Wright v. Bircher's Ex'r

• Decision Date: 31 October 1880
• Parties: WRIGHT, Appellant, v. BIRCHER'S EXECUTOR.
• Court: Missouri Supreme Court

72 Mo. 179

WRIGHT, Appellant,

v.BIRCHER'S EXECUTOR.

Supreme Court of Missouri.

October Term, 1880.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

M. L. Gray and J. M. Holmes for appellant.

1. The conveyance or lien embodied in the quoted clause in the lease has no reference to the property in dispute, because it was not in existence at the time the lease was made, and the language of the clause is in prœsenti, not in futuro.

2. If the clause refers to the property in dispute, it conveys nothing and creates a lien on nothing, at law, because the property was not in existence at the making of the lease, and a conveyance or mortgage of non-existing property is void at law. McCaffrey v. Wooden, 62 Barb. 316; Butterfield v. Baker, 5 Pick. 522; Munsell v. Carew, 2 Cush. 50; Ross v. Wilson, 7 Bush (Ky.) 29; Moody v. Wright, 13 Met. 17; Head v. Goodwin, 37 Me. 181; Barnard v. Eaton, 2 Cush. 294; Codman v. Freeman, 3 Cush. 306; Otis v. Sill, 8 Barb. 102; Gardner v. McEwen, 19 N. Y. 123; Tapfield v. Hillman, 46 Eng. C. L. 243; Dunn v. Thornton, 50 Eng. C. L. 379; Gale v. Burnell, 53 Eng. C. L. 850.

3. It is equally void in equity as a conveyance, and is good only as a personal agreement, and is not a trust affecting the property. Moody v. Wright, 13 Met. 17; Ross v. Wilson, 7 Bush (Ky.) 29; Hale v. Webb, 28 Mo. 408; Mogg v. Baker, 3 Mees. & Welsb. 195; Gale v. Burnell, 7 Ad. & El. (N. S.) 850; Morrill v. Noyes, 56 Me. 458; s. c., 3 Am. Law Reg. (N. S.) 18; Pennock v. Coe, 23 How. 117; Otis v. Sill, 8 Barb. 102; 2 Hilliard on Mortgages, Ch. 43; Phelps v. Murray, 2 Cooper (Tenn. Ch. R.) 746; Belding v. Read, 3 Hurlst. & Colt. 961.

4. The equitable doctrine laid down in Holroyd v. Marshall, 10 House of Lords 191, will not help out the case of respondent, because the rule that an agreement to convey will be treated as a conveyance when the agreement is one of which a court of equity will decree specific performance, cannot apply to this case, because the agreement embodied in the clause in the lease would not be specifically enforced by a court of equity for the following reasons: ( a) It is incomplete. ( b) It is uncertain and vague. ( c) It is not sufficiently definite in the description of the subject matter. ( d) It is too uncertain in its terms, nowhere specifying what property is to be bound, or for what rent, whether the rent in arrears, or the rent for the term, it is to be bound. Shelton v. Church, 10 Mo. 774; Ivory v. Murphy, 36 Mo. 534; Fish v. Lightner, 44 Mo. 268; Taylor v. Williams, 45 Mo. 80; Underwood v. Underwood, 48 Mo. 527; Foster v. Kimmons, 54 Mo. 488; Mastin v. Halley, 61 Mo. 196; Paris v. Haley, 61 Mo. 453; Sitton v. Shipp, 65 Mo. 297.

5. The utmost into which the clause can be tortured is an agreement to secure the rent that may at any time be in arrears on some property; and at the time appellant's deeds of trust were executed there was no rent in arrear, and consequently they would take precedence of any lien for rent accruing after their execution. Dalton v. Laudahn, 27 Mich. 529; Burgess v. Kattleman, 41 Mo. 480.

Chas. B. Howry and W. L. Scott for respondent.

1. The clause in the lease, “all the furniture, fixtures and other improvements of the hotel, shall be bound for the rent and the fulfillment of the other covenants herein contained,” constituted the writing, as respects this clause, an equitable mortgage. Hilliard on Mortgages, p. 648 and notes; Lincoln v. Purcell, 2 Head 143; Blackburn v. Tweedie, 60 Mo. 505; Flagg v. Mann, 2 Sumner 533; Foster v. Reynolds, 38 Mo. 553; Bank of Utica v. French, 3 Barb. Ch. 293; Collins v. Carle, 13 Ill. 254; 1 Hill. on Mortg., 212, 213; Shirras v. Craig, 7 Cranch 34. The present is unlike the case of Burgess v. Kattleman, 41 Mo. 483.

2. By the true construction of this lease it was to go into operation on the 1st day of August, 1873, and not before. The property in controversy was placed in the hotel on the 9th day of July, 1873. Thus the property was in esse, and had been placed in the hotel, in accordance with the intention of the parties, before the instrument went into operation.

3. But if this property was not in esse at the date the instrument went into operation, nevertheless, inasmuch as it was, within the contemplation of the parties, to be thereafter acquired, and was definitely pointed out by the instrument, viz: “furniture, fixtures and other improvements of the hotel,” the hotel referred to being then in process of erection; it was a valid, equitable mortgage, operative against the mortgageors and all purchasers purchasing from or claiming under them, with notice. Mitchell v. Winslow, 2 Story 630; Fletcher v. Morey, 2 Story 555; Willink v. Morris Canal Co., 3 Green Ch. 377; In re Howe, 1 Paige 129; Voorhis v. Langsdorf, 31 Mo. 451; State to use of Decker v. D'Oench, 31 Mo. 453; State to use of Voullaire v. Tasker, 31 Mo. 445; Macomber v. Parker, 14 Pick. 497; Benjamin v. Elmira R. R. Co., 49 Barb. 441; Sillers v. Lester, 48 Miss. 613; Smithurst v. Edmunds, 1 McCarter (N. J.) 408; Keyes v. Mil. R. R. Co., 25 Wis. 691; Pierce v. Emory, 32 N. H. 484; Seymour v. C. & N. F. R. R. Co., 25 Barb. 286; Arnault v. Annis, 16 La. Ann. 225; Trust Co. v. Hendrickson, 25 Barb. 484; Phillips v. Winslow, 18 B. Mon. 431; Galveston R. R. Co. v. Cowdrey, 11 Wall. 459; Brett v. Carter, 3 Cent. Law Jour. 286; Butt v. Ellet, 19 Wall. 544; Langton v. Horton, 1 Hare 549; Holroyd v. Marshall, 9 Jur. (N. S.) 213; s. c., 10 H. of L. 191; Abbott v. Stratton, 3 Jo. & Lat. 603; Whitworth v. Gaugain, 3 Hare 416; Douglas v. Russell, 3 Jur. 524; 1 Myl. & K. 488; Brown v. Tanner, L. R. 3 Ch. 597; In re Ship Warre, 8 Price 269; Mulhall v. Quinn, 1 Gray 105; Twiss v. Cheever, 2 Allen 40; Lannan v. Smith, 7 Gray 150; 1 Powell on Mortgages, p. 190; 25 Barb. 284; Grounds & Rudiments of Law and Equity, 75; 1 Vesey 409. Good against persons affected with notice. Davis v. Clay, 2 Mo. 161; Major v. Bukley, 51 Mo. 227; Blackburn v. Tweedie, 60 Mo. 505. The agreed statement of facts shows that appellants had notice.

W. H. H. Russell also for respondent.

Plaintiff having accepted the mortgage with knowledge of the conditions of the lease and of Bircher's hen upon the furniture, fixtures, etc., she took the mortgage subject to his lien. It matters not whether there was any rent actually due on the 9th day of February, 1874, at the time of the execution of the mortgage; the clause in the lease secured the rent for the entire poriod of the lease. As a matter of equity it was not necessary that the furniture contemplated in the lease should have been in the possession, or was actually owned by Malin at the time the lease was signed; as soon as it was purchased and placed in the hotel it became subject to the lien for rent. Holroyd v. Marshall, 10 H. L. Cases, 190; Morrill v. Noyes, 3 Am. L. Reg. (N. S.) 30. Brett v. Carter, 3 Cent. L. J. 286.

HENRY, J.

This cause was submitted to the circuit court on the 6th day of March, 1877, upon an agreed statement of facts, in substance the following: Bircher was the owner of a six story building in St. Louis, on the southeast corner of Sixth and Chestnut streets, adjoining the Laclede hotel, and on the 7th day of February, 1873, while work was in progress upon it to convert it into a hotel building, leased it to John W. and Walter Malin, to be used by them, when completed, as a hotel. The date of the lease was February 7th 1873. It was signed in duplicate, each of the two parties receiving one. At that date there were no fixtures or furniture in the building, it being then unfinished, but they were afterward to be placed in the building by the Malins, and were so placed in the month of July, 1863. The term for which the premises were leased was ten years, to commence on the ____ day of ____ 187--, and the lessees agreed to pay an annual rent of $32,000, in monthly payments of $2,660.66, to be made on the last day of each month; and it was stipulated in the lease that all fixtures, furniture and other improvements should be bound for the rent and fulfillment of other covenants therein contained, on the part of the lessees, and any forfeiture for non-fulfillment of conditions therein, might be enforced at any day or time however distant, after such failure or default should happen. The building and premises to be kept free of nuisances, and not to be underlet, except the basement, without the lessor's consent, under a penalty of forfeiture. The concluding stipulation of the lease was as follows: “This lease shall commence on the first of the month after the completion of said building, and the within blanks shall be filled that day. It is further agreed that connection can be made with the Laclede hotel.”

The Malins were proprietors of the Laclede which was furnished for hotel purposes; and after the completion of the Bircher building they used the two buildings in connection, and they were called and known as the Laclede-Bircher hotel. The Bircher building was completed about the 1st day of August, 1873, by which time the furniture and fixtures in controversy in this suit were placed therein by the lessees, and the blanks in the lease, specifying the date of the commencement of the lease, were then filled, and the instrument duly recorded. On the 9th day of February, 1874, John and Walter Malin, the lessees, borrowed of Nannie M. Wright $25,000, and to secure their note given for the amount, executed a deed of trust conveying all of the personal property in the two buildings to M. L. Gray, as trustee, said Nannie M. Wright then having actual notice of the provision of the lease stipulating for a lien by Bircher on the property in the Bircher building. Afterward, on the 26th day of May, 1875, they borrowed of said Nannie M. Wright an additional sum of $10,000, and to secure their note for that amount executed another deed of trust conveying to said Gray the same property. Bircher entered and took possession of the property in the Bircher building,...