United Cemeteries Co. v. Strother

• Decision Date: 10 June 1933
• Docket Number: No. 30444.,30444.
• Citation: 61 S.W.2d 907
• Parties: UNITED CEMETERIES COMPANY v. JOHN D. STROTHER ET AL., LOUIS A. HARBIN, Appellant.
• Court: Missouri Supreme Court

61 S.W.2d 907

UNITED CEMETERIES COMPANY v. JOHN D. STROTHER ET AL., LOUIS A. HARBIN, Appellant.

No. 30444.

Supreme Court of Missouri, Court en Banc.

June 10, 1933.

Appeal from Jackson Circuit Court. — Hon. Ralph S. Latshaw, Judge.

REVERSED AND REMANDED (with directions).

John D. Strother, Duvaul P. Strother and Gossett, Ellis, Dietrich & Tyler for appellant.

(1) For proper purposes a cemetery company may mortgage its lands and such mortgage be enforceable by judicial sale in equity for the payment of just debts. The decree below in this case itself justly and reasonably is based upon the equitable jurisdiction of the court to order and decree sale of cemetery property as against a commercial pecuniary purposed cemetery corporation for payment of its debts. Allison v. Cemetery Co., 283 Mo. 424; Wight v. Morgan, 191 U.S. 55, 48 L. Ed. 89; Bliss v. Linden Cemetery Assn., 85 N.J. Eq. 501, 96 Atl. 1001; Ross v. Glenwood Cemetery Assn., 81 App. Div. 357, 81 N.Y. Supp. 779; Lantz v. Buckingham, 11 Abb. Pr. (N.S.) 64; 11 C.J. 58; Sec. 9749, R.S. 1919; Revised Laws 1921, p. 260, sec. 4555, R.S. 1929. (2) It is the ground set aside and used for burial, interment of humans, that is sacred and meant to be exempted by the statutes. The estate of a commercial, created for pecuniary profit, business corporation in land which its vendor and itself obtained on a promise to pay a price for it and could not otherwise have acquired but by creating appellant's vendor's lien or mortgage, is not so sanctified that it may be held without being subjected to judicial sale in equity to pay the unpaid part of such purchase money. The statutes referred to are not unconscionable and only exempt from legal process of attachment and execution and not from the equitable jurisdiction of the court. Wooldridge v. Smith, 243 Mo. 191. Purchase money mortgages and liens are especially and meritoriously regarded in equity. Duke v. Brant, 51 Mo. 221; Fountaine v. Boatmen's Bank, 57 Mo. 552; Babb v. Taylor, 184 S.W. 1028; Jones v. Rush, 156 Mo. 364; Eubank v. Finnell, 118 Mo. App. 535.

Borders, Borders & Warrick for respondents.

A purchase price mortgage on property devoted to cemetery purposes is absolutely void. 5 R.C.L. 235; Trustees of First Evangelical Church v. Walsh, 57 Ill. 363; Wormley v. Wormley, 207 Ill. 411; Boyce v. Kalbaugh, 47 Md. 334; Bitney v. Grim, 73 Ore. 257, 144 Pac. 490; Tracy v. Bittle, 213 Mo. 302, 112 S.W. 45; Hines v. State, 126 Tenn. 1, 149 S.W. 1058; Campbell v. Kansas City, 102 Mo. 326; Kansas City v. Scarritt, 169 Mo. 471; Oakland Cemetery Co. v. Peoples Cemetery Assn., 93 Tex. 569, 57 S.W. 27; Wolford v. Crystal Lake Cemetery Assn., 54 Minn. 440, 56 N.W. 56; First Natl. Bank v. Hazel, 89 N.W. 378; Allison v. Cemetery Caretaking Co., 283 Mo. 424, 223 S.W. 41; Thompson v. Hickey, 8 Abbott, 159; Anderson v. Acheson, 132 Iowa, 744, 110 N.W. 335; Spear v. Locust Wood Cemetery Assn., 72 N.J. Eq. 821, 66 Atl. 1068; Woodland Cemetery Co. v. Ellison, 23 Ky. L.R. 222, 67 S.W. 14; Ross v. Glenwood Cemetery Assn., 81 N.Y. Supp. 779; Brown v. Lutheran Church, 23 Pa. 495.

HAYS, J.

This appeal was first heard in Division Number One, where separate and divergent opinions were prepared by Commissioners HYDE and STURGIS. Neither opinion being adopted, the cause was on motion of the members of that division transferred to Court en Banc and has here been reargued and submitted.

Upon this final consideration of the case we adopt as the opinion of the court the opinion referred to as prepared by Commissioner STURGIS, which is as follows:

"No question is made on this appeal as to the consolidation of the two cases mentioned in the caption — one having for its object the enjoining of the foreclosure of a deed of trust on the twenty-three acres of land conveyed and platted as a cemetery by the United Cemeteries Company, and the other having for its object the appointment of a receiver of such Cemeteries Company to take charge of and sell its assets and distribute the proceeds. The latter suit is by a general creditor and the ground of the receivership is frozen assets. The court appointed a receiver, apparently by consent of the defendant Cemeteries Company, and he is and has been in charge of its affairs, selling burial lots and collecting for same and for others previously sold on installments. The receivership has proceeded along lines prescribed for business receiverships. The suit by the Cemeteries Company to enjoin the sale under the deed of trust was commenced September 6, 1927, and a temporary restraining order was granted September 7, 1927. The Cemeteries Company apparently acted without counsel. Three days later, September 10, 1927, the suit to have a receiver appointed for the Cemeteries Company was filed by the Schooley Stationery Company on a debt of $245.55, alleging that the defendant Cemeteries Company has assets amounting to $70,000, is indebted to creditors in the sum of $20,000, and asks for a receiver to take charge of and preserve the assets and `keep the defendant's business in operation as a going concern,' and to operate the business under the order of the court. On that same day the defendant Cemeteries Company, acting without any attorney, filed its answer, a general denial. The court appointed a receiver on the same day, apparently without a hearing, or at least by consent.

"Before the two suits were consolidated Louis A. Harbin, appellant here, who owns the note secured by the deed of trust, and a defendant in the injunction case, filed an answer and cross-petition in that case, and also intervened by leave of court and filed an answer and cross-petition in the receivership case. In these cross-petitions he sets up the execution of the deed of trust to secure his note for $17,400 executed by a former owner of this twenty-three acres of land, and who conveyed same to the Cemeteries Company subject to such deed of trust; that the secured note is due and unpaid; recites that less than one-tenth of the burial lots have been sold; that the Cemeteries Company is a purely business corporation organized as such and operating the cemetery and selling lots purely for profit; that the receivership had not been a success and was hardly paying expenses of operation. He asks that `said real estate and the equity of redemption therein, except that portion of said real estate released from the lien of said deed of trust as aforesaid, be sold by the sheriff or receiver herein as and for a cemetery, and for cemetery purposes, and in such manner as the court may find will best serve the rights and interests of all persons interested therein, and that the proceeds of said sale be applied first to the payment of costs of foreclosure, and next to the payment of the principal and interest of this claimant's said note, and then to the payment of such claims as may be allowed by the court against the said Cemeteries Company, and that said receivership be terminated and said receiver discharged.'

"The receiver appointed in the suit brought for that purpose also filed in the receivership case a petition to sell all the assets of the Cemeteries Company under such terms and conditions as the court may fix so as to protect those who have purchased lots and grave spaces in the cemetery.

"The two cases were then consolidated and heard together. The final judgment and decree of the court made permanent the injunction against selling the land under the power of sale in the deed of trust, but ordered a sale of all assets of the Cemeteries Company by a special commissioner appointed for that purpose. Such decree provides that the purchaser at such sale shall take said lands subject to the rights, estates and interests of the present owners as purchasers of grave spaces and lots, and `it is further ordered, adjudged and decreed that the purchaser at said foreclosure sale, when and if approved by this court, shall thereby, as part of and with the property sold, acquire and have, and there shall be delivered to him by the receiver, all and singular the corporate seal, books, records, papers, documents, maps and plats, and shall assign and transfer all notes, bills, accounts and contracts belonging to said Cemeteries Company, and any and all books and papers of the United Cemeteries Company showing or relating to the sale by it aforesaid of lots and grave spaces in said Blue Ridge Lawn Cemetery,' and that the purchaser shall make payment of the purchase price `on execution and delivery of the special commissioner's deed conveying said land as in accordance herewith.' There are other provisions safeguarding the graves and the grave lots sold or contracted for and preserving the integrity of this cemetery as such and perpetuating its use as such.

"No one is complaining on this appeal of the part of the decree ordering a sale of the land as a cemetery. The Cemeteries Company, which platted and dedicated the land to cemetery purposes and which owns the same as a cemetery, does not appeal, though it brought the suit to enjoin the sale under the deed of trust. The only appellant is Louis A. Harbin, the owner of the note secured by the deed of trust, and he does not seriously object to or complain of the decree in ordering the sale of the cemetery land but only to the order of distribution of the proceeds. The trial court ordered a distribution of the proceeds by paying first the costs and expenses of the suits, including the receivership, and next to pay pro rata all allowed claims (itemized to the amount of $33,438.44), inclusive of the amount due appellant, Louis A. Harbin, $16,800. These were amounts allowed by the receiver as shown in his report to the court and includes the amount sued for in the receivership case. Presumably the other items, twelve in number, were owing to general creditors of the Cemeteries Association, and the decree recites that they are not in dispute as `claims due and unpaid by the Cemeteries Association which...