104 Mo. App. 85 | Mo. Ct. App. | 1904
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 fesided 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.
Before designating this incompetent testimony, we will notice other points made by the plaintiff against the judgment. One qi 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
The point is made against the validity of the alleged waiver of plaintiff’s lien on the seed, that it was unsupported by -a consideration. .Here the plaintiff’s counsel puts his finger on one of the inconsistencies of the law. Consent for the tenants to sell the seed and renunciation of plaintiff’s lien, constituted an agreement; an agreement, however, that did not rise to the dignity of a contract, as there was no consideration for
On an examination of the defendant’s exceptions to the rulings on objections to the evidence, we find
The vital issue was whether plaintiff, through her agent, consented to the sale of the timothy seed to the defendant, and waived plaintiff’s lien thereon, as the testimony for the defendant tends to prove; or whether Jet Wimp agreed to the sale on the understanding that Early would see that plaintiff was made safe as to her rent, as he swore. A mass of evidence was received over the objection of the plaintiff, going to prove a waiver of the lien on other crops raised by the tenants; as that they fed the corn crop to cattle with the knowl
There was considerable testimony admitted over the defendant’s objection, as to the value of the land on which the Willifords executed the deed of trust to secure the rent. The tendency of this evidence was to create the impression that- plaintiff, when she bid in that land under the deed of trust, got a bargain and really profited by the purchase over and above the amount due to her for rent. But whatever the value of said land may have been (and its value above a prior mortgage on it seems to have been trifling) the Willifords were only entitled to a credit on their notes for the amount the land brought at the sale under the deed of trust. Plaintiff was entitled to collect the balance due on her rent notes after allowing that credit; and, inasmuch as she did not waive her statutory lien by the deed of trust, to collect it by enforcing said lien on the crops, except in so far as she had waived it by the words or conduct of her agent. The evidence relating to the value of the land covered by the deed of trust was irrelevant and probably of harmful influerce,
The judgment is reversed and the cause remanded.