Abrams v. Lakewood Park Cemetery Ass'n

• Decision Date: 08 July 1946
• Docket Number: 39363
• Citation: 196 S.W.2d 278,355 Mo. 313
• Parties: Harold J. Abrams, as Trustee of the Estate of Lakewood Securities Company, a Corporation, Bankrupt, Respondent-Appellant (Plaintiff), v. Lakewood Park Cemetery Association, a Corporation, Respondent (Defendant), Oreon E. Scott, Individually, and as Trustee Under Deed of Trust, etc., Lolah F. Steed, Sam F. Doty, First National Bank in St. Louis, a Corporation, United Christian Missionary Society, a Corporation, et al., Appellants (Defendants)
• Court: Missouri Supreme Court

196 S.W.2d 278

355 Mo. 313

Harold J. Abrams, as Trustee of the Estate of Lakewood Securities Company, a Corporation, Bankrupt, Respondent-Appellant (Plaintiff), v. Lakewood Park Cemetery Association, a Corporation, Respondent (Defendant), Oreon E. Scott, Individually, and as Trustee Under Deed of Trust, etc., Lolah F. Steed, Sam F. Doty, First National Bank in St. Louis, a Corporation, United Christian Missionary Society, a Corporation, et al., Appellants (Defendants)

No. 39363

Supreme Court of Missouri

July 8, 1946

Rehearing Denied September 9, 1946.

Appeal from Circuit Court of St. Louis County; Hon. Fred E Mueller, Judge.

Reversed and remanded, except cross-appeal affirmed.

Cobbs Logan, Roos & Armstrong for appellants Oreon E. Scott et al.; Wm. H. Armstrong and Taylor Sandison on the brief.

(1) Under the law and the evidence, the property is not a cemetery. The property in question has never been used or sold for burial purposes, prepared for such use nor was such use in the near contemplation of the equity owner at the time of foreclosure. National Cemetery Assn. v. Benson, 344 Mo. 784, 129 S.W.2d 842; Wood-lawn Cemetery v. Inhabitants of Everett, 118 Mass. 354; West Ridge-lawn Cemetery v. City of Clifton, 109 N.J.L. 146, 160 A. 534; Glen Oak Cemetery Co. v. Board of Appeals of Cook County, 358 Ill. 48, 192 N.E. 673. (2) Section 15261, R.S. 1939 (Sec. 1080, R.S. Mo. 1919), neither permits nor authorizes the establishment of a public cemetery by the filing of a plat; said section, on the contrary, imposes an obligation upon persons owning land actually used for and constituting an existing burial ground, to file such plat. (3) Even though Section 15261, R.S. 1939, may be construed to apply to the creation of cemeteries, the plat upon which the parties rely in this case does not conform to the requirements of the statute. (4) The owner of the equity cannot, by his acts, permit any part of land subject to a mortgage, to be devoted to any public use as against the interest of the mortgagee. Morgan v. Willman, 318 Mo. 151, 1 S.W.2d 193; Guaranty Savings & Loan Assn. v. City of Springfield, 346 Mo. 79, 139 S.W.2d 955. (5) Even though the property in question had been dedicated to cemetery uses this did not impair the lien of the pre-existing purchase money deed of trust, and the deed of trust was a valid and subsisting instrument at the time of foreclosure which was in default as to principal and interest. United Cemeteries Co. v. Strother, 332 Mo. 971, 61 S.W.2d 907; Id., 342 Mo. 1155, 119 S.W.2d 762. (6) The right to foreclose existed in this case, consequently there was no wrongful foreclosure, but at most, only an improper execution of the right to foreclose which rendered the sale thereunder voidable and not void. Peterson v. Kansas City Life Ins. Co., 339 Mo. 700, 98 S.W.2d 770; Loeb v. Dowling, 349 Mo. 674, 162 S.W.2d 875; Wakefield v. Dinger, 234 Mo.App. 407, 135 S.W.2d 17; Powell v. Pinkley, 180 S.W.2d 745; Gempp v. Teiber, 173 S.W.2d 651. (7) Even if the property in question was a "cemetery" this did not void the power of sale contained in the deed of trust. Secs. 3450, 3462, R.S. 1939; Troost Avenue Cemetery Co. v. Kansas City, 348 Mo. 561, 154 S.W.2d 90. (8) The plaintiff and Cemetery Association are entitled to no relief because of the equitable doctrine of laches. Graves v. Little Tarkio Drain. District No. 1, 345 Mo. 557, 134 S.W.2d 70; Adams v. Boyd, 332 Mo. 484, 58 S.W.2d 704; Powell v. Pinkley, 180 S.W.2d 745; Snow v. Funck, 41 S.W.2d 2. (9) The plaintiff and Cemetery Association are estopped to assert the cause of action alleged. Graves v. Little Tarkio Drain. Dist. No. 1, 345 Mo. 557, 134 S.W.2d 73; Adams v. Boyd, 332 Mo. 484, 58 S.W.2d 704; Powell v. Pinkley, 180 S.W.2d 745; Snow v. Funck, 41 S.W.2d 2; Norman v. Summerfield-Jones Const. Co., 18 S.W.2d 559. (10) There is no equity in plaintiff's bill and Cemetery Association's cross bill for their failure to offer to redeem, and the court erred in failing to dismiss their bills. Loeb v. Dowling, 349 Mo. 674, 162 S.W.2d 875; Wakefield v. Dinger, 234 Mo.App. 407, 135 S.W.2d 17; Gerhardt v. Tucker, 187 Mo. 46, 85 S.W. 552; Allen v. Best, 227 Mo.App. 851, 58 S.W.2d 810. (11) No estoppel exists as against the appellant Scott. Johnson v. Ferguson, 329 Mo. 363, 44 S.W.2d 650; State ex rel. City of Sikeston v. Public Service Comm., 336 Mo. 985, 82 S.W.2d 105; State ex rel. Moss v. Hamilton, 303 Mo. 302, 260 S.W. 466; Waugh v. Williams, 342 Mo. 903, 119 S.W.2d 223. (12) The cross bill presents no cause for equitable relief. Johnson v. Ferguson, 329 Mo. 363, 44 S.W.2d 650. (13) Plaintiff's bill alleged no cause of action against the defendant Cemetery Association; the cross bill is not germane to any issue raised in plaintiff's bill nor necessary to said defendant's defense to plaintiff's cause of action and should have been stricken on these appellants' motion. Missouri District Telegraph Co. v. Southwestern Bell Tel. Co., 336 Mo. 453, 79 S.W.2d 257; Campbell v. Spotts, 331 Mo. 974, 55 S.W.2d 986; Wanstrath v. Kappel, 190 S.W.2d 241.

Thomas S. McPheeters for appellant First National Bank in St. Louis; Bryan, Cave, McPheeters & McRoberts of counsel.

(1) Plaintiff's suit seeking equitable relief is barred by the maxim that he who seeks equity must do equity. Bates v. Dana, 345 Mo. 311, 133 S.W.2d 326; 30 C.J.S., sec. 90, p. 458; 30 C.J.S., pp. 468, 470; Gerhardt v. Tucker, 187 Mo. 46, 85 S.W. 552; Jones v. McGonigle, 327 Mo. 457, 37 S.W.2d 892; Kline v. Vogel, 90 Mo. 239, 1 S.W. 733; McNatt v. Maxwell Inv. Co., 330 Mo. 675, 50 S.W.2d 1040; Potter v. Schaffer, 209 Mo. 586, 108 S.W. 60. (2) Plaintiff's suit seeking equitable relief is barred by plaintiff's laches under the maxim that equity aids the vigilant, not those who slumber on their rights. Kline v. Vogel, 90 Mo. 239, 1 S.W. 733; Landrum v. Bank, 63 Mo. 48; Snow v. Funck, 41 S.W.2d 2. (3) Plaintiff's suit seeking equitable relief is barred under the maxim that he who seeks equity must come with clean hands. 30 C.J.S., pp. 476, 487.

Alexander Ausmus & Harris for appellant United Christian Missionary Society.

(1) The court erred under the law and the evidence in finding, adjudging and decreeing that any of the property described in plaintiff's petition was a cemetery at the time of foreclosure in February, 1933. National Cemetery Assn. of Missouri v. Benson, 129 S.W.2d 842, 344 Mo. 784; Sec. 1080, R.S. 1919; Sec. 15261, R.S. 1939. (2) The court erred in finding, adjudging and decreeing that the purchase money deed of trust was subordinated to the dedication of the land as a cemetery. United Cemeteries Co. v. Strother, 332 Mo. 971, 61 S.W.2d 907; Johnson v. Ferguson, 329 Mo. 363, 44 S.W.2d 650; McShane v. City of Moberly, 79 Mo. 41; Boatmen's Bank v. Semple Place Realty Co., 202 Mo.App. 57, 213 S.W. 900. (3) The court erred under the law and the evidence in finding, adjudging and decreeing that the deed of trust owned by appellant United Christian Missionary Society is not a valid and subsisting lien on the property in question. Jones v. Campbell, 189 S.W.2d 124. (4) The court erred under the law and the evidence in finding, adjudging and decreeing that plaintiff has title to the land in question free and clear of lien of the debt secured by the purchase money deed of trust and interest accrued thereon. United Cemeteries Co. v. Strother, 61 S.W.2d 907, 322 Mo. 971. (5) The court erred under the law and the evidence in failing to dismiss Lakewood Park Cemetery Association's cross bill. Secs. 928, 929, R.S. 1939; Joyce v. Growney, 154 Mo. 253; Missouri District Tel. Co. v. Southwestern Bell Tel. Co., 79 S.W.2d 257, 336 Mo. 453; Campbell v. Spotts, 55 S.W.2d 986, 331 Mo. 974; 39 Am. Jur., sec. 36, p. 904.

Edward K. Schwartz for respondent-appellant Harold J. Abrams as Trustee, etc.

(1) The platted area in question constituted cemetery property under the law. The filing of the plat, on March 3, 1921, in Plat Book 16, Pages 8 and 9, in the St. Louis County Recorder's Office, substantially met the requirements of the statutes and effectively dedicated the property in question for cemetery purposes. Sec. 15261, R.S. 1939; Sec 1080, R.S. 1919; United Cemeteries Co. v. Strother, 332 Mo. 971, 61 S.W.2d 907; Allison v. Cemetery Caretaking Co., 283 Mo. 424, 223 S.W. 41. (2) The deed from Fairmont Securities Co. to Lakewood Park Cemetery Assn., also dated March 3, 1921, and recorded in Book 500, page 570, constituted in effect a deed of formal dedication of the property for cemetery purposes and likewise sufficiently established and set apart the platted area as a cemetery under the law. 18 C.J. 56, sec. 36; Tracy v. Bittle, 213 Mo. 302; Jackson on Cadavers, p. 243. (3) Although under the facts in this case actual use of the area in question for cemetery purposes is not necessary to fully establish it as a cemetery under the law, still the evidence clearly showed that there was such actual use. (4) The order made and entered by the Referee in Bankruptcy in the United States District Court for the Eastern Division of the Eastern Judicial District of Missouri, and from which no appeal was taken, is to all intents and purposes a final judgment and decree of the Federal Court; and this order, together with the findings of fact made by the Referee in support thereof, rendered "res adjudicata" and left no longer open to question the fact that the area on which Scott attempted to foreclose in a nonjudicial foreclosure contained and embraced cemetery property. Canton Trust Co. v. Durrett, 98 S.W.2d 927; U.S. ex rel. v. Lufcy, 329 Mo. 1224; Head v. Brainard, 5 F.2d 289; St. Joseph Union Depot v. C., R.I. & P. Railroad, 89 F. 648. (5) Although the deed of trust originally held by Mayer, and later acquired by Scott, was an encumbrance on the...