Mr. J. Cecil Cowan owned a beautiful country estate in Georgia. This estate had been in the Cowan family for several generations. Mr. Cowan, however, was desirous of selling it. He had only one son, Ralph, who opposed the sale, although, of course, he had no legal right to object to its consummation. Mr. Cowan went to Atlanta on September 5, and instructed a real estate agent to sell the estate as soon as he could find a purchaser. Mr. Cowan returned home that day, and during the night following, died of heart failure. On the following day, and before the real estate agent heard of Mr. Cowan's death, he made a conveyance to Mr. J. H. Killough. Mr. Killough paid the purchase money to the real estate agent, who tendered it to Ralph Cowan, who refused to accept it. Mr. Killough, thereupon, brought an action to recover possession of the estate. What should be the decision of the Court?

Ruling Court Case. Clayton Vs. G. B. And T. D. Merrett, Volume 52 Mississippi Reports, Page 353

Leroy M. Wiley was a resident of Georgia; he contracted to sell a tract of land to G. B. and T. D. Merrett, who resided in Mississippi. G. B. and T. D. Merrett gave their notes for the payment of the land. Just before the notes became due, Wiley sent them to an agent, Drane, in Mississippi, for collection. He also sent a deed to be delivered to the purchasers when they should pay the notes. Drane placed the notes in the hands of Tucker and Green, attorneys, for collection. The attorneys filed a bill and obtained a decree for the sale of the land, in which the Merretts had an equity of purchase. They purchased the land at the sale, and paid the money directly to Tucker and Green. Drane had died in the meantime, so Tucker and Green paid the money to his widow for Mr. Wiley. Mrs. Drane never accounted to anyone for the money. After all these transactions had taken place, it was then discovered that Wiley had died before the suit was brought against the Merretts, and nearly two years before Merrett had paid the money to Tucker and Green. Clayton, who was appointed administrator of Wiley, then brought this action against the Merretts to recover the purchase money.

Clayton contended that the death of Wiley revoked the authority of Drane and Tucker and Green to act for him; such being the case, the payment made by the Merretts to Tucker and Green was wrongful, and they must pay again.

Decision: An agent acts in a representative capacity for his principal; if he has no principal, obviously, he no longer can act as agent. So it is the general rule that the death of the principal puts an end to the authority of an agent to act for him. This is true, even though the agent and persons with whom he deals has no knowledge that the principal has died in the meantime. So, in this case, the death of Wiley revoked the authority of any and all agents to act for him. Consequently, the payment by the Merretts to his former agent is no payment, and the estate of Wiley, deceased, is entitled to recover the price of the estate.

Mr. Justice Chalmers, who delivered the opinion of the Court, said in part: "The overwhelming weight of authority is to the effect that the death of the principal operates as an instantaneous revocation of the agency where it is a naked power, unaccompanied with an interest, and that every act of the agent thereafter performed is null and void so far as the estate of the of the principal is concerned. * * * * This doctrine rests upon the obvious principle that as a dead man can do no act for himself, so no man can do an act for him. When, therefore, the agent undertakes to act in his name, he is acting for a being not in existence."

Judgment was given for Clayton, the administrator.

Ruling Law. Story Case Answer

The relation of agency presupposes the existence both of a principal and an agent. When the agent goes out to do an act in his representative capacity, he is acting in the name of his principal. The theory is that the principal is present in his agent. So it follows that if the principal has died in the meantime the act of the agent is in vain; it binds no one; it does not bind his former principal, because he himself could not have performed the act at the time it was performed. It does not bind the personal representative or the heir of the deceased, because the agent had no authority from either of them. In the Story Case, Mr. Killough could recover nothing, because the authority of the real estate agent to represent and act for Mr. Cowan was revoked before the contract was entered into. So the contract was binding upon no one.

It is also true that the death of an agent terminates the relation. Neither the heir nor the personal representative of the deceased agent has any right to insist on being permitted to take up the work of the deceased agent.