Hyer v. Baker, 19470.

• Decision Date: 03 April 1939
• Docket Number: No. 19470.,19470.
• Citation: 128 S.W.2d 1067
• Court: Missouri Court of Appeals
• Parties: HYER et al. v. BAKER et al.

128 S.W.2d 1067

HYER et al. v. BAKER et al.

No. 19470.

Kansas City Court of Appeals. Missouri.

April 3, 1939.

Rehearing Denied May 29, 1939.

Error to Circuit Court, Johnson County; Leslie A. Bruce, Judge.

"Not to be published in State Reports."

Suit by Nellie S. Hyer and others against Anna Baker, Thomas Boyd, doing business as Thomas Boyd Coal Company, L. V. McGraw, doing business as the L. V. McGraw Produce Company, and others, to determine title of realty and adjust equities on such determination. The defendants, Thomas Boyd, doing business as Thos. Boyd Coal Company, and L. V. McGraw, doing business as L. V. McGraw Produce Company, filed an interpleader. To review an order granting the interpleader, the plaintiffs bring error.

Cause certified to the Supreme Court.

Musser & Musser, Gayles R. Pine, and M. D. Aber, all of Warrensburg, for plaintiffs in error.

A. R. Thompson, Jr., of Warrensburg, for defendants in error.

SHAIN, Presiding Judge.

This cause is in this court on writ of error. The plaintiffs in error were plaintiffs in the trial court and the defendants in error were defendants in the trial court. With this explanation, we will hereinafter designate parties as plaintiffs and defendants.

The petition of plaintiffs contains two counts. The first count is a plain statement of a cause in equity to try and determine title and adjust equities. The plaintiffs make claim as sole and exclusive owners of lots 134 and 135, in an addition in Warrensburg, Missouri. The defendants, except as to Boyd and McGraw, are alleged as asserting title to the real estate. Boyd and McGraw are alleged as tenants under defendants, and the other defendants are alleged as in possession of said real estate through tenants Boyd and McGraw.

Plaintiffs aver that none of the defendants have right or title, and ask that Boyd and McGraw attorn and pay rentals.

Plaintiffs' prayer to count No. 1 is as follows: "Wherefore, plaintiffs ask that the Court hear and finally determine any and all rights, claims, interest, liens and demands whatsoever of the parties or any one of them concerning or affecting said real estate and that full and complete relief whether legal or equitable be awarded the several parties and to each of them as fully and with the same force and effect as the court might or could do in any other and different action brought by the parties or any one of them to enforce any such right, claim, interest, lien or demand and that therein the court establish and declare the full and complete fee simple title of and to said described real estate to be in the plaintiffs and that plaintiffs recover their costs herein."

Count No. 2 of plaintiffs' petition will be best understood by embracing same herein, as follows:

"For another and further cause of action, plaintiffs say that on or about December 12th, 1937, the plaintiffs were the owners of and entitled to the possession of the following described real estate lying, being and situate in Johnson county, Missouri, that is to say: Lots numbered 134 and 135 in Benjamin W. Grover's Depot Addition to Warrens-burg, Missouri. And being so entitled to the possession thereof, defendants afterward, to-wit, on the 13th day of December, 1937, entered into such premises and unlawfully withhold from plaintiffs the possession thereof to their damage in the sum of five hundred dollars.

"Plaintiffs further state that the monthly value of the rents and profits of the premises is one hundred dollars.

"Wherefore, plaintiffs demand judgment for the recovery of said premises and five hundred dollars damages for unlawfully withholding the same from plaintiffs and one hundred dollars for monthly rents and profits from the rendition of judgment until the possession of the premises is delivered to plaintiffs and that they recover their costs herein."

It appears that there are separate improvements on the lots in question, and that Boyd occupied one and McGraw the other.

The record shows separate answers filed by Boyd and McGraw. The answers are practically identical except as to stated lot, rental, and name of occupant. In the answers of Boyd and McGraw, disclaimer is made of knowledge and nature of the title, disclaimer of any title in said defendants is made, and allegation of having leased from Tom Baker, deceased, husband of defendant Anna Baker is made.

The defendants Boyd and McGraw respond to the second count in plaintiffs' petition by answer and interpleader wherein is alleged that they are tenants in possession of respective lots and re-aver as to from whom they leased. One of these defendants alleges rental price at $20 per month and the other at $25 per month. Each allege that no notice or demand for rent or possession had been made by plaintiffs prior to November, 1937, when demand was made by plaintiffs, and also allege that defendants, other than tenants, also demanded rentals.

The prayer to the Boyd answer is as follows: "Wherefore, this answering defendant prays that he be allowed to pay into court the sum and amount of $80.00 being back rental payments for November and December, 1937 and January and February, 1938, and that pending determination of this action he be allowed and ordered to pay into court subsequent rental payments in the amount of $20.00 on the first day of the month on which same shall become due, all for the use and benefit of such persons as the court may find entitled thereto and subject to such orders thereon as the court may herein make; that the court enter its order of interplea requiring the parties except the defendant L. V. McGraw, hereto to interplead with each other to determine which is entitled to receive payment of said rental and that upon payment of said fund of $80.00 into court this defendant be relieved and discharged from...