Wimp v. Early
| Decision Date | 19 January 1904 |
| Citation | 78 S.W. 343,104 Mo.App. 85 |
| Parties | WIMP, Appellant, v. EARLY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Knox Circuit Court.--Hon. E. R. McKee, Judge.
Judgment reversed and cause remanded.
C. D Stewart for appellant.
Defendant's answer was sufficient to warrant the issues submitted to the jury by the court's instructions. White v. Nye, 64 Mo.App. 543; Fulkerson v. Lynn, 64 Mo.App. 654.
O. D Jones for respondent.
(1) It was error to submit the case on the oral waiver of Jet Wimp. Objections to submitting this defense were urged all through the trial, overruled and exceptions. The reservation in the deed of trust certainly secures an "interest" in leased lands; if so an agent to release it must be "lawfully authorized by writing." R. S. 1899, sec 3415, p. 854. (2) The express reservation of the statutory lien on the entire crop in the deed of trust, duly acknowledged and recorded and of which defendant had actual notice was equivalent to a mortgage on it. Attaway v. Hoskinson, 37 Mo.App. 132-6; Wright v. Bircher, 72 Mo. 179-183; Keating v. Hannenkamp, 100 Mo. 161-7; Waite v. McCallister, 67 Mo.App. 314. (3) There was no evidence of an oral waiver of the lien. It was preserved as by a mortgage and defendant knew it. The rent was not then in August due; the Williford's had the right to sell the seed, unless they thereby endangered the payment of the rent. Haseltine v. Ausheman, 87 Mo. 410-13. (4) The lien was saved as by a mortgage; there is no element of estoppel in the case. When there is no element of estoppel, the waiver must have been made between the landlord and tenant. Between them there can be no waiver or release of the lien except by competent contract; that must be an express one and supported by a consideration, to be enforcible. Evans v. Shumaker, 57 Mo.App. 454-7; Barnes v. Glover, 68 Mo.App. 569-71. (5) The answer does not aver that plaintiff ever agreed, intended or consented to waive her lien on the seed sold, by an oral agreement. Mech. Assn. v. Texas Co., 73 Mo.App. 161-5. There is no estoppel in the case even pleaded. Mathews et al. v. Nation, 69 Mo.App. 327-31; Guffith v. Gillum, 31 Mo.App. 83; Dawson v. Coffey, 48 Mo.App. 109.
Plaintiff leased to J. D. and B. Williford (father and son) 800 acres of land in Scotland county during the year 1899, for which those tenants were to pay $ 403 rent. They gave two notes for the rent, and secured them by a deed of trust on 80 acres of land they owned in Adair county. That deed contained a recital that it should not affect plaintiff's statutory lien on the crops grown on the leased premises. Jet Wimp, plaintiff's son, made the lease contract with the Willifords and took the notes with the deed of trust that secured them, acting in those transactions as the business agent of the plaintiff, who resided in Illinois and was in that State at the time. The defendant Early, knowing that the rent was unpaid, purchased from the tenants some timothy seed they had raised on the premises, and this action was instituted to recover the value of said seed under the section of the statutes which gives a landlord a right of action against a party who purchases any part of a crop known by him to have been grown on demised premises. R. S. 1899, sec. 4123.
The principal defense was that Jet Wimp consented to the sale of the seed and waived plaintiff's lien. As to whether he did or not, there was contradictory evidence of a competent character; but much testimony was admitted, as bearing on the issue, which was irrelevant and prejudicial.
Before designating this incompetent testimony, we will notice other points made by the plaintiff against the judgment. One of them is that the answer tenders no issue as to a waiver of plaintiff's lien on the seed, by her consenting, through her agent, to the sale; but only avers a waiver of the lien on all the crops by the acceptance of the aforesaid deed of trust executed to secure the rent notes, and that the defense of waiver on that ground was overthrown by the recital of the deed that it should not work a waiver. This construction of the answer is unsound; for besides pleading the deed of trust and alleging that it waived the statutory lien, the answer also evers "that plaintiff gave to said J. D. Williford her consent for him to sell and dispose of and collect all of the money for all the crops raised by himself and son B. Williford, for the year 1899, on her said farm; and especially the timothy seed referred to in plaintiff's petition." It is true the answer states that plaintiff relied solely on the deed of trust and the personal obligation of the Willifords for the collection of her rent; but the above allegation was broad enough to let in proof that plaintiff, in some other way, consented to the sale of the timothy seed and waived her lien thereon. This allegation of the answer is traversed by the replication; which, besides pleading in confession and avoidance of the alleged waiver based on the acceptance of the deed of trust, contains a general denial of the other allegations of the answer.
Plaintiff argues that Jet Wimp could not waive the plaintiff's statutory lien on the crops without express authority in writing. This argument is founded on the conception that the proviso in the deed of trust given by the Willifords on their land in Adair county, that it should not discharge the plaintiff's statutory lien on the crops raised on her premises in Scotland county, operated to create a mortgage in her favor on the crops grown on the demised premises; that those crops were part of the realty and the supposed mortgage was, therefore, a mortgage on real property which could only be released or discharged by a writing and by an agent authorized in writing. The transaction is asserted by the defendant to have fallen, in some way, within the statute of frauds; but the suggestions on the point are vague and the reasoning is, we think, fallacious. The deed of trust, instead of attempting to create a mortgage-lien on the crops in favor of the plaintiff, sought to preserve unimpaired her statutory lien: that is, to avoid a possible inference that in taking other security she intended to relinquish the statutory security she already enjoyed; and the crop of timothy seed, whether sold before or after it was gathered (as to which the evidence shows nothing) was not part of the realty so that the lien on it could not be released except by a writing and by an agent having written authority; as contemplated by the statute of frauds for the sale of lands or interests therein. Swafford v. Spratt, 93 Mo.App. 631, 67 S.W. 701. A landlord may assent orally or by...
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