Richards v. Gaskill ( 1888 )

The opinion of the court was delivered by

Horton, C. J.:

A motion has been filed to dismiss the petition in error, because there is attached to it a copy of the case-made, not the original. It is the original, rather than a copy, which must be filed in this court. (Transportation Co. v. Palmer, 19 Kas. 471; Thompson v. Williams, 30 id. 114.) This defect, however, has been remedied, as the original case-made has lately been filed in this court, and with the consent of the court, attached to the petition in error.

The question in this case for our determination is,, whether real-estate agents or brokers have a lien for their fees and advancements upon deeds which come into their possession by reason of their agency and employment. It appears from the answer, to which a demurrer was sustained, that Richards & Curl were agents, or brokers of Gaskill, to exchange or bring about an exchange of his property for the property of W. H„ Cofield. They acted for some purposes as the agent for both parties; they set on foot negotiations which resulted in a satisfactory exchange, and thereby earned a commission. -x they paid out $25 at the instance and request of Gaskill in changing the-terms of an incumbrance so that Gaskill could accept the same;, at the request of Gaskill they prepared a conveyance from him to Cofield, and one from Cofield to Gaskill; the latter conveyance was delivered to them at the instance and direction, of Gaskill, and is the deed for which this action was brought-.. The deed was clearly committed to their care in the course of their agency and employment. For their work thereon, and. for their commission and advances, they had a lien on the deed until they were paid and reimbursed.

In Story on Agency, § 373, it is said:

“ Having disposed of these general considerations in regard to liens, all of which do or may apply to liens created by agency,, let us now proceed to the more immediate object of these commentaries, and inquire what liens belong to agents in general,, and what belong to particular classes of agents. The former may be disposed of in a very few words; for, in case of agency,, there generally exists a particular right of lien in the agent for all his commissions, expenditures, advances in and about the property or thing intrusted to his agency, whenever they were proper or necessary or incident thereto. This is strictly true in all cases of mere private agency, unless there is some-private agreement, express or implied, or some usage of trade- or business, which repels or excludes the lien. Thus, for example, attorneys, bankers, brokers, factors, carriers, packers, dyers, shipwrights, wharfingers, commission merchants, auctioneers, supercargoes, and masters of ships, have all a lien on the papers, documents, goods, merchandise, and other property committed to their care in the course of their agency, for-the sums due to them for their commissions, disbursements, advances, and services in and about the same.”

“Every one, whether an attorney or not, has, by the common law, a lien on the specific deed or paper delivered to him,, to do any work or business thereon, but not on other muniments belonging to the same party unless the person claiming-the lien be an attorney or solicitor, and the lien extends to-the representative of a deceased solicitor.” (Weeks Att. at Law, § 373.)

The statute provides that—

“ The common law, as modified by constitutional and statutory law, judicial decisions, and the condition and wants of the people, shall remain in force in aid of the general statutes of this state; but the rule of the common law, that statutes in derogation thereof shall be strictly construed, shall not be applicable to any general statute of this state; but all such statutes shall be liberally construed to promote their object.” (Comp. Laws of 1885, ch. 119, §3.)

Of course, the mere fact that a real-estate agent or broker has a lien upon the papers, deeds or documents confided to him, either for his commissions, advances, or work thereon, does not limit the right of the agent or broker to the papers, deeds, or documents, as the principal is still liable to him, personally, in a suit in personam for amount of the claims. The defendants have no lien or claim upon the deed for anything that Cofield owes them. The allegations in the answer, however, are, that Cofield delivered the deed to the defendant at the instance and direction of the plaintiff, and therefore such deed belongs to the plaintiff, subject to the lien of defendants.

The accidental possession of a deed will not sustain a lien; so, also, if a deed is acquired under an express contract, or circumstances showing an implied contract inconsistent with a lien, the real-estate agent or broker cannot claim any lien upon a deed so received.

We perceive no error in the ruling of the court in sustaining the demurrer to the second count of the answer.

' The judgment of the district court will be reversed, and the cause remanded for further proceedings.

All the Justices concurring.