Hickman v. Green

• Decision Date: 02 May 1893
• Citation: 123 Mo. 165,22 S.W. 455
• Parties: HICKMAN et al. v. GREEN et al.
• Court: Missouri Supreme Court

22 S.W. 455

123 Mo. 165

HICKMAN et al. v. GREEN et al.

Supreme Court of Missouri, Division No. 2.

May 2, 1893.

NOTICE TO AGENT — MARRIED WOMAN AS PRINCIPAL — ADMISSION OF EVIDENCE — WAIVER OF ERROR — WITNESS — PRIVILEGED COMMUNICATIONS.

1. Where the owner of property authorizes an agent to exchange it for other property, and "to sell and contract with the purchaser for said premises according to the price and terms of payment above written, or any price or terms which" may be agreed on, such agent is a general agent, and notice to him of an infirmity in the title of the property taken in exchange is notice to the principal.

2. A married woman who gives an agent general authority to sell or exchange property for her is chargeable with such agent's notice of a defect in the title to property received by her in exchange.

3. Where the county records show that the legal title to property is in a person other than the vendor, a proposed purchaser is put on inquiry as to the real nature and extent of the vendor's title.

4. Incompetent evidence, which is not objected to, and which is received unconditionally, and not under an unperformed promise to show its relevancy, cannot afterwards be stricken out.

5. Communications between an attorney and his client concerning proposed infractions of law are not privileged.

Gantt, P. J., dissenting.

Appeal from circuit court, Audrain county; E. M. Hughes, Judge.

Action by D. C. Hickman and others against Lucy J. Green and others. From a judgment for defendants, plaintiffs appeal. Reversed.

The facts appear in the following statement by SHERWOOD, J.:

This is an equitable proceeding to obtain a decree restoring a destroyed deed which gave to the bodily heirs of Frances D. Hickman a remainder in fee in a certain lot in Mexico after the expiration of their mother's life estate in said lot. The petition also asked for other and further relief. In 1886, Lakenan and wife, for a consideration of $2,000, conveyed to Frances D. Hickman, for her life, with remainder to the natural heirs of her body, the lot in litigation; being a lot 90 feet by 270 feet, to wit, the north part of lot 35, Sparks' addition, in the city of Mexico. This deed — a general warranty deed — was never put to record, but was retained by Mrs Hickman, the life tenant, who thereupon, with her family, took possession of the premises. About three years thereafter, to wit, in 1889, Lucy J. Green and her husband became desirous of exchanging a 40-acre tract in the county, owned by Mrs. Green, for the litigated lot, on which Mrs. Hickman and her family then lived. So they engaged the services of Moore & Nelson, real-estate agents in Mexico, to effect the exchange, and this was by the following contract: "Contract between Principal and Agent for the Sale of Real Estate. This writing, made on the 16th day of May, A. D. 1889, witnesseth that Lucy Green and J. R. Green, of the county of Audrain, in the state of Mo., have this day placed with Moore & Nelson the following described property, of which they are the owners in fee, situate in township 50, of range 9, county of Audrain, and state of Mo., to wit, all that certain farm or tract of land containing 40 acres, N. E. S. W. Sec. 12, Tp. 50, range 9, for which the said Lucy J. Green and J. R. Green hereby agree to take in exchange lot No. 35, Sparks' addition to Mexico, Mo., belonging to Francis D. Hickman; price, $2,000. Terms of payment as above. Amount of mortgage of property? ____ How soon after sale can give possession? November 1st, 1889. The said Moore & Nelson shall have the agency of sale for the above property for one month from the date hereof; and we hereby authorize them to sell and contract under seal with purchaser for said premises according to the price and terms of payment above written, or any price or terms which we may agree to accept other than the above; and if the said property be sold or exchanged during the period above stated, no matter by whom, or after above period on information obtained through their agency, we agree to pay them a commission of fifty dollars on gross amount of such sale or exchange.

                                            his
                Lucy J. Green. [Seal.] J. R. X Green
                                            mark
                

[Seal.] Signed in presence of J. T. Nelson." Two days later a similar contract was entered into between this firm and Mrs. Hickman. In order to effect this exchange, it became necessary to destroy the deed from Lakenan to Mrs. Hickman, and to substitute in lieu thereof a deed from Lakenan to Mrs. Hickman alone, which would convey merely a fee-simple title. So such new deed was executed by the complainant Lakenan to Mrs. Hickman alone; but this deed was but a quitclaim deed, though it recited the same consideration as the former one. On the other hand, the deed executed by Mrs. Hickman to Mrs. Green, which conveyed to her the lot in controversy, to her sole and separate use, was a general warranty deed. But, when Mrs. Green and her husband came to execute the deed for the 40-acre farm, they executed a general warranty deed to Mrs. Hickman, for life, with remainder to her bodily heirs, in similar form to her original deed from Lakenan. The parties then exchanged deeds, and moved, respectively, to the farm and lot thus mutually exchanged, after which the original deed to Mrs. Hickman by Lakenan was destroyed by Nelson, the agent of both parties, in the presence of Mrs. Hickman, Thomas Hickman, and Lakenan. Mrs. Hickman died before this proceeding was instituted. The answer of Mrs. Green was a general denial; admitted the exchange of the different pieces of property, as already stated, and that the deed of Mrs. Green to Mrs. Hickman and her heirs was as heretofore alleged; and denied what is not expressly admitted, etc. Reply filed. In addition to Mrs. Green and her husband, there are other defendants, either the children, or else grandchildren, of Mrs. Hickman, for whom a guardian ad litem was appointed. Lakenan was also made a defendant. The court below found for Mrs. Green, and that she was a purchaser without notice, and plaintiffs appeal. Other facts than heretofore recited will appear in the following opinion.

John M. Barker and Geo. S. Grover, for appellants. Geo. Robertson, for respondents.

SHERWOOD, J.

The dominant issue in this cause is the question of notice to Mrs. Green. After discussing this question, others, of less importance, but yet bearing on the main issue, will be passed upon.

1. No reason is perceived why in this case the general rule should not prevail, that notice to the agent is notice to the principal. Meier v. Blume, 80 Mo. 184; Hayward v. Insurance Co., 52 Mo. 181; Chouteau v. Allen, 70 Mo. 290; Story, Ag. § 140; Wade, Notice, §§ 31-33; Kerr, Fraud & M. 258. In this case the agency of Moore & Nelson was a general one. By the written authority and contracts entered into by and between them and Mrs. Green and Mrs. Hickman, respectively, they were empowered to make the exchange of properties, "to sell and contract under seal with the purchaser for said premises according to the price and terms of payment above written, or any price or terms which we may agree to accept, other than the above." If such language did not make Moore & Nelson general agents, it is hard to say what words would be sufficient. Notwithstanding Nelson's evasive manner of answering the question as to whether the original deed from Lakenan to Mrs. Hickman and her heirs was "in his hands" before its destruction, he was forced to admit that he knew of its existence before that time, and knew that it was not destroyed till after the other deeds were delivered; and he further states that "Mrs. Hickman requested it," i. e. the destruction of the deed. This single circumstance was amply sufficient to fix Mrs. Green with notice of the unrecorded deed, and to inform her of it as fully as her agent was informed. And it does not matter that it does not appear of what kind of estate Mrs. Green was seised in the 40-acre farm. Grant that she was seised simply in fee, and therefore, under our rulings, could not have an agent who could bind her by a contract in writing with a third person, (Wilcox v. Todd, 64 Mo. 390; Hall v. Callahan, 66 Mo. 316; Hord v. Taubman, 79 Mo. 101; Henry v. Sneed, 99 Mo. 407, 12 S. W. Rep. 663,) still it does not thence follow that notice to Nelson would not be notice to her. Under a recent ruling of this court, (Flesh v. Lindsay, 21 S. W. Rep. 907,) a married woman is not to be regarded as a very impersonal person, after all. Mrs. Green had eyes to see, and ears to hear; and doubtless Nelson communicated to her what he knew regarding the prior deed, and he will be presumed to have done so. In the case cited, Burgess, J., applied to...