No. 87-199 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

MICHAEL S. CAREY and KRISTINE 

J. CAREY, 

Plaintiffs and Respondents, 

-vsORVILLE WALLNER and GRACE FIALLNER, 

Defendants and Appellants. 

PEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Joseph Gary, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Morrow, Sedivy & Bennett; Terry Schaplow, Rozeman, 

Montana 

For Respondent : 

Michael. J. Lilly, Bozeman, Montana 

Submitted on Briefs: Aug. 6, 1987 

Decided: October 29, 1987 

Clerk 
Mr. Justice R.C. McDonough delivered the Opinion of the 

Court. 

Both parties appealed the first judgment in this action. 

See Carey v. Wallner (Mont. 19871, 725 P.2d 557, 43 St.Rep. 

1706. Therein this Court affirmed in part, and reversed and 

remanded in part with instructions to amend the judgment. 

Pursuant to the remand, the District Court of the Eighteenth 

Judicial District entered an amended judgment on January 6, 

1987. The appeal currently before us contests the validity 

of that judgment. We affirm. 

Briefly summarized, the facts from the former case 

reveal a contract for deed dispute. Careys petitioned for 

rescission of the parties' contract alleging failure of 

consideration and breach of warranty. The District Court 

found that Wallners breached certain warranties, and 

concluded that Careys should receive damages and Wallners 

should receive the return of the contract property. In its 

first judgment, however, the District Court failed to 

formally revest title, and failed to formally grant 

rescission. 

On appeal of the first judgment, Wallners contended that 

the District Court erred in granting rescission because 

restoration of the property would not return them to the 

pre-contract status quo. Carey, 725 P.2d at 561. This Court 

affirmed the District Court's finding because: 

Absolute and literal restoration is not required, 

it being sufficient if the restoration be such as 

is reasonably possible or as demanded by equity. 

O'Keefe v. Routledge (1940), 110 Mont 138, 146-147, 

103 P.2d 307, 310. 
Carey, 725 P.2d at 561. Although the District Court was 

affirmed in regard to Wallners' appeal, the case was remanded 

with instructions to the District Court to correct its error 

in calculating Careys' damages. Carey, 725 P.2d at 562. 

The District Court fulfilled the instructions over more 

objections by Wallners. At the hearing held pursuant to the 

remand, Wallners attached an affidavit and various unsworn 

statements to a brief supporting their proposed amended 

judgment. The affidavit and the statements purported to show 

that the property's value had dropped from $75,000 to 

$30,000, and Wallners' proposed amended judgment held Careys 

liable for the alleged drop in value. The District Court 

refused to adopt Walners' amended judgment reasoning in its 

order memorandum that: 

For this Court to accept that value would clearly 

contravene the opinion of the Montana Supreme Court 

which pegged the value at SEVENTY-FIVE THOUSAND 

DOLLARS ($75,000). Furthermore, it would be making 

a leap of faith that such decreased value was due 

to the Plaintiffs' neglect rather than a 

fluctuation in the real estate market. Also, as 

the Plaintiffs argue, the property has actually 

been in the hands of the Defendants since the 

Defendants did not request a stay of execution of 

of this Court's judgment. It appears to this Court 

that to decrease that value would be totally 

inappropriate. 

Wallners have appealed the amended judgment contending 

that this Court's prior ruling, and equity, require the award 

of more than the allegedly devalued property. First, in 

regard to the prior ruling, Wallners contend that this 

Court's decision depended on the return of property valued at 

$75,000. Second, in regard to equity, Wallners contend that 

the risk of damage to the contract property remained with 

Careys during the pendancy of the appeal. In support of the 
equity argument, Wallners contend that (1) they could not 

retake title due to the District Court's failure to revest 

title, (2) Careys vacated the property despite the fact that 

title had not been revested in Wallners, (3) Careys' failure 

to remain caused damage to the property, and (4) the damage 

caused by Careys constitutes a violation of their statutory 

duty to return everything of value received under the 

contract. 

We have considered and decided both issues. First, in 

regard to the effect of the former opinion, Montana law 

empowers this Court to order the proper judgment. Section 

3-2-204, MCA. Once we order a particular judgment, the lower 

court has no discretion to alter it. See In re the Marriage 

of Sarsfield (Mont. 1985), 695 P.2d 473, 474, 42 St.Rep. 231, 

233; State ex rel. Olson v. District Court of Nineteenth 

Judicial District (1979), 184 Mont. 346, 349, 602 P.2d 1002, 

1003-4; In re Stoain's Estate (1960), 138 Mont. 384, 390, 357 

P. 2d 41, 45. Applying this rule to demands for relief on a 

second appeal, the Court of Appeals of Oregon stated: 

Relief from asserted changed conditions or rights 

allegedly accruing or injuries allegedly occurring 

pending or following appeal can be had, if at all, 

only by resort to an original proceeding by which 

appropriate relief may be sought. See for example 

Mackall v. Richards, 116 U.S. 45, 6 S.Ct. 234, 29 

L.Ed. 558 (1885); Galbreath v. Wallrich, 48 Colo. 

127, 109 P. 417 (1910). 

City of Idanha v. Consumers Power Inc. (Ore. Ct. App. 19731, 

509 P.2d 1226, 1228. We adopt the Court of Appeals of 

Oregon's reasoning in the application of this rule. Thus, 

this Court's previous opinion limited the District Court's 

remand powers. Its discretion extended only to the entry of 

the proper judgment. 
At any rate, Wallners misconstrue our first opinion. We 

did not order that the District Court revest title to 

property currently valued at $75,000. Rather, we affirmed 

the District Court's finding that Wallners should receive no 

more than the return of the contract property valued near the 

time Careys offered to return it. This was all Wallners were 

to receive because the burden of the mistake which lead to 

the breach of the warranties "must fall on Wallners." Carey, 

725 P.2d at 561. 

In regard to Wallners' equitable contentions, we need 

only point out that a "land contract such as is involved here 

is an executory contract and the legal title does not pass 

until the conveyance is actually made." Dobitz v. Oakland 

(1977), 172 Mont. 126, 130, 561 P.2d 441, 443. Thus, 

although the contract transferred the beneficial interest in 

the realty to Careys, they never received legal title from 

Wallners. Therefore, Wallners have no grounds to argue that 

Careys' duty to maintain the premises continued until 

Wallners received the return of title to the property. 

Wallners never lost title to the property. 

Furthermore, any duty to maintain the property incident 

to Careys' possession terminated when the District Court 

found that rescission was appropriate. This is true because 

rescission extinguishes contract duties. See S 28-2-1701, 

MCA. Wallners may attempt to argue that recission never 

occurred because the District Court failed to formally grant 

rescission in its judgment. To prevent the appearance of 

that issue before this Court, we now take the opportunity to 

point out that Wallners' original appeal contested the 

propriety of the rescissionary remedy. Wallners may not 

appeal an issue on the one hand, and on the other deny the 

basis for its existence. Our previous decision constitutes 

res judicata as to this issue. In particular, as we stated 
previously in the face of similar contentions, there "must be 

an end to litigation, and in this matter it has been 

reached." Gray v. Bohart (1957), 131 Mont. 522, 524, 312 

P.2d 529, 531. 

&L? g& &&-d-y~ 

Justice 

We Concur: 

Chief Justice