Abrams v. Scott

• Decision Date: 12 April 1948
• Docket Number: 40397
• Parties: Harold J. Abrams, Trustee of the Estate of Lakewood Securities Co., a Corporation, Plaintiff-Appellant, v. Oreon E. Scott, Individually, and as Trustee Under Deed of Trust Dated February 18, 1933, Recorded in Book 1238, Page 38, in the Office of the Recorder of Deeds of St. Louis County, Missouri, as Trustee Under Deed of Trust Dated July 3, 1937, and Recorded in Book 1476, Page 115, in the Office of the Recorder of Deeds of St. Louis County, Missouri, Lolah F. Steed, Sam F. Doty, Manton M. Scott, First National Bank in St. Louis, a Corporation, United Christian Missionary Society, a Corporation, and the Unknown Holder or Holders of Notes Secured by Deed of Trust Recorded in Book 1238, Page 38, of the Recorder of Deeds of St. Louis County, Missouri, and the Unknown Holder or Holders of Notes Secured by Deed of Trust, Recorded in Book 1476, Page 115, of the Office of the Recorder of Deeds of St. Louis County, Missouri, Respondents, Lakewood Park Cemetery Association, Defendant-Appellant
• Court: Missouri Supreme Court

211 S.W.2d 718

357 Mo. 937

Harold J. Abrams, Trustee of the Estate of Lakewood Securities Co., a Corporation, Plaintiff-Appellant, v. Oreon E. Scott, Individually, and as Trustee Under Deed of Trust Dated February 18, 1933, Recorded in Book 1238, Page 38, in the Office of the Recorder of Deeds of St. Louis County, Missouri, as Trustee Under Deed of Trust Dated July 3, 1937, and Recorded in Book 1476, Page 115, in the Office of the Recorder of Deeds of St. Louis County, Missouri, Lolah F. Steed, Sam F. Doty, Manton M. Scott, First National Bank in St. Louis, a Corporation, United Christian Missionary Society, a Corporation, and the Unknown Holder or Holders of Notes Secured by Deed of Trust Recorded in Book 1238, Page 38, of the Recorder of Deeds of St. Louis County, Missouri, and the Unknown Holder or Holders of Notes Secured by Deed of Trust, Recorded in Book 1476, Page 115, of the Office of the Recorder of Deeds of St. Louis County, Missouri, Respondents, Lakewood Park Cemetery Association, Defendant-Appellant

No. 40397

Supreme Court of Missouri

April 12, 1948

Rehearing Denied May 27, 1948.

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

New judgment on mandate directed.

Edward K. Schwartz for plaintiff-appellant.

(1) The mandate, decision and opinion amount to a reversal of the previous decree with a general remandment of the cause, the words "for further proceedings consistent with this opinion" being merely surplusage and adding nothing to the remandment. Adams v. Adams, 165 S.W.2d 676, 315 Mo. 152; Sheppard v. Wagner, 240 Mo. 407, 144 S.W 394, 145 S.W. 420; Murphy v. Barron, 286 Mo. 390 228 S.W. 492; Denny v. Guyton, 331 Mo. l.c. 1129; Creason v. Harding, 344 Mo. 452, 126 S.W.2d 1179. (2) This court's decision and mandate vested the trial court, on remand, with full judicial discretion as to the nature and extent of the "further proceedings" to be conducted, requiring only that they be consistent with the opinion. 15 C.J.S. 1511, sec. 1965; Murphy v. Barron, 228 S.W. 492, 286 Mo. 390; Adams v. Adams, 165 S.W.2d 676; Wilcox v. Phillips, 260 Mo. 664, 169 S.W. 55. (3) In a case such as this, where the record shows that the plaintiff has rights growing out of the transactions in question, and the reversal by the Supreme Court of the decree in plaintiff's favor, results from plaintiff having misconceived his remedy. The plaintiff, on remand, is permitted to amend his petition and take such other steps as he may desire consistent with the opinion, so as to afford an opportunity for full justice. State ex rel. Massman Const. Co. v. Buzard, 346 Mo. 1162; Williams v. Walker, 333 Mo. 322, 62 S.W.2d 840; Patzman v. Howey, 340 Mo. 11, 100 S.W.2d 851; Mann v. Bank, 323 Mo. 1000, 20 S.W.2d 502; Fancher v. Prock, 337 Mo. 1119, 88 S.W.2d 179; Schneider v. Schneider, 161 S.W.2d 650; National Bond & Inv. Co. v. Mound City Inv. Co., 161 S.W.2d 664. (4) This court, in its opinion, stated that the trial judge's holding in the previous decree, that the sale in question was void was "quite understandable" in view of the authority of the following two cases which were then controlling and binding on the trial judge. United Cemeteries v. Strother, 342 Mo. 1156, 119 S.W.2d 762; Ottenad v. Mt. Hope Cemeteries & Mausoleum Co., 176 S.W.2d 62. (5) As a result of the trial court's present decree, the wrongdoer is rewarded while the victim is punished, contrary to all principles of equity and justice. Especially is this true because of Scott's position as director and officer of the company whose property was affected by Scott's actions. Bromschwig v. Carthage Marble & White Lime Co., 66 S.W.2d 889, 334 Mo. 390; Frankford Exchange Bank v. McCune, 72 S.W.2d 156; 17 C.J.S. 151, sec. 781. (6) The court should impose as a condition precedent and requirement, that the plaintiff do equity as the situation requires; or else it should provide for the foreclosure of the deed of trust and sale of the property now, the proceeds to be applied toward the payment of the mortgage debt, interest and costs, and the balance to plaintiff, with appropriate further provisions for preservation of the cemetery character of the property and the protection of all rights of interested parties in the cemetery. Axman v. Smith, 156 Mo. 286, 57 S.W. 105; Krug v. Bremer, 292 S.W. 702.

Ivon Lodge for Lakewood Park Cemetery Association, defendant-appellant.

(1) This was unquestionably a general remandment, the words "consistent with this opinion" added nothing. Adams v. Adams, 165 S.W.2d 676, 315 Mo. 152; Wilcox v. Phillips, 260 Mo. 664; Brocco v. May Department Stores Co., 55 S.W.2d 322; Prasse v. Prasse, 77 S.W.2d 1001; Mason v. Crowder, 98 Mo. 352. (2) When the record is in such shape that the appellate court cannot in justice determine what final judgment should be rendered, the case will be remanded for such further proceedings as may be necessary, or it may be remanded for further proceedings in conformity with the opinion of the reviewing court, or for further proceedings not inconsistent therewith. 3 Am. Jur. 712, sec. 1210. (3) The words "for further proceedings consistent with this opinion" added nothing which would not have been necessarily implied had they been omitted. Murphy v. Barron, 286 Mo. 39, 228 S.W. 492. (4) Both the Southwestern and the official Missouri Supreme Court reporters understood this to be a general remandment, as shown by the headnote in each instance, 196 S.W.2d 278, 355 Mo. 313. (5) The remand "for further proceedings" was to enable the trial court to do substantial justice to all parties, and it was not intended to close the door to the thousands of lot owners as well as relatives and friends of the buried dead, nor to any interested party to the action. Hetzler v. Millard, 153 S.W.2d 355; Jensen v. Wilson, 145 S.W.2d 372; Sheppard v. Wagner, 240 Mo. 409. (6) Where mortgagor sells portions of the mortgaged land at different times that which he retains will, in equity, be held primarily liable for the entire debt. Crecelius v. Home Heights Co., 217 S.W. 508; Crosby v. Farmers Bank, 107 Mo. 436; Black v. Reno, 59 F.2d 917; 41 C.J. 763, sec. 844. (7) Where mortgaged premises are sold in several parcels by a purchaser of the whole from the mortgagor, they will be applied in equity to the satisfaction of the mortgage in the inverse order of their alienation. 41 C.J., p. 767, sec. 853, p. 763, sec. 844; Holy Ghost Assn. v. Felig, 72 Mo.App. 473. (8) This case was remanded generally so the court should have sustained this defendant's motion to allow further proceedings consistent with the opinion. The court should have permitted amendment of pleadings as well as new evidence. Creason v. Harding, 126 S.W.2d 1179; Schneider v. Schneider, 161 S.W.2d 650. (9) An offer to redeem is not in all cases essential in order to obtain relief from a voidable foreclosure sale. Axman v. Smith, 156 Mo. 286. (10) If a cemetery company has dedicated land for the burial of the dead, and has held out to lot owners that the entire cemetery will be forever under the protection of a perpetual corporation, charged with the duty of laying out and ornamenting the grounds, each lot owner has an interest in the entire cemetery, including all appurtenances, to be kept as an entirety and to be perpetuated and cared for by the corporate body. 10 Am. Jur. 493, sec. 10; Close v. Greenwood Cemetery, 107 U.S. 466. (11) The holder of a lot in a cemetery has no title to or ownership in the lot. He has a mere easement or burial right, subordinate to the ownership of the corporation owning the cemetery. Mullins v. Mount St. Mary's Cemetery Assn., 259 Mo. 142. (12) Each lot owner owns a burial right in a particular lot, and a vested interest in the entire cemetery, including all facilities. United Cemeteries Co. v. Strother, 61 S.W.2d 907; Jackson on Cadavers, pp. 252, 253. (13) Where the mortgagee is permitted to and does buy the property at his own sale at an inadequate price, then the court will look into the proceedings and circumstances, and if any substantial irregularity or probable unfairness appears the sale will be set aside. Gruels v. Miss. Valley Trust Co., 49 S.W.2d 60, 329 Mo. 1154; Stone v. Hammons, 146 S.W.2d 606, 347 Mo. 129; 23 C.J. 678; 41 C.J. 1027; 19 R.C.L. 612. (14) It is now the uniform doctrine that any combination at public or private sale, having the effect of preventing competition in bidding, is against the policy of the law. Durfee v. Moran, 57 Mo. 374, l.c. 379. (15) As a director in the owner company Scott occupied a position of trust and owned his stockholders the duty of using every effort to have the property bring the highest possible price. 19 C.J.S., pp. 103-110, secs. 761-63; Bromschwig v. Carthage Marble & White Lime Co., 334 Mo. 319, 66 S.W.2d 889; Frankford Bank v. McCune, 72 S.W.2d 155.

Cobbs, Logan, Roos & Armstrong by Wm. H. Armstrong, and Taylor Sandison for Oreon E. Scott, Sam F. Doty and Lolah F. Steed, Alexander, Ausmus & Harris by Ralph L. Alexander for United Christian Missionary Society, Bryan, Cave, McPheeters & McRoberts by Thomas S. McPheeters, Sr., for First National Bank in St. Louis, respondents.

(1) The mandate and opinion of the court on the first appeal constituted a special power of attorney to the trial court. Keaton v. Jorndt, 259 Mo. 179, 168 S.W. 734; Booth v. Scott, 240 S.W. 217; Prasse v Prasse, 342 Mo. 388, 115 S.W.2d 807; McIntosh v. Wiggins, 204 S.W.2d 770; Hoelzel v. Chicago, R.I. & P.R. Co., 340 Mo. 793, 102 S.W.2d 577. (2) The mandate and opinion in this cause constituted directions to the trial court which have been followed by entry of judgment. Booth v. Scott, 240 S.W. 217; Keaton v. Jorndt, 259 Mo. 179, 168 S.W.2d 734; Prasse v. Prasse, 77 S.W.2d 1001, Second Appeal, 342 Mo. 388, 115 S.W.2d 807. (3) The judgment...