This is the second time this case has been before this court. The petition was in equity, filed April 8, 1914, to cancel and set aside a trustee's sale and deed of certain lands made February 28, 1914, and to redeem the property from the deed of trust (which was executed by Mrs. Massey a prior owner) under which the *Page 62 sale was made. The plaintiff company was the owner of the property, subject to the deed of trust; plaintiff Fred Hurst was its tenant; the defendant trust company was the trustee named in said deed of trust and owner of the Massey note secured thereby; defendant Bode was the Sheriff of St. Louis County, who was designated in the deed of trust to act as trustee in the absence or refusal to act of the trust company; defendant Stonewall J. Walton was the purchaser, for $17,605, at the foreclosure sale made by defendant Bode, the sheriff, as substitute trustee. On the original trial of the case in the circuit court, the court rendered judgment for the defendants, but on appeal to this court we reversed the judgment and remanded the case with directions. [216 S.W. 954.]
There was a charge in the petition that the property was sold by the sheriff as trustee, to Walton, at an inadequate price after lawful tender of the amount due on the note secured, and that "the said defendants and all of them had agreed and conspired together to force a pretended sale of said property by the said Bode, as aforesaid, for the purpose of unlawfully acquiring title and possession of the same at a price much less than the said property was worth, and that the refusal of the said trust company in the manner and form aforesaid and the said pretended sale of the said property by the said Bode as aforesaid were dictated by and made pursuant to the terms of the same unlawful agreement and conspiracy aforesaid."
An examination of the opinion of this court will show no evidence or finding of any intentional wrong-doing on the part of the defendant sheriff, and that he acted as substitute trustee in good faith on the written refusal of the trust company to act as such; nor is there any finding that any tender of payment of the Massey note or deed of trust was made before sale thereunder. But the court did find that there was an agreement between the trust company and Walton to discourage bidding at the trustee's sale and that Walton should become the purchaser. The court uses the following language in concluding its opinion and reversing and remanding the *Page 63 case: "The whole evidence leaves no doubt in the mind of this court that the price at which the land was sold was inadequate to the extent at least of $12,395, and that this inadequacy, or so much of it as operated to deprive the plaintiff corporation of the power to protect its own equity of redemption, was caused by the action of defendant Walton tending to suppress bidding; that the fact that the plaintiff corporation had not received its certificate to transact business in this State was unfairly used for the purpose of disabling it from saving the property until the sale could be held, and that the sale was hurried by the trustee with reference to these conditions. Under these circumstances no choice is left us other than to reverse the decree of the Circuit Court for St. Louis County, and remand the cause, with directions to enter its decree in proper form setting aside the said trustee's sale and the deed of trust to secure $13,000 executed by Walton and wife on the same day, for an accounting between the parties, and granting such reasonable time as to the court shall seem just and proper for the redemption of the property upon payment by the plaintiffs of the sum found to be justly due for that purpose, which is accordingly done."
After Walton purchased the property at the trustee's sale he brought suit in unlawful detainer against plaintiff Fred Hurst, tenant of the plaintiff company, and obtained judgment and possession of the property. Also collected judgment from him or the sureties on his appeal bond for unlawful detention thereof. There is also a suggestion that Walton sold or transferred the property pendente lite.
Our mandate was in the usual form to the effect, among other things, that plaintiffs "should be restored to all things lost by reason of the judgment" reversed. Upon return of the case to the circuit court, the plaintiffs filed, on January 21, 1920, a petition or statement for accounting in the case, for rents and profits, damages and waste to the property, conversion of crops and costs and expenses of the litigation, including attorneys' fees and other expenses and costs of litigation not taxable as *Page 64 costs. There was also a claim for $929.26 on account of moneys paid out in satisfaction of the judgment defendant Walton obtained against the plaintiff Fred Hurst in said unlawful detainer suit, which was paid by the bondsman of said Fred Hurst in said suit. Also claim for $984 on account of extra amount paid out by said Fred Hurst for corn, hay and fodder, since being evicted from said property. Plaintiffs also filed a motion for possession of the property.
On the 26th day of February, 1920, the defendant trust company filed a statement of account in said cause, showing that it was the owner of the note of Mrs. Massey for $16,850, dated February 4, 1911, and due three years after its date, with interest notes attached. Also setting up the sale under the deed of trust securing said notes which was set aside and the purchase at said sale by defendant Walton, and setting out the purchase money in cash and notes which said Walton gave said trust company in payment of such purchase price and subsequent interest payments made by said Walton, and claiming that said sums were chargeable in the accounting herein. Defendant Bode filed a statement at the same time showing that he had paid over all the proceeds that came into his hands, $17,605 from the sale set aside, in paying the costs of the sale, and the balance on the note secured, and he prayed to go hence with his costs.
These matters of accounting on said petition and statement of the plaintiffs and of defendants trust company and Bode, coming on for trial, the court, on the objection of said defendants, refused to permit any testimony on the items contained in plaintiffs' petition or statement of account as against them — counsel for plaintiffs admitting he had no evidence they had ever been in possession of the property or committed waste thereon, but claiming they were jointly liable to account with defendant Walton under decision and mandate of the Supreme Court in the case.
The court then heard the evidence as to the amount due on the Massey note and deed of trust owned by the trust company, and found the amount to be, principal *Page 65 and interest, $25,923.93. There was evidence that on the day of sale, but just prior thereto, the plaintiffs had procured a party who offered to purchase the said Massey note, but the defendant trust company refused to sell it. No offer or tender of payment of said note was, however, made. The court decreed that upon the payment of said sum found due with six per cent interest from the date of the decree, March 26, 1920, within thirty days from said date, said trustee's sale and deed to Walton should be set aside and for naught held, and that defendant trust company and Bode have judgment on the statement of account filed by plaintiffs, and that plaintiffs take nothing thereunder as against them, "the right being reserved to determine any matter arising between plaintiffs and defendant Walton after redemption."
Plaintiffs also duly filed motion for new trial. Subsequently, said judgment was modified by reducing the amount due the said trust company on its said note and required to be paid by the plaintiffs in order to redeem, to $23,932.74. Plaintiffs' motion for new trial and motion for possession of property were thereupon overruled. Nothing further seems to have been done with reference to the accounting between plaintiffs and defendant Walton. Plaintiffs duly prosecuted their appeal to this court. Further matters in the record, relevant to the disposition of the appeal, may be mentioned in the opinion which follows.
I. Learned counsel for respondent earnestly insist that this appeal was premature, because it was taken before an accounting was had between plaintiffs and defendant Walton, and therefore prior to any final judgment as to all the parties. ButAppeal: we do so regard the judgment rendered. Said decreeFinal adjudged that plaintiffs take nothing under theirJudgment. petition for accounting against defendants trust company and Bode, and was to the effect that they were entitled to no accounting at all *Page 66 against defendant Walton unless and until they redeemed the property, by paying the amount found due the trust company. This was a conditional decree, it is true, but it was a final decree that plaintiffs were entitled to no accounting against said Walton, until they made such redemption, which they might never do. This disposed of the whole controversy as to all the parties under the facts existing at the time the decree was rendered. Furthermore, the judgment of this court on the former appeal was a final judgment in the case and all orders made thereafter by the lower court were "orders after the final judgment in the cause," within the meaning of Section 2038, Revised Statutes 1909, from which appeals lie. We therefore rule this point against respondents.
II. It is claimed by learned counsel for appellants that the court erred in first requiring the plaintiffs to pay the amount due the trust company on the Massey notes and to redeem before setting aside and canceling the trustee's deedReversal and sale to Walton. We agree with thisWith Directions: contention. It will be seen by a reading of theNew Conditions. directions in our opinion to the lower court, which we have quoted in our statement, that the first provision in the decree we directed it to make, was one setting aside said trustee's sale and the Walton deed of trust, and then for an accounting between the parties, and then to grant such reasonable time as the court might deem just for the redemption of the property upon payment by plaintiffs of the sum justly found due for that purpose. The plaintiffs were permitted to have a reasonable time for the redemption of the property — not from the trustee's sale — because that had been absolutely canceled and set aside, but from the Massey deed of trust, which the plaintiffs were to have a reasonable time to pay after the amount due thereon had been ascertained by the accounting. The trust company, which was the holder of the note as well as trustee named in the deed of trust, had been found guilty of unfair conduct in colluding with Walton to bring about the trustee's *Page 67 sale to him, by the sheriff as substitute trustee, and hence justice demanded, and this court ordered, that plaintiffs should be reinstated in their rights, by absolutely annulling and setting aside such trustee's sale and deed of trust made by Walton, and extending the time of redemption from the Massey deed of trust, for a reasonable time after the amount owning thereon by plaintiffs had been determined by an accounting.
III. As to the procedure and extent of the accounting againstdefendants by the plaintiffs.
Not only are all the defendants required to account by the express language of our decree, but under the provision of the law and the mandate in such cases, the plaintiffs were entitled to be restored to all things lost, by reason of the judgment reversed, from any of the defendants who received what was lost by the plaintiffs, by reason of such judgment, and from third parties not innocent purchasers, from such defendants. Such restitution may be obtained by motion in the case, and no separate or new suit need be filed therefor. [Colburn v. Yantis,176 Mo. 670; Lanyon v. Chesney, 209 Mo. 1, and cases cited; Turner v. Edmonston, 210 Mo. 411.] In the case at bar the judgment of the lower court against plaintiffs, which we reversed, prevented the plaintiffs from retaining possession of their property pending the litigation. Under our decree in reversing said judgment against them they were restored to their full rights to said property as if said Massey deed of trust was not in default and no sale had been made thereunder, and given a reasonable time to redeem from said deed of trust after an accounting had determined the amount due thereon. They were therefore entitled to possession of the property until reasonable time after such accounting and determination had expired and to a writ of possession therefor (Lanyon v. Chesney, 209 Mo. 1) as against all parties to the suit and persons not innocent *Page 68 purchasers from the defendants (Turner v. Edmonston, 210 Mo. 411) and to an accounting for rents and profits or rental value of, and all waste and damage done to, the property, including crops damaged or converted during the litigation. They would also be entitled to recover "all taxable costs and expenses of appeal" which they paid. [Colburn v. Yantis, and other cases cited supra.] We also hold plaintiffs were so entitled to the amount paid to satisfy the judgment and costs in said unlawful detainer suit, whether paid by them or the sureties on their bond (for the benefit of such sureties, however, if paid by them). The proceeding, after the reversal of the judgment, to make restitution, whether by separate suit or motion in the case, is governed by broad equitable considerations. It is a question exaequo et bono as in suits for money or property had and received. [Teasdale v. Stoller, 133 Mo. l.c. 652.]
A court of equity once in possession of the res and having jurisdiction of the parties will not relinquish its hold until it has done complete and adequate justice to all the parties. It has a long arm for so doing. [Real Estate Savings Inst. v. Collonious, 63 Mo. l.c. 290, and cases cited; School District v. Holt, 226 Mo. l.c. 415; Waddle v. Frazier, 245 Mo. 391: Woolum v. Tarpley, 196 S.W. 1128.]
But in such cases as the case at bar, there would be no liability to account for the plaintiffs' attorneys fees or other expenses in or about the litigation not taxable as costs under the statute, and no liability for speculative damages, such as the extra expense or cost of living or doing business or feeding stock, by being evicted from possession of the property. But the direct expense of moving away from and back to the property by reason of such eviction, would be a just charge against the defendant so evicting the plaintiffs.
IV. As to plaintiffs' claim against the trust company foraccounting. *Page 69
It is true that had the trust company purchased the property at the trustee's sale and thereafter being in possession of the property, it would, in such accounting, have been chargeable with the rents and profits while so in possession if allowed interest on its notes. That much has been decided. [Potter v. Schaffer,209 Mo. 586.] But it did not purchase the property at the trustee's sale, and never had possession of nor committed waste on the property, and had no interest whatever in the title or possession claimed by Walton. Consequently, the said trust company was not liable to account for rents and profits or waste of the property.
V. But learned counsel further claim that under the mandate in said cause the plaintiffs were to be "restored to all things lost by reason of the judgment" which this court reversed, and that under the judgment reversed plaintiffs lost the right to obtain possession and rents and profits of their property. This is true, but said trust company, not having received such rents and profits, would not be accountable therefor ex aequo et bono as for money or property had or received. [Teasdale v. Stoller, supra.]
VI. But it is claimed that the defendant trust company was, by the judgment of this court, found guilty of a conspiracy with said Walton to bring about the trustee's sale which was canceled and set aside, and therefore it was liable as aCo-conspirator. co-conspirator with said Walton for all his acts after he purchased said property at such sale, including the taking possession thereof and committing waste thereon. We do not agree to this contention. Said trust company was not found by us in our opinion in said cause, to be a conspirator with Walton, except to bring about such illegal trustee's sale to him. So far as our opinion shows said trust company's only interest in conspiring with Walton was that it might carry out its agreement with him to permit him to purchase the property at the *Page 70 trustee's sale for the amount he bid thereat, paying part of the purchase price in cash and giving his note for the balance, $13,000, to the trust company, secured by deed of trust on the property, The conspiracy of the trust company with Walton was ended, therefore, when said sale was made and it received the cash and notes and deed of trust of Walton for the purchase price. There was no evidence and no finding in our said opinion that the conspiracy of the trust company with Walton extended to his taking possession of or committing waste upon the property.
So that we rule that defendant trust company was not liable for rents and profits or waste of the property after the trustee's sale.
VII. The other charges in plaintiffs' petition (except the taxable costs in this suit paid by plaintiffs) for accounting are so obviously not matters for which the trust company was liable to account that they are not specifically contended for by learned counsel for appellant in his brief in this court, and need not be further noticed.
VIII. As to the interest allowed the Trust Company. It is said that Walton paid a certain amount in cash and afterwards paid the trust company interest on his $13,000 note which he gave for the deferred payment at the trustee's sale,Interest: Paid and therefore plaintiffs should not be requiredby Purchaser. to pay the full amount of interest upon the Massey note in order to redeem. But we hold that the amount paid by Walton to the trust company is a matter of accounting between Walton and the trust company in which plaintiffs are not legally interested, as was held by the lower court. We overrule appellant's contention on this point.
IX. The lower court also properly allowed the trust company interest after the trustee's sale to the *Page 71 date of the hearing on its claim for an accounting on the Massey notes. The contention that plaintiffs on theInterest on Notes: day of the sale made a tender or offered toTender. pay the notes and interest and the trust company refused to receive it, is not supported by the evidence. The evidence of both parties simply shows that at the request of the plaintiff Company, a Mr. Otto offered to buy the Massey notes from the trust company on the day of sale, just prior thereto, and the trust company refused to sell them. This circumstance did not constitute a tender of payment or anything equivalent thereto.
X. As to the accounting to plaintiffs by the sheriff,defendant Bode. Our opinion in this case did not find said defendant guilty of any intentional wrongdoing or dereliction of duty. He seems, from all the record, to have acted inAgainst good faith — believing he had the right to sell theSheriff. property as such substitute trustee, on being notified by the trust company in writing that it refused to make the sale and requesting him to act as stipulated in the deed of trust. We hold therefore that plaintiffs were entitled to nothing on their statement or petition for accounting against defendant Bode.
XI. If plaintiffs see fit they may amend their motion for accounting by filing a separate motion for each plaintiff and also, by filing the proper motion and giving due notice thereof, make any person a party to such accounting whoParties. purchased or was in possession of said property or received the use and benefit or rents and profits thereof or committed waste thereon and who was not an innocent purchaser thereof after the plaintiffs suit was originally instituted.
We therefore reverse the judgment of the lower court with directions to enter its decree, first seting aside and canceling the said trustee's sale and deed to Walton made under the Massey deed of trust and said $13,000 deed of trust made by Walton to the said trust company, *Page 72 and to sustain plaintiffs motion for possession of said property, and then at such reasonable time as the court may fix proceed to hear and determine the respective claims of the parties to an accounting according to the views herein expressed, and upon such determination, including the finding of the amount due defendant trust company on the Massey notes and deed of trust, to allow plaintiffs a reasonable time thereafter to pay such sum and redeem from such deed of trust, who will not be considered as being in default until after the expiration of the time for payment and redemption so fixed and plaintiffs' failure to pay the same within such time; and if not so paid that said trust company may then proceed to foreclose its said deed of trust in such manner as it may be advised. Brown and Ragland, CC., concur.