Dubach v. Dysart

• Decision Date: 07 December 1914
• Citation: 171 S.W. 597,184 Mo.App. 702
• Parties: CHRISTIAN DUBACH, Appellant, v. C. R. DYSART, Respondent
• Court: Kansas Court of Appeals

171 S.W. 597

184 Mo.App. 702

CHRISTIAN DUBACH, Appellant, v. C. R. DYSART, Respondent

Court of Appeals of Missouri, Kansas City

December 7, 1914

Appeal from Andrew Circuit Court.--Hon. A. D. Burnes, Judge.

Judgment affirmed.

Lawrence Bothwell and Hine & Cross for appellant.

(1) Every instrument in writing, whereby any real estate "may be affected" when proved or acknowledged, can be recorded. Sec. 2809, R. S. 1909. (2) A written lease affects real estate in the sense of this statute. Faxon v. Ridge, 87 Mo.App. 299. (3) A lease which provides that the personal property of the lessee shall be bound and subject to payment of the rents reserved, and which is duly acknowledged and recorded is equivalent to, and is, in effect, a chattel mortgage, and its record gives notice of the lien on the property therein conveyed. Faxon v Ridge, 87 Mo.App. 299; citing, 1 Cobby, Chattel Mortgages, sec. 113; Jones, Chattel Mortgages, sec. 13; Ottawa v. Hoskinson, 37 Mo.App. 132; Wright v Bircher, 5 Mo.App. 322; Feller v. McKillip, 100 Mo.App. 660. (4) A chattel mortgage when filed imparts notice of its contents to all the world. Sec. 2861, R. S. 1909. (5) The law requires nothing more of the lessor in order to properly impart notice than to file the instrument with the recorder, and for mistakes made by the recorder in entering the same, the party filing is not responsible. Seymore v Dabbs, 170 Mo.App. 151. (6) Whether the rent be due or not, if the tenant who is liable therefor, sells crops, the purchaser buys at his peril. Sec. 7896, R. S. 1909. (7) Any person to whom rent is due, whether he is assignee or not, can recover the value of the corn. Secs. 7898 and 7899, R. S. 1909.

Stephen Fee and Boher & Williams for respondent.

(1) Landlord must show affirmatively that the tenant who grew the crop was indebted to him for the rent for that year, and that said rent was due and payable within eight months preceding the suit. Beck v. Wisely, 52 Mo.App. 242. (2) Appellant should have proven the date suit was filed, or asked the court to instruct the jury as to the date. Chapman v. Currie, 51 Mo.App. 40. (3) It must be shown that the purchaser of produce had knowledge that the vendor lived on rented property before recovery can be had by the landlord. Castleman v. Harris, 86 Mo.App. 270; Toney v. Goodley, 57 Mo.App. 235. (4) The record of a lease cannot be made constructive notice of the existence or contents of the lease, unless made so by positive statutory enactment. Kelley v. Vandiver, 75 Mo.App. 435; Jordan v. Pence, 123 Mo.App. 321. (5) The leasehold estate was not converted into real estate by section 2933 (now section 345, R. S. 1909), or any other statute. The leasehold in spite of these statutes is personal property. Orchard v. Stove Co., 255 Mo. 414. (6) A leasehold for less than three years is personal property. Sec. 2193, R. S. 1909; Gunn v. Sinclair, 52 Mo. 327. (7) A chattel mortgage on property not in esse will not convey the legal title to the property when it comes into existence, but an equitable lien only attaches, which lien may be enforced by equitable proceedings against the mortgagor or those claiming title to the property under him with actual notice of the mortgage. Swinney v. Gouty, 83 Mo.App. 552. (8) The lease in this case was not a mortgage, because the property was not in existence at the time of the execution of the lease. Wright v. Bircher, 72 Mo. 179; State ex rel. v. Adams, 76 Mo. 605; Burges v. Kattleman, 41 Mo. 480. (9) The lease was not intended as mortgage, and it is not a mortgage for it merely repeats the language of the statute. Sec. 7888, R. S. 1909. (10) As this lease is not a formal mortgage giving the landlord the right to enter and take possession of the goods and sell them, he would have to resort to the courts in some form of action to enforce his mortgage. Filler v. McKillip, 100 Mo.App. 664.

OPINION

TRIMBLE, J.

--This is a suit brought by a landlord to recover the value of certain corn raised on demised premises and sold by the tenant to the defendant. Section 7888, Revised Statutes 1909, gives the landlord a lien upon the crops grown on the demised premises in any year for the rent that shall accrue for such year, which lien shall continue for eight months after the rent becomes due; and the last clause of section 7896, Revised Statutes 1909, provides that "if any person shall buy any crop grown on demised premises upon which any rent is unpaid, and such purchaser has knowledge of the fact that such crop was grown on demised premises, he shall be liable in an action for the value thereof, to any party entitled thereto, etc."

The corn was grown during the season of 1912 and was sold to defendant by the tenant, Lance, somewhere between December 15, 1912, and January 1, 1913. There was no evidence tending to show that defendant knew the corn was grown on leased premises or that Lance, vendor of the corn, was a tenant. In fact, at the beginning of the season, March 1, 1912, he was the owner of the land on which the crop was planted and told defendant he had bought the place. Shortly thereafter, however, Lance sold the land to one Reed and took a written lease from him from May 2, 1912, to March 1, 1913, in which the rent was due and payable on said last named date. The lease was signed by the lessor and lessee but was not acknowledged. On July 18, 1912, Reed conveyed the land to plaintiff and endorsed on the lease an assignment thereof to plaintiff and duly acknowledged the assignment before a notary public. The assignment was of "my interest in the within lease as lessor," and plaintiff at once had the lease and assignment recorded. Defendant knew nothing of Lance having sold his land or of having taken the lease thereon or of plaintiff having acquired the land and the lease. At the time the corn was hauled to him in town he supposed Lance still was the owner of the land.

There being no evidence to show that defendant had knowledge of the fact that the corn was grown on demised premises, plaintiff relied upon the recorded lease to give defendant constructive notice of that fact, and asked an instruction telling the jury that the record of the lease was notice of its contents and of the fact that the corn raised on the land described in said lease was subject to the landlord's lien for rent. The court refused to give this instruction. The jury found for defendant and plaintiff appealed claiming that the failure to give said instruction was error.

It would seem that the "knowledge" spoken of in the statute means actual knowledge or such actual notice as would put defendant upon inquiry, and does not mean constructive notice such as would be given by a public record. The lease ran from May 1, 1912, to March 1, 1913, less than a year. It was, therefore, personalty and not real estate. As between the landlord and the tenant, the growing crop was personalty and certainly when the corn was gathered and hauled away from the premises by the tenant, it was personal property. Now, there is no statute saying that the record of a lease shall impart constructive notice that crops grown on lands described therein are subject to the landlord's lien for rent. The record of a deed would not be constructive notice of its contents were it not made so by statute. [Kelley v. Vandiver...