author: WALTER H. BOHLING, Special Commissioner. PER CURIAM.

text:
    Bill GRIGGS, Respondent, v. George C. MILLER, Trustee for the Estate of W. A. Brookshire, Appellant, Glen Powell, Respondent.
    No. 49268.
    Supreme Court of Missouri, Division No. 2.
    Sept. 9, 1963.
    On Motions to Modify for Rehearing or to Transfer to Court En Banc Denied Oct. 7, 1963.
    Supplemental Opinion Jan. 10, 1964.

      William R. Clark, Columbia, for appellant.
    Alexander & Wayland, Columbia, Attorneys at Law, for respondents.
   WALTER H. BOHLING, Special Commissioner.

Bill Griggs, on January 19, 1961, sued W. A. Brookshire in ejectment for the possession of a 322 acre farm in Boone County, Missouri, and for damages for withholding possession. Plaintiff had purchased ‘the farm for $20,600 on January 16, 1961, at a public sale under a general execution against defendant. Defendant filed an application to disqualify the official circuit judge and the Supreme Court ordered the temporary transfer of the Honorable Lawson Romjue, Judge of the Forty-first Judicial Circuit of Missouri, to hear the case. Defendant filed an answer and counterclaim. Defendant’s answer was a general denial, and his counterclaim sought to set aside the sheriff’s execution sale and deed. Glen Powell, who as Sheriff of Boone County conducted said sale and was grantor in said deed, was made a third-party defendant upon the application of defendant. The cause was considered and treated by the parties and the court “as one of ‘equitable cognizance.’ ” The court found the issues for the plaintiff and against the defendant on plaintiff’s petition; for the plaintiff and the third-party defendant on defendant’s counterclaim; and that plaintiff was entitled to $2,483.24 damages by reason of defendant’s withholding of possession of said farm from January 18, 1961, to November 15, 1961, the date of said judgment and decree, and that plaintiff recover $250 per month from and after November 15, 1961, for so long as defendant withheld possession from plaintiff. Defendant Brookshire, after filing his notice of appeal, was incarcerated in the Missouri Penitentiary. Chapter 460 and § 222.010. (Statutory references are to RSMo 1959 and V.A.M.S.). Thereafter, upon application of plaintiff Griggs, George C. Miller was appointed trustee of the Estate of W. A. Brookshire, and substituted as a party litigant for said Brookshire.

Defendant’s contention that error was committed in overruling his motion to make plaintiff’s petition in ejectment more definite and certain on the ground no cause of action was stated because, never having been in possession, plaintiff “must allege the nature of his title and deed under which he claims ownership” is overruled. The existing law does not require that a plaintiff in ejectment should ever have been in possession of the premises. Fitzpatrick v. Garver, 253 Mo. 189, 193, 194, 161 S.W. 714 [1, 2]. See Supreme Court Rules 89.02 (§ 524.040) ; 89.04 (§ 524.060) ; 89.05 (§ 524.070); 89.06 (§ 524.080), V.A.M.R. Plaintiff’s petition conforms to said Rule 89.04, and allegations to the effect found in said petition have been held sufficient heretofore. Fitzpatrick case, supra; Bailey v. Williams, Mo., 326 S.W.2d 115 [2], and citations. Defendant’s brief does not point out the applicability of his citations (Tetherow v. Chambers, 74 Mo. 183; Holloway v. Holloway, 97 Mo. 628, 640, 641, 11 S.W. 233, 235) to the issue presented and we find them not determinative thereof.

Defendant’s attempt to disqualify Judge Romjue, who was transferred to hear the case, was without merit. Civil Rule 51.03(b), effective June 1, 1961, provides that “in no event shall more than one disqualification of judge be granted to either party.”

A suit to set aside a prior execution sale and sheriff’s deed of defendant’s 322 acre farm is reported under the style of W. A. Brookshire v. Glenn Powell, Ralph L. Alexander and Don C. Carter, Mo., 335 S.W.2d 176; said Powell being the sheriff conducting said sale and the other named defendants being the purchasers thereat.

Ray Crouch recovered a judgment against W. A. Brookshire, defendant, in the Circuit Court of Henry County, Missouri, on July 15, 1959, for $1,966.69. Said judgment was affirmed on December 5, 1960, in Crouch v. Brookshire, Mo.App., 341 S.W.2d 336. The right to an execution follows immediately upon the rendition of a judgment. State v. Hancy, Mo., 277 S.W.2d 632 [3], 55 A.L.R.2d 717; Rule 76.01. No supersedeas bond was given to stay an execution. Consult Rule 82.09; In re Craig, 130 Mo. 590, 593, 594, 32 S.W. 1121, 1122, 1123; Thompson v. Farmers’ Exchange Bk., 333 Mo. 437, 62 S.W.2d 803, 812 [23]. A general execution was issued on said judgment to the Sheriff of Boone County on December 10, 1960. The Sheriff levied on defendant’s 322 acre farm December 14, 1960, filed a notice of his levy in the office of the Recorder of Deeds of Boone County, and advertised and sold said real estate at public sale on January 16, 1961.

Dorothy Contestible, Administratrix of the Estate of Ralph Burton Collings, Deceased, recovered a judgment of $17,000 against William Albert Brookshire, defendant, in a wrongful death action in the Circuit Court of Audrain County, Missouri, on July 29, 1960. A general execution issued on said $17,000 judgment to the Sheriff of Boone County on December 23, 1960. This execution was mailed to Mrs. Contestible’s attorneys in Columbia and was delivered to Sheriff Powell January 10, 1961. He levied upon defendant’s 322 acres under said execution on January 11, 1961.

Defendant contends it was error to sell his 322 acre farm without attempting to make the judgment debt, interest and costs out of a portion of said farm.

Our Civil Rules contemplate that a judgment debtor is to he afforded reasonable protection in levying on and selling his property under execution. Civil Rule 76.21 (§ 513.095) provides in effect that if a judgment debtor gives the officer a list of his property sufficient to satisfy the execution, “the officer shall levy upon the property, and no other, if in his opinion it is sufficient; if not, then upon such additional property as shall be sufficient.”

Civil Rule 76.24 (§ 513.210) provides: “When an execution shall be levied upon real estate, the officer levying the same shall divide such property, if susceptible of division, and sell so much thereof as will be sufficient to satisfy such execution, unless the debtor in the execution shall desire the whole of any tract or lot of land to be sold together, in which case it shall be sold accordingly.”

And Rule 76.25 (§ 513.100) provides: “The person whose goods, chattels and real estate are taken in execution may elect what part thereof shall be first sold; and if he shall deliver to the officer having charge thereof a statement, in writing, of such election, three days before the day appointed for the sale, stating specifically what goods, chattels and real estate he desires to be first sold, and so on, until the execution be satisfied, the officer shall proceed according to such election, until sufficient money shall be made to satisfy the amount in the execution specified and costs.”

It is stated in 21 Am.Jur., Execution, § 380, that an execution is not “leviable upon all the debtor’s property, but only upon sufficient property owned by the debtor within the jurisdiction to satisfy the debt, interest, and costs”; and, while the officer is left to his own judgment, he “must exercise the care and discretion which a reasonably prudent man would exercise under like conditions and circumstances.” And, with respect to the property to be sold when more than enough to satisfy the debt is seized, it is stated in § 384: “The general rule is that the execution officer may make a division of the property, ■ if that is practicable, and sell only so much of it as is necessary to satisfy the debt.” See Gordon v. Hickman, 96 Mo. 350, 356, 9 S.W. 920, 921, 922; 33 C.J.S. Executions § 107 b. A failure to divide real estate and sell only enough to satisfy the execution was considered an abuse of discretion, in State ex rel. Koeln v. Sanders, 326 Mo. 76, 30 S.W.2d 986 [1], and a constructive fraud in Queen City Inv. Co. v. Kreider, Mo., 31 S.W.2d 1002, 1005 [10].

As stated by the trial court, plaintiff’s-testimony placed the value of defendant’s-322 acres at $50,000 while defendant contended it was much higher, approximately $90,000.

The parties agree that the following-liens appeared unreleased of record against defendant’s 322 acre farm: (1) $10,000’ deed of trust, Federal Land Bank of St. Louis, Sixth District. (2) $15,000 deed of trust, Ralph L. Alexander, Trustee, and1 “Holder of the Note” named as third party. (3) $3,516.46 Federal Tax lien under Internal Revenue Laws. (4) $3,606.43-County and State Tax lien.

The $15,000 note was payable to bearer (“Holder of the Note”), and was pledged' with other collateral to secure defendant’s $33,800 note of June 9, 1949, to the Boone-County National Bank. The bank never owned the $15,000 note. The $33,800 note-was paid in 1953, and the $15,000 note was-delivered to defendant without marking it paid. Mr. Alexander, the named trustee, testified he knew the history of the note so far as the bank was concerned.

The $10,000 note was purchased by Mr. Alexander in March, 1960, when the holder of the note was threatening to foreclose. He did not want another to get defendant’s-farm. He advertised the farm for sale intending to buy it at the foreclosure. Defendant came in and paid the note, which was endorsed and delivered to defendant.

It was stipulated by the attorney for plaintiff and third party defendant that a witness connected with the Internal Revenue Service, if present, would testify that the $3,516.46 Federal Tax lien had been discharged about four years prior to the trial; and also “I will stipulate the record will show that the matter has been paid.”

It is not disputed that the County and State Tax lien of $3,606.43 remained in effect. We understand from the record the $15,000, the $10,000 and the $3,516.46 items were before this court in Brookshire v. Powell, Mo., 335 S.W.2d 176, wherein we considered a prior execution sale of defendant’s farm for $2,300 and deed should be set aside. Sheriff Powell, as herein-before stated, was a party to said suit. We there said (181) : “There were liens of record against the land aggregating approximately $40,000. However, it is not seriously disputed that all of the indebtedness whereon those liens were based (except a balance of Five or Six Thousand Dollars on a deed of trust, the three other executions here involved, and certain ad valorem taxes) had been adjusted or discharged, but not released of record. These facts were known, substantially, to the purchasers in formulating their bid. They .admit the reasonable market value of the farm was from Forty to Forty-five Thousand Dollars. Plaintiff’s evidence puts that figure at Seventy Thousand Dollars.” The trial court in the instant proceeding considered defendant’s interest in the 322 acres subject to the unpaid tax item, then approximating $4,000, which would place a value on defendant’s interest of approximately $46,000 under plaintiff’s estimates, and $86,000 under defendant’s highest estimate of value. The trial court disregarded the $15,000, the $10,000 and the $3,516.46 items in reaching its fair valuation of defendant’s interest. The record sustains this conclusion.

Defendant wrote Sheriff Powell under date of January 11, 1961, re the Crouch judgment, levy and sale, stating, among other things, that his land was worth in excess of $100 an acre; and: “I am restricting the amount which you can sell to the northeast 40 acres of said tract of land. This land is clear. There is no mortgage or encumbrance of any kind against it.”

Defendant protested the execution sale to those assembled for the sale and stated in effect that the judgment involved had been obtained in Henry County and the case was on appeal and the judgment was not final; that: “After the judgment becomes final it will be paid”; that Crouch had in his possession cattle belonging to defendant worth $10,000 against which there was no lien; that “I have notified the sheriff that this farm is clear of any mortgages whatsoever; that it is worth approximately $50,-000.00; that one forty acre sold would be more than adequate. I have pointed out the forty acres, if it is sold, to be sold”; that he was certain the $17,000 judgment against him in the Contestible case would be reversed; that a supersedeas bond would be given; that this sale would be illegal and whoever bought the farm would buy a law suit. (The Contestible judgment, however, was affirmed January 8, 1962, in Contestible v. Brookshire, Mo., 355 S.W.2d 36.)

Sheriff Powell, who had been sheriff for about twenty years, admitted 40 acres of defendant’s farm “might have been” worth far in excess of $2,000. Asked why he had not told defendant the 40 acres would not be sufficient, he would take 80 acres, Sheriff Powell answered: “I didn’t intend to take 80 acres.” He testified he had levied on and held three or four execution sales of defendant’s 322 acre farm. He stated he did not know it was illegal to sell $50,000 worth of property to satisfy a $2,000 judgment; and there was testimony he had levied on the 322 acres to collect a $13.00 judgment, and to collect a $600 judgment. He stated “I checked the record and there was several thousand dollars” against all of the farm, and that is why “I levied on all of it.” He also stated “I never checked the records.” He did not levy on personal property because “It was much easier to do it this way.” He knew defendant had stocks in various corporations and had more than 200 head of Hereford cattle on the farm; that they might have sold for at least $200 a head on the market and as registered cattle would have brought more, and that 20 head of the cattle “might have” been sufficient to more than pay the Crouch judgment, interest and costs.

Ray Crouch, the judgment creditor, testified he wanted to and asked his attorney to levy on defendant’s farm, and that he knew defendant had collateral with the Hartford Insurance Company to take care of the Crouch judgment. Sheriff Powell testified that Crouch had told him defendant had deposited sufficient collateral with the Hartford Insurance Company to take care of the Crouch judgment.

Supreme Court Rule 76.36 (§ 513.205) provides that real estate is to he sold in execution after “having previously given twenty days’ notice of the time and place of sale, and what real estate is to be sold and where situated, by advertisement in some newspaper printed in the county.” See Executions: Freeman, 3rd ed., p. 1798, § 308; 33 C.J.S. Executions § 211.

We said in Brookshire v. Powell, Mo., 335 S.W.2d 176, 180 [5]: “The officer’s reception of a second writ of execution while the first is in his hands operates as a constructive levy on all property in his possession by virtue of the first writ.” Freeman, supra, § 135, p. 602 ; 33 C.J.S. Executions § 102; 21 Am.Jur., supra, § 115. The receipt of a second execution and the constructive levy resulting therefrom do not authorize the sale of a judgment debtor’s property under the second execution. Otherwise expressed: An officer, having advertised under one execution, is not authorized to sell under that and other executions later received. Executions: Freeman, supra, § 285e, n. 96; 33 C.J.S. Executions § 211, n. 3; p. 452; Mascraft v. Van Antwerp, 3 Cowen (N.Y.) 334; Van Camp v. Searle, 147 N.Y. 150 [7], 163, 164, 41 N.E. 427 [6], 431. In such circumstances the receipt of the second execution does not justify the sale of more land than would be proper under the advertised execution.

A sheriff conducting an execution sale is the agent of the property owner and the judgment creditor, and his duty is to protect the interests of both and to see that the property is not sacrificed. City of St. Louis v. Peck, Mo.App., 319 S.W.2d 678, 682 [5], We said in Gordon v. Hickman, 96 Mo. 350, 356, 9 S.W. 920, 921, 922; “If the property can be divided without prejudice, and a part will sell for the debt and costs, a part only shall be sold.” Forced sales of property usually do not bring full value.

Sheriff Powell’s advertisement of the sale of defendant’s 322 acre farm was to “sell all of said real estate or as much thereof as it be necessary to pay the judgment of $1,-966.69,” in the Henry County Circuit Court, which, with interest and costs, amounted to $2,308,16 on the day of sale.

Defendant’s farm was never advertised for sale under the Audrain County (Con-testible) execution. Defendant first knew of the levy on his farm under the $17,000 Audrain County judgment about 30 minutes before its sale under the Crouch judgment. Sheriff Powell testified that he sold under the Henry County, and not under the Au-drain County, execution.

Defendant’s 322 acres was not divided for the purpose of selling but was sold as a whole to plaintiff for $20,600.00. The only bidders were Ed Orr, one of the attorneys for Mrs. Contestible, and Ralph Alexander, a bondsman and attorney for the sheriff. Plaintiff Griggs testified he heard the farm would bring enough to satisfy the two judgments about 15 or 20 minutes before the sale; that about 5 or 10 minutes before it was sold he decided to buy it because “it didn’t bring any more than it did,” and that he asked Mr. Alexander to bid for him. He stated he put in $8,000.00, and the Boone County National Bank and Alexander let him have the “rest of it,” Alexander approximately $8,000.00, for which Griggs “signed a paper for him.”

Sheriff Powell testified he paid out the $20,600.00 purchase money about two hours after the sale. He made a check to Ray Crouch for $2,143.69, and a check for $17,-399.59 to Dorothy C. Contestible, Admrx. of the Estate of Ralph Burton Collings, Deceased and Orr and Sapp, Attorneys for the Plaintiff, and other checks for various items of costs involved in the levy and sale under the Henry County and Audrain County executions. The sheriff’s deed was executed January 18th and recorded January 19, 1961.

It is not questioned but that this 322 acre farm, consisting of approximately eight forties, could have been offered for sale in parcels. Rule 76.24 (§ 513.210) contemplates that the officer “divide such property,, if susceptible of division, and sell so much thereof as will be sufficient to satisfy such execution.” This was not done, and we hold that it should have been so divided. In Brookshire v. Powell, Mo., 335 S.W.2d 176, 181, the disparity between the market value of this farm and a bid of $2,300 was considered so great as to require setting aside that execution sale and sheriff’s deed. In the case at bar the Henry County judgment, interest and costs amounted to $2,308.16; and for that amount under said execution and the constructive levy of the Audrain County execution, but without an advertisement for sale under Rule 76.36, supra, under said Audrain County execution, it is sought to justify this forced sale for $20,600 of property valued at about $46,000. This record calls for the result reached in Brookshire v. Powell, supra 1. c. 181, 182.

This case was tried upon plaintiff’s petition in ejectment, defendant’s answer thereto, which, in effect, was a general denial, coupled with a counterclaim to set aside the execution sale and deed, and answers of plaintiff and third-party defendant to defendant’s counterclaim. Defendant attempted to set up in his reply to the third-party’s answer an action for damages against said third-party defendant. The court struck out of defendant’s said reply all that portion thereof purporting to state a new cause of action for damages. This is a court of review. What we have said disposes of the contested issues presented by the pleadings below.

Defendant is entitled to relief upon doing equity. City Investing Co. v. Davis, Mo., 334 S.W.2d 63, 69, quoting 19 Am.Jur. § 463, p. 320; Jones v. McGonigle, 327 Mo. 457, 37 S.W.2d 892, 895 [6, 7, 8], 74 A.L.R. 550; Brookshire v. Powell, supra. Accordingly, if defendant will, within thirty days, deposit in this court, for the use and benefit of those entitled thereto, the sum of $20,-600 with interest at the rate of 6% per an-num from the date of sale until the same is paid, the decree appealed from will be reversed and the cause remanded with directions to cancel the sheriff’s sale and the sheriff’s deed to plaintiff made pursuant thereto; otherwise the decree will stand affirmed. In either event the costs are assessed against the estate of defendant Brookshire.

PER CURIAM.

The foregoing opinion by BOHLING, Special Commissioner, is adopted as the opinion of the court.

All of the Judges concur.

ON MOTIONS TO MODIFY AND APPELLANT’S MOTION FOR REHEARING OR TO TRANSFER TO COURT EN BANC.

PER CURIAM.

Appellant, defendant trustee, filed a motion to modify the last paragraph of the opinion by substituting for the phrase reading “within thirty days,” which appellant admits was in accordance with his original brief, the phrase “within one hundred twenty days,” the same to run from September 9, 1963. Upon appellant’s presentation that as trustee he will have to negotiate a loan on the 322-acre tract to conform with the conditional decree of. this court, we think it equitable that he be granted this extension of time to comply with our decree. City Investing Company v. Davis, Mo., 334 S.W.2d 63, 69; Jones v. McGonigle, 327 Mo. 457, 37 S.W.2d 892, 895[5-8], 74 A.L.R. 550. In this connection appellant states he will make such deposit immediately upon obtaining the funds therefor “and offers to abide by the conditional decree so entered.”

Respondents have filed a motion to modify the last paragraph of the opinion by adding after the phrase “until the same is paid” the following: “and the sum of $1,610.63 with interest from July 6, 1962, at the rate of 6% per annum until the same is paid”. Appellant does not question respondents’ allegations that, in order to prevent the sale of the 322 acres for taxes, respondent Griggs “paid the amount of taxes and penalties for the year 1957 in the amount of $1,610.63 * * ' *.” In these circumstances respondent is entitled to restitution of the taxes so paid, and the opinion is to stand modified in accord with respondents’ request.

Appellant filed another “Motion to Modify Opinion or in the Alternative for Rehearing or for Transfer to the Court En Banc”. Appellant’s main contention in said motion is that respondents, notwithstanding the benefits conferred upon appellant, may not have any restitution because respondents’ conduct was wrongful in connection with the execution sale. This contention is not well taken for a number of reasons. It is based upon the assertion that “the circumstantial evidence was sufficient” for a finding that respondent Griggs’ actions, through his agent’s conduct, was wrongful and mala fides (consult Restatement, Restitution, § 140; Annotation, 142 A.L.R. 310, 349); but the findings of the trial chancellor are in complete contradiction of appellant’s contention. Furthermore, this issue first appears as a “Point” in appellant’s reply brief. See S.Ct. Rule 83.05, V.A.M.R. A respondent is not afforded an opportunity to answer a “Point” first made in an appellant’s reply brief; and we have many times said such points are not for consideration. Orchard v. Missouri Lumber & Mining Co., Mo., 184 S.W. 1138[ 1]; In re Buder’s Estate, Mo., 317 S.W.2d 828, 837[4, 5]; Magenheim v. Board of Education, Mo., 340 S.W.2d 619, 621; and see State ex rel. Joslin v. School Dist. No. 7 of Jasper County, Mo.App., 302 S.W.2d 497, 500[8]. Appellant’s reply brief was not overlooked by the court. In addition, all the evidence is, and it is not contended otherwise by appellant, that the $20,600 purchase price bid was applied to the discharge of obligations constituting lawful charges against the 322 acres. Appellant’s authorities, as we read them, do not hold that in the circumstances of this record an execution purchaser may not have restitution of the funds so applied upon the setting aside of the execution sale. See the ruling with respect to the taxes in Martin v. McCabe, 358 Mo. 118, 213 S.W.2d 497, 504, a case cited by appellant; Annotation, 142 A.L.R., loc.cit. 351. We consider it unjust to permit a judgment-debtor to recover back his property because an execution sale was irregular and at the same time allow him to profit by that irregular sale to discharge his judgment debts paid out of the purchase price for his property at the sale.

Appellant also contends that under S.Ct. Rule 83.17 the costs should not be assessed against him. This is a suit in equity, and a court of equity has inherent discretionary power to reasonably award or apportion the costs as a condition to the granting of relief. Amitin v. Izard, Mo.App., 262 S.W.2d 353, 356 [2], and cases cited. Let the opinion be modified so as to apportion the costs equally between the appellant and respondents.

The opinion is modified in accord with the foregoing. In all other respects it stands as written.

SUPPLEMENTAL OPINION

On January 7, 1964, the appellant-trustee deposited with the clerk of this court the principal sums of $20,600.00 and $1,610.63, with interest thereon, for a total deposit of $26,019.26. The said sum of $26,019.26 was paid to the respondent Bill Griggs, and his written receipt and satisfaction of judgment was filed herein on January 10, 1964. The costs taxed in this court have also been paid. The court, therefore, finds that the appellant-trustee has fully complied with the conditions imposed by the opinion filed herein on September 9, 1963, and the per curiam opinion filed October 7, 1963, and is entitled to the relief contemplated by said opinions.

Accordingly, the judgment rendered by the trial court is reversed and the cause -is remanded with directions to set aside and cancel the sheriff’s sale and the sheriff’s deed made to the plaintiff pursuant to said sale and to take such further proceedings as may be necessary to revest the defendant-trustee with title to the land in question in conformity with this and the other opinions rendered herein by this court.


source: Caselaw Access Project

author: HOLMAN, Judge.

license: Public Domain

text:
    STATE of Missouri ex rel. William H. WHITTINGTON, Gale E. Lord, William Paul Hunter, D. C., and Jean McCone, (Plaintiffs) Appellants, v. Margaret STRAHM, (Defendant) Respondent.
    No. 50140.
    Supreme Court of Missouri, En Banc.
    Dec. 9, 1963.
    Behearing Denied Jan. 13, 1964.

      John H. Foard, Kansas City, for appellants.
    Keith Wilson, Jr., City Counselor, for respondent.
    Edgar M. Eagan, Jefferson City, for Missouri Dental Assn., amicus curiae.
   HOLMAN, Judge.

Plaintiffs, as citizens, taxpayers, and electors of Kansas City, Missouri, filed this suit in an effort to obtain a writ of mandamus commanding defendant, City Clerk of Kansas City, to take certain action in regard to a referendum petition which had theretofore been filed with her. The trial court denied the relief sought. Upon appeal to the Kansas City Court of Appeals the judgment was reversed and cause remanded with directions to the trial court to issue its writ of mandamus as prayed. However, one of the judges dissented because he thought the opinion was in conflict with the decision of the St. Louis Court of Appeals in the case of Carson v. Oxenhandler, 334 S.W.2d 394, and upon his request, the cause was transferred to this court. State ex rel. Whittington v. Strahm, Mo.App., 366 S.W.2d 495. We will accordingly determine the case “the same as on original appeal.” Article V, Section 10, Constitution of Missouri 1945, V.A.M.S.

The facts were stipulated and hence are not in dispute. On June 2, 1961, an ordinance was introduced into the City Council of Kansas City which, omitting formal parts, reads as follows:

“Whereas, the medical profession has determined that fluoridation of public water supplies is an effective and salutary aid in the care of teeth and prevention of decay and diseases thereof, and
“Whereas, the Council of Kansas City deems it in the interest of the health and welfare of the citizens of Kansas City that they be provided with fluoridation of the city’s water supply,
“Now, Therefore, be it ordained by the Council of Kansas City:
“Section 1. That the Director of the Water Department be and he is hereby authorized to make the necessary plans and preparations for the fluoridation of Kansas City’s public water supply. Such plans and preparations shall include proper and rigid control of the amount of fluorine to be used and take into consideration the natural concentration of fluorine of the Missouri River water in Kansas City. The plans and preparations shall be in accordance with approved standards used in other major metropolitan areas.
“Section 2. The Director of the Water Department is authorized to negotiate a contract for a total sum of not more than $65,000 for the initial installation and equipment charge necessary for the fluoridation of said water supply, said contract to be submitted to this Council for approval.
“Section 3. The Director of the Water Department is directed to include in the future budgets the sum of $50,000 per year to cover the cost of fluoridation of the water supply.”

That ordinance was assigned to a committee of the council and the committee held three different hearings thereon in July 1961, at each of which a large number of persons appeared, some of whom favored the ordinance and others opposed it. That ordinance was never reported out of the committee and remained pending until January 12, 1962, when it was “lost on a semiannual docket clearance.”

On September 22, 1961, a resolution was introduced into, and on the same date passed, by the city council, which contained the identical provisions as those in the ordinance heretofore set out. On March 9, 1962, the city council passed Ordinance No. 27271 which approved a contract dated March 5, 1962, between Kansas City and S. R. Brunn Construction Company for the purchase of fluoridation facilities by the Director of the Water Department at a cost of $46,510, which ordinance was the first ordinance passed by the city council which made possible the addition of fluorides to the municipal water supply of said city.

Section 430 of the Kansas City Charter provides: “Any ordinance passed by the council, except emergency measures, shall be subject to referendum of the electors.” The section further set out the procedure for seeking a referendum. Section 15 of the charter defines emergency measures as follows: “An emergency measure is any ordinance passed by the affirmative vote of six members of the council for the immediate preservation of the public peace, property, health, safety or morals, in which the emergency is set for [forth] and defined in a preamble thereto; any ordinance calling any election, or providing for the submission of any proposal to the people; any ordinance making an appropriation for the payment of principal or interest of the public debt, or for current expenses of the city government; any general appropriation ordinance; any ordinance relating to any public improvement to be paid for by special assessment.”

In compliance with' the procedure specified in the charter there was filed with defendant, within the time provided, a referendum petition containing more than 18,000 names and addresses. Section 430 requires referendum petitions to contain signatures equal to 10% of the total vote cast for mayor at the preceding regular municipal election and it was stipulated that at the last election, which occurred in 1959, said total vote was 94,305 ; it was also stipulated that, upon the filing of said referendum petition, defendant refused to examine same and to certify as to its sufficiency and that she was instructed by the city council, by resolution, to take no further action on said referendum petition.

The agreed statement also specified that at the time in question Kansas City was adding eight different compounds to its water supply, all of which were for the purpose of purifying, softening, improving the taste of, and regulating the acid-alkaline balance of the water; that the purpose of purchasing the equipment, as provided in the ordinance under consideration, is to add fluorides to the water supply for the medicinal purposes of hardening the teeth and preventing dental caries; that Missouri River water, from which all water for the system is taken, contains a quantity of natural fluorides, but additional fluorides have never before been added by Kansas City to its municipal water supply; that the fluoridation facilities to be acquired are permanent facilities and the fluoridation provided for under the foregoing ordinance will affect the water supplied to all persons who subscribe for water from the Kansas City municipal water system.

It is the primary contention of plaintiffs, as disclosed by their pleadings and briefs, that the ordinance in question, not being an emergency measure, is referable under the charter provision. It is the position of defendant that under the provisions of the charter, only legislative ordinances are referable, and that Ordinance No. 27271 was an administrative and not a legislative ordinance and hence was not the proper subject of a referendum petition.

The opinion of the Kansas City Court of Appeals pointed out that the charter provided that all ordinances were referable, except those specifically described in Section 15 of the charter, and held that the framers of the charter intended that any ordinance (except those specifically exempted) was subject to referendum regardless of whether it might be classified as legislative or administrative.

The question has been briefed as to whether administrative ordinances are subject to referendum under the provisions of the Kansas City Charter. It is conceded that ordinances legislative in character (unless specifically exempted) are referable. We note in an annotation on the subject that “it is the general rule that initiative and referendum provisions are applicable only to acts which are legislative in character, and are not applicable to those dealing with administrative or executive matters.” 122 A.L.R. 769. Reference has heretofore been made to the case of Carson v. Oxenhandler, in which it is said-: “The rule that only acts legislative in their nature are subject to referendum is particularly applicable in the field of municipal corporations. The legislative body of a municipality, whether it be designated a city council, board of aldermen, or otherwise, is frequently called upon to act in an administrative as well as a legislative capacity by the passage of ordinances and resolutions. From an early date in the history of the right of referendum it has been recognized that to subject to referendum any ordinance adopted by a city council, whether administrative or legislative, could result in chaos and the bringing of the machinery of government to a halt. * * * The general rule which has developed is stated in Seaton v. Lackey, 298 Ky. 188, 182 S.W.2d 336, 338, as follows: ‘Although initiative and referendum provisions widely differ in their terminology, it is the general rule that they are applicable only to acts which are legislative in 'character, and not to those dealing with administrative or executive matters. * * 334 S.W.2d 339.

In Carson, the St. Louis Court of Appeals held that the provision of the St. Louis County Charter providing for referendum of “any ordinance” should be construed as intending that only ordinances of a legislative nature should be the subject of referendum. The court then decided that the ordinance under consideration was legislative in character and thus subject to referendum. The portion of the opinion in Carson which construes the charter provision in regard to the question of its application to ordinances legislative or administrative is a most learned and informative discussion and no doubt is of great assistance to anyone interested in the subj ect. However, we. regard it as dictum for the reason that the opinion held the ordinance under consideration to be legislative in character which, without question, was subject to referendum.

In the case before us we do not consider it necessary or proper to construe the charter provision and determine whether administrative ordinances are subject to referendum thereunder. This for the reason that we have decided that the ordinance in question is legislative in nature, and it is conceded that an ordinance of that character is subject to referendum. Therefore, any construction of the charter provision would be dictum.

“In reference to what constitutes legislative and what administrative action in connection with restriction of the power of initiative or referendum to legislative matters it has been said that action relating to subjects of permanent and general character are usually regarded as legislative, and those providing for subjects of temporary and special character are regarded as administrative. * * * The test of what is a legislative and what is an administrative proposition * * * has further been said to be whether the proposition is one to make new law or to execute law already in existence. Again, it has been said: ‘The power to be exercised is legislative in its nature if it prescribes a new policy or plan; whereas, it is administrative in its nature if it merely pursues a plan already adopted by the legislative body itself, or some power superior to it.’ ” 5 McQuillan, Municipal Corporations, 3rd Ed., § 16.55, pp. 254-256.

No case has been cited (and we have found none) which involves the same situation as the one before us. Missouri cases on the subject are Carson, supra, in which an ordinance authorizing the county to enter into a cooperation -agreement with its Housing Authority was held legislative, and State ex rel. Wilkinson v. Edwards, 305 Mo. 431, 266 S.W. 127, wherein an ordinance authorizing the city counsellor to institute condemnation action to acquire a bridge approach was also held to be legislative.

We readily agree that the ordinance before us has the appearance, upon casual examination, of an administrative one. If, instead of fluoridation equipment, it had approved a contract for the purchase of a pump for routine use by the water department, we would unquestionably hold it to be administrative because, as a usual rule, ordinances providing for the purchase of equipment are administrative. However, we must not restrict ourselves to a casual examination of the ordinance but must look to its substance and determine the real purpose thereof and that which it will accomplish.

If the first ordinance introduced had been passed we do not see how anyone could reasonably have contended that it would not have been legislative in character. This because it provided a new declaration of public policy for the permanent practice of fluoridation of the water furnished residents of the city and made provisions for the means of putting that policy into effect. If we are correct in the foregoing conclusion, that ordinance would have been subject to referendum. However, it was apparently abandoned in committee and instead a resolution containing the same provisions was introduced and adopted. We do not think that resolution had any lawful effect. In matters of that nature the council can only act by ordinance. See Charter Sections 1(61) and 2. It is significant that the defendant does not contend that it had any legal efficacy. And the resolution was not subject to referendum. Charter Section' 430.

Shortly thereafter tire ordinance in question was adopted. It is stipulated that it “was the first ordinance passed by the City Council of Kansas City, Missouri, which made possible the addition of fluorides to the municipal water supply of said city.” As stated, it appeared to be a routine ordinance for the purchase of equipment but, actually, it would accomplish much more. That ordinance legally inaugurated for the first time the practice of fluoridating the Kansas City water supply. It did so as effectively as could have been done if the first ordinance, so providing, had been enacted. We take judicial notice of the fact that the question of fluoridating the water supply has been a highly controversial one. If we should overlook the real substance of this ordinance and hold it to be administrative, the voters (assuming, but not deciding, that an administrative ordinance is not referable) would be denied the right to refer it simply because of the type of ordinance finally adopted. The maneuver within the council of abandoning the first ordinance and thereafter adopting the resolution and purchase ordinance may or may not have been conceived in order to preclude the right of referendum in regard to this matter, but, regardless of the intent, the result would have been the same.

Defendant makes the contention that the ordinance under consideration is administrative rather than legislative because it is in accord with the long-established policy of Kansas City of adding medicinal compounds to the water supply in the interest of the public health. It is said that (1) chlorine is added for the “medicinal purpose to attack biologicals in the water”; and (2) aluminum sulphate and ferric sulphate are added for the “medicinal purposes to coagulate macroscopic matter in suspension in the water.” We think the addition of fluorides goes beyond the policy established by the addition of the chemicals herefore specified. Those now being added are used for the purpose of their effect upon the water, i. e., making it pure and palatable, while the sole purpose of adding fluorides is for the therapeutic effect it will have upon the person drinking the water. This contention is ruled against defendant.

For the reasons heretofore stated, we have concluded that Ordinance No. 27271 is legislative in character and effect and is therefore subject to referendum.

The judgment is reversed and cause remanded with directions to the trial court to issue a peremptory writ of mandamus as prayed for in the petition.

All concur.


author: STORCKMAN, Presiding Judge.

text:
    Frank P. SEBREE, Administrator with Will Annexed of the Estate of Sarah Rosen, Deceased, Morris Rosen, Rose Silverman and Meyer Rosenwasser, Appellants-Respondents, v. Jacob ROSEN, Jacob Rosen, As Trustee of the Trust Estate Created under and by Virtue of the Purported Inter Vivos Trust Agreement of Pete Rosen and Sarah Rosen, dated May 22, 1952, and Trust Agreement Supplements Thereto dated July 24, 1953, and February 27, 1954, Jacob Rosen, As Executor of the Estate of Pete Rosen, Deceased, Betty Rosen, et al., Respondents-Appellants.
    No. 49887.
    Supreme Court of Missouri, Division No. 2.
    Jan. 13, 1964.

      Daniel S. Millman, Terence M. O’Brien, Kansas City, for plaintiffs, appellants-respondents.
    Arthur J. Kase, Walter Raymond, Kansas City, for defendants, respondents-appellants.
   STORCKMAN, Presiding Judge.

This is the second appeal in an equity suit involving controversies among the children of Pete and Sarah Rosen concerning property of their deceased parents. The first amended and supplemental petition consisting of fourteen counts sought to cancel and set aside an inter vivos trust agreement, supplements thereto, deeds and agreements, and to recover money, real and personal property, and for other relief. From the judgment rendered at the first trial, cross-appeals were taken and this court on review of the judgment affirmed in part and reversed in part. Sebree v. Rosen, Mo., 349 S.W.2d 865, 892. Three counts, including Count VIII, were reversed and remanded to the trial court. The present appeal is from the judgment and decree on Count VIII rendered November 13, 1962, following the remand. Reference is made to the original opinion for a complete statement of the facts developed at the first trial and the issues decided on appeal. For present purposes we are concerned only with Count VIII.

In Count VIII of the first amended and supplemental petition, the administrator of the estate of Sarah Rosen, deceased, and certain of the children alleged the existence of a fraudulent conspiracy among the defendants Jacob Rosen, Betty Rosen, Sue Hyken, Carl Hyken, Mary Bodney and Bernard Bodney to influence Sarah Rosen unduly and to coerce and trick her into executing a written document dated July 13, 1954, referred to as the “forgiveness agreement” purporting to forgive, release, and annul various notes and receivables of the face amount of $46,000, which belonged to Sarah Rosen in her lifetime and thereafter were assets of her estate. Further, the count sought to set aside a purported warranty deed to Mary Bodney of certain real estate which was the subject of an option contract and on which there remained an unpaid balance which constituted a receivable described in the forgiveness agreement, and to set aside all purported satisfactions of said receivables including the contract of sale and cancellations of deeds of trust securing the receivables and to restore the obligations to full validity and enforceability against the respective makers and for ancillary relief. 349 S.W.2d 871-872.

At the first trial the judgment on Count VIII was in favor of the defendants, but on appeal this court found that the forgiveness agreement and the related transactions were fraudulent and void. The judgment was reversed and Count VIII was remanded. In doing so, this court at 349 S.W.2d 883 stated that the judgment on Count VIII was reversed and the cause was “remanded with directions to enter judgment in conformity herewith.” Further, at page 892 of 349 S.W.2d, the opinion states that the three counts, including Count VIII, were reversed and “said counts remanded for further proceedings in conformity herewith.”

After remand of the cause, the plaintiffs filed a motion for entry of a separate judgment and decree on Count VIII and attached thereto a form of judgment and decree which they sought to have entered. Neither party undertook to amend the pleadings. At the hearing on plaintiffs’ motion, the plaintiffs offered no evidence; the defendants, over the plaintiffs’ objection, offered evidence bearing on the balance due on the six promissory notes and the Bodney option contract. The judgment and decree entered on Count VIII followed the format and substance of the decree tendered by the plaintiffs except that it gave credits for payments made on the notes and option contract generally in accordance with the proof offered by the defendants. From this judgment both parties have again appealed. The plaintiffs contend that they are entitled to recover an additional amount of $21,-005.44 by way of principal and interest on the six promissory notes and an additional sum on the Bodney option contract. The defendants’ appeal asserts that the trial court erred in decreeing an excessive amount of interest contrary to the terms of the notes.

The plaintiffs make four principal contentions and numerous subsidiary ones, .some of which overlap or are so related that they may properly be treated together. The first general assignment is that the reversal and remand of the judgment on Count VIII was with directions in the opinion and mandate which required the trial court to enter judgment without considering “new issues or additional evidence” as to the balance due on the promissory notes and that the trial court was without jurisdiction to do otherwise than to enter the judgment directed. On the other hand, under their fourth point, the plaintiffs contend that the equity court on remand had jurisdiction to declare tha,t the Bodneys had defaulted under their op,tion contract and forfeited the money paid thereunder, and that the court had discretion to award the plaintiffs the full value of the real estate and its reasonable rental value since July 1954 when the forgiveness agreement and the warranty deed were executed and the Bodneys stopped making monthly payments on the option contract. There can be but little dispute as to the legal principles involved. In some instances the parties cite and rely upon the same cases. The primary differences relate to the proper construction of the opinion and maní-date.

As we have previously noted, the opinion, after deciding the issues presented with regard to Count VIII, stated that the judgment was reversed and the count .“remanded with directions to enter judgment in conformity herewith.” 349 S.W.2d 883. At the conclusion of the opinion, the direction was “for further proceedings in conformity herewith.” The mandate which transmitted the opinion to the trial court concludes with the statement that “the said cause be remanded to the said Circuit Court of Jackson County for further proceedings therein on said Counts III, VII, and VIII, in conformity with the opinion of this court herein delivered.” If there were specific directions to enter a particular judgment, it must be found in the above statements and the treatment of the issues on Count VIII actually presented on appeal and decided by the opinion.

Where a judgment is reversed and remanded with specific directions to enter a particular judgment, the mandate is in the nature of a special power of attorney and must be followed by the trial court without deviation, but the rule is not applicable where a judgment is reversed and remanded for further proceedings in accordance with the opinion because in every case of remand further proceedings should be “in accordance with the opinion" whether or not that admonition is appended. Murphy v. Barron, 286 Mo. 390, 228 S.W. 492, 494 [2]; Abrams v. Scott, 357 Mo. 937, 211 S.W.2d 718, 721 [1-3] ; Feinstein v. McGuire, Mo., 312 S.W.2d 20, 23-24 [1-3].

On the previous appeal, the only issues presented as to Count VIII (as shown by the briefs of the parties) were that the forgiveness agreement and the “deed from Sarah to Mary Bodney for 5th and Minnesota” were invalid and that the notes, deeds of trust and option contract were valid and outstanding obligations. These issues were decided in favor of the plaintiffs and became res judicata although the opinion did not undertake to spell out the particulars of the judgment to be entered on remand. Nevertheless, the trial court strictly complied with the opinion and mandate in this regard. The first eight paragraphs of the new judgment and decree are largely devoted to setting aside the previous judgment of the trial court and entering a judgment on the matters as to which the opinion was conclusive. Paragraph 8 of the judgment further provided that “the beneficiaries, the trustees and, where appropriate, the successor trustees, in each of said deeds of trust are hereby given leave of court and authorized to enforce said deeds of trust by foreclosure and otherwise; and all such purchasers and encumbrancers and their agents, and defendants and their agents are hereby enjoined from interfering with the enforcement and foreclosure of said deeds of trust.” In haec verba this is the provision requested in the judgment form attached to plaintiffs' motion for judgment. Thus, it would appear that the plaintiffs intended to keep alive their alternative remedy of foreclosing the real estate liens and suing for any deficiency established by a sale of the property.

The plaintiffs’ primary object at the first trial of Count VIII (and necessarily so) was to revitalize the notes, deeds of trust, and other instruments which the forgiveness agreement purported to satisfy and cancel. The record discloses that neither party presented or developed his position as to the amount due on the promissory notes or the Bodney option contract. No relief in this regard was requested or decided in the appellate court. In fact the evidence in the record was insufficient to make these determinations. Since the opinion on the first appeal was not dispositive of these issues, their determination by the trial court on remand was within the scope of further proceedings contemplated by the opinion. The opinion and mandate did not give specific directions to enter a particular judgment as to the amount due on the notes and the option contract, and the trial court was vested with jurisdiction to hear evidence and adjudicate the issues. Davison v. Arne, Mo., 248 S.W.2d 582, 584 [1]; Mann v. Mann, Mo., 193 S.W.2d 492, 494 [3]; Feinstein v. McGuire, Mo., 312 S.W.2d 20, 25 [5]; Hoelzel v. Chicago, R. I. & P. Ry. Co., 340 Mo. 793, 102 S.W.2d 577-578 [1] ; 5B C.J.S. Appeal and Error § 1973, p, 604.

The plaintiffs’ next assignment is that the trial court erred in hearing and giving consideration to evidence of purported payments on the promissory notes because the defense of payment is not affirmatively pleaded. The present transcript is anomalous in that it contains no pleadings by either party or evidence on behalf of the plaintiffs. This is consistent with plaintiffs’ position in the trial court on remand but mistakes the effect of our prior opinion. The motion for judgment was sufficient to justify entry of judgment on the purely equitable issues adjudicated on the previous appeal; however, the money judgment is without support in pleading or evidence unless the plaintiffs have access to the transcript on appeal from the prior judgment. There is no stipulation to that effect and there was no effort made to comply with § 492.410, RSMo 1959, V.A.M.S., which provides that competent evidence which has been preserved in a transcript of a record may thereafter be used in the same manner and like effect as if such evidence has been preserved in a deposition subject to the right of the opposite party to prove matters contradictory thereof. Eickmann v. St. Louis Public Service Co., Mo., 323 S.W.2d 802, 808 [12].

The plaintiffs have forwarded to this court several exhibits including photocopies of the six notes and the deeds of trust securing them and the original of the option contract. All of the notes were payable in monthly installments. None of them were introduced in evidence on the present hearing, but the plaintiffs refer to the previous transcript on file in this court where they were identified and admitted in evidence. This falls short of the pleading requirements of Civil Rules 55.24 and 55.25, V.A.M.R. which provide that in a suit on a written instrument the instrument in question shall be set out at length in the pleading or a copy thereof attached as an exhibit if execution of such instrument is to be deemed confessed absent a specific denial.

Our knowledge of the pleadings is also gained at the parties’ invitation from an examination of the transcript in the previous case. The fact is that neither party has faithfully complied with the usual pleading requirements in a suit at law on a promissory note. In this state of the record, the trial court might very well have required supplementary pleading and proof accordingly as the price of granting complete relief in equity under the motion for judgment. Trimble v. Wollman, 71 Mo.App. 467, 484 [5]. This court would be justified in reversing the judgment and again remanding the cause for the same reason. See City of St. Joseph v. Roller, Mo., 363 S.W.2d 609. But the defendants made no objection in the circuit court to this procedure and present no such question here. In these circumstances, we will not raise the question of our own accord, but the status of plaintiffs’ pleading must be considered in determining what is required of the defendants.

Count VIII alleges the equitable grounds upon which cancellation of the forgiveness agreement was sought and a copy of that instrument was attached. But the count bears no resemblance to the usual suit at law on a promissory note. Among other omissions noted, the petition fails to state that no part of the notes has been paid or that the balance due is so much. Paragraph 9 of the prayer of Count VIII requests that the “plaintiffs have judgment against said defendants for the amounts of such promissory notes, with interest until paid” but does not give the amount demanded or specify the rates of interest The prayer also asks for declaratory and general relief. The defendants’ answer makes specific denials of the allegations of Count VIII and prays for dismissal with prejudice but does not affirmatively plead payment or part payment. While the matters referred to may not be necessary allegations in the absence of objection, an examination of Count VIII points up the fact that the plaintiffs’ dominant purpose at the first trial was to set aside the forgiveness agreement and to re-establish the notes, the deeds of trust, and the option contract. Those were the issues upon which jurisdiction in equity depended. Equitable rights must be both pleaded and proved before purely legal rights will be determined. Burnett v. Johnson, Mo., 349 S.W.2d 19, 22-23 [3] ; Krummenacher v. Western Auto Supply Co., 358 Mo. 757, 217 S.W.2d 473, 475 [1]. In view of the judgment against the plaintiffs on the equitable issues of Count VIII at the first trial, there was no need or opportunity to litigate the amount due on the notes and option contract.

A suit on a promissory note is ordinarily an action at law, but- where, as here, a court of equity once acquires jurisdiction, it can retain jurisdiction to do full and complete justice even though the additional relief involves adjudicating matters of lqyv and rendering a money judgment. Anison v. Rice, Mo., 282 S.W.2d 497, 502 [4] ; Louis v. Andrea, Mo., 338 S.W.2d 96, 104 [13]. The fact that a court of equity has-jurisdiction to dispose of legal issues presented under Count VIII has a bearing upon the procedure permitted. In support of., their contention that payment must be affirmatively pleaded and that evidence of payment is not admissible under a general denial,, the plaintiffs cite Civil Rule 55.10 and several decisions in actions at law. Neither .party has cited an equity case decisive of the precise pleading.

The plaintiffs have come into equity for affirmative equitable relief and no principle of equity is better settled than the maxim that he who seeks equity must do equity. Citizens Bank of Pleasant Hill v. Robinson, 342 Mo. 697, 117 S.W.2d 263, 271 [13]. The enforcement of this equitable principle is not dependent on the form of pleading and courts of equity apply the maxjm in granting relief on- such conditions as' are just and proper and as the exigencies of-the situation demand. Milanko v. Austin, 362 Mo. 357, 241 S.W.2d 881, 884; Stephenson v. Stephenson, 351 Mo. 8, 171 S.W.2d 565, 569 [15]; Jones v. McGonigle, 327 Mo. 457, 37 S.W.2d 892, 895 [7], 74 A.L.R. 550.

Count- VIII of plaintiffs’ petition l-acks specificity as regards the claims on the notes and option contract which they now seek to enforce. Nevertheless, the prayer for a declaratory judgment respecting the matters referred to in the count and for general relief are sufficiently comprehensive to include and permit a showing of the payments made by defendants on the obligations. Furthermore, the plaintiffs made no showing of surprise or prejudice. In these circumstances, the court did not err in admitting and considering defendants’ evidence as to payments made on the notes and the option contract. Civil Rule 55.26; Cox v. Bryant, Mo., 347 S.W.2d 861, 863 [2, 3]; King v. Guy, Mo.App., 297 S.W.2d 617, 621 [3] ; City Investing Company v. Davis, Mo., 334 S.W.2d 63, 68 [2, 3] ; Byers v. Lemay Bank & Trust Company, 365 Mo. 341, 282 S.W.2d 512, 518 [9].

The plaintiffs’ next assignment is that the defendants did not sustain their burden of proving payments in that the evidence “on the issue was incompetent, inadmissible, insufficient, inconclusive, confused, and without the necessary probative effect.” On this issue we assume, as the plaintiffs contend, that the defendants had the burden of proving the defense of partial payment by a preponderance of the evidence. In part the evidence offered by the-defendants consisted of the testimony of Hamilton Moffett, a realtor, and another, who managed and operated certain properties of Pete and Sarah Rosen and their children. Mr. Moffett produced ledger sheets and cancelled checks showing receipts and disbursements made. in. CQnnection with the property which were properly identified and admitted in evidence under The Uniform Business Records as Evidence Law, § 490.-680, RSMo 1959, V.A.M.S. These records^ 166 in number, were forwarded to this court along with other exhibits. Mr. Pete Rosen told Mr. Moffett that he had the income from all the properties paid to him so that he could deduct what the children owed him and remit to them the balance. The witness testified that Mr. Rosen was in his office nearly every day where he would get the checks from Mr. Moffett and figure out the settlements with his children. Shortly before his death on June 14, 1954, as he had done on previous occasions, Mr. Rosen told the witness that the children wére current with their obligations. Dusenbery’s Estate v. Stamm, Mo.App., 255 S.W.2d 57, 61 [5]. Mr. Moffett was the defendants’ most important witness but the plaintiffs did not cross-examine him. A copy of the federal estate tax return prepared and filed by the plaintiff Sebree, as administrator of the estate of Sarah Rosen, was also admitted in evidence. The finding of the trial court as to the amount due on the notes was in accordance with the indebtedness listed by her administrator in the federal estate tax return.

We review the evidence de novo and make our own findings giving deference to the opportunity of the trial court to determine the credibility of witnesses. Spaeth v. Larkin, Mo., 325 S.W.2d 767, 771 [3], Except in their reply brief, the plaintiffs did not particularize any respects in which the evidence was insufficient. Nevertheless, we have considered the entire record including the exhibits and find that the defendants proved by a preponderance or greater weight of the evidence the payments credited by the trial court on the promissory notes and option contract. The claim of error is denied.

The plaintiffs’ final assignment is that the “trial court erred in failing to grant plaintiffs full relief and recovery * * * on the Kansas real estate against the Bodneys.” They refer to the transcript on the previous appeal in which the prayer requests that the deed from Sarah Rosen to Mary Bodney be set aside; this relief was awarded on the previous appeal and is confirmed in the present judgment. The prayer further requests declaratory relief, an accounting of rents and profits, and other and further relief as may be meet and proper. The first difficulty encountered in this régard is that the plaintiffs offered no' evidence bearing on these matters.' Furthermore, the relief granted is identical in kind to that requested in paragraph 5 of the form of judgment submitted with the plaintiffs’ motion for judgment. The only substantial difference is in the amount awarded. The trial court allowed $8,250 instead of the initial option price of $17,000 requested by the plaintiffs, and the court fixed a rental value of $41.25 per month for a total of $4,083.75, whereas the plaintiffs had asked for an accounting to determine the reasonable rental value. The plaintiffs, however, are hardly in a position to complain because they offered no evidence and their post-judgment motion was not for a new trial but to amend the judgment and decree by increasing the money awards to the amounts specified in the form of decree submitted with the plaintiffs’ motion for judgment. In view of this situation, many-of plaintiffs’ contentions are inconsistent or' beside the point. Some are raised for the first time on appeal and have no basis in the pleading or evidence. For example, the prior appeal had the effect of reviving the. option contract, 349 S.W.2d 883, and now, without pleading or proof, the plaintiffs are-claiming a default and asking for a forfeiture of the payments made thereunder. In this instance, proof of nonpayment is a. part of plaintiffs’ claim of default and forfeiture. Macon County Levee Dist. No. 1 v. Goodson, 224 Mo.App. 131, 22 S.W.2d 651, 653-654 [8].

The option contract is on a printed form, evidently indigenous to the state of Kansas where the property is located. The draftsmanship is obviously not professional. This agreement between Pete Rosen and Sarah Rosen, as first parties, ánd Bernard Bodney and Mary Bodney, as second parties, recites the payment of $2,000 in consideration of which the first party grants an. option until January 1, 1947, to purchase the described property for $17,000 and agrees that second party may extend the option to January 1, 1967, by paying $75' per month. Then, handwritten in ink, is this statement: “Payments as follows: Two-Thousand dollars is paid on option, fifteen Thousand dollars balance to be paid monthly. Seventy-Five dollars which [words'inked out] until the fifteen Thousand is-paid out in full.” The remainder’ of the lengthy form consists of printed stipulations and conditions, some of which contain blanks that have not been filled in. Among other things, the contract provides that the Bodneys, as optionees, may take possession on January 1, 1947, and occupy it in person or by tenant during the time the option is in force “free from rent”; that if the Bodneys exercise their option and purchase the property while the option is in force they shall receive credit on the purchase price for all payments made; and that the optionees were not obligated to purchase the property or pay any sum except certain items such as insurance, special assessments and taxes if they occupy the premises. But the plaintiffs assert that the Bodneys are in default, that the option provides that time is the essence of the agreement and, in event of default, all payments made by second party shall be forfeited to the first party, and “first party shall have the right to immediately enter upon said real property and take possession thereof”, and that no court shall in any respect relieve the second party from strict compliance.

The plaintiffs argue that, since an optionee cannot recover back the consideration where he fails to purchase through no fault of the optionor, the Bodneys are not entitled to credit for the amount paid under the contract. The payment of $2,000 at the time the contract was executed and the handwritten provisions for the payment of the balance of $15,000 at $75 per month, along with the failure to fill in some parts of the printed form, give this a somewhat different complexion than the usual option contract, but we need not determine its effect under Kansas law where the real estate is situated. The fact that the plaintiffs are seeking a forfeiture in equity disposes of this and related contentions. Equity abhors forfeitures and they are not favored at law. Haeffner v. A. P. Green Fire Brick Co., Mo., 76 S.W.2d 122, 125-126 [2]. Ordinarily, the only concern a court of equity has with the subject of forfeiture is to prevent one where conditions are such as to render it inequitable to allow a forfeiture to be enforced. Trendley v. Illinois Traction Co., 241 Mo. 73, 145 S.W. 1, 7 [6]. We find nothing in the record before us which justifies a departure from these equity rules. See Swain v. Maxwell, 355 Mo. 448, 196 S.W.2d 780, 786 [20], and Edmonson v. Waterston, 342 Mo. 1082, 119 S.W.2d 318, 320-321 [4, 5]. Furthermore the parties cannot by their contract oust the court of jurisdiction. Cook v. Brotherhood of Sleeping Car Porters, Mo., 309 S.W.2d 579, 591 [13].

Under this point, the plaintiffs state in their reply brief that “the error of the trial court in this portion of its judgment was in holding that the market value of the property was only $8,250.00 instead of $17,000.00, with the resulting inadequate basis for rental value or the alternative of interest on the judgment.” We may assume that the market value of the real estate was $17,000 at the time the option contract was executed, but that is not determinative of the present question. There was $2,000 paid by the Bodneys to Pete and Sarah Rosen at that time and the balance of $15,000 had been paid down to $8,250 at the time the abortive forgiveness agreement was executed in July 1954. The trial court had jurisdiction to conduct a hearing and to render the kind of judgment it did; the court did not err in refusing to render judgment against the Bodneys in the additional amount requested by the plaintiffs.

As we have stated, the plaintiffs do not seek a new trial but only that the amount of the money awards be increased by the court. We have examined all of plaintiffs’ suggestions as to why and how this should be done and find them to be without support in the record before us and therefore without merit.

The only assignment of error made by the defendants’ appeal is that the “court erred in decreeing interest due upon notes contrary to the terms of such notes.” Accompanying this is the abstract proposition of law that courts, including courts of equity, cannot rewrite the terms of a contract entered into by the parties. No one disagrees with this statement of the law.

The defendants assert that under the provisions of § 408.020, RSMo 1959, V.A.M.S., a "demand of payment” must be made before the statutory rate of interest can accrue and no demand was shown. A promissory note which provides when the indebtedness evidenced thereby becomes due and payable is a written agreement within the purview of § 408.020 and a demand of payment is not necessary to start the accrual of interest under the statute. Douglass v. Douglass, Mo., 363 S.W.2d 566, 571; Neosho City Water Co. v. City of Neosho, 136 Mo. 498, 38 S.W. 89, 91-92; Doerflinger Realty Company v. Fields, Mo.App., 281 S.W.2d 609, 613 [7]. There is no showing that interest was allowed contrary to the terms of the notes and the court did not err in allowing interest without demand.

In the written argument the defendants assert that the Bodney option contract provides in specific terms that no interest was to be paid and that interest was assessed contrary to the contract terms. Aside from the fact that the assertion is not supported by the evidence, the contention is rejected because the matter is not properly preserved for review in that it was not referred to in the points and authorities as required by Civil Rule 83.05(a) (3) and (e). Clemons v. Becker, Mo., 283 S.W.2d 449, 452 [5]; Sandler v. Schmidt, Mo., 263 S.W.2d 35, 38 [1]. The defendants make a similar objection to the entire point which, as in many other briefs, shows little regard for Civil Rule 83.05. This rule is printed on the first page of the docket of cases sent to each attorney under the admonition to read the rule carefully before preparing briefs. The court is reluctant to invoke the rule if there is some semblance of compliance, but we repeat that a faithful following of the rule would be beneficial to counsel as well as the court. The appeal of the defendants affords no basis for relief.

In two respects, not mentioned by either appellant, the judgment should be corrected and clarified. In paragraph 14 of the separate judgment and decree on Count VIII entered November 13, 1962, the date of the note executed by Carl R. Hyken and Sue Hyken, Jacob Rosen and Betty Rosen, is given as December 1, 1950. The date of execution should be October 25, 1950, according to plaintiffs’ exhibit 48 and item two of Schedule G in defendants’ exhibits 167 and 170. December 1, 1950, is the date when the first monthly installment was due. The judgment should be amended accordingly to prevent confusion and further controversy.

Paragraph 5 of the judgment cancels the deed from Sarah Rosenvasser to Mary Bod-ney dated June 26, 1954, and recorded July 19, 1954, in accordance with the directions of the opinion on the prior appeal. 349 S.W.2d 883. The paragraph then provides for alternative relief. The Bodneys are ordered to reconvey by special warranty deed as of July 19, 1954, and pay the specified rental value within ten days or, if this is not done, the plaintiffs will have judgment against the Bodneys for $8,250 with interest as stated. The first alternative contemn plates that title will be revested in Sarah as of July 19, 1954; the second that the Bod-neys will acquire the title upon satisfaction of the money judgment. As the judgment and decree now stands, the cancellation of the deed from Sarah to the Bodneys will remain in effect in either event. Under the second alternative, the part of the decree cancelling Sarah’s deed might constitute a cloud on the Bodneys’ title to the real estate. If the second alternative is the one complied with by the defendants, a suitable order should be made to restore the effectiveness of Sarah’s deed to the Bodneys, or Sarah’s administrator or her heirs should be required to execute a suitable conveyance to give the Bodneys the sort of title contemplated by the option contract. On remand the trial court will be vested with jurisdiction and discretion to make any order or judgment necessary to accomplish these purposes. In all other respects the judgment should be affirmed.

The judgment as modified is affirmed and remanded.

All of the Judges concur.