Opinion
Rehearing Denied Dec. 5, 1942.
Hearing Granted Dec. 31, 1942.
Appeal from Superior Court, Los Angeles County; Harold B. Landreth, Judge.
Mae A. Wilson was convicted of feloniously employing an instrument upon the person of another with intent to procure a miscarriage, and she appeals.
Reversed and remanded for a new trial. COUNSEL
Pease & Dolley, of Los Angeles, for appellants.
Schauer, Ryon & McMahon and Robert W. McIntyre, all of Santa Barbara, for respondents.
OPINION
BISHOP, Justice pro tem.
In this interpleader action plaintiffs’ efforts to transfer to the court the problem of determining which of two claimants should receive the landowners’ royalties that the plaintiffs admittedly owe to one of them, have so far proved ineffective, for the joint demurrer of the group of defendants with the surname "Hopkins" was sustained without leave to amend and a judgment entered in their favor. From this judgment plaintiffs have appealed and with good cause, we have concluded.
The complaint was framed in one count. The defendants are placed according to the joint claims they make into two groups: first, the three who bear the name "Hopkins; " then those who are partners. Two of the three Hopkins defendants, W. L. and Gertrude Ann, his wife, had executed back in 1936, an oil and gas lease to the plaintiffs and under and by virtue of its terms landowners’ royalties in the sum of $1,447.74 have accrued for the months of January and February, 1941, and additional amounts will become due monthly thereafter, it was alleged. To the royalties accrued and to accrue, "the defendants W. L. Hopkins, Gertrude Ann Hopkins, H. James Hopkins and W. L. Hopkins, Trustees of Wilbur T. Hopkins Trust, and H. James Hopkins and W. L. Hopkins, Trustees of the H. James Hopkins Trust" make claim, according to the complaint, and have demanded that plaintiffs pay all the royalties to them. The defendants who are partners also claim these royalties. The complaint apprises us of this latter fact first by alleging that the partners had brought an action against the three Hopkins defendants in which the partners allege that the Hopkins trio are holding the property, which two of the Hopkins group had leased to our plaintiffs, in trust for the partners, and in which the partners pray for an accounting for the rents, issues and profits and that their title be quieted. It does not appear that the plaintiffs in this action are parties to the action brought by the partners. However, on two occasions, according to the complaint now before us, the partners, through their counsel of record in that case, did "advise plaintiffs that they claim to be the owners of the real property hereinabove described and that they claim the ownership of all landowners royalties which have accrued and which will hereafter accrue under the terms of said oil and gas lease, and that they will hold plaintiffs strictly accountable to them for said landowners royalties, should said royalties be paid to their co-defendants." The complaint then goes on to allege that the plaintiffs are ignorant of the respective rights of these rival claimants and that they cannot safely determine for themselves which claim is right and lawful.
The defendant partners answered this complaint, but the Hopkins defendants demurred generally and specially, the latter being on the ground of uncertainty in that it cannot be ascertained what the nature of the partners’ claim is "and/or whether or not said defendants have any reasonable, tangible or valid claim in and to said sum * * *." The demurrer was sustained without leave to amend. We are of the opinion that the complaint was vulnerable to the special demurrer, but that it was error to sustain it without leave to amend.
An interpleader action may present two separate issues, framed in two series of pleadings. The first has to do with the propriety of the action itself, in which the question to be decided is whether or not the plaintiff is in a position to require the defendants to interplead. If the right of the plaintiff to bring the action is not questioned or is determined to exist, after a trial on the facts if an issue is made (Conner v. Bank of Bakersfield, 1917, 174 Cal. 400, 403, 163 P. 353, 355; Id. 1920, 183 Cal. 199, 202, 190 P. 801, 802), then the second contest is ready to develop, that between the defendants. San Francisco Savings Union v. Long, 1898, 123 Cal. 107, 109, 55 P. 708, 709; Interlocking Stone Co. v. Scribner, 1912, 19 Cal.App. 344, 348, 126 P. 178, 179. In this case we are concerned only with the first problem.
In order to state a cause of action entitling him to the relief afforded by an action of interpleader a plaintiff need not allege facts showing that a claim made upon him is a valid one. Fidelity Sav., etc., Ass’n v. Rodgers, 1919, 180 Cal. 683, 684, 182 P. 426, 427; Williams v. Gilmore, 1942, 51 Cal.App.2d 684, 687, 125 P.2d 539, 541. Something more is required of the plaintiff, however, than to allege merely that a claim is made upon him. Unless it is made to appear that the claim has sufficient substance so that the plaintiff "cannot safely determine for himself which claim is right and lawful," to quote from the Fidelity Savings, etc., Ass’n case [180 Cal. 683, 182 P. 427], just cited, he has not shown himself to require the protection of an interpleader action. The rule is stated in 33 Corpus Juris at page 431, "A mere assertion of claim by another, without alleging anything whatever on which to base it, is not enough to sustain an interpleader." See, also, 4 Pomeroy’s Equity Jurisprudence, 4th Ed., sction 1461, p. 3457; Maclennan on Interpleader, pages 126 and 133. There is no fact alleged in the complaint under examination to indicate that the partners made anything other than a naked claim, or, if they did, that its invalidity was not obvious, one that the plaintiffs could safely have determined for themselves. This defect was pointed out in the special demurrer which called attention to the complaint’s failure to disclose that the partners had a reasonable or tangible claim.
It may be that these defects in the complaint make it subject to the general demurrer. This is a point of pleading which we need not debate for whatever answer is given the result remains the same; if the complaint states a potential cause of action it was error in sustaining either the special or general demurrer to do so without leave to amend. Apposite to this situation is this statement of the Supreme Court in Wilkerson v. Seib, 1942, 20 Cal.2d 556, 127 P.2d 904, 909: "Although the court is entitled to have a clarification of the pleading in the particulars specified, yet where the complaint is not fatally defective in its statement of a cause of action, it is improper to sustain a special demurrer without leave to amend. In such case the plaintiff should be given the opportunity to meet the objections advanced in order that the litigation may be decided upon its merits." See, also, Olivera v. Grace, 1942, 19 Cal.2d 570, 579, 122 P.2d 564, 140 A.L.R. 1328. We add this quotation from Black v. Browne, 1940, 39 Cal.App.2d 606, 607, 608, 103 P.2d 1012, 1013: "It is well settled that when the complaint states a cause of action the ‘face of the record would show an abuse of discretion’ in sustaining a demurrer without leave to amend. Schaake v. Eagle, etc., Can Co., 135 Cal. 472, 480, 63 P. 1025, 67 P. 759. It is equally well settled that it is error to sustain a general demurrer without leave to amend unless it appears that the complaint is incapable of amendment in a radical particular. 21 Cal.Jur., p. 121, and cases there cited."
The complaint does not appear to be incapable of amendment, even on the theory on which the respondents (the Hopkins defendants) argue that the general demurrer was properly sustained, that is, on the theory that a tenant under a lease is not permitted to interplead his landlord and a stranger to the lease. No California case is cited in support of this theory but there is abundant authority for it elsewhere. See annotation in 97 A.L.R. 996. To it, however, are several exceptions, one being thus stated in Wilmer v. Philadelphia & R. Coal & Iron Co., 1915, 124 Md. 599, 610, 93 A. 157, 161, as quoted in Maulsby v. Scarborough, 1940, 179 Md. 67, 72, 16 A.2d 897, 899: " ‘The well-recognized exception to the rule that a tenant cannot maintain a suit for interpleader against his landlord is where there is privity between his landlord and the opposing claimant; that is, where the title of the other claimant is derived from that of the lessor, or where both defendants claim under the lessor by different titles. In such cases the tenant does not dispute his landlord’s title.’ " The respondents acknowledge that this exception exists by distinguishing Schluter v. Harvey, 1884, 65 Cal. 158, 3 P. 659, on the ground that there the court "merely holds that where the original landlord has transferred title so as to set up conflicting interests in others, interpleader is the proper remedy." The case of Spangler v. Spangler, 1909, 11 Cal.App. 321, 104 P. 995, cited by appellants, was not commented on by the respondents, but it is either in conflict with the rule or an example of the exception to it. The parties interpleaded there were the plaintiff’s landlord and one to whom he had, it was claimed, deeded a portion of the leased premises.
Not only is there nothing in the complaint to negative the possibility that our case falls within the exception to the common law rule that a tenant cannot interplead his landlord and a stranger to the lease, but there are indications that it falls within the exception. There is no explanation of the ground upon which three members of the Hopkins family now claim royalties under a lease made by two of them, but the fact that two of them are described as trustees of two trusts, although there is no allegation that they are claiming "as" such trustees, suggests the possibility that the original lessors have somehow conveyed a part, at least, of their interest as lessors to these trusts. The fact, too, that in their own action the partners alleged that the Hopkins defendants held their title in trust for them (the partners) suggests the possibility that if the plaintiffs had been given an opportunity to amend their complaint they could have shown that the title of the partners and that of the Hopkinses had a common source, was indeed a common title, the only difference being that the legal title was in the latter, the equitable in the former. In this connection see Niles v. Gonzales, 1905, 1 Cal.App. 324, 82 P. 212. In the premises, even if we should conclude that in this state the rule is that which generally prevailed at common law, it was still error not to give the plaintiffs an opportunity to amend. As this case was commenced after the addition of section 472c to the Code of Civil Procedure, its provisions are applicable: "When any court makes an order sustaining a demurrer without leave to amend the question as to whether or not such court abused its discretion in making such an order is open on appeal even though no request to amend such pleading was made * * *."
What we have said thus far would not be a guide to the trial court should it appear, from the amended complaint, or upon a trial of issues raised by an answer filed in opposition to plaintiffs’ attempt to interplead, that the rival claims were not between plaintiffs’ lessors and those whose claim stems in some way from the lessors’ title, but between the lessors and strangers to their title. Granted that the rule prevailing elsewhere would in such a case require the denial of the remedy of interpleader to the plaintiffs, we are of the opinion that in this state the remedy would be available.
We find not inappropriate this quotation from Williams v. Gilmore, 1942, 51 Cal.App.2d 684, 688, 125 P.2d 539, 541: "In view of such technical rules as prevail in other jurisdictions (30 Am.Jur. 218) the weight of authority is not persuasive, for ‘the conditions under which the remedy may be invoked in this state are prescribed by statute and [the] scope of the remedy has been broadened and enlarged.’ Mutual Life Ins. Co. v. Henes, 8 Cal.App.2d 306, 47 P.2d 513, 515; Fidelity Sav., etc., Ass’n, v. Rodgers, supra; 14 Cal.Jur. 702." An examination of the cases collected in the annotation earlier referred to (97 A.L.R. 998) discloses that those cases which support the conclusion that a tenant may not interplead his landlord and a stranger are based in the main on one or both of these grounds: (1) that the claim of the landlord and that of the stranger are not identical; (2) the rival claims do not have a common origin, they lack privity. As an element emphasizing the fatality of the lack of privity some of the cases point out that a result of its lack is to place the plaintiff tenant in the position of denying his landlord’s title, a thing that may not be done. A few cases place their denial of the right of the tenant to interplead directly upon the inability of the tenant to deny his landlord’s title. Insofar as the rule is based on either of the first two reasons, it is no longer controlling in this state, if it ever was, for these two common law restrictions upon interpleader, (identity, common source, of claim) have not been a hobble upon that equitable remedy with us since the addition of the last two sentences to section 386 (Code Civ.Proc.) in 1881. Those sentences read, in part: "And whenever conflicting claims are or may be made upon a person for or relating to personal property, or the performance of an obligation, or any portion thereof, such person may bring an action against the conflicting claimants to compel them to interplead and litigate their several claims among themselves. * * * The action of interpleader may be maintained, and the * * * plaintiff be discharged from liability to all or any of the conflicting claimants, although their titles or claims have not a common origin, or are not identical, but are adverse to and independent of one another." That an identity of claims is not necessary in an interpleader of rent where the defendants were the plaintiffs’ landlord and a stranger, is determined in Warnock v. Harlow, 1892, 96 Cal. 298, 303, 31 P. 166, 31 Am.St.Rep. 209. (This case is not of assistance to us, generally, because the right of the plaintiff to interplead was not questioned.) In this connection it is to be noted that it is not rent, strictly speaking, but landowners’ royalties which the plaintiff desires to pay into court and which the partner defendants are willing to have deposited there.
The two reasons most often relied upon for the rule followed in England and our sister states are thus rendered inoperative in this state by the liberal provisions of our statute, section 386, Code Civ.Proc. If the third reason sometimes relied upon and often referred to is a good reason for the rule, then we should follow the rule, for it is true that "The following presumptions * * * are deemed conclusive: * * * 4. A tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation." Code Civ.Proc. sec. 1962. Unless we are bound by authority to construe this rule of evidence as a limitation upon section 386, Code Civ.Proc., when a tenant finds himself in jeopardy from the rival claims of his landlord and a stranger, we should not so interpret it. We are not disposed to echo the words of the Lord Chancellor, found in Dungey v. Angove, (1794) 30 Eng. Reprints 644, 645: "* * * how monstrous a thing would it be, if it was in the power of the tenant to make the landlord, at law the Defendant in the ejectment, disclose his title by an interpleading bill!" The position necessarily taken by the plaintiff in an interpleader suit is that two conflicting claims are made upon him and that he cannot choose between them except at his peril; he neither denies nor asserts the validity of either claim. Admittedly, in an action brought by the landlord for the rent, or other obligation under the lease, the tenant could not defend on the ground that the landlord had no title at the time of his entry under the lease. But this fact but emphasizes the predicament in which the tenant finds himself when a third party presses against him what appears to be a superior claim. He has no remedy unless it be interpleader. A plaintiff seeking interpleader, it is true, cannot succeed if it appears that he knows that one claim is valid and the other therefore unenforcible. In such a case as this the plaintiff, by setting up the lease, does not reveal that the landlord’s title is valid, and so the stranger’s is inferior; he reveals a situation in which the stranger’s claim may be found good, but at the same time the plaintiff cannot show that his landlord’s title is not good. It would seem that the equitable relief of interpleader should be available to him; he plainly is embraced by the provisions of section 386, Code of Civil Procedure.
There is in this state no decision questioning the correctness of this conclusion; those that touch on the subject support it. The early case of McDevitt v. Sullivan, 1857, 8 Cal. 592, was an action brought for rent against the tenant by someone standing in the lessor’s shoes. The tenant had already suffered a judgment to be rendered against him for the same rent. The Supreme Court expressed its regret at the tenant’s misfortune, held that he could not, in an action for rent, question his landlord’s title, but on its way to its decision, said (page 597 of 8 Cal.): "The moment Sullivan discovered that there were adverse claims to the rents, he should have filed his bill of interpleader, making all adverse claimants parties, and offering to pay the rents into Court, to abide the ultimate decision as to the party entitled to them. When a party rents property of another, and he learns afterwards that the title of his landlord is disputed, he may at once proceed in the proper mode to settle the question. If he fail to do this, he cannot dispute the title, except in the cases stated, where the title of his landlord has ceased, or when the lease was obtained by fraud." Here we have a recognition of the principle that one may not (with certain exceptions) deny his landlord’s title in an action brought by the landlord or a successor in interest, but at the same time a statement that a tenant may interplead his landlord with a rival claimant for the rent. In Spangler v. Spangler, supra, 1909, 11 Cal.App. 321, 104 P. 995, the defendant there before the court had brought an interpleader action against his landlord and another who claimed a part of the rent the defendant admittedly owed. The appellate court cited McDevitt v. Sullivan, supra, in support of this statement (page 325 of 11 Cal.App., page 996 of 104 P.): "Conflicting claims having been made on the defendant for the rent, he had a right to require the claimants to interplead." As it was a fact that the landlord’s rival claimant based her claim on a deed received from the landlord, the claims had a common source, and the court’s statement could have been placed on the ground that the case was an exception to the rule. We regard the citation of the McDevitt case as an indication that the court did not believe that there was a rule from which an exception need be made.
Consequently, it is ordered that the judgment be reversed with directions to the trial court to so amend its order sustaining the demurrer of the Hopkins defendants that the plaintiffs be given an opportunity to amend their complaint, if they so desire.
SHINN, Acting P. J., and PARKER WOOD, J., concur.