185 Mo. App. 148 | Mo. Ct. App. | 1914
Lead Opinion
This is a suit begun in a justice of the peace court in Barry county to recover from defendant $4, for “keeping and caring for” a cemetery lot for the years 1912 and 1913. The question for decision is whether defendant is personally liable for this charge as a debt due plaintiff. The plaintiff lodge, as part of its benevolent work, acquired the land and platted a cemetery and in 1905 sold a lot therein to defendant. Defendant’s ownership of the lot is evidenced by a certificate, duly issued by the plaintiff, reciting the consideration paid and that “the said Arthur C. Hartman, his heirs and assigns, are entiled to the use of said lot in fee simple - for the purposes of sepulcher alone, subject to the rules and regulations governing the I. O. O. F. Cemetery at Monett, Missouri, heretofore adopted by said lodge and subject to amendment by said lodge. Said lot 1, in block 34 not transferable without the consent of the cemetery committee appointed by said lodge, said consent must be in writing. No pérson shall be buried on said lot except the members of the family and the relatives of said Arthur O. Hartman, except with permission of the cemetery committee. Said lodge reserves the control of said lot as a part off said cemetery in accordance with said rules and regulations.”
The charges on the various lots were collected about May of each year for that year and in a measure were collected in advance. The defendant, when solicited by plaintiff to pay in 1912, objected to the advance in rates from $1.50 to $2 per year and refused to pay for that year or any future year. This suit was commenced in June, 1913, and seeks to recover for the whole of that year. There cannot, therefore, be an implied contract based on defendant’s acquiescence in the work being done for these two years without objection or information that he would not pay.
Does any or all of these facts raise a personal obligation, on a lot owner from which he cannot escape to pay yearly and perpetually a sum which may be increased from time to time for the care and keeping of such lot? We think not. If so, the obligation would follow the ownership of the lot and become a personal debt of his heirs and assigns. It would raise such personal obligation against a person who, as an act of generosity or charity, might be willing to pay the purchase price of a lot for the burial of a friend or stranger.
We are not discussing the right of plaintiff to adopt and enforce the rules it has as regulating and controlling the use and care of the cemetery or enforcing the forfeiture provisions. That is- not before us. Nor are we discussing any moral obligation of the defendant to pay for properly caring for a place of burial' for those related to him. That obligation would rest on defendant regardless of the place of burial. We are now discussing the legal obligation to pay plaintiff, and are reminded that enforceable contracts are not made except by consent of the parties and no one becomes indebted to another by contract against his will.
It may be that the owners of this cemetery might by placing a specific stipulation to that effect in the certificate or conveyance of the lots have imposed on the grantee accepting the same a personal obligation
But the agreement to pay must he specific and the mere fact of a lien or obligation being ag'ainst the property conveyed is not sufficient. [Mason v. Barnard, 36 Mo. 384, 392; B. & L. Ass’n v. Grocer Co., 82 Mo. App. 245; Keifer v. Shackett, 85 Mo. App. 449; Ins. Co. v. Irwin, 67 Mo. App. 90, 94; Hall v. Morgan, 79 Mo. 47, 52.]
There is nothing in the recitals of the certificate or conveyance of this burial lot making a direct or specific promise or agreement of the vendee to pay for the future care of the lot;.in fact, there is nothing at all said about paying for such future care. It is the use of the lot “for the purposes of sepulcher” that is stipulated to be subject to the rules and regulations adopted by the lodge and subject to amendment thereby. This plainly refers to the right to regulate the manner of burial, etc., and is confined to matters connected with the burying of the dead therein and in no way imposes a personal obligation to pay for the future care of the lot or to reimburse the lodge for doing so. Nor can the reservation of the “control of said lot as part of the cemetery” be construed to impose a personal obligation on the grantee to pay for the future care of the same. Should- one person rent or sell another tract of land and reserve the control over it as to its use for residence purposes, such person could not himself improve the property with walks and lawns and dweding houses and recover from the grantee the cost thereof. It seems to us that by the most liberal construction no personal obliga
The defendant stood on his demurrer to the evidence, as he had a right to do in law, and no instructions were asked or given to the jury. The jury, being without chart or compass as to the law, rendered “rough justice,” but we must look to defendant’s legal liability and doing so the judgment will have to be reversed.
It is so ordered.
Dissenting Opinion
DISSENTING OPINION.
I am unable to concur in the majority opinion. Briefly, my reason: When defendant purchased the lot his certificate expressly provided that his bargain was “subject to the rules and regulations governing the I. O. O. F. Cemetery at Monett, Missouri, heretofore adopted by said lodge and subject to amendment by said lodge.” The certificate also contained the following provision: ‘.‘Said lodge reserves the control of said lot as a part of said cemetery in accordance with said rules and regulations.” Defendant’s acceptance of the certificate containing these provisions bound him to an observance of requirements thereunder. For some years he recognized their binding force by paying the price fixed by the cemetery association, but when they raised the price fifty cents a year, just what he had agreed'they could do, he refused to pay up. The course of the defendant in recognizing the liability fixed by the rules and regulations at one dollar and fifty cents per year shows what construction the parties placed on the contract, and when parties have themselves placed a construction on ambiguous provisions of a contract the courts