Sanders v. Ohlhausen

• Decision Date: 31 October 1872
• Citation: 51 Mo. 163
• Parties: JOHN H. SANDERS et al., Appellant, v. JOHN. V. OHLHAUSEN, interpleader, Respondent.
• Court: Missouri Supreme Court

51 Mo. 163

JOHN H. SANDERS et al., Appellant,

v.JOHN. V. OHLHAUSEN, interpleader, Respondent.

Supreme Court of Missouri.

October Term, 1872.

Appeal from Cape Girardeau Court of Common Pleas.

L. Brown, for Appellant.

I. The landlord can enforce such lien only by a strict compliance with the statutory method for such actions. (2 Wag., 881, §§ 26, 27; Schell vs. Leland, 45 Mo., 294).

II. The language in section 26, last cited--is “the person to whom the rent is owing MAY before a Justice of the Peace” obtain an attachment--this word may is to be read shall; (Steines vs. Franklin Co., 48 Mo., 178,) hence the remedy by attachment under the Statute is peremptory and exclusive of all others.L. Houck, for Respondent.

I. A fair and reasonable construction of section 52, Gen. Stat. 1865, 569, (1 Wag. Stat. 192), would authorize any person claiming a special or general property to interplead.

II. The attachment provided by the landlord and tenant act, (see Gen. Stat. 1865, 741, § 26; 2 Wag. Stat. 881,) does not require an attachment to be issued in a case where the crop is already in possession of the landlord, because the affidavit provided for in that section, must show that the landlord “will lose his rent.”

III. How could Ohlhausen make such an affidavit? Besides this section is not mandatory, it is a mere cumulative remedy

WAGNER, Judge, delivered the opinion of the Court.

The only question important to be considered in this case is whether the interplea of the respondent was maintainable. The respondent owned certain land which he rented for one year and the tenant sowed the land in grain. After this, and before harvest, the tenant left the premises, and the respondent advanced money to pay for the harvesting and took possession of the grain. The tenant never returned.

Appellant had a debt against the tenant and attached a part of the grain, then in the respondent's possession. Respondent appeared and filed his interplea and claimed that he was entitled to the grain by virtue of his landlord's lien. Judgment was rendered in his favor.

It is insisted that the statute, (1 Wag. Stat., 192, § 52) authorizing the assertion of a claim by interplea in attachment suits, only applies when a person claims the identical property in kind, and that the respondent's case does not come within that classification, and that his only remedy was to proceed under the 26th and 27th sections of the Landlord and Tenant act. (2 Wag. Stat., 881, 882.)

The 18th section of the act regarding landlords and tenants, gives the landlord a lien upon the crop grown on the premises in any one year,...