dissenting.
I dissent. The basic facts of this on-going controversy are found in Steen v. Colombo, 722 S.W.2d 648 (Mo.App.1987) (Steen I) and in the majority opinion (Steen II). The controversy concerns title to Lot 1111 and the Steens’ construction of improvements thereon. These were the issues developed and decided in Steen I. Neither party contends nor cites any reason why the opinion in Steen I is not the “law of the case” within the doctrine stated by cases such as DeMayo v. Lyons, 243 S.W.2d 967 (Mo.1951) and Coleman v. Ziegler, 248 S.W.2d 610 (Mo.1952). I consider it to be such. It is significant to note that the Steens were mistaken concerning the location of Lot 1110. Nothing of record gave them constructive notice that they did not own the lot upon which they made improvements. Cf. First Federal Savings & Loan v. Wills, 789 S.W.2d 873 (Mo.App.1990); Chicago Title Ins. v. Farmers Ins. Co., 734 S.W.2d 887 (Mo.App.1987); Hartman v. McFadden, 719 S.W.2d 59 (Mo.App.1986). It is equally significant that on retrial of the principal issues, the measure of Steens’ recovery is that stated in Chief Judge Crow’s concurring opinion.
After the initial hearing upon the Steens’ petition and Colombos’ answer, the trial court entered what was denominated an “interlocutory judgment”. This judgment provided that within 60 days the Steens could tender $32,000 to the Colombos and that the Colombos, within 60 days thereafter, should convey marketable title to Lot 1111 to the Steens. The judgment was said to be “interlocutory” for the purpose of the enforcement of the judgment. Thereafter, the Colombos announced, in court, they were not going to comply with the interlocutory judgment. Then, the court, on March 11, 1986, entered a final judgment incorporating findings of fact and conclusions of law in the interlocutory judgment, and ordered the Colombos to convey Lot 1111 by warranty deed to the Steens, subject to an existing deed of trust. The final judgment further provided that simultaneously therewith the Steens were to pay the Colombos the sum of $32,000, less the balance secured by the deed of trust.
The final judgment was followed by negotiations between the parties to settle the controversy. The negotiations failed. It must be noted that the Colombos’ then attorney, Donald Schreimann, was also an agent for the title insurance company that was called upon to issue a policy insuring the Bank of Iberia as mortgagee in a deed of trust covering Lot 1111 to be executed by the Steens. Pursuant to an arrangement between Steens’ counsel and Schreim-ann, on April 15, 1986, Thomas D. Steen went to the office of Schreimann to obtain a commitment for the title insurance. That commitment contained “Exception 15” which provided the policy would be “Subject to appeal of Camden County Circuit Court Case No. CV184417CC to the Missouri Court of Appeals, Southern District.” When asked if he and Schreimann discussed the title commitment and paragraph 15, that it was subject to appeal, Thomas D. Steen answered, “Yes, we did.” He was also asked the following question and gave the following answer: “Q And you knew that if the decision of the trial court was reversed then that would place title in question, didn’t you? A Yes.”
Steen then took the title insurance commitment to the Bank of Iberia. The loan officer on duty declined to make the proposed loan because of Exception 15. At the insistence of Steen, she called the Chief Executive Officer of the Bank, Robert Min-ick, who was attending a meeting. Minick called Steens’ attorney. As a result of *178their conversation, Minick approved the loan in spite of Exception 15.
Steen then obtained a bank money order drawn on the Bank of Iberia, payable to the Colombos and Four-Seasons Lakesites, Inc. (mortgagee under the existing deed of trust) in the amount of $32,000. He took this money order to Schreimann. Schreim-ann stated that he would see that the existing deed of trust was released and the warranty deed to the Steens recorded. This was done on April 28, 1986. The lis pendens, discussed in the majority opinion, was filed two minutes prior to the filing of the warranty deed. Notice of Appeal was filed on April 28, 1986.
As noted in the majority opinion, following the issuance of the opinion in Steen I, the Colombos filed a counterclaim reciting the underlying facts and praying for the court "to divest out of the Steens and the Bank of Iberia any and all interests that it may have in Lot 1111 and quiet title to that lot in the Colombos.” The Colombos had maintained $32,000 in a special fund and tendered that amount to the Steens. Count II of that counterclaim stated a cause of action in ejectment. The Steens and the Bank of Iberia filed answers and counterclaims praying that title to Lot 1111 be quieted in the Steens subject to the deed of trust in favor of the Bank of Iberia.
The Colombos “counterclaim” would more properly be called a “motion for restitution”. “Upon reversal of a judgment the appellant is entitled to restitution from the respondent of all benefits acquired under the judgment during the pendency of the appeal.” In re Marriage of Cook, 663 S.W.2d 789, 790 (Mo.App.1984). “Restitution may be sought in the court rendering the reversed judgment, or by an independent action in another court.” In re Marriage of Cook, at 790. (Authorities omitted.)
The trial court severed for trial the claim for restitution and the answers and counterclaims of the Steens and the Bank. In that trial, it was the basic position of the Colombos that the warranty deed was involuntarily given and delivered subject to the outcome of the appeal that resulted in Steen I. It was the position of the Steens and the Bank of Iberia that the deed was voluntarily given and was absolute in form and unconditionally vested title in the Steens.
The majority opinion is based upon the proposition that the Colombos are estopped from claiming title to Lot 1111 by voluntarily “performing acts after rendition of the order or judgment which are clearly inconsistent with the right of appeal.”
I believe the undisputed evidence established that the warranty deed did not vest unconditional title in the Steens. The execution of the warranty deed did not convey title. Title was conveyed only upon delivery. Shroyer v. Shroyer, 425 S.W.2d 214 (Mo.1968). The deed was delivered only after the Steens and the Bank had the commitment for title insurance, and that actual notice the title to be acquired by the Steens would be subject to the appeal in Steen I. The deed was delivered upon that condition. The execution and the delivery of the deed by the Colombos was in compliance with the final judgment of the trial court. It is significant they could have been cited for contempt for failure to obey. It has been held that the failure of a party to comply with an order of the trial court may defeat that party's right to appeal. 4 Am.Jur.2d, Appeal and Error, § 239. Under these circumstances, the execution and delivery of the warranty deed was not a voluntary compliance with the judgment of the trial court that estops or bars the Co-lombos from claiming title to Lot 1111 or from appealing. Cf. Edith Inv. Co., Inc. v. Fair Drug, Inc., 617 S.W.2d 567 (Mo.App.1981); Ryan v. Engelke, 285 S.W.2d 6 (Mo.App.1955). This conclusion is not altered by the fact that the conveyance was not subject to the deed of trust and the Colom-bos accepted the balance of the $32,000. The Steens caused the bank money order to be made payable in such form that the deed of trust would be released before the Co-lombos would convey and receive any portion of that $32,000. Cf. Rosenblum v. Jacks or Better of America West Inc., 745 S.W.2d 754 (Mo.App.1988). As stated, the Colombos added sufficient personal money *179to the portion of the bank money order received by them to create a fund of $32,-000. They maintained this fund in a special account and in their claim for restitution tendered that fund to the Steens.
The Steens and the Bank seem to concede that if the lis pendens of the appeal had been filed before the deed was delivered and the deed of trust was executed, their title would be subject to the consequences of the appeal in Steen I. It must be noted the deed of trust under which the Bank claims was recorded out of the claim of title. However, the time of filing of the lis pendens is not determinative. A lis pendens serves as notice of pending litigation. The Steens and the Bank had actual notice the title acquired by the Steens was subject to that appeal. Turner v. Edmonston, 210 Mo. 411, 109 S.W. 33 (1908).
There is a second reason the record establishes that the execution and delivery of the warranty deed was not voluntary. Had that deed been an unconditional and voluntary conveyance, the appeal in Steen I would have been “moot” and properly dismissed. The Steens had knowledge of all the circumstances surrounding the execution and delivery of the warranty deed when the Notice of Appeal in Steen I was filed. If it was their position the conveyance was unconditional and voluntary, the issue of mootness could have been raised in Steen I. They did not do so.
“Missouri follows the general rule. As stated in Wilson v. Toliver, 305 S.W.2d 423, 428 (Mo.1957), ‘the decision on the former appeal will be deemed an adjudication, not only on all questions directly raised and passed on, but also of matters which arose prior to the first appeal and which might have been presented at that time but were not.’ ” Protection Mut. Ins. Co. v. Kansas City, 551 S.W.2d 909, 915 (Mo.App.1977).
The opinion in Steen I is a determination that the appeal in Steen I was not moot. It follows that it was also a determination that the conveyance of Lot 1111 was not unconditional and voluntary; the Colombos are neither barred from claiming Lot 1111 nor from appealing in Steen II.
Moreover, the Steens elected not to raise the issue of mootness in Steen I, but to seek affirmance on the merits of the appeal. This election is inconsistent with their present contention. Owen v. City of Branson, 305 S.W.2d 492 (Mo.App.1957). To permit them to adopt their present position, is to permit them to seek reversal of the opinion of this court in Steen I by a collateral attack. Cf. Bover v. Long, 676 S.W.2d 893 (Mo.App.1984). For the reasons stated, I would reverse the judgment of the trial court in Steen II.