of the value of the Lonedell property we have made a painstaking study of this transcript because no one testified to its purchase price at the time it was acquired, sometime in 1956. We determined that the property was purchased in that year through respondent’s testimony that it was purchased five years after the parties married. She also testified that there was a first and second mortgage on the property. Monthly payments on the first mortgage were $100.00, and on the second mortgage, $28.00. The first mortgage was to Gravois Home Loan and the sellers held the second mortgage.

In 1970, when the parties decided to build the new home they needed $6,000.00 according to respondent, to clear the property of these mortgages so they could make a loan sufficient to construct their new house. She said this came as a loan from her deceased uncle, Al Rosebeck. Appellant, on the other hand, testified that it came from the sale of their 16 acre farm at Otto, Missouri, for $5,000.00.

The record does not reveal when in 1956 the Lonedell property was purchased, nor exactly when in 1970 the mortgage or mortgages were satisfied. However, the loan for the construction of the new house was made on July 31, 1970, at the Bank of Concord Village for $12,000.00, the exact amount paid for his work to the contractor who built the new house. We may safely infer that the two mortgages from the purchase of the property had been paid off by that time.

Inasmuch as we cannot determine the exact date of purchase, we must draw inferences from the evidence to reach some conclusions on this question. Since the parties were married on October 19, 1951, and they purchased the property five years thereafter, we may infer that the purchase took place sometime between the fifth anniversary of their wedding and December, 1956. For purposes of simplifying the mathematics involved, and assuming that the first payment on the first mortgage was not made until December 1, 1956, there were approximately 160 payments of $100.00 each made between December 1956 and July 31,1970, or $16,000.00. How much of this was for interest and how much was used to reduce the principal amount of the loan we do not know. We have no way to compute the amount paid on the second mortgage. The evidence does not show the amount of this loan, the interest, nor the number of installment payments necessary to pay it.

If we may infer these facts as aforesaid, the parties had made payments totalling $10,000.00 on the first mortgage — or $11,-000.00 if appellant’s evidence is accepted as true — because it took $6,000.00 (or $5,000.00) to pay the balance due on the first mortgage before the loan for building the new home could be made on July 31, 1970.

The $12,000.00 loan of July 31, 1970 bore interest at the rate of 8% per annum and was payable in 60 equal monthly installments of $100.38. According to this note the first installment was payable the first day of December, 1970, and the final installment, on the first day of November, 1975. From respondent’s testimony we learn that in January or February of 1965, when she began discussing the sale of the property to the sisters, she and appellant were three months behind in their payments on the loan. If this is so, then the logical inference, in the absence of the record of payments, is that by that time 48 payments had been made, or approximately $4800.00. How much of this sum was applied against the principal was not shown in evidence and we do not possess the mathematical expertise required to prepare an amortization schedule which would furnish that data. We do, however, deduce that this was a “balloon note,” and thus complicates our ability to arrive at these figures from the evidence in the record and determine what the balance due on the note on February 25, 1975, was when it was cancelled. We have taken the time to set out the facts above for the purpose of demonstrating that the lack of evidence upon which a review of the division of the marital property between the parties should be made, makes it impossible to determine whether said division constituted an abuse of discretion on the part of the trial court.

The statute requires a fair and equitable division of marital property; it does not require that there be an equal division in every case. In re Marriage of Cornell, 550 S.W.2d 823, 826[2] (Mo.App.1977). However, until it is determined whether the Lonedell Road property is marital property, it is impossible to ascertain whether the division of property attempted to be made by the decree entered in this case was just and equitable.

If the Lonedell property is not marital property, the division of that property which is admittedly marital property — the Table Rock Lake lot, the household furnishings and the two motor vehicles — may have been fairly equally divided. However, the trial court had no evidence from which to evaluate these items at the time he made the division and therefore could not have the information before him which would enable him to make the just division of the marital property which is the goal to be achieved in every case of division of marital property. In re Marriage of Cornell, supra, l.c. 826.

On the other hand, if the Lonedell property is marital property — and this depends of course upon the validity or invalidity of the quit claim deed — respondent is in a position to receive as her part of the marital property the entire “family home,” subject of course, to the $10,000.00 the sisters gave her to pay off the balance of the loan for construction of the new house, and interest thereon. If the property has a fair market value of $40,000.00, she would then receive something less than $30,000.00 as her sole property.

If this results, the quit claim deed would have to be found to be a forgery and the respondent’s conduct with respect to the execution of the fraudulent deed would have to be considered under the statute in any division made of this property. We cannot conceive that the trial court intended this result, should that be the case; for to so decide would amount to rewarding the respondent for her misconduct.

Therefore, we remand this case with directions to make a finding whether the Lonedell property is marital property; if the trial court finds and holds that.it is, then to take further evidence to determine its fair market value so that a just and equitable division thereof can be made. A finding should also be made on whether the Werner’s Sunset Lake property is marital property.

And when this has been accomplished, the trial court should proceed to hear further evidence on the value of the remainder of the marital property. When this is finished, it should order a just and equitable division of the marital property and set aside to either party that property, if any, held to be the separate property of either spouse.

Because we have remanded this case to the circuit court, and because one of the issues to be determined is the validity of the quit claim deed, we shall decide the only point the appellant preserved for review, i. e. whether the trial court erred in permitting Mr. Storer, the document examiner, to testify concerning the questioned signature for the reason he did not have properly authenticated, competent standard handwriting with which to make comparisons.

We hold this point to be without merit.

The evidence we have referred to herein-above demonstrates that respondent’s testimony, if believed, established the authenticity of appellant’s signature on the two notes employed as examples. She testified that both of these notes were signed by the appellant in her presence. Appellant himself, although somewhat equivocally, testified that the signatures on these notes looked like his but he did not remember signing them. At no time did he deny they were his.

Comparison of a disputed signature with an authentic signature is authorized by § 490.640 RSMo. 1969. The authenticity of the signature to be employed as an exemplar for comparison with the disputed signature must be established to the satisfaction of the trial judge.

The method of proving the authenticity of a signature for exemplar purposes employed by respondent in this case has been approved in Estate of Fedina v. Fedina, 491 S.W.2d 552, 558, 559[3-4, 7-8] (Mo.1973), and the trial judge evidenced his satisfaction with the authenticity of the signatures on the two notes by permitting Mr. Storer to use them for comparison with the signatures on the quit claim deed and to testify that, in his opinion, all three signatures were written by the same hand. We find that in doing so the trial court did not err.

Nevertheless, as we have said previously, we must remand this case for the taking of further evidence and rulings on material issues.

WEIER, C. J., and GUNN, P. J., concur.

APPENDIX

APPELLANT’S POINTS RELIED ON:

I.

THE TRIAL COURT ABUSED ITS JUDICIAL DISCRETION IN DIVIDING THE MARITAL PROPERTY AS SET FORTH IN THE DECREE OF DISSOLUTION ENTERED IN THIS CAUSE ON MAY 27, 1977.

II.

THE TRIAL COURT ERRED IN IGNORING PRINCIPLES OF EQUITY AND REWARDING THE PETITIONER FOR HER INIQUITY.

III.

THE TRIAL COURT ERRED IN PERMITTING THE SO-CALLED HANDWRITING EXPERT TO TESTIFY ON THE SUBJECT OF THE QUESTIONED SIGNATURE BECAUSE THE EXPERT DID NOT HAVE PROPERLY AUTHENTICATED COMPETENT STANDARD HANDWRITINGS WITH WHICH TO MAKE COMPARISON.

IV.

THE TRIAL COURT ERRED IN ITS DECREE BY AWARDING MAINTENANCE TO PETITIONER IN THE SUM OF $50.00 PER WEEK AS SUCH CONSTITUTED AN ABUSE OF DISCRETION UNDER THE CIRCUMSTANCES.

V.

THE TRIAL COURT ERRED IN ALLOWING THE PETITIONER TO TESTIFY, OVER PROPER AND TIMELY OBJECTION BY RESPONDENT, FROM HER ANSWERS TO INTERROGATORIES WITHOUT ANY PROPER FOUNDATION HAVING BEEN ESTABLISHED.

VI.

THE TRIAL COURT ERRED IN PERMITTING PETITIONER TO ADDUCE TESTIMONY RELATING TO THE GOOD REPUTATION OF PETITIONER.

      . See appendix at end of this opinion for the Points Relied On as they appear in appellant’s brief.

      . The parties are referred to by the title applied to their status on appeal, not in the trial court.

      . The transcript on appeal contains respondent’s petition and appellant’s answer. The pleadings on which the cause was tried are contained in the Statement of Facts in appellant’s brief. This is a violation of Rule 81.14(a) which requires that the transcript on appeal include, in chronological order “the pleadings upon which the action was tried.” The general rule restricts an appellate court’s review to matters set forth in the approved transcript, Rule 81.12(b); State ex rel. Freeze v. City of Cape Girardeau, 523 S.W.2d 123, 127[5] (Mo.App.1975). However, because of the fact both sides argued the propriety of the disposition made of the “family home” by the decree entered in the trial court and the unique issue raised thereby, we shall consider the pleadings incorporated as aforesaid just as if there had been a compliance with Rule 81.14(a).

      . Ms. Rullkoetter testified that the sisters paid $10,000.00 for the Lonedell property.

      . These documents, Petitioner’s Exhibits Nos. 10, 11 and 12 were: 1) a note for $12,000.00 payable to the Bank of Concord Village dated July 31, 1970, secured by a deed of trust on the Lonedell Road property; 2) a note for $1400.00 payable to E. V. Barnhorst, dated September 20, 1954; and, 3) a check made payable to appellant’s dentist, which was not received into evidence because respondent testified that she did not see appellant sign it.

      . Ms. Elia Kober did not testify at trial because of some mix-up concerning whether a subpoena served on her at an earlier setting of the case had been continued when the cause was passed. The transcript does not reflect any request by the appellant that her deposition filed in the cause be considered by the trial court nor was there any effort made to read the deposition into evidence by authority of Rule 57.07. We have no information of record from which we may conclude that the trial judge employed the contents of the deposition in arriving at his decision. On November 9, 1977, a memorandum was “added to the transcript” which was still in the process of preparation wherein the parties stipulated that the deposition of Ms. Kober be included as a part of the transcript in the cause. However, because we have no basis upon which to conclude that any use of the deposition was made by the trial court we have neither considered nor referred to the contents thereof.

      . We can detect from the transcript on appeal and from certain comments by counsel during the course of the trial and during oral argument in this court, that at the time of trial a second action was pending in another division of the circuit court of Jefferson County seeking a decree setting aside the quit claim deed to Ms. Kober and Ms. Rullkoetter brought by this appellant, wherein the respondent and the notary public are joined as co-defendants, but which the trial judge of the division in which it was pending refused to bring to trial until such time as we render our decision in this case. The pendency of this other cause may have influenced the trial court to refrain from making a finding whether the Lonedell property was marital property in this case.


source: Caselaw Access Project

author: GUNN, Judge.

license: Public Domain

text:
    Buford R. NICKELSON, Appellant, v. STATE of Missouri, Respondent.
    No. 40515.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 12, 1979.

      William J. Shaw, Public Defender, Stephen C. Moore, Asst. Public Defender, Clayton, Robert A. Cosentino, Manchester, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert' Otto, Marjorie Wholey Haines, Asst. Attys. Gen., Jefferson City, for respondent.
   GUNN, Judge.

After being provided a complete eviden-tiary hearing on his Rule 27.26 motion, mov-ant appeals the trial court’s denial of the motion. He bases his appeal on ineffective assistance of counsel; we affirm the trial court’s action.

Movant was convicted of stealing a motor vehicle and sentenced under the Second Offender Act to seven years imprisonment. The judgment of conviction was affirmed in State v. Nichelson, 546 S.W.2d 539 (Mo.App.1977), which sets forth the facts supporting the conviction. The appeal from the denial of his Rule 27.26 motion charges that the trial court erred in failing to find ineffective assistance of trial counsel: (1) for failing to personally represent the movant at the sentencing stage of the proceedings and failing to discuss with him the contents of his pre-sentence investigation report; (2) in failing to interview and call his co-defendant as a witness in the trial. Another point raised in the 27.26 appeal contends that movant was improperly sentenced under the Second Offender Act.

Movant complains that his trial attorney, Claude Hanks, did not personally represent him at the sentencing stage of proceedings. Instead, another lawyer from Mr. Hanks’ office — a duly qualified member of the Missouri Bar — appeared with mov-ant. Movant suggests that Mr. Hanks’ presence — rather than that of an associate lawyer from his office — at the sentencing stage of the proceedings would somehow have converted the sentence to one of a lesser penalty. Although the movant has the constitutional right to be represented by counsel at sentencing, he does not have the right to a particular attorney. State v. Washington, 570 S.W.2d 838 (Mo.App.1978); Stroder v. State, 522 S.W.2d 77 (Mo.App.1975). This rule applies even though the movant has retained and paid for a certain counsel’s services. Young v. State, 473 S.W.2d 390 (Mo.1971).

Movant’s argument that his attorney’s failure to make an argument for leniency at sentencing does not afford a basis for declaring ineffective assistance of counsel. The record is clear that the trial judge had carefully reviewed the pre-sentence investigation report and had it before him at the time of sentencing. It was not necessary that movant or his attorney be offered the opportunity to vocalize any mitigating circumstances that might have been contained in the report. See, Tyler v. State, 574 S.W.2d 434 (Mo.App.1979). Nor does movant in his motion actually complain that he did not have the opportunity to discuss the pre-sentence investigation report with his counsel — only that he should not have been sentenced because he had not committed any crime. That aspect of the case was determined unfavorably to movant in State v. Nichelson, supra, and need not be considered further here.

Movant next argues that his counsel failed him by not interviewing the co-defendant to the crime for which movant was convicted. However, movant’s trial counsel testified at the 27.26 hearing that both of them had discussed the possibility of using the co-defendant as a defense witness; that the movant, however, had expressed concern that the co-defendant would testify favorably for the State and that he did not want his testimony. Based on these expressed fears and his own analysis of the case, the decision by movant’s counsel not to interview the co-defendant and utilize his testimony was obviously a matter of trial strategy and an exercise of movant’s counsel’s professional experience. It is also obvious that discussions with the movant provided his counsel with no basis to conclude that the co-defendant’s testimony would be helpful to the defendant. Hence, no ground exists for finding ineffective assistance of counsel on the issue of interviewing the co-defendant. Williams v. State, 566 S.W.2d 241 (Mo.App.1978); Aikens v. State, 549 S.W.2d 117 (Mo.App.1977).

Finally, movant complains that he was unlawfully sentenced under the Second Offender Act — § 556.280, RSMo 1969. The act requires that the defendant be convicted and sentenced for a prior offense punishable by imprisonment in the penitentiary and subsequently be placed on probation, paroled, fined or imprisoned for the offense. State v. Lasiter, 562 S.W.2d 751 (Mo.App.1978); State v. Wilson, 544 S.W.2d 859 (Mo.App.1978). The evidence at movant’s trial was a certified copy of the judgment against movant for a prior felony for which he was sentenced to four years imprisonment and given probation. Further, the record contains movant’s specific admission that he had previously been convicted for a felony and put on probation; that the probation was revoked and defendant incarcerated in the state prison. This evidence is sufficient to fulfill the prerequisites for applying the Second Offender Act. State v. Powell, 581 S.W.2d 442 (Mo.App.1979); State v. Lasiter, supra.

The judgment denying movant’s motion is affirmed.

REINHARD, P. J., and CRIST, J., concur.

      . Repealed by Laws 1977, p. 658, S.B. No. 60, § 1, effective January 1, 1979.


author: REINHARD, Presiding Judge.

text:
    Joseph V. KEARNS, Jr., Appellant, v. STATE of Missouri, Respondent.
    No. 40264.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 26, 1979.

      David V. Uthoff, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Douglas A. Forsyth, Asst. Circuit Atty., St. Louis, for respondent.
   REINHARD, Presiding Judge.

Movant appeals from the denial of his Rule 27.26 motion to vacate his plea of guilty and conviction for the offense of Robbery First Degree by Means of a Dangerous and Deadly Weapon. He had been sentenced to serve a term of twelve years in the Department of Corrections. The circuit court denied the 27.26 motion without an evidentiary hearing. Movant contends that the court erred in denying him the eviden-tiary hearing.

On appeal movant claims the following allegations in his first amended motion entitled him to an evidentiary hearing: (1) that the plea was not “knowingly and understandingly made” because he was under the influence of a narcotic drug during the guilty plea proceeding, and (2) that the plea was not “voluntarily and understandingly made” due to ineffectiveness of counsel. Specifically, movant contends that counsel was ineffective, and that such ineffectiveness tainted his guilty plea, because counsel was aware, or should have been aware, that movant was under the influence of drugs, and therefore, should not have permitted movant to withdraw his former plea of not guilty. Further movant contends that he was denied effective assistance of counsel because his retained counsel did not appear at his preliminary hearing, and because counsel failed to make an investigation to determine whether the victim would be able to testify or appear at trial proceedings, since counsel knew that the victim was a citizen of a foreign country.

In order to qualify for an evidentia-ry hearing on a 27.26 motion, movant must meet the requirements established in Smith v. State, 513 S.W.2d 407 (Mo.banc 1974). These requirements are: (1) the motion must allege facts, not conclusions, warranting relief; (2) those facts must raise matters not refuted by the files and records in the case; and (3) the matters complained of must have resulted in prejudice to the defendant.

On March 2, 1976, Kearns entered a plea of guilty before Judge Gary M. Gaertner. During this hearing the court specifically and extensively questioned him whether he was on “any kind of drugs”, whether he had “sufficient time to consult with [his] attorney on all matters pertaining to [the] case”, whether he was satisfied with his attorney’s competence, and whether he had consulted with his attorney and understood the plea of guilty. He responded that he was not on drugs, that he had been afforded sufficient-time to consult with his attorney, that he believed counsel was competent, that he was satisfied with his attorney, and that he had consulted with his attorney and understood the plea of guilty.

Kearns acknowledged to the court the following scenario regarding the robbery. He had seen an advertisement in the Trading Times for a coin collection sale and contacted the owner (victim) by phone who told Kearns that he had the coins at his home. Kearns involved another person in the crime; they went to the victim’s home. They entered the house, Kearns displayed a revolver as they entered, and they tied up the victim’s in-laws. They attempted to tie up the victim but he broke loose. They hit the victim over the head several times and he fell to the floor. Kearns and his cohort took the coin collection and fled. The victim chased Kearns, running down the street stating that he had been robbed. Some citizens in the street aided the victim in apprehending movant and his accomplice.

Movant’s attorney told the court that a motion to suppress the identification had been filed but that because four witnesses had substantiated the contents of the police report, the defense believed that the motion to suppress would not be sustained. The state recommended a sentence of twelve years and defendant stated that he was aware of his recommendation, and that he understood, even though the recommendation was going to be made, that the court was not bound by it. Defendant previously had been convicted of armed robbery.

Movant’s contention that his plea was not “knowingly and understanding^ made” because he was under the influence of a narcotic drug during the guilty plea proceeding is clearly refuted by the record of the hearing as set forth above. Kearns had undergone a psychiatric examination prior to his entry of the plea of guilty. Counsel, in the presence of defendant, indicated that the report showed that the defendant was capable of participating in the court proceedings. Defendant had twelve years of education, and told the court that he was not on any kind of drug or intoxicating liquor. He was under oath when he made this statement. Movant now claims that the court should have made further inquiry and investigation. He was asked the questions. He answered clearly. The court held an extensive hearing and had an opportunity to observe the defendant. This contention, therefore, is without merit as it is clearly refuted by the record.

Movant’s next contention deals with his allegations that his plea was not “voluntarily and understandingly made” due to ineffectiveness of counsel. The cases clearly establish that on a plea of guilty, the issue of adequate assistance of counsel goes only to whether such alleged ineffectiveness affected the voluntariness of the plea. Taylor v. State, 573 S.W.2d 463[1] (Mo.App.1978). Movant’s contention that counsel knew he was under the influence of a narcotic drug is — as was his previous contention — refuted by the record. If movant was not under the influence of drugs, as he told the court, how could his attorney know or assert that he was? This contention is absurd.

The allegation that counsel was ineffective because he did not appear at the preliminary hearing must fail because his plea of guilty waives all non-jurisdictional, procedural and constitutional infirmities at any prior stage of the proceeding. Geren v. State, 473 S.W.2d 704[3] (Mo.1971). Furthermore, the contention is merely concluso-ry since no allegation is made as to how defendant was prejudiced by retained counsel’s failure to appear. The defendant was represented by the Public Defender’s Office at that hearing.

It is movant’s final contention that counsel was ineffective due to his failure to investigate the case. The claim that counsel should have determined whether the victim would be able to testify at trial proceedings is conclusory. Movant makes no factual allegation that the victim was unable to testify, nor does he indicate why the victim would be unable to testify, if such were true.

Finding the order of the trial court denying movant’s 27.26 motion without an evi-dentiary hearing not to be clearly erroneous, Brookins v. State, 575 S.W.2d 841 (Mo.App.1978), we hereby affirm.

GUNN and CRIST, JJ., concur.


text:
    STATE of Missouri, Respondent, v. Gary Leon RILEY, Appellant.
    No. 40586.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 26, 1979.

      William James O’Herin, Guilfoil, Syming-ton, Petzall & Shoemake, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Richard Engel, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   REINHARD, Presiding Judge.

Defendant appeals from a conviction by a jury for illegal possession of a Schedule I controlled substance, heroin. He was sentenced by the court to serve a term of five years in the Department of Corrections under the Second Offender Act.

On the afternoon of July 8, 1977, in the City of St. Louis, Leon Riley and a companion were stopped by two police officers. They were suspected of leaving the scene of an accident several blocks away. After being identified as the passengers of the abandoned car, both were placed in a police van and transported to the Sixth District Police Station. After Riley and his companion got out of the van, one of the police officers found an envelope containing a treasury check, later found to be stolen.

Defendant was taken to the Sixth District Police Station where two detectives were summoned to investigate the larceny charge. After having been given his constitutional rights police officers noted that defendant was chewing something. He was told to spit it out but refused to do so. After a struggle, he finally ejected from his mouth a clear cellophane wrapper containing three red capsules. The state’s evidence showed the capsules contained heroin.

Defendant argues on appeal that the trial court erred in overruling his motion for a new trial because the verdict of the jury was not supported by substantial evidence.

On appeal, the court reviews the evidence only to determine if there was substantial evidence to support a verdict giving the state all reasonable inferences. State v. Kuhrts, 571 S.W.2d 709 (Mo.App.1978). In order to convict one of possession of a controlled substance the state must produce evidence showing that defendant knowingly and intentionally possessed the substance. State v. Polk, 529 S.W.2d 490 (Mo.App.1975). The state’s evidence established that defendant possessed three capsules and further that the capsules contained heroin. The fact that he had these items in his mouth and was chewing them was sufficient for the jury to infer that he had knowledge of the contents of the cellophane packet. Furthermore, evidence showing that defendant was attempting to destroy the capsules was evidence to be considered in demonstrating a consciousness of guilt. Although attempts to conceal the crime aren’t sufficient in themselves, such evidence of acts, conduct, and declarations of the accused are considerations in showing consciousness of guilt. State v. Goforth, 535 S.W.2d 464 (Mo.App.1976). In this case the jury considered defendant’s actions and chose to believe the police officers rather than defendant’s contention that the capsules were “planted” on him by the police.

Conflicts in the evidence, the determination of the credibility of witnesses and the weight to be given their testimony are factors within the province of the jury. State v. Kellick, 521 S.W.2d 166, 167 (Mo.App.1975).

We find substantial evidence to support the jury’s finding.

The second point raised by defendant charges that the trial court abused its discretion in sustaining the state’s objection to defendant’s counsel’s cross-examination of Detective Joseph Murphy concerning the disposition of the larceny charge. The exchange in question occurred during the cross-examination of Detective Joseph Murphy:

Q. So, you basically had Johnson at that point on four charges?
Is that correct?
A. At the booking time?
Q. Right.
A. Yes, sir.
Q. How many of those were warrants issued on?
A. The possession of heroin.
Q. There wasn’t any warrant issued on any larceny charge, was there?
A. No, sir.
Q. Do you know why not?
MR. F. Scher: Your Honor, I am going to object.
The Court: Sustained.

Defendant contends that this cross-examination was necessary in order to show that defendant was “framed” by the police. Counsel for defendant had an opportunity to question Detective Murphy as to his motives in testifying. Detective Murphy was asked if he gave the capsules to defendant in order to make a case against him. He was asked if he received credit for arrests and convictions in the department.

The trial court is invested with much discretion in determining the extent of cross-examination, especially as to collateral matters. State v. Knicker, 424 S.W.2d 605 (Mo.1968); State v. Dixon, 566 S.W.2d 254 (Mo.App.1978). We find no abuse here.

GUNN and CRIST, JJ., concur.


author: COOPER, Justice.

text:
    Winfrey H. JOHNSON et al. (Morgan County Commissioners), Appellants, v. STATE of Tennessee ex rel. Betty B. DULLING et al., Appellees.
    Supreme Court of Tennessee.
    June 25, 1979.
    John M. Norris, Cheek, Taylor & Groover, Knoxville, Walter L. Fuller, Jr., Oak Ridge, for appellants.
    Philip P. Durand, Ambrose, Wilson & Grimm, Knoxville, for appellees.
   COOPER, Justice.

OPINION

The Board of Commissioners (formerly the Quarterly County Court) of Morgan County, Tennessee, has appealed from a writ of mandamus issued by the chancery court ordering the Board to issue $8.4 million dollars in school bonds. The Board insists the issuance of bonds is discretionary, and that the bond referendum held on May 16, 1978, was merely an advisory election to ascertain the preference of the voters and was not binding on the Board. We disagree.

In 1978, the Tennessee Department of Education conducted a survey of the educational system, including all school facilities, in Morgan County. Numerous deficiencies were noted in the survey, with the result that the Commissioner of Education called upon Morgan County to correct the deficiencies on threat of loss of state funds for education.

The Morgan County School Board then presented to the Board of Commissioners alternative studies for a renovation program at a cost of $8.4 million or for a consolidation of county schools at a cost of $12.8 million. The Board of Commissioners refused to authorize the issuance of bonds in either amount for either program. However, at its regular meeting on April 10, 1978, the Board adopted a resolution submitting the following question to the electorate of Morgan County to be voted on in a referendum to be held on May 16,1978.

3. SCHOOL REFERENDUM
The Morgan County Quarterly Court, at its April 10, 1978, session, voted to submit the following questions to the qualified voters of Morgan County: Vote for one of the following:
1. To issue $12.8 million dollars for consolidation of Morgan County Schools
2. To issue $8.4 million dollars to repair or renovate Morgan County Schools
3. To vote for no bonds for either of the above purposes.

A majority of the voters casting ballots in the May 16, 1978, election voted in favor of alternative two, that is to issue $8.4 million dollars in bonds to repair or renovate the Morgan County Schools.

Thereafter, at its regular meeting on July 10,1978, the Board of Commissioners refused to issue the school bonds as approved by the electorate, and, by resolution, called upon the Morgan County Board of Education to submit “a more feasible plan in line with Morgan County’s ability to pay for correcting the deficiencies of Morgan County Schools. . .

On complaint of a teacher in the Morgan County School System and the Parent-Teachers Association, the chancery court issued a writ of mandamus directing the Board of Commissioners to issue $8.4 million dollars in school bonds.

The duties of the Board of Commissioners (formerly the Quarterly County Court), within the scheme of public education, are set forth in T.C.A. Section 49-201. Included among those duties, is the duty or rather authority

(5) To submit to the voters of the county, at any regular sessions, or at any special session called for that purpose, the proposition to issue bonds for the purpose of purchasing grounds, erecting and furnishing school buildings, and, upon the affirmative vote of the majority cast in said election, to issue bonds in accord therewith.

In Lamb v. State, 207 Tenn. 159, 338 S.W.2d 584 (1960), the County Court of Cocke County, by resolution, submitted to the voters of that county the question of whether or not bonds should be issued to construct a new high school and to make repairs to elementary schools of the county. The voters approved the bond issue. Thereafter, the county court declined to issue the bonds. In upholding the issuance of a writ of mandamus directed to the county court, this court pointed out that:

[W]e cannot escape the fact that the statute hereinabove quoted plainly prescribes a specific duty or act on the part of the county court to be performed in that it is said (there is no ambiguity in the statute at all) that when a referendum has been had and the vote is in the affirmative then it becomes the duty, and is the duty, of the county court “to issue said bonds in accord therewith.” This does not leave any discretion or anything of the kind for the county court to do except to issue the number of bonds as voted favorably for by the people. The county court cannot say, and it is not their prerogative to say, how many bonds, more or less, or anything of the kind; there is no discretion left in them. The vote of the people has assumed this responsibility in voting favorably whether by a large or small margin. The only thing left for the county court to do is the ministerial act of issuing the bonds as called for under this referendum. .

Appellants do not take issue with the above holding, but insist the bond referendum in this case was not called under the authority of T.C.A. Section 49-201(5). Appellants insist the referendum was called under the authority set forth in T.C.A. Section 5-1024 or, in the alternative, under T.C.A. Section 49-201(8) and, consequently, the referendum was merely advisory and not binding in any way on the Board of Commissioners. The resolution adopted by the Board does not set forth the specific statute under which the bond referendum was called, but we think it evident that the Board acted under the authority set forth in T.C.A. Section 49-201(5). This statute provides for the calling of a referendum specifically for the issuance of bonds for school purposes. T.C.A. Section 5-1024 sets forth the procedure for the issuance of bonds generally. We note that in calling the bond referendum in this case, the Board of Commissioners did not follow the procedure for the issuance of general bonds. We note also that T.C.A. Section 49-201(8) does not provide for the issuance of bonds per se. It merely places upon the Board of Commissioners the duty to provide funds either by the levy of taxes or through bond issues

for the purchase of school grounds, the erection and repair of school buildings, and for equipping the same; provided, same shall have been provided for by the [Board of Commissioners], or that said [Board] have approved the authorization of same by the county board of education.

Where the Board of Commissioners elects to provide the requisite funds by bond issues by the voters for the purposes set forth in Section 8 of T.C.A. 49-201, it does so under Section 5 of the statute, which provides for the calling of a referendum specifically for the issuance of bonds for school purposes. The Board of Commissioners also has the authority to issue bonds for school purposes without submitting the issue to a vote of the people. This is done by resolution adopted by a majority of the Board members at any regular, special or adjourned meeting. T.C.A. Section 49-702.

In this case, the Board of Commissioners elected to submit to the voters of Morgan County the question of whether or not bonds should be issued to provide funds to be used in repairing or renovating the Morgan County Schools. Having elected to submit the issue to the voters, the Board of Commissioners is bound by the vote of the people to issue the bonds and, on its failure to do so, is subject to the writ of mandamus. Lamb v. State, supra.

The Board devoted a substantial part of its brief to the argument that, in calling the referendum, it was its intention that the referendum be advisory only. There is nothing in the minutes of the Board or in the resolution calling the referendum, as adopted by the Board, to indicate the referendum was intended to be advisory only. Furthermore, we know of no authority for the legislative body of a county to poll the electorate, by referendum, solely for the purpose of having the electorate give its advice on a controversial issue, leaving the legislative body of the county free to accept or reject the advice. Such a practice would be an abdication of the responsibility of the legislative body, would be an affront to the voter, and would be a waste of public money-

Decree affirmed. Costs incident to the appeal are adjudged against the appellants.

HENRY, C. J., and FONES, BROCK, and HARBISON, JJ., concur.


author: BROCK, Justice.

text:
    Larry WATERS, Appellant, v. STATE of Tennessee, ex rel., Al SCHMUTZER, Jr., District Attorney General for the Second Judicial District and W. Henry Ogle, Appellees. Larry WATERS, County Executive for Sevier County, Tennessee, Appellant, v. W. Henry OGLE, Juvenile Judge for Sevier County, Tennessee, Appellee.
    Supreme Court of Tennessee.
    June 28, 1979.

      George D. Montgomery, Knoxville, for appellant, Larry Waters; Kinnerly, Montgomery, Howard & Finley, Knoxville, of counsel.
    Lawrence P. Leibowitz, Knoxville, for appellant, Larry Waters, County Executive for Sevier County, Tennessee; Leibowitz & Watson, Knoxville, of counsel.
    Everett H. Falk, Deputy Atty. Gen., Nashville, for intervenor, William Leech, Atty. Gen. of Tennessee.
    R. B. Hailey, Sevierville, for appellee, W. Henry Ogle; Hailey, Waters, Sykes & Sharp, Sevierville, of counsel.
   OPINION

BROCK, Justice.

Two actions, one in the nature of quo warranto and the other in the nature of mandamus, have been consolidated for review upon this appeal. Both originated in the Circuit Court for Sevier County and present several issues for our consideration.

I

The action in the nature of quo warranto was brought by the District Attorney General pursuant to T.C.A., § 23-2801, et seq., and sought an adjudication of the conflicting claims of the defendants, W. Henry Ogle and Larry Waters, to the office of Juvenile Court Judge of Sevier County.

Mr. Waters has claimed the office since September 1, 1978, by virtue of his election to the office of county executive for Sevier County in the August, 1978, election and the provisions of T.C.A., § 5-606 (Acts 1978 [Adjourned Session], Chapter 934, § 17) which purport to clothe the county executive with the judicial authority formerly exercised by the county judge.

The claim of Mr. Ogle to the office of juvenile court judge is more extensive and extends over a longer period of time. His claim to the office prior to September 1, 1978, and to compensation for his services will be considered in greater detail in section II of this opinion. His claim to the office presently and since September 1, 1978, is based upon his contention that the office has been vacant since September 1, 1978, and that he was elected by the legislative body of Sevier County to fill the vacancy on October 23, 1978.

The assertion that the office of juvenile court judge has been vacant since September 1, 1978, is based upon the theory that Mr. Waters, the newly elected county executive, is disqualified to hold the office of juvenile court judge because he is under 30 years of age, being 26 years of age, and is not an attorney. Moreover, Ogle argues that insofar as T.C.A., § 5-601, et seq., purports to clothe the county executive with the judicial authority formerly exercised by county judges but provides that the minimum age of the county executive shall be 25 years it is invalid because in violation of Article VI, Section 4, of the Constitution of Tennessee, which provides that judges of inferior courts, such as the juvenile court and county court, shall be at least 30 years of age.

The prayer of the complaint was that both Waters and Ogle be restrained from exercising the powers of the Juvenile Court of Sevier County and that the Court determine “who is the lawful juvenile judge for Sevier County.” The case was submitted to the circuit judge upon the pleadings and a written stipulation that the facts set out in the complaint were true and that the exhibits attached thereto were true, that Mr. Waters was born April 23, 1953, and that Mr. Ogle is an attorney and over the age of 30 years.

The circuit judge entered a decree in which he adjudged:

“(1) That Chapter 934 of the Public Acts of 1978 is unconstitutional insofar as it purports to lodge the power and authority of the juvenile judge in a person who is not an attorney at law and is under the age of 30 years;
“(2) That the office of county executive of Sevier County is vacant insofar as the judicial functions of that office are concerned;
“(3) That the county legislative body of Sevier County have authority to fill the vacancy existing in the office of juvenile court judge;
“(4) That defendant Ogle had been properly installed in the office of juvenile court judge and shall continue to. serve in that capacity;
“(5) That Sevier County is liable for reasonable attorneys fees incurred by defendant Waters in defending the action.”

In determining Mr. Waters’ claim to the office of judge of the juvenile court, we first examine the validity of the 1978 statute insofar as it purports to clothe the county executive with the judicial authority formerly exercised by the county judge.

In 1978, Article VII of the Constitution of Tennessee was amended to provide:

“Sec. I. County government — Elected officers — Legislative body — Alternate forms of government —The qualified voters of each county shall elect for terms of four years a legislative body, a county executive, a Sheriff, a Trustee, a Register, a County Clerk and an Assessor of Property. Their qualifications and duties shall be prescribed by the General Assembly. Any officer shall be removed for malfeasance or neglect of duty as prescribed by the General Assembly.
“Sec. 2. Vacancies — Vacancies in county offices shall be filled by the county legislative body, and any person so appointed shall serve until a successor is elected at the next election occurring after the vacancy and is qualified.”

It should be noted that this constitutional provision fixes the term of the county executive at four years and provides that the qualifications and duties of that office are to be prescribed by the General Assembly.

To effectuate the changes brought about by the 1978 constitutional amendments, the legislature enacted Chapter 934 of the Pub-lie Acts of 1978. As pertinent to the case now before us, that statute provides, in Section 16(a):

“. . . the chief executive officer of each county shall be a county executive elected in accordance with subsection (b) by the qualified voters of the county for a term of four (4) years or until a successor is elected and qualified. References to the chairman of the county court and county judge appearing elsewhere in this code shall be deemed references to the county executive. The county executive may be otherwise appropriately entitled by private act or by action of the county legislative body.”

Section 17 of that Act further provides, in pertinent part, as follows:

“(a) The county executive shall be:
“(1) a qualified voter of the county;
“(2) at least twenty-five (25) years of age; and
“(3) a resident of the county for one (1) full year prior to the date of filing a nominating petition for election to such office; .
******
“The judicial authority formerly exercised by the county judge, county chairman, or other such elected official of county government shall be vested in the county executive.”

It is clear that pursuant to Article VII, Section 1 of the Constitution, as amended in 1978, the legislature may fix the qualifications of the county executive, including the minimum age, as it sees fit and provide that his term of office shall be four years; indeed, that constitutional provision itself fixes the term of the county executive at four years. Under that constitutional provision, the legislature also may prescribe the duties of the county executive as it sees fit; provided, that in so doing it does not violate some other provision of the Constitution.

Article VII, Section 1 of the Constitution, as amended in 1978, does not vest any judicial authority in the county executive but the legislature has sought to vest such authority in that officer by the enactment of Chapter 934 of the Public Acts of .1978, providing in Section 17 that:

“. . . the judicial authority formerly exercised by the county judge, county chairman, or other such elected official of county government shall be vested in the county executive.”

The judicial authority referred to is that of the county court, T.C.A., §§ 16-701, et seq., and the juvenile court, T.C.A., §§ 37-201, et seq.

Thus, the question arises whether the authority of the juvenile court may be vested in an official who may be as young as 25 years of age and whose term of office is four years, whereas, Article VI, Section 4, of the Constitution requires that judges of “inferior” courts

“. . . shall be thirty years of age, and shall before his election have been a resident of the State for five years and of the circuit or district one year. His term of service shall be eight years.” We conclude that it may not.

There can be no doubt that Article VI, Section 4, of the Constitution of Tennessee, requires that judges of inferior courts shall be 30 years of age and shall serve a term of eight years; and, insofar as an act of the legislature attempts to provide otherwise, it is unconstitutional and invalid. State v. Leonard, 86 Tenn. 485, 7 S.W. 453 (1888); State v. Maloney, 92 Tenn. 62, 20 S.W. 419 (1892); The Judges’ Cases, 102 Tenn. 509, 53 S.W. 134 (1899); State v. Ritzius, 164 Tenn. 259, 47 S.W.2d 558 (1932); Farmer v. Wiseman, 177 Tenn. 578, 151 S.W.2d 1085 (1941).

The office of juvenile court judge is one which must meet the requirements of Article VI, Section 4. Stambaugh v. Price, Tenn., 532 S.W.2d 929 (1976); State ex rel. Haywood v. Superintendent, Davidson County Workhouse, 195 Tenn. 265, 259 S.W .2d 159 (1953). The same is true of the office of judge of the county court. Chambers v. Marcum, 195 Tenn. 1, 255 S.W.2d 1 (1953); State v. Eblen, 185 Tenn. 566, 206 S.W.2d 793 (1947); Kivett v. Mason, 185 Tenn. 558, 206 S.W.2d 789 (1947); State v. Link, 172 Tenn. 258, 111 S.W.2d 1024 (1938); State v. Maloney, supra; State v. Leonard, supra; The State v. McKee, 76 Tenn. 24 (1881); State ex rel. Smiley v. Glenn, 54 Tenn. 472 (1872).

Since the term of office of the county executive is fixed at four years by one provision of the Constitution and the term of judges of “inferior courts,” including the county court and juvenile court, is fixed at eight years by another provision of the Constitution, the conclusion is inescapable that the judicial authority of the juvenile court cannot lawfully be vested in the county executive. We conclude, therefore, that the provision of Section 17 of Chapter 934 of the Public Acts of 1978 (codified now as T.C.A., § 5-606) purporting to vest in the county executive “the judicial authority formerly exercised by the county judge, county chairman, or other elected official of county government” is unconstitutional and invalid.

We hold, however, that this invalid provision may be elided, pursuant to Section 43 of Chapter 934 of the Public Acts of 1978, which provides:

“If any provision of this act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to that end the provisions of this act are declared to be severable.”

We find this elision to be unobjectionable under our authorities since the remainder of the Act is a workable and coherent whole which may be given effect. Frost v. State, 205 Tenn. 671, 330 S.W.2d 303, 80 A.L.R.2d 1191 (1959); Catlett v. State, 207 Tenn. 1, 336 S.W.2d 8 (1960); Williams v. Mabry, 176 Tenn. 343, 141 S.W.2d 481 (1940).

Since the attempt to vest the judicial authority of the juvenile court in the county executive is invalid, it follows that the claim of defendant Waters to the office of juvenile court judge also fails; he is not the de jure judge of the Juvenile Court of Sevier County. We hold, however, that by virtue of his election and induction into the office of county executive on September 1, 1978, he became the de facto judge of the juvenile court and that his acts as such are valid. Kidd v. McCanless, 200 Tenn. 273, 292 S.W.2d 40 (1956); Ridout v. State, 161 Tenn. 248, 30 S.W.2d 255 (1930); Country Clubs, Inc. v. City of Knoxville, 217 Tenn. 104, 395 S.W.2d 789 (1965); Smith v. Landsden, 212 Tenn. 543, 370 S.W.2d 557 (1963); Heard v. Elliott, 116 Tenn. 150, 92 S.W. 764 (1906). The de facto principle applies as well to judicial as to ministerial or other officers. McDowell v. United States, 159 U.S. 596, 16 S.Ct. 111, 40 L.Ed. 271 (1895); Blackburn v. State, 40 Tenn. 690 (1859).

Our determination that the statutory provision attempting to designate the county executive as judge of the juvenile court, is unconstitutional and invalid operates to create a vacancy in the office of judge of the juvenile court. T.C.A., § 8-2801, provides:

“Any office in this state is vacated:
* * * * * *
“(4) By the decision of a competent tribunal, declaring the election or appointment void or the office vacant.”

See also, Stambaugh v. Price, supra; Williams v. Mabry, supra; Southall v. Billings, 213 Tenn. 280, 375 S.W.2d 844 (1963); Richardson v. Young, 122 Tenn. 471, 125 S.W. 664 (1910).

But, the vacancy occurs, not upon the rendition of the judgment of the trial court, but at the time the judgment of the trial court becomes final or, if appealed, when the judgment of the court of last resort becomes final. T.C.A., § 8-2806; Southall v. Billings, supra. T.C.A., § 8-2806, provides:

“Whenever there is a final judgment of a competent tribunal, declaring any election or appointment void, or any office vacated, such judgment shall promptly be certified by the clerk to the appointing power or power whose duty it is to take steps to fill the vacancy.”

The appointing power may act to fill the vacancy prior to receipt of the notice thus provided for by T.C.A., § 8-2808, but not until after a vacancy has been declared by the final judgment of a competent tribunal. In the instant case, the vacancy in the office of Juvenile Court Judge of Sevier County will occur when the judgment of this Court in this case becomes final. Until that time Mr. Waters continues to be the de facto judge. It follows that the attempted election of Mr. Ogle to the office of juvenile court judge by the legislative body of Sevier County on October 23, 1978, was invalid because no vacancy existed in the office at that time.

The proper agency for filling the vacancy is the legislative body of Sevier County. As we recently held in Stambaugh v. Price, supra, a juvenile court judge is a county officer, as distinguished from a state officer. The law in effect at that time, 1976, provided that vacancies in county offices were to be filled by the quarterly county court. It is now provided by Article VII, Section 2, as amended in 1978, that:

“Vacancies in county offices shall be filled by the county legislative body, and any person so appointed shall serve until a successor is elected at the next election occurring after the vacancy and is qualified.”

Therefore, the final decree of this Court in the instant case will be certified by the clerk and forwarded to the legislative body of Sevier County, as provided by T.C.A., § 8-2806, so that the vacancy may be filled according to law.

II

The mandamus action was brought by W. Henry Ogle, as Juvenile Court Judge of Sevier County, against Larry Waters, as county executive for Sevier County, seeking to require the county executive to pay to Mr. Ogle a salary at the rate of $22,000 per annum from April 21, 1978, to the present time.

This claim of Mr. Ogle arises out of the following facts. Prior to April 21, 1978, the county judge of Sevier County died and Harold Atchley was elected by the quarterly county court to serve as county judge pro tempore until the next general election in August, 1978. Upon assuming the duties of his new office, Judge Atchley entered an “order” on April 21, 1978, which in part provided:

“That the duties of the county judge include serving as juvenile judge for which I, as a layman, am unqualified, having no prior experience in juvenile matters, and because of my other duties, unable to hold juvenile court. Therefore, I have requested the Sevier County Bar Association to assist in the election of a juvenile judge pro tempore which the bar association has done in accordance with T.C.A., § 17-225 and T.C.A., § 17-228, electing Mr. W. Henry Ogle, Esquire, who has the qualifications required of a juvenile judge and is a licensed and practicing attorney of the state of Tennessee.
“Therefore, it is ordered, adjudged and decreed that because of this judge’s inability to attend or hold juvenile court that Mr. W. Henry Ogle, Esquire, be ordered to hold juvenile court for Sevier County as juvenile judge pro tempore pursuant to T.C.A., § 17-225, until his successor is elected or duly appointed and qualified. That said Mr. W. Henry Ogle, Esquire, shall have all the powers and liabilities of a regular juvenile judge, he having taken the oath of office as required by law.”

Another document exhibited to the complaint indicates that on the same day, April 21, 1978, thirteen attorneys at the Sevier County bar conducted an election pursuant to T.C.A., § 17 — 225, and elected W. Henry Ogle as judge of the Juvenile Court of Sevier County pro tempore

“. . .to hold the juvenile court until his successor is elected, or appointed, and qualified. Said juvenile judge pro tem-pore shall have all the powers and be liable to all the responsibilities of a regular juvenile judge, after his having taken oath as required by law.”

Another document exhibited to the complaint indicates that Mr. W. Henry Ogle was duly administered the oath of office of the juvenile judge on April 21, 1978, and entered upon the duties of that office. Thereafter, on July 17, 1978, the quarterly county court of Sevier County adopted a resolution commending Mr. Ogle for

“. . . his service to the community in the capacity as acting Juvenile Judge for Sevier County, Tennessee, and it is further resolved that W. Henry Ogle be requested to remain in such office until such time as the quarterly court of Sevier County, Tennessee, acting as expeditiously as possible, arrange for the appointment of a permanent juvenile judge for Sevier County, Tennessee.”

It appears from the record that Mr. Ogle functioned as the Juvenile Court Judge for Sevier County from April 21,1978, until the new county executive was elected at the August, 1978, election and assumed his duties on September 1, 1978. Even after that date, Mr. Ogle contended that he was the rightful holder, of the office of judge of the Juvenile Court of Sevier County as a holdover, it being his theory that county executive Larry Waters was constitutionally disqualified to hold that office, as set out in part I of this opinion. Accordingly, on October 23, 1978, the new county legislative body of Sevier County adopted a resolution in which it recognized the service of Mr. Ogle as judge of the Juvenile Court of Sevier County from April, 1978, and recited that he had been:

“. . . duly elected by the county court of Sevier County, Tennessee, by resolution adopted 17th of July, 1978, as Juvenile Judge of Sevier County, . .”

It was further resolved that:

“. . . the salary of W. Henry Ogle, as juvenile judge be fixed at $22,000 annual rate per year pro rata for time served from April 23,1978, and to be paid on the first day of each month thereafter, and to continue until his successor is duly elected and qualified as provided by law.”

This resolution further provided:

“Be it further resolved that the funds necessary to carry out this resolution be and they are hereby appropriated from the general funds of the county.”

This was followed by an order entered on October 25,1978, by county executive Larry Waters, acting as juvenile judge, in which he recited that he had received an opinion from the Attorney General of Tennessee advising that he assume the role of juvenile judge of Sevier County until such time as he might be removed from office by a court of competent jurisdiction. Judge Waters’ order further provided:

“Juvenile court will be held at the courtroom of the trial justice court, in the courthouse in Sevierville, on every Monday of each week beginning at 10:00 a. m. and continuing until adjourned. No other person unless at my written direction shall act as such juvenile judge subject to the contempt orders of this Honorable Court.”

This confrontation between “Judge” Ogle and “Judge” Waters resulted in the filing of the quo warranto action hereinabove discussed and the issuance of restraining orders against both claimants on October 27, 1978.

The judgment of the circuit court in the quo warranto action contained a provision requiring county executive Waters to immediately pay to Mr. Ogle that portion of the $22,000 per annum “salary” provided in the resolution of the county legislative body for the period from April 23, 1978, to the date of the order. Upon the refusal of Mr. Waters to make this payment as ordered, a petition for contempt was filed against him by Mr. Ogle, so that, under the penalty of punishment for contempt, county executive Waters paid to Ogle the sum allegedly due, although the correctness of the resolution of the county legislative body providing for the salary and the judgment of the circuit court ordering that it be paid were disputed and were in the process of being reviewed by this Court upon appeal.

In our opinion, the circuit court was clearly in error in issuing the writ of mandamus against county executive Waters requiring him to pay the alleged salary due to Mr. Ogle. The extraordinary writ of mandamus lies only to control the performance of a nondiscretionary, definite, fixed, ministerial duty. Peerless Const. Co. v. Bass, 158 Tenn. 518, 14 S.W.2d 732 (1929). It is not available to compel a county executive to issue a warrant upon the county treasury for a claim, the correctness of which he disputes. His duties as financial agent of the county require him to protect the county against payment of unjust demands and the Court will not compel him by mandamus to pay an unadjudicated debt that he has determined to be unjust or unlawful. Whitesides v. Stewart, 91 Tenn. 710, 20 S.W. 245 (1892); Connell v. Davidson County, 39 Tenn. 189 (1858); State v. Martin, 155 Tenn. 322, 292 S.W. 451 (1927); Vandergriff v. Seeber, 187 Tenn. 561, 216 S.W.2d 311 (1948).

In the instant case, Mr. Waters, the county executive, was vigorously disputing the correctness of the resolution of the county legislative body which purported to authorize the payment of a salary to Mr. Ogle at the rate of $22,000 per annum and he was appealing that portion of the judgment of the circuit court in the quo warran-to action which ordered him to pay this salary to Mr. Ogle. Thus, there was no final judgment requiring payment of this claim and the validity of the claim itself was earnestly disputed in good faith by the county executive. Under these circumstances, we hold that the county executive could not lawfully be compelled by mandamus to pay Mr. Ogle’s claim. It was error for the circuit court to hold to the contrary.

Nevertheless, the issue remains whether Mr. Ogle is entitled to be paid as provided in the judgment of the circuit court in the quo warranto action. When Mr. Ogle assumed the duties of the office of judge of the Juvenile Court of Sevier County on April 23, 1978, he did so pursuant to the “appointment” by county judge pro tem-pore Atehley and pursuant to the election by attorneys of the Sevier County bar under the provisions of T.C.A., § 17-225, to-wit:

“When, from any cause, the judge of any court of record, except the appellate courts, fails to attend, or, if in attendance, cannot properly preside in a cause or causes pending in such court, or is unable to hold the court, a majority of the attorneys of the court who are present and are residents of the state, shall elect one of their number then in attendance to hold the court for the occasion, who shall have all of the qualifications of a judge of such court, and who shall accordingly preside and adjudicate.
******
“The person elected shall, during the period that he acts, have all the powers, and be liable to all the responsibilities, of a regular judge.”

It was formerly provided by statute that a judge so selected might receive compensation from the state, provided, the regular judge whom he replaced should authorize him to be paid from the regular judge’s salary. This provision, however, was repealed by Chapter 150 of the Public Acts of 1959. Moreover, it would have had no application in the instant case because the salary of the juvenile court judge is an obligation, not by the state, but of the county, T.C.A., § 8-2414. There simply is no compensation provided by law for one who serves as a judge pro tempore under the provisions of T.C.A., § 17-225.

It is well settled that the county legislative body may appropriate public monies only for the purposes specifically authorized by the statutes, T.C.A., § 5-901, et seq. City of Harriman v. Roane County, Tenn., 553 S.W.2d 904 (1977); Maury County v. Whitthorne, 174 Tenn. 384, 126 S.W.2d 304 (1939); State v. Pollard, 124 Tenn. 127, 136 S.W. 427 (1911). Regretfully, we conclude that the resolution of the county legislative body of October 23,1978, wherein it authorized the payment of a salary to Mr. Ogle at the rate of $22,000 per annum from April 23, 1978, to the present time and purported to appropriate funds for that purpose was not authorized by the statutes and, accordingly, is invalid. The circuit court erred in holding to the contrary.

In deciding this question, we have treated the election of Mr. Ogle by the Sevier County bar as if that election were actually authorized by T.C.A., § 17 — 225. We entertain grave doubts that the declaration of the county judge, Atehley, of his alleged incompetence to serve as Juvenile Court Judge for Sevier County constituted a proper occasion authorizing the election of a juvenile court judge pro tempore under the provisions of T.C.A., § 17-225; but, we do not specifically decide that issue nor the secondary question whether Mr. Ogle, if not a de jure juvenile court judge pro tempore, was, in view of his election by the bar and his apparent acceptance as juvenile court judge by the bar, and the quarterly county court, during the period from April 23,1978, to September 1, 1978, a de facto juvenile court judge pro tempore. See, Turney v. Dibrell, 62 Tenn. 235 (1873); Ridout v. State, supra. In our opinion, these issues should be decided only when and if they should be raised by litigants who actually appeared before Mr. Ogle while he acted in the capacity of Juvenile Court Judge of Sevier County during the period April 23, 1978, to September 1, 1978.

The judgment of the Circuit Court in the mandamus action is reversed and the complaint is dismissed, but, the record will be remanded for such further action as may be appropriate with respect to the bond posted by Mr. Ogle therein. Costs are taxed against Mr. Ogle.

In the quo warranto action, the judgment of the trial court is reversed and the record remanded for such further proceedings as may be necessary or appropriate to carry out the decision of this Court as expressed in this opinion. Costs are taxed against Mr. Ogle.

The Clerk is directed to forward forthwith a certified copy of this opinion to the legislative body of Sevier County as provided by T.C.A., § 8-2806.

HENRY, C. J., and FONES, COOPER and HARBISON, JJ., concur.

      . T.C.A., §§ 37 201, et seq., creates the juvenile court and provides that the judge thereof shall be “. . the county judge or chairman of the county courts in all of the counties in this state except in those counties or municipalities in which juvenile courts are especially provided by statute .

      . These provisions are now codified in T.C.A., §§ 5- 601 thru 5-606.

      . Were it not for these conflicting constitutional provisions with respect to the term of office, it might be possible to sustain the grant of judicial authority to the county executive by merely holding that the 25 year minimum age provision of the statute gives way to the 30 year provision of the Constitution. See, State v. Leonard, supra; State v. Ritzius, supra.

      . This case contains an extensive discussion of the de facto doctrine.

      . Actually, no separate salary is paid to the juvenile court judge, but the county pays the salary of the “county judge,” who until September 1, 1978, also served as juvenile court judge.

      . The purported “appointment” of Mr. Ogle by the county judge pro tempore, Mr. Atehley, is clearly unwarranted in law. Equally ineffective was the resolution of the quarterly county court on July 17, 1978, there being no vacancy in the office of juvenile court judge at that time.


text:
    James STOKER, Petitioner, v. Champ C. BROWN and wife, Velma T. Brown, Respondents.
    Supreme Court of Tennessee.
    July 9, 1979.
    Harry Max Speight, Dresden, for petitioner.
    Charles H. McWherter, Martin, Allen J. Strawbridge, Jr., Dresden, for respondents.
   OPINION

BROCK, Justice.

This class action was filed on behalf of persons who have relatives buried in a private cemetery in Weakley County. The plaintiffs sued to enjoin the defendants from cultivating or trespassing upon a tract of land which they claim is a private cemetery.

The tract, which measures 28 X 4 poles (462 X 66 feet), is adjacent to a farm which the defendants, Velma and Champ Brown, acquired in 1960. The Browns have grazed cattle or raised bean crops on the disputed tract since acquiring title, the first crops being planted in the early 1970s. This dispute arose when some members of the class drove across the cultivated field to reach gravesites enclosed by an iron fence. The area enclosed by the fence measures 36 X 48 feet. The defendants allege that the plot enclosed by the fence is the whole cemetery; the plaintiffs claim that the entire 28 X 4 pole area constitutes the cemetery. The defendants deny that there was a dedication of the entire tract for cemetery purposes and, alternatively, claim that they have acquired title to all but the 36 X 48 feet fenced plot by adverse possession.

The Chancellor granted to the plaintiffs the relief sought. The Court of Appeals reversed, holding that the Browns did, by adverse possession, acquire title to all of the 28 X 4 pole area except the 36 X 48 feet area enclosed by the iron fence. The case was remanded for establishment of a right of way to the existing gravesites.

The questions raised for review by certio-rari are:

(1) Whether there was a dedication of the larger tract for use as a burial ground;

(2) Whether the Browns have acquired title by adverse possession to all of the disputed area except the fenced in smaller plot.

The defendants argue that dedication of the property for use as a cemetery has not been shown. Ordinarily, dedication is considered to be the intentional appropriation by the owner of land for use by the public. McKinney v. Duncan, 121 Tenn. 265, 118 S.W. 683, 684 (1909); Varallo v. Metropolitan Government, 508 S.W.2d 342 (Tenn.App.1973); 14 Am.Jur.2d Cemeteries § 15 (1964); 16 Am.Jur.2d Dedication § 15 (1964). In Bunns v. Walkem Development Co., 53 Tenn.App. 680, 385 S.W.2d 917 (1964), the Court held that there could be no dedication of property to the use of private persons, as distinguished from the public at large.

Nevertheless, in this State and others it has long been recognized that the owner may, without using a deed, “set apart” a portion of his land for use as a family cemetery. Hines v. State, 126 Tenn. 1, 149 S.W. 1058 (1911); Frost v. Columbia Clay Co., 130 S.C. 72, 124 S.E. 767 (1924); Meadows v. Edwards, 116 S.W.2d 831 (Tex.Civ.App.1938); Benn v. Hatcher, 81 Va. 25; Grinestaff v. Grlnestaff, Ky., 318 S.W.2d 881 (1958); Rose v. Rose, 314 Ky. 761, 237 S.W.2d 80 (1951); Heiligman v. Chambers, Okl., 338 P.2d 144, 75 A.L.R.2d 583 (1959). Perhaps inaccurately, this has often been referred to as a “dedication.”

In Hines v. States, supra, this Court said that express reservation of an existing private burial ground was unnecessary; that a reservation was implied and that the presence of gravestones, etc., was evidence of the cemetery’s existence. The Court spoke of the land as being “dedicated” to family burial purposes. The Court said that the graves were there to be seen and, thus, the purchaser was charged with notice of the “dedication” to burial purposes.

In the case at bar, the existing graves are enclosed by a fence but the plaintiffs claim that the tract “dedicated” as a cemetery extends beyond the confines of the fence. It is not denied that the area enclosed by the fence is a cemetery. The question is whether proof of the consistent exclusion of the 28 X 4 pole tract from conveyances of the farm over a period of at least eighty years, coupled with reference to a graveyard in each deed in the chain of title, is sufficient to prove a “dedication” or appropriation of the tract for burial purposes.

Eight deeds were made part of the record in this case. The earliest conveyance is dated August 18, 1899, and transfers from J. J. Roberts, et ux., to J. G. Stoker a farm, described, in part, as follows:

“Beginning at a stake at n. e. corner of said JJ Roberts original tract and s. e. corner of Widow Chandler’s land and runs west with said Chandler’s land 140 poles to a stake with white oak pointers; then south 18½ poles to post oak in Jas Hilliard’s north line, then east with Hilli-ard’s line 23 poles to a stake in pub. road. Then south with pub. road 39 poles to stake in road, thence east 28 poles passing just north of the graveyard in the field; thence south 4 poles to a stake, thence west 28 poles to a stake in the road; thence south with road 38½ poles. . . ” (Emphasis added.)

Note that this description in Roberts’ conveyance omits a tract which measures 28 X 4 poles and refers to a “graveyard in the field.”

The same property was conveyed from Stoker to J. G. and Irene Stoker in 1906. Again, the 28 X 4 pole area is omitted from the conveyance and reference is made to a graveyard in the field.

When the same farm was conveyed in 1929, the 28 X 4 pole area was again carved out in the description as follows:

“. . . with Road south 57½ poles to a stake in road; N.W.C. Roberts Graveyard, then east 28 poles to N.E.C. Roberts graveyard. Then south 4 poles S.E.C. graveyard; then west 28 poles to road S.W.C. graveyard; . . . .”

It will be noted that reference is made to the corners of “Roberts Graveyard,” a tract 28 X 4 poles. The earlier conveyances, although excluding or omitting the 28 X 4 pole tract, had not described all of it as the graveyard. This basic description making reference to the four corners of the graveyard is utilized in all subsequent deeds including that to the defendants.

Although the last burial in this cemetery took place in 1926, the entire 28 x 4 pole area has been consistently excluded from conveyances of the farm. In Bowen v. Hooker, 237 Ark. 250, 372 S.W.2d 257 (1963), the court, discussing the preservation of a private cemetery, said that the absence of recent interments does not constitute abandonment. We agree. It is not clear from the record how long the existing gravesites have been enclosed by the iron fence, although the evidence does indicate that the iron fence was not erected by Mr. Brown or his immediate predecessor in title who acquired the farm in 1942.

We conclude that the omission of the 28 X 4 pole tract from all deeds of conveyance since 1899 and the reference in each deed to the graveyard, taken with the presence of some graves, is sufficient to establish that the entire 28 X 4 pole tract was retained in trust and set aside, or “dedicated,” as a cemetery.

The final question is whether the defendants have acquired the land set aside for burial purposes by adverse possession. The defendants have cultivated the disputed tract only since the early 1970s. Prior to that time it was used as a pasture. They also allege that their predecessors in title used the tract for such purposes. Upon this basis, they ask the Court to hold that they have acquired title by adverse possession. Occasional grazing and cultivation are insufficient to establish adverse possession. Cusick v. Cutshaw, 34 Tenn.App. 283, 237 S.W.2d 563 (1949), citing Hicks v. Tredericks, 77 Tenn. 491 (1882); Pullen v. Hopkins & Clark Co., 69 Tenn. 741 (1878). Moreover, the express exclusion of this tract from every conveyance in the past eighty years conclusively demonstrates that the various owners of the surrounding farm, the defendants and their predecessors, were making no claim, adverse or otherwise, to this cemetery tract. The evidence is wholly insufficient to show an acquisition of title by adverse possession. The Court of Appeals erred in holding to the contrary. As soon as the defendants made a hostile claim, those entitled to burial brought this action.

The judgment of the Court of Appeals is reversed and that of the trial court is affirmed. The cause is remanded to the trial court for enforcement of the decree. Costs are taxed against the defendants.

HENRY, C. J., and FONES, COOPER and HARBISON, JJ., concur.

      . The defendants’ deed, however, omits the call connecting the northeast and southeast comers of the graveyard. Obviously, this was an oversight. The deed to the Browns refers to the northwest, northeast and southwest comers of the graveyard. Since the northwest and southwest corners are obviously different points, the description does not constitute a straight line, as suggested by the Court of Appeals.

      . For a discussion of the status of the title to property dedicated for cemetery purposes and a delineation of the relative rights of the dedicator and those entitled to use the land as a place of burial, see Hines v. State, supra; 14 Am.Jur.2d Cemeteries § 16 (1964).