Opinion
November 20, 1939.
1. — Courts. Where one count of petition was to determine title to real estate, Court of Appeals had no jurisdiction of such issue on writ of error.
2. — Courts. Suit to recover real property presents a cause of action reviewable by Court of Appeals on writ of error.
3. — Ejectment. In a suit to recover real property the person in possession thereof must be made a party.
4. — Interpleader — Appeal and Error. In suit to recover real property allegedly unlawfully withheld, and for damages for such unlawful withholding, two of defendants, by interpleas in which they admit possession of real estate in issue, under rental contract with party other than plaintiffs, and praying to be allowed to pay rentals into court and to be discharged from any and all liabilities to plaintiffs, cannot fully discharge themselves from such action, and court's action is so discharging defendants was error and not within its jurisdiction under the pleadings.
5. — Ejectment. In suit in two counts, one to determine title to real estate, and, two, to recover real estate, the prayer of count one for "full and complete relief whether legal or equitable" should suffice.
Error to Johnson Circuit Court. — Hon. Leslie A. Bruce, Judge.
REVERSED AND 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, 1. 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, 1. 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.
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 recoyer 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 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 any and all liability to said parties and each of them thereto and that said order apply to all subsequent rental payments so ordered paid into court upon payment as ordered as to this defendant."
The interpleas aforesaid appear duly attested and sworn to before the circuit clerk of the court.
The following entries, orders and decrees were made and entered by the trial court, to-wit:
". . . the court having heretofore entered its order requiring the plaintiffs and other defendants herein to show cause on or before February 18, 1938, why said interpleas should not be allowed, and all other parties to this cause by and through their attorneys having been timely notified of said order to show cause, but notwithstanding, having failed and omitted to plead or reply or appear and show cause as required by said order and said other parties to this action being in default as to same, the court further finds that said interpleading defendants have paid or tendered into court the sums and amounts specified in order of this court of February 14th, 1938, and being entitled to interplead in this action and to pay further rents into court during pendency of this action it is therefore ordered and adjudged that the respective interpleas of L.V. McGraw d/b/a L.V. McGraw Produce Co., and Thomas Boyd d/b/a Thos. Boyd Coal and Ice Co., be and are hereby sustained to which action of the court in sustaining said answers of interpleaders, plaintiffs by their attorneys now here excepts. And said parties are hereby allowed to pay into the hands of the clerk of this court the rentals more particularly described in said answer and in prior order of this court in the total sum of One Hundred Eighty Dollars ($180.00) and during the pendency of this action it is further ordered that said interpleading defendants on the first day of each month pay into the hands of the clerk of this court the rental on said premises as more particularly specified in said answer and in prior order of this court and that the clerk of this court hold said funds in his hands pending final determination of this action, subject to payment of costs of this interplea and except as to the attorneys fee hereinafter provided for, for such parties as the court may find entitled thereto.
"It is further ordered that attorney for said interpleading defendants be allowed a reasonable attorney's fee which the court finds to be the sum of Fifty Dollars ($50.00) for interpleading defendants for services to date, or a total attorney's fee of One Hundred Dollars ($100.00) if appealed to be paid by the clerk of this court to such interpleading defendants attorney forthwith.
"Upon compliance with this order and subject to further payments into court above provided for as to rentals due on said premises said interpleading defendants are herewith ordered discharged from this action and held harmless as to further liability as to sums and amounts in this action.
"It is further ordered that said other parties to this action except interpleading defendants appear and plead setting up their claims, right, title and interest in the said funds on or before the first day of the ensuing June 1938 term of this court."
This cause is here on Writ of Error sued out by the plaintiffs in the suit for possession. The plaintiffs in error make assignments of error as follows:
"I
"The pleadings of respondents stated no cause of action entitling them to the relief prayed. They couldn't create themselves tenants of plaintiffs without so pleading and proving.
"II
"Upon the face of the record, the court was without jurisdiction to enter the judgment here questioned.
"III
"The Court exceeded its powers by attempting to penalize plaintiffs for exercising their right of appeal. This is an invasion of the jurisdictional of the court.
"IV
"The so-called petition for interpleader by respondents was directed solely to Count II of the petition of plaintiffs. The action being for ejectment, defendants in error were absolutely the necessary and jurisdictional parties defendant. Dismissing them amounted to a destruction of plaintiffs' right to a right to trial of their right of possession."
In the review of this case, we must take cognizance of the fact that in a suit to recover real property the person in possession thereof must be made a party. [Hunter v. Wethington, 205 Mo. 284, 103 S.W. 543.]
The right of an interpleader to absolve himself from further obligation for money in his hands, which is claimed by two or more parties, by depositing the money in court need not be commented upon in this opinion.
It will be noted that the defendants in error in their interpleas virtually ask a full discharge, and the trial court, upon condition of rental amounts being deposited into court, orders the interpleaders (who are defendants in the action to recover real property of which they are admitted by tenants) "discharged from this action and held harmless for further liability, etc."
Further, that part of the orders and decrees touching attorney fees is somewhat novel, in that a penalty by way of attorney fees is provided if defendants thereafter appeal.
We conclude that defendants in possession of real property wherein there is a charge of unlawfully withholding possession from a plaintiff and wherein damages are asked for said unlawful withholding, cannot by an interplea such as is shown herein fully discharged themselves from such action. We further conclude that the trial court was in error in this case in discharging defendants in error from this action. We further conclude that such action was not within the jurisdictional powers of the said court under the pleadings in this case.
In passing, we suggest that the inclusion of count two in this action has served but to confuse and cause the laws delay.
An examination of count one discloses the same parties plaintiff and defendant, and the same subject matter as in count two.
Count one concludes 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 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."
It would appear that "full and complete relief whether legal or equitable" should suffice.
Based upon our reasons and conclusions above set forth, the judgment in matter of interpleas is reversed and, as our review is confined to this interloping issue, the cause is remanded. All concur.