concurring in result.
To the extent that the majority opinion contemplates that upon remand the trial court will find Edwards Realtors liable to the McAdamses for the $46,565.82 paid to First Federal, together with interest thereon, I concur. I am unable, however, to subscribe to several of the rationales used in reaching that result.
I.
When the trial court failed to order foreclosure, it was apparently attempting to honor the agreement between the Mc-Adamses and First Federal to the effect that in return for the $46,565.82 payment First Federal would not execute upon a foreclosure decree. An agreement to not execute upon a judgment is not the equivalent of an agreement to not seek or obtain a judgment. To the contrary, an agreement to not execute presupposes the existence of a judgment upon which to execute. The posture of the case after our remand contemplated a foreclosure order as a predicate for the McAdamses being able to establish damage for which Edwards Realtors might be held liable.
However, I agree that the technical failure of the trial court to strictly follow this court's earlier remand directive did not harm the MceAdamses. Instead of awaiting the foreclosure decree, the parties obviated the need for that step by entering into an agreement which was intended to effect the same result as if a foreclosure decree had been entered. Accordingly, the payment to First Federal triggered the right of the McAdamses to assert their claim against Edwards Realtors.
IL.
I concur and agree that the McAdamses have not waived their claim against Edwards Realtors by failing to assert it as crossg-error in the initial appeal. The Mc-Adamses were the successful parties at the trial level in the first instance. Until we reversed the trial court and ordered foreclosure the MceAdamses were not aggrieved and had no reason to request a judgment against Edwards Realtors. Had they done so we might well have ruled that such judgment would have afforded double recovery, ie. full satisfaction of the mortgage obligation plus a windfall from Edwards Realtors.
IIL.
I agree that Edwards Realtors may not have considered itself aggrieved by the finding of misapplication of trust moneys because that finding was not accompanied by a judgment. Unless and until the determination that the mortgage had been fully satisfied were set aside, and unless and until the McAdamses were put in a position of having to pay the $46,000 or suffer loss of the real estate upon foreclosure sale, the finding of misapplication, standing alone, did not give rise to an imposition of liability.
The majority, however, rests the holding that Edwards Realtors is not barred by the law of the case upon the fact that "this court has yet to determine whether the finding of a misapplication of trust funds was supported by the evidence...." (At 621.) Yet the majority proceeds to make that precise determination under Issue Four. The Issue Four holding would seem to undercut the holding under Issue Three.
IV.
I concur in the holding that the evidence was sufficient for the trial court to have concluded that there was an obligation on the part of Edwards Realtors to clear the First Federal Mortgage lien by application of trust fund moneys. My agreement, however, is premised upon the title opinion *624which directed that the mortgage lien "should be satisfied and released of record upon payment at closing". Record at 313-1 to 3183-2.
I do not concur in the majority's analysis of Paragraph 18 of the real estate contract signed at closing. The majority appears to adopt the McAdamses' interpretation that by using the phrase "place or maintain a mortgage" rather than "maintain or place a mortgage", the parties intended that sellers might only create a new mortgage after closing but could not "maintain" the already existing mortgage. The logic of this position totally escapes me. It completely ignores the clear import of the word "maintain" when used with the disjunctive “or”.
The parties, in my estimation, contemplated that the existing mortgage might be "maintained" on the premises so long as it never exceeded the amount due on the contract owing from the McAdamses. It is clear that the mortgage balance grew to exceed that contract balance amount and that, at least in part, the amount due reflected Edwards Realtor's failure to apply trust moneys.
It would be my contemplation that upon remand the trial court might determine what, if any, amount is due the McAdams-es by reason of Edwards Realtors' failure to properly apply moneys in its hands.