Stewart v. Wood

• Decision Date: 31 October 1876
• Parties: DAVID S. STEWART, Plaintiff in Error, v. ROBERT WOOD, et al., Defendants in Error.
• Court: Missouri Supreme Court

63 Mo. 252

DAVID S. STEWART, Plaintiff in Error,

v.ROBERT WOOD, et al., Defendants in Error.

Supreme Court of Missouri.

October Term, 1876.

Error to Vernon County Circuit Court.Boggess & Sloan, with Cravens, for Plaintiff in Error.

I. The vendor held the legal title to the land in trust for the plaintiff. And Virgil C. Wood, having taken with knowledge of plaintiff's right, held subject to the same trusts. (Gibson vs. Lair, 37 Mo. 188; Mechanics Bank vs. Seton, 1 Pet. 299; 2 Mad. Ch. 126; Cordova vs. Hood, 17 Wal. 1; Majors vs. Buckley, 51 Mo. 227; 1 Mad. Ch. 364.)

II. Plaintiff having purchased and paid for the land, and Robert Wood having put it out of his power to convey title thereto, to plaintiff, the latter was entitled to a lien for the purchase money, not only against his immediate vendor, but also against all persons taking title thereto with knowledge of his rights. (2 Washb. Real Pr., [3rd Ed.] 93; Shirley vs. Shirley, 7 Blackf. 452; Blackman vs. Pennington, 8 B. Mon. 217; Rucker &c., vs. Abell, Ib. 566; 3 Pars. Cont. 278; 1 Sugd. Vend. 386; McCampbell vs. McCampbell, 5 Lit. 92; Gibson vs. Lair, 37 Mo. 188; Cordova vs. Hood, 17 Wal. 1; Rhodes vs. Outcalt, 48 Mo. 367; Majors vs. Buckley, 51 Mo. 227; Blaisdell vs. Stevens, 16 Vt. 179; Stafford vs. Ballou, 17 Vt. 329; Booth vs. Barnum, 9 Cow. 286.)

III. Virgil C. Wood having knowledge that said plaintiff had an interest in the land, is therefore chargeable with knowledge of all the facts he might have learned on inquiry. (Cordova vs. Hood, 17 Wal. 1; Rhodes vs. Outcalt, 48 Mo. 367; Majors vs. Buckley, 51 Mo. 227; Blaisdell v. Stevens, 16 Vt. 179; Stafford vs. Ballou, 17 Vt. 329; Booth vs. Barnum, 9 Conn. 286.)

IV. The letter of plaintiff to Robert Wood conferred no authority to receive the purchase money, and the law does not imply or raise such authority out of the naked power to sell. (Sugd. Vend. [7th Am. from 11th Lond. Ed.] marg. p. 47; 2 Pars. Cont. [3rd Ed.] p. 128; Hil. Vend. § 46; Johnson vs. McGruder, 15 Mo. 365.)

Waldo P. Johnson, for Defendants in Error.

Stewart, by his letter, authorized Robert Wood to sell the land for ten dollars per acre. And Virgil C. Wood bought the land in good faith and paid for the same full, fair and valuable consideration.

The title to the land being invested in Robert Wood, the authority given by Stewart to sell carried with it the power to receive the money and to make the deed. If any loss followed Stewart must bear it, as it occurred through his negligence. (See DeBaun vs. Atchison, 14 Mo. 543; Herm. Estop. p. 418, §§ 418, 419.)

An authority to sell and convey lands for cash confers on the attorney or agent the right to recover the purchase money. (Johnson vs. McGruder, 15 Mo. 365.)

Where a party who has a title bond to land, makes himself instrumental in causing another to purchase it from a third person, he will be estopped from setting up any claim to the land as against the purchaser. (Herm. Estop. p. 421, § 423.)

HOUGH, Judge, delivered the opinion of the court.

In November, 1859, the defendant, Robert Wood, sold to the plaintiff, Stewart, two hundred and five acres and a fraction of land, lying in the county of Bates, Missouri, for the sum of two thousand and fifty dollars. Of this amount, Stewart paid at the date of sale one thousand dollars in cash, and executed his notes for the remainder, payable in one and two years, and received from Wood a bond for title. In March, 1861, these notes were transferred by Wood to Chas. G. and P. B. Snyder, to whom they were paid by Stewart, in the spring of 1866. On the 20th of October, 1865, Stewart, being then absent from Bates county, wrote to Robert Wood, requesting him to sell his farm for him, at ten dollars per acre, or as much more as he could get. On the 20th day of April, 1866, Robert Wood sold the farm to his son, Virgil C. Wood, for $2,250 cash, received the entire purchase money, and being still possessed of the legal title, never having conveyed the same to Stewart in pursuance of his title bond, executed and delivered to his son a deed therefor. Virgil C. Wood had full notice of the contract of sale between Stewart and his father, and knew of the transfer of the notes to Snyder, and before he bought saw the letter directing his father to sell the land. Robert Wood never paid to Stewart the purchase money received by him from his son, and we do not find from the testimony that there was any ratification by Stewart of the act of Wood, in receiving the purchase money and executing a deed.

Plaintiff brought this suit to recover from Robert Wood the purchase money paid to him for the land, and to have the same declared a lien, and enforced as such against the land in the hands of Virgil C. Wood.

The circuit court gave the plaintiff judgment for the money, but refused to declare the same to be a lien on the land, and plaintiff has brought the case here by writ of error.

It is obvious that the right of the plaintiff to the relief sought by him must depend entirely upon the effect to be given to the authority conferred by him upon Robert Wood to sell his farm. Where money is paid by the vendee of land prematurely before conveyance, it is a charge on the estate in the hands of the vendor. (Adams Eq., 6. Am. ed., 284; 2 Washb. Real Prop., 3 ed., 93, and authorities cited; 2 Sug. Vend., 7 Am. ed., 325; 3 Pars. Cont., 6 ed., 277; Shirley vs. Shirley, 7 Blackf. 452; Wickman vs. Robinson, 14 Wis. 493; Rose vs. Watson, 10 House of Lords Cases, 672.)

And where a third party acquires the title to such land from the vendor, with notice of the rights of the vendee, the latter may obtain a judgment for the purchase money paid, and enforce his lien for the same against such purchaser. If, therefore, under the simple authority given to Robert Wood to sell, he had a right to receive the purchase money and convey the land, then the plaintiff has no standing in court. If, on the contrary, the authority to sell did not include the power to receive the purchase money and make the conveyance, we think the plaintiff is entitled to the relief sought.

The language employed by the plaintiff was: “Sell my farm for me at ten dollars per acre, or as much more as you can get.”

We understand the general rule to be, that an agent employed to sell real estate has no authority, as such, to receive payment of the purchase money. (1 Sug. Vend., 7 ed., 56; Hill. Vend. 38, § 46; 2 Pars. Cont., 6 ed., 615; Mynn vs. Joliffe, 1 Moody & Rob. 326; Johnson vs. McGruder, 15 Mo. 365.) An agent who was authorized to contract for sale, sell and convey lands, had, it has been held, an implied power to receive the purchase money. (Peck vs. Harriott, 6 Serg. & Rawle, 149.) And it was so held, for the reason that an agent who has power to sell and convey cannot make a voluntary conveyance; and as the receipt of the purchase money was an intermediate and necessary act between the contract of sale and the conveyance,...