Long v. Thayer/Opinion of the Court

This case turns largely upon the legal effect to be given to the death of Western, which took place a few days after the contract for the sale of the land was made, and before the first note became due. Had Western not died, there can be no question that the payments to Kinney would have been good, and that Thayer would have been entitled to a deed.

Western's death undoubtedly operated as a revocation of Kinney's authority to act for him or his estate. The payments made to Kinney as his agent would not be sufficient to discharge Thayer's obligation to his estate, even if such payments were made by him in actual ignorance of Western's death. Insurance Co. v. Leavenworth, 30 Vt. 11; Davis v. Bank, 46 Vt. 728; Jenkins v. Atkins, 1 Humph. 294; Clayton v. Merrett, 52 Miss. 353; Lewis v. Kerr, 17 Iowa, 73. Indeed, it was said by this court in Galt v. Galloway, 4 Pet. 332, 344, that 'no principle is better settled than that the powers of an agent cease on the death of his principal. If an act of agency be done subsequent to the decease of the principal, though his death be unknown to the agent, the act is void.'

Whether Western's death also operated as a revocation of the verbal authority given by Skiles may admit of some doubt, although the weight of authority is that the death of one partner or joint owner operates, in the case of a partnership, to dissolve the partnership, and, in the case of a joint tenancy, to sever the joint interest, and the authority of an agent appointed by a firm or joint owners thereupon ceases, where such authority is not coupled with an interest. McNaughton v. Moore, 1 Hayw. (N. C.) 189; Rowe v. Rand, 111 Ind. 206, 12 N. E. 377.

But even if it did operate as a technical revocation of Kinney's authority to act for Skiles, the presumption is, from Skiles' long silence, in the absence of proof to the contrary, that Kinney accounted to him for his proportion of the money collected. The court below evidently proceeded upon this theory, and required Thayer, as a condition for calling upon Long for a deed, to repay one-half of the amount of the two notes, with the stipulated interest at 10 per cent. These were certainly as favorable terms as Long could expect. Thayer had paid the money to Kinney, with whom the contract was made,-the first payment in actual ignorance of Western's death, and the second, doubtless, under the supposition, which a person unlearned in the law might reasonably entertain, that payment to the person with whom the contract was made was sufficient, and that Kinney would account to the proper representatives of Western, and procure him a deed. All the equities of the case were in Thayer's favor, and justice demanded that Long should be required to convey, upon being paid Western's share of the consideration, with interest.

There is another view of the case, which does not seem to have been presented to the court below, and which indicates that Long received even more than he was really entitled to. The second note of $150, which is produced, appears upon its face to have been payable to 'J. F. Kinney or bearer,' and while the first note is not produced, Kinney swears that this is also payable in the same manner. The probabilities are that it was, both from the fact that the second note was payable to bearer, and from the further fact that Kinney claimed that Western was largely indebted to him. If such were the case, (and Kinney's authority to take these notes is not disputed,) it is difficult to see why the payments to Kinney, who himself held the notes, were not valid payments, which entitled Thayer to a deed to the land. So long as these notes were outstanding, he could not safely pay to any one else, and, if he paid the holder, he did just what the contract required him to do.

Long, clearly, was not an innocent purchaser of the land in question. Not only had Thayer been in the open, notorious, and unequivocal possession of the land and its improvement, renting the premises and paying the taxes, but Long's marriage into the Western family, his taking a deed from the heirs through Mr. Meriwether, the husband of one of the heirs, who acted as attorney both for Long and for the heirs, and the giving of a promissory note unsecured by mortgage upon the land,-a note which the heirs apparently never saw,-indicate very clearly that he could not have been ignorant of the true situation.

The decree of the court below was clearly right, and must be affirmed.