Tillman v. Bungenstock

ELLISON, P. J. Plaintiff’s action is money claimed to belong to him as the proceeds of sale of rent corn. He recovered judgment in the trial court. One Robinson, a non-resident, owned some farm land in Atchison county and, through his agent Cock-burn, rented it to one Morrow for one-third of the crop. Coelcbum himself did not live in Atchison county, his residence being in St. Joseph, Missouri, and he engaged the defendant to keep an oversight of the leased premises and to sell the rent crop when it matured. In the month of August, during the tenancy of Morrow and while the crop (corn’) was yet not matured, Robinson sold the premises to Leidigh and he, in the same month, sold them to plaintiff. These deeds were recorded and Morrow and this defendant otherwise knew of the sale. MorrOw gathered the rent corn and, under defendant’s direction, delivered it to a grain buyer who gave to defendant a check for the price, $114.54, and the latter endorsed and sent the check to Cockburn at St. Joseph. Plaintiff claimed to be entitled to the rent and both the tenant Morrow and the defendant, knew it; so that the fact is that defendant paid the money (endorsed the check) over to Cockburn know [68] ing it was claimed by plaintiff wbo had become owner of tbe land. We have omitted some unnecessary detail of statement, believing' tbe foreg'oing will be sufficient for tbe application of tbe law which governs tbe case. When plaintiff bought tbe land and received a deed thereto, without reservation, be became tbe owner of that part of tbe growing crop due to bis vendor as rent. A deed without reserve conveys tbe vendor’s interest in tbe land and this will include bis interest in the crop. [Stevenson v. Hancock, 72 Mo. 612; Reed v. Swan, 133 Mo. 100; Hayden v. Burkemper, 101 Mo. 644; Salmon v. Fewell, 17 Mo. App. 118; Vogt v. Cunningham, 50 Mo. App. 136; Fischer v. Johnson, 51 Mo. App. 157; Watson v. Menteer, 59 Mo. App. 387.] By act of the Legislature (Laws 1893, p. 210, now Sec. 2841, R. S. 1909), the statute was so amended as to protect tbe interest of tbe tenant in tbe crop sown after tbe mortgage. [Walton v. Fudge, 63 Mo. App. 52.] But this did not affect tbe interest of tbe landlord owner of tbe land, and undoubtedly this plaintiff in purchasing the land acquired tbe interest of Robinson tbe vendor landlord in tbe crop. But this leaves tbe question whether an agent wbo collects for, and pays, money to a principal and before paying it over to him is notified by one having a paramount title, is liable to tbe latter. In this State the •relation between a principal and bis agent is held to estop tbe latter from denying an accounting to the principal in an action between them. [Witman v. Felton, 28 Mo. 601.] But where a third party hás paramount title to the money in tbe bands of tbe agent and notifies tbe latter of bis claim, if the’agent nevertheless pays tbe principal, be is liable to tbe true owner. [Moss Merc. Co. v. Bank, 47 Ore. 361, 82 Pac. 8.] This rule is said to be sustained by tbe great weight of authority. [Case Note 2 L. R. A. (N. S.) 657; Sims v. Brown, 6 N. Y. (Sup. Ct.) 5. Affirmed 64 N. Y. 660.] [69] In the last case it is said: “The general rule, doubtless, is that an agent cannot dispute the title of his principal to property intrusted to him by the latter, but that principle does not apply to a case where a claim is made by a third person to the property. In such case the agent must interplead the principal and claimant if he can, or he must demand indemnity, and deliver to the party who indemnifies him. He is not compelled to yield to the claim of the principal without-an effort to protect himself against the claims of third persons. And if he has delivered the property to his principal without notice of the claims of others thereto, he is protected against such claims to the extent of the delivery.” It is said in 27 Cyc. 869, B, that, “An action for money had and received may be sustained against an agent who has. received money to which the principal has no right, if the agent has had notice not to pay it over.” See, also, 1 Mechem, on Agency, see. 1457 and 2 Clark & Skyles on Agency, sec. 600. The statement is made in many of the authorities on the subject, that an agent finding himself in the predicament of a claimant contending with hi's principal, may, in some instances, ask an interpleader, or, if not, that he be indemnified. We are not unmindful of the fact that in defendant paying the money to Cockbum, he was acting in the capacity of a subagent paying to the principal agent. But that cannot prevent application of the law we have just stated. His liability arose, not for paying the money to a person to whom it did not belong; but, properly speaking, the wrong he committed and the liability he incurred, was in refusing to pay to plaintiff, the true owner. The jugdment is affirmed. All concur.