No. 87-199


### INTHE SUPREME COURT OF THE STATE OFMONTANA
1987

MICHAEL S. CAREY and KRISTINE J. CAREY, Plaintiffs and Respondents,-vsORVILLE WALLNER and GRACEFIALLNER, Defendants and Appellants.

PEALFROM: District Court of the Eighteenth Judicial District, Inand for the County ofGallatin, TheHonorable JosephGary,Judgepresiding.
COUNSEL OF RECORD:
ForAppellant: Morrow, Sedivy & Bennett; Terry Schaplow,Rozeman, Montana
For Respondent: Michael.J. Lilly,Bozeman, Montana

Submitted onBriefs: Aug. 6,1987 Decided: October 29, 1987

ClerkMr. 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 inpart, 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 contractproperty. 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 statusquo. Carey, 725 P.2d at 561. This Court affirmed the District Court's findingbecause:

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'Keefev. Routledge (1940),110Mont 138, 146-147, 103 P.2d 307, 310.Carey, 725 P.2d at 561. Although the District Court was affirmed in regard toWallners' appeal,the casewas 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 objectionsby 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 affidavitand the statementspurported to show that the property's value had dropped from $75,000 to $30,000, and Wallners' proposed amended judgmentheld Careys liable for the alleged drop in value. The District Court refused to adopt Walners' amended judgment reasoning in its ordermemorandum that:

For this Court to accept that value would clearly contravene the opinion of the Montana SupremeCourt which pegged the value at SEVENTY-FIVE THOUSAND DOLLARS ($75,000). Furthermore, itwould 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 thisCourt's judgment. Itappears to this Court that to decrease that value would be totally inappropriate. Wallners have appealed the amended judgment contending that thisCourt'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 decisiondepended on the returnofproperty 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 theequity argument, Wallners contend that (1) they could not retake title due to the District Court's failure to revest title, (2)Careys vacated theproperty despite the fact that title had not been revested inWallners, (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. Oncewe order aparticular judgment, the lower courthas no discretion to alter it. See In re the Marriage of Sarsfield (Mont. 1985), 695P.2d 473, 474, 42 St.Rep. 231, 233; State ex rel. Olson v. District Court of Nineteenth JudicialDistrict (1979), 184Mont. 346, 349, 602 P.2d 1002, 1003-4; In re Stoain's Estate (1960),138Mont. 384, 390, 357 P.2d 41, 45. Applying this rule to demands for relief on a second appeal, the Court ofAppeals ofOregon stated:
Relief from asserted changed conditions or rights allegedly accruing or injuries allegedly occurring pending or following appeal canbe had, if at all, only by resort to an original proceeding by which appropriate reliefmay 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 Idanhav. 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 firstopinion. 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 thatWallners should receiveno more than the returnof the contractproperty valued near the time Careys offered to return it. This was all Wallnerswere to receive because the burden of the mistake which lead to thebreach of the warranties "must fall onWallners." Carey, 725P.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 theproperty. Furthermore, any duty to maintain the property incident to Careys' possession terminated when the District Court found that rescissionwas 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 DistrictCourt 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. Inparticular, as we statedpreviously inthe faceof similar contentions, there "mustbe
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