Woods v. Cantrell

• Decision Date: 21 April 1947
• Docket Number: 39808,39869
• Citation: 201 S.W.2d 311,356 Mo. 194
• Parties: Seth Woods Individually, and Seth Woods as Administrator of the Estate of Minnie Woods, Deceased, Robert B. Woods, H. T. Woods, Claude Woods, Marie Schafer Hiser and Roscoe E. Schafer, Respondents and Appellants, v. Lester Cantrell and Frances H. Cantrell, Appellants and Respondents
• Court: Missouri Supreme Court

201 S.W.2d 311

356 Mo. 194

Seth Woods Individually, and Seth Woods as Administrator of the Estate of Minnie Woods, Deceased, Robert B. Woods, H. T. Woods, Claude Woods, Marie Schafer Hiser and Roscoe E. Schafer, Respondents and Appellants, v. Lester Cantrell and Frances H. Cantrell, Appellants and Respondents

Nos. 39808, 39869

Supreme Court of Missouri

April 21, 1947

Appeal from Greene Circuit Court; Hon. Guy D. Kirby, Judge.

Appeals dismissed.

Harold T. Lincoln, Frank B. Williams and Joseph N Brown for appellants.

(1) The entries in the judge's and clerk's dockets, September 15, 1945, do not show that a final, appealable judgment was rendered on that date. These entries dispose of Count Two in plaintiffs' favor, but do not mention and do not dispose of Counts One and Three. By reason of this defect, the judgment on that date was interlocutory and not final. (2) The rule is that equity will not enter a partial or incomplete decree. Lincoln Natl. Life Ins. Co. v Pearman, 43 F.2d 163; Evans v. St. Louis, 355 Mo. 790, 198 S.W.2d 9; Rhodes v. Guhman, 137 S.W 88, 156 Mo.App. 344; Neale v. Curtis Mfg. Co., 41 S.W.2d 543, 328 Mo. 389; Electrolytic Chlorine Co. v. Wallace & Tiernan Co., 41 S.W.2d 1049, 328 Mo. 782; Gay v. Kansas City Public Serv. Co., 77 S.W.2d 133; Barlow v. Scott, 85 S.W.2d 504; Steiger v. City of Ste. Genevieve, 141 S.W.2d 233, and which must show in intelligible language the relief granted. Magee v. Mercantile Commerce Bank & Trust Co., 98 S.W.2d 614. (3) The judgment as entered does not dispose of all of the issues, nor does it purport to reserve jurisdiction for the sole purpose of accounting between the equitable mortgagors and the equitable mortgagees, and for that reason is not final. Davis v. Cook, 85 S.W.2d 17, 227 Mo. 33. (4) The right of appeal is purely statutory and exists only where the right is distinctly specified or can be fairly implied from statutory provisions. Hill-Behan Lumber Co. v. Hammer Dry Plate Co., 162 S.W.2d 348. (5) Our statute does not allow parties to appeal piecemeal or permit them to bring one issue in the case to an appellate court while other issues therein remain undecided by the trial court, except as to the specific orders made appealable by statute they can only appeal from a final determination of the whole case. Magee v. Mercantile Commerce Bank & Trust Co., 98 S.W.2d 614. (6) The general rule denying to a court the power to control its judgment after the term applies only to final judgments. Barlow v. Scott, 85 S.W.2d 504. (7) What purports to be the final judgment in this cause was not entered by the clerk and spread upon the journal, in extenso, until the 29th day of December, 1945, during the September term, when, in the form in which it appears in the record of this appeal, it was handed to the clerk for that purpose by the judge and filed in the cause. Prior to that date, it was not an appealable judgment upon any theory of the case nor was it subject to motion for new trial or motion to amend or modify. (8) By the new Civil Code, the time for filing motion for new trial is fixed not by the date of the pronouncement of the judgment, but by the date of "the entry of the judgment," Section 116. Likewise, the time for amending the judgment on motion is ten days "after entry of judgment", Section 114(c); so also is the time for ordering a new trial by a court of its own initiative, which is 30 days "after entry of judgment", Section 119. (9) The New Code also provides that "the judgment shall be entered as of the date of the verdict", where the trial is by jury, Section 116. But in cases tried without a jury the New Code provides that "at or after the trial, the court shall render such judgment as it thinks right upon the law and the evidence". Section 114 (b). (10) The New Code also provides that on motion for a new trial in an action tried without a jury, the court may open a judgment, if one is entered, take additional testimony, amend findings of fact, or make any findings and direct the "entry" of a new judgment. Section. 115. (11) Both Old and New Codes require a single judgment disposing of all parties (and issues) before an appeal may be taken. S.S. Kresge Co. v. Shankman, 194 S.W.2d 716. (12) The court having definitely adjudged that the deed to defendants was an equitable mortgage against the real estate therein described, and having ordered that an account be taken to determine the rents and profits realized from the operation of said real estate by defendant, Lester J. Cantrell, and having declared that such deed being such mortgage, any interest acquired by Frances H. Cantrell under such deed would be subject to such mortgage, it follows that Lester J. Cantrell, mortgagee in possession, holds the estate as a mere trustee for his indemnity only, and cannot make any gain or profit out of the estate by sharing 50-50 in the rents and profits and in the equity of redemption, as ordered by the court. This made the judgment incomplete, non-final and unappealable.

Fred A. Moon for respondents.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

This cause is in equity and affects the title to 65 acres of land in Greene County, near Springfield, and the title to or proceeds of some personal property, live stock, farming equipment, etc. The petition upon which the cause was tried is in three counts. The first count asks for a decree that defendants held title to the land and personal property in trust for plaintiffs; the second count asks that defendants' deed to the land and the bill of sale to the personal property be declared to be equitable mortgages and that plaintiffs be permitted to redeem; the third count asks that deed to the land and the bill of sale be set aside. Each count asked for an accounting "between plaintiffs and defendants of and for the profits, proceeds and income derived by said defendant from said tract of land and the livestock aforesaid; that the court decree that he holds said funds and property in trust for these plaintiffs; that he account to them for their share of said profits." The answer denies that plaintiffs have any interest in the land and personal property, and alleges that defendants, who are husband and wife, held title to the land by the entirety, and that defendant Lester Cantrell held title to the personal property.

We might here give the background of the cause. Mrs. Minnie Woods, deceased, on September 21, 1940, owned all the property involved, and was the mother of all the plaintiffs, as we infer, and the mother of defendant Frances H. Cantrell. Mrs. Woods, a widow and 76 years old, was in financial straits; her land and personal property were encumbered. She and her son, plaintiff Seth Woods, talked over her financial troubles with her son in law, defendant Lester Cantrell, and an agreement was reached but not reduced to writing. The agreement, as claimed by plaintiffs, is pleaded in each count of the petition.

The second and third counts of the petition adopt by reference paragraphs 1 to 16 inclusive of the first count, all of the factual allegations, and except the prayer, the three counts are practically identical. Plaintiffs pleaded in each count that in the agreement reached defendant Lester Cantrell "promised Minnie Woods and Seth Woods that upon Minnie Woods conveying said lands to him and likewise transferring said personal property to him, he would, in this manner, refinance the proposition (debts of Mrs. Woods) and would hold the title to the said lands and said personal property for the benefit of Minnie Woods and Seth Woods until said lands could be sold without sacrifice and at a sufficient price so that the encumbrances thereon could be paid and that the balance of the funds so obtained, and any profits and proceeds arising from the operation of said farm or from said personal property should be divided equally between Minnie Woods and Seth Woods on the one hand, and defendant Lester Cantrell on the other, and that in the meantime plaintiff Seth Woods was to operate said farm." September 21, 1940, Mrs. Woods conveyed the land by warranty deed to defendants, and by bill of sale conveyed the personal property to defendant Lester Cantrell. The deed to the land recited a consideration of "one dollar and other valuable considerations", and the consideration recited in the bill of sale was that defendant Lester Cantrell was to pay off or settle "all of the indebtedness as scheduled in bankruptcy proceedings by Minnie Woods." Mrs. Woods had obtained a moratorium order under the Frazier-Lemke act as to her secured debts and the moratorium was about to expire and she was threatened with foreclosure.

December 4, 1940, a second bill of sale was executed in which 3 of Mrs. Woods' sons, including Seth, joined to release any interest they might have in the personal property described in the bill of sale. Plaintiff Seth Woods was in charge of the farm and personal property at the time of the execution of the deed and bills of sale and remained in charge until December 18, 1940, when defendant Lester Cantrell took over. Seth says he was frightened away by defendant Lester Cantrell and one Terry whom Lester Cantrell placed in charge. Defendant Lester Cantrell refinanced the secured obligations of Mrs. Woods by mortgages on the land in question and on a farm of his own in Webster County, and by giving a mortgage on the cattle on the farm and the cattle on his Webster County farm. He settled Mrs. Woods' unsecured debts after getting a reduction of about fifty percent on these, and paid off his refinancing obligations in 1943.

Mrs Woods, it would seem, ascertained that Lester Cantrell was claiming to be absolute owner of all the property conveyed to him, while she claimed as appears in the quote from...