Miller & Lux v. Gray

HENSHAW, J.

The complaint in this action charged in two counts. In the first, plaintiff, as assignee of Henry Miller, the surviving partner of the firm of Miller & Lux, sued to recover from defendant the sum of $958, as money had and received by the defendant from Henry Miller. In the second count, plaintiff sued as the assignee of the Merced Security Savings Bank for the same amount of money, as money had and received by defendant for the use and benefit of the bank.

The facts are that the defendant, herein sued in his individual capacity, was and is the administrator of the estatp of William C. Turner, deceased. As part of the estate of the deceased there came into his possession a tract of 6,500 acres of grazing land, which at the time was under lease to Miller

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Lux. About one half of this land was under mortgage to the Security Savings Bank. The mortgage had been foreclosed, the bank had become the purchaser at the sale, and the certificate of sale had issued to it. This was in the spring of 1896. The Miller & Lux lease would expire upon September 6, 1896, and, desiring to renew the lease, Mr. Miller, as surviving partner of the firm, entered into negotiations with Mr. Gray, as administrator of the estate of Turner, for that purpose. Mr. Miller was informed and knew of the foreclosure and the sale affecting about one half of the tract, was told by the administrator, or by his attorney, that because of certain alleged irregularities in the foreclosure proceedings

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the administrator contended that the foreclosure decree and sale were inoperative to divest the estate’s title, but that, in any event, the administrator would not lease a portion of the tract, but would lease all or none of it. Mr. Miller agreed to these terms, under the assurance, as he testifies, made to him by Mr. Gray, that “the money received from rent was not to be used; it was to be kept to be paid over finally to the proper authority.” A lease was thus made by the administrator for an annual rental of two thousand dollars. Its term began on September 6, 1896. Upon September 7th, the following day, the bank became entitled to its deed under the foreclosure proceeding, and in fact received this deed on September 11, 1896. The first year’s rent was paid September 16, 1896. The claim for money had and received covers such proportion of the year’s rent as the mortgaged piece of land bears to the whole tract. The court found against the first cause of action, that upon the assigned claim of Miller, the lessee, but found in favor of the second cause of action; or, in other words, determined that under the facts the Merced bank was entitled to recover from Gray this portion of the rent.