Hyer v. Boyd

• Decision Date: 20 November 1939
• Parties: NELLIE S. HYER ET AL., PLAINTIFFS IN ERROR, v. THOMAS BOYD ET AL., DEFENDANTS IN ERROR
• Court: Kansas Court of Appeals

133 S.W.2d 1036

234 Mo.App. 492

NELLIE S. HYER ET AL., PLAINTIFFS IN ERROR, v. THOMAS BOYD ET AL., DEFENDANTS IN ERROR

Court of Appeals of Missouri, Kansas City

November 20, 1939

Error to Johnson Circuit Court.--Hon. Leslie A. Bruce, Judge.

Judgment reversed and cause remanded.

Musser & Musser, Gayles R. Pine and M. D. Aber for plaintiffs.

(1) Upon their own pleadings, defendants McGraw and Boyd are not entitled to have prayer of the petitions granted because, (a) They have and had an adequate remedy at law, by merely waiting the outcome of hearing upon the issues tendered. Kersey v. O'Day, 173 Mo. 560, l. c. 568; State ex rel. v. Green, 92 S.W.2d 936; Arn v Arn, 81 Mo.App. 133; Hathaway v. Foy, 40 Mo 540. (b) Their pleading holds no threat of impending suit against them for rents by either of the claimants of the title. 33 C. J., p. 446, sec. 28; Sup. Council v Palmer, 107 Mo.App. 164; Bank v. Seifert, 223 Mo.App. 431, 18 S.W.2d 572, 574; Borchers v. Barckers, 158 Mo.App. 267; Funk v. Avery, 84 Mo.App. 490; Trust Co. v. Bank, 161 Mo.App. 431; Rys. Co. v. O'Connor, 153 Mo.App. 129, 136. (c) The pleadings of Boyd and McGraw as to count 2 disclose that they are not in fact disinterested as between the parties. That count is in ejectment. Boyd and McGraw claim their rights by rental from Baker, recognizing the rights of that group and are therefore adverse to plaintiffs. Pomeroy's Eq. Jur. (4 Ed.), sec. 1322; State ex rel. v. Green, 92 S.W.2d 935. (d) To entitle a litigant to right to require others to interplead for any fund or thing, such litigant must neither have nor claim any interest in the subject matter. Here the subject matter is whether or not plaintiffs have right to possession of the real estate. Boyd and McGraw are claiming such right by virtue of rental from Baker and do not tender it, nor could they. State ex rel. v. Green, 92 S.W.2d 935, supra. (e) Another omitted essential is that the Boyd-McGraw pleadings failed utterly to show any privity or common source as to right of possession or to receipt of rents as between plaintiffs and those under whom they held and claimed. Pomeroy's Eq. Juris (4 Ed.), sec. 1324. (f) Another fatal defect in their pleadings is that they do show an independent liability to one group, and affirmatively show no liability to the other. If they rented from Baker, a title claimant, they could not be liable for rents to the Stone heirs. Pomeroy's Eq. Jur. (4 Ed.), sec. 1326; State ex rel. v. Green, 92 S.W.2d 935; Smith v. Grant, 124 Mo.App. 181, 202; Snodgrass v. Butler, 54 Miss. 45; Hartsook v. Chrissman, 114 Mo.App. 561; Kersey v. O'Day, 173 Mo. 560. (2) And it is not necessary that demurrer be filed to permit this point to be raised here. Humphreys v. Milling Co., 98 Mo. 552-3. (3) Where one is indebted to one of two persons, but does not know which of them the law requires him to pay, he may secure the advice of a lawyer to aid him in determining which of the two he should pay. But he has no right to ask a court of equity to act as his attorney, and that too, at the cost of his creditors. In such a case the debtor in making the payment must "protect himself as best he can," for a court of equity will not, in such a case, perform the functions of a legal adviser. Hartsook v. Chrissman, 114 Mo.App. 561; Sullivan v. K. of F. M., 73 Mo.App. 45; Kersey v. O'Day, 173 Mo. 560; Funk v. Avery, 84 Mo.App. 494. (4) Appeal lies from the judgment rendered on the pleadings filed by Boyd and McGraw. LaFayette Bank v. Seifert, 223 Mo.App. 431, 18 S.W.2d 572, 573; Roselle v. Bank, 119 Mo. 84, 92; Hyer v. Baker, 130 S.W.2d 51. (5) The judgment discharging McGraw and Boyd operates to destroy the cause of action set up by plaintiffs' petition and puts us out of court. In ejectment occupants must be made parties defendant. Sec. 1368, R. S. 1929; L. I. Co. v. Wright, 265 Mo. 210, 216; McKay v. Ins. Co., 35 S.W.2d 667. (6) Neither Boyd nor McGraw assert that they are tenants of plaintiffs. Such relationship can be created only by contract. Unless the Baker heirs win either title or right of possession, Boyd and McGraw are trespassers and intruders in the property. 16 R. C. L., sec. 2, p. 530; Edmonson v. Kite, 43 Mo. 176, l. c. 179. (7) And a tenant cannot deny title of his landlord; neither repudiate it nor take any adverse action to it during his occupancy thereunder. Higgins v. Turner, 61 Mo. 249; Grant v. White, 42 Mo. 285; 16 R. C. L., p. 650. (8) A tenant may not require his landlord and another to interplead. Snodgrass v. Butler, 54 Miss. 45.

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

(1) No exception was taken to the order of the court which as to rentals due on the premises, discharged the interpleading defendants below. Plaintiffs below cannot complain as to same. Salisbury v. Wright, 35 Mo. 481; Blanchard v. Dorman, 236 Mo. 416, 455. The Abstract shows a motion of the defendants below to set aside the judgment of the court. This is not before the court, there being no bill of exceptions filed, and the matter being here on the record alone. Haight v. Stuart, 31 S.W.2d 241, 242. The record alone being presented, even if the trial court mistakenly or erroneously entered an order which it had jurisdiction under the pleadings to enter, such question would not be before this court for consideration. Further, the pleadings are most favorably considered in favor of the pleader--defendants in error here--on such an appeal as is presented. Vivian v. Robertson, 176 Mo. 219. (2) The state of the pleadings and of this proceeding--clearly entitled the court to enter its judgment affirming the answering interpleas and ordering the rival claimants to further plead, setting up their respective claims to the funds in question. Geitz et al. v. Blank et al. (Mo. App.), 108 S.W.2d 1066, 1069; McGinn v. Interstate National Bank, 178 Mo.App. 347, 350, 351; Prudential Ins. Co. v. Sheehan (Mo. App.), 100 S.W.2d 57, 39; Concordia Fire Ins. Co. v. Alexander (Mo. App.), 50 S.W.2d 687, 688, 689; Sovereign Camp W. O. W. v. Wood (Mo. App.), 100, 655, 658; Glaser v. Priest, 29 Mo.App. 1; 33 C. J., 435, 444; Granite Bituminous Paving Co. v. Strange, 37 S.W.2d 469, 472. (3) Where a bill of interpleader which shows clearly on its face that one of two or more defendants is entitled to the fund and the others are not, no cause of action is stated. United Rys. Co. of St. Louis v. O'Connor, 153 Mo.App. 128, 132 S.W. 262.

OPINION

SHAIN, P. J.

The action in this case is brought in two counts. Count one of plaintiffs' petition is to determine title to real estate. This court not having jurisdiction in such issue, we do not here further comment as to said count.

Count two of plaintiffs' petition is in words and figures 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 Warrensburg, 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 withheld 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."

Count two being a suit to recover real property presents a cause of action that is reviewable by this court. The matters involved in this review concern only the issues presented in count two.

The record before us discloses that two of the defendants in the suit to recover possession of real property, the same being the defendants in error, filed what is designated as "Answer and Interpleader." However, said pleading can only be construed as an interplea and no other or further pleading by these parties is shown.

In the interpleas, each admit that they are in possession of the real estate in issue. In both, interpleaders make allegation that they are in possession as renters. One states that the rental price is $ 20 per month and the other states that the rental price is $ 25 per month. Both allege payment of rental due up to November, 1937. Both interpleas allege renting and having possession under contract with a party other than plaintiffs in suit, and allege payment of rent up until rental due for November, 1937. Interpleaders allege no notice of ownership by plaintiffs in error until demand for rent by plaintiffs in error, November, 1937. Both interpleas, with the exception as to the designated amount of rental, contain the following language, to-wit:

"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 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...