Crockett v. Althouse

35 Mo. App. 404 | Mo. Ct. App. | 1889

Ellison, J.

Plaintiff sues on a promissory note assigned to her by B. P. Bassett, when overdue. The consideration for the note was a lease of certain lands to defendants for five years. The lease was made by Bassett. He signed it, “B. P. Bassett, agent of estate, R. Long deceased,” and similar words follow his name in the body of the lease.

Old man Long resided in Kentucky and died there, leaving a widow and plaintiff, his child. Plaintiff’s husband was the administrator of the Long estate in Kentucky. Bassett assumed to have authority, by power of attorney, to lease lands in this state which belonged to the Long estate; and defendants relying upon his representations as to his authority accepted the lease, giving their five promissory notes in consideration thereof, the one in suit being the first one due.

At the time of the execution of the lease plaintiff was a married woman and the widow was insane, having a guardian in Kentucky. Defendants entered into, and remained in, possession of the land for about one year, when they learned that their lease was invalid and had been fraudulently put upon them, and that a partition proceeding had been instituted by this plaintiff and the widow through her guardian, to partition lands of the estate, including’ those in the lease, but ignoring the existence of the lease. They immediately abandoned the premises, renounced the whole affair and demanded their notes. On being refused, they began suit against Bassett, who is hopelessly insolvent, to cancel the lease and notes for fraud and misrepresentation.

They were successful in this suit; the lease was can-celled as well as two of the five notes, being all that remained at that time in Bassett’s hands! After defendants abandoned the premises, thi’ew up the lease and demanded their notes, and after they had begun the suit for cancellation, plaintiff, who had become dis-covert by the death of her husband, and the guardian of the- widow, made an attempted written ratification of the lease.

Plaintiff has no greater right in this case than Bassett would have had was he the plaintiff. In the first place she is not a purchaser of the note. The whole theory of her case and the evidence shows she received it from Bassett as an agent, and that she was the original beneficiary. In the second, place, if she was a purchaser for value, she became so, after the maturity of the note, and it is, therefore, subject to the same defenses in her hands as it would have been in Bassett’s. The consideration of the note was the lease for five years. That consideration failed, and the lease was cancelled for fraud. Conceding, for the purpose of concession only, that plaintiff is not concluded by the judgment cancelling the lease, yet it is palpably invalid aside from the judgment. It was not authorized by the law, or by plaintiff and her mother, or either of them. The only authority pretended was a note from the administrator in Kentucky, reading:

“Lexyngtom, Ky., May 4, 1883.

“I hereby authorize B. E. Bassett to attend to the renting of the lands of the Long estate in Missouri, and he is my only agent.

“Thomas Gt. Crockett,

“Adm’r, estate R. Long.”

Lands in this state cannot be leased by a foreign administrator, they should be leased by an administrator in this state. R. S., sec. 129. Nor by a foreign guardian. R. S. 1879, secs. 5806, 5807, 5812, 5813, 5833, 5834. It was not authorized by plaintiff or her mother, the widow, for they could not do so under the statute cited, nor could they, aside from such statute, as one was a married woman and the other was insane.

And, as a matter of fact, neither of them attempted to make, or authorize the lease, when made.

But it is urged that the lease was afterwards properly ratified by the plaintiff after her husband’s death and by the guardian of the widow. Passing by the fact that the attempted ratification was after defendants had elected to rescind and had abandoned the premises, the lease could not be ratified ; it was void as a matter of law in the first place, and, therefore, not the subject of ratification. The attempted ratification was simply an attempt to make a new contract, and an impotent atempt at that, as it still comes from the non-resident guardian of one of the owners of the land.

There is no rule of law more familiar, oftener stated or more firmly fixed, than that a tenant cannot dispute his landlord’s title, and the rule applies whether the tenant was in possession before the lease or not. The rule is founded on estoppel which will prevent the tenant, after getting into possession through the landlord, or, being already in possession, taking a lease from him, from disputing the title which he has thus recognized. The rule has, however, its exceptions which are quite as well established as the rule itself. Prominent among the exceptions are these: That if the lessee did not receive possession from the lessor, being already in when he accepted a lease from him, he may, for fraud, misrepresentation or mistake, dispute the title without withdrawing from the possession. By some authorities it is held that in such case, he may dispute the title without affirmative proof of fraud. Franklin v. Merida, 35 Cal. 558; Tewksburry v. Magraf, 33 Cal. 237.

(2) That if the lessee, not being the occupant of the land, accepts a lease and enters into possession under the lessor (though he is estopped, while occupying the premises, from disputing the lessor’s title), it is nowhere disputed that he may still, in case of fraud, misrepresentation or mistake, surrender the possession and relieve himself of the estoppel. The following authorities substantiate this statement of the law: Thayer v. Society of U. B., 20 Pa. St. 60; Mays v. Dwight, 82 Pa. St. 462; Baskin v. Seechrist, 6 Pa. St. 154; Gallaher v. Bennett, 38 Texas, 291; Jackson v. Spear, 7 Wend. 400; Longfellow v. Longfellow, 61 Maine, 590; Moshier v. Reding, 12 Maine, 478; Heath v. Williams, 25 Maine, 209, 218; Tilghman v. Little, 13 Ill. 239; Lowe v. Emerson,, 48 Ill. 160, 164; Brown v. Keller, 32 Ill. 151, 155; Hodges v. Shields, 18 B. Monroe, 828; Russell v. Erwin, 38 Ala. 44, 50; Reed v. Shepley, 6 Vt. 602; Byrne v. Beeson, 1 Douglas, 179; Towne v. Butterfield, 97 Mass. 105; 1 Wash. Real Prop. 557, 562, 565.

But, aside from this, if plaintiff and Ann M. Long are to be regarded as the lessors, estoppel cannot be invoked in their behalf. The fundamental rule of estoppel is that it must be mutual; if one party is not bound, neither is. So, as when this lease was made plaintiff was a . married woman and Mrs. Long was insane, they were not bound by the estoppel, therefore defendants were not. Wood’s L. & T. 365; Tyler’s I. & C. 105; Clark v. Goddard, 39 Ala. 164; Lackman v. Wood, 25 Cal. 147; Brown v. McCune, 5 Sanf. 224; Campbell v. Laclede Gas Co., 84 Mo. 352; Burk v. Adams, 80 Mo. 504; McBeath v. Trabere, 69 Mo. 642; City of Marshall v. Anderson, 78 Mo. 85.

But it may be suggested that so long as the tenant is not evicted from the premises, that he should be held to the terms of the lease, which he has accepted. Whatever there may be in this as a general rule, and conceding for present purposes, that it would apply in case of fraud, it cannot be of universal application. The relation of landlord and tenant is one of contract and the estoppel is everywhere said to rest on contract and I can perceive of no reason why-a contract between landlord and tenant may not be rescinded for fraud and misrepresentation as well as any other contract. Wood’s L. and T. 174. The principal requisite in such rescission would be, as in other cases, that the party rescinding place the other party in statu quo, that is, deliver back the possession of the premises. If such was not the law, the most harmful and unjust results would follow. A lessee might by fraudulent means be induced to accept a lease and possession for ten years; he might presently discover the fraud and find that he was liable to the real owner as a trespasser, thus being under a double liability. Not only so, but liable to be evicted at any time the owner might elect; thus not only becoming liable in damages but his business plans disconcerted and his calculations and expectations rendered uncertain. That one, by the fraud or .misrepresentation of another, could be placed helplessly in a position where the very object of his lease would fail, where his business would become demoralized, and where he would be liable for rent to the lessor, and in trespass to the owner, is a proposition that at once shocks the common sense. It is apparent that a lessee, finding himself in such position, would have a right to extricate himself by surrendering to the lessor the possession-he has received from him.

The nature of the estoppel and the reason upon which it is founded is the same between landlord and tenant as between vendor and vendee, where the vendee, under a contract of purchase, receives possession from the vendor; and the following cases of the latter class fully sustain the position which we have taken in this case: Harvey v. Morris, 63 Mo. 475; Matheny v. Mason, 73 Mo. 677, 679; Pershing v. Canfield, 70 Mo. 140; Wheeler v. Standley, 50 Mo. 509.

The court admitted verbal evidence for the purpose of showing that the interest of Ann M. Long in the land was only that of dower. This in face of the fact that by the partition proceedings begun by her and this plaintiff, she is declared to be the owner in fee of the undivided one-half of the premises, by reason of having chosen a child’s part, and the judgment therein so declaring and setting apart her share. But in addition to this the testimony was given by the attorney in the partition suit who knew nothing about the matter whatever, except by information obtained by the letters from plaintiff’s lawyers in Kentucky, and these letters not addressed to the witness but to Bassett, and thence by Bassett communicated to the witness, whether by showing him the letters, or by communicating their contents, does not appear. Such testimony should not have been admitted.

The same witness was permitted to state, over defendant’s objection, that: “In one of our conversations, Mr. Althouse seemed to be uneasy for fear that the land would be assigned to Mrs. Crockett, and that she would sell to parties, who would disturb their possession. I told him that if that was what he feared I was attorney for both parties in the partition suit, and that I would have the land described in the lease assigned to Mrs. Long, who being insane could not sell, or would have it assigned to either that he wished. Mr. Althouse did not say which he wanted and I did what I thought would perfect his lease, and had the land described in the lease assigned to Mrs. Emma L. Crockett.”

This, besides being after the rescission had taken place, was wholly incompetent. It was the mere talk of an attorney in the cause as to what he would do in the future, when the court came to render judgment concerning the lands. It is but fair to presume, that defendants might entertain some fears that this promise might not, or could not, be carried out. The attorney might be discharged or might change his mind, or, if he did not, that the court might wield its legitimate prerogative by exercising its own judgment, especially in a matter which involved the property of an insane person. The court might have taken the view that it would be better to have the property sold and the proceeds divided, and thus third parties would have become .owners of the land, and certainly not bound by the so-called lease.

If it be suggested that, as the defendants occupied the premises for about one year before they discovered the fraud and gave up possession, they should be held to pay this note as representing one year’s rent, it may be said that from the fact that the lease was for five years, and that the rent to be paid was represented by five promissory notes, of equal amounts, it does not follow by any means that any one note represented a separate year’s rent. The lease was for five years at the rate of two hundred- and sixty dollars per year it. is true, but it needs no illustration to show that it does not follow, because a man is willing to pay five times two hundred and sixty dollars for five years he will be willing to pay two hundred and sixty dollars for one year. It may be he would not take the premises for one year at any price ; that if he could not get it for a term of years he would not take it at all, or it may be as some of the evidence tended to show was the fact in this case, the first year would be spent in preparing the premises for use the remaining four.

For the reasons foregoing,

the other judges concurring,

the judgment will be reversed.