Opinion
Opinion delivered December 5, 1949.
1. — Appeal and Error — Interpleader. Order sustaining a bill of interpleader held appealable. (Section 847.18, R.S.A. 3).
2. — Interpleader — Landlord and Tenant. Where owner of undivided one-half interest in certain real estate without knowledge or consent of owner of other undivided one-half interest therein, leased realty, and tenant subleased to plaintiff a filling station located thereon, and owners of undivided one-half interest, who were not parties to original lease, demanded payment of rents accruing in future and an accounting of rents previously paid by sublessee to tenant, sublessee held entitled to maintain an interpleader action against administratrix of estate of deceased tenant and owners of undivided one-half interest, who were not parties to original lease.
3. — Interpleader. The object of a bill of interpleader is not to protect against a double liability, but to protect a party against a double vexation in respect to one liability. (Section 847.18, Mo. R.S.A.).
4. — Interpleader. In interpleader action fact that only one of defendants could collect rent from plaintiff was immaterial, since the other defendants were claiming rents and threatening suit therefor. (Sec. 847.18 Mo. R.S.A.).
Appeal from Circuit Court of Jackson County. — Hon. John F. Cook, Judge.
AFFIRMED.
C.W. Prince, Wm. Dennis Bush and Guy W. Runnion for appellant.
A tenant cannot interplead his landlord and an adverse claimant of title to the leased property because the tenant will not be heard to deny his landlord's title. 30 Am. Jur. subject Interpleader, page 216, Sec. 5, Note (4); Note in 97 A.L.R. page 998; McGinn v. Interstate Bank, 166 S.W. 345 l.c. 346, 178 Mo. App. 345; 32 Am. Jur. page 124, Landlord Tenant, Sec. 123. An interpleader must be absolutely disinterested and have assumed no independent liability to either of the claimants. Hartsook v. Chrisman, 90 S.W. 116, 114 Mo. App. 558; Pomeroy's Eq. Jurisprudence, Sec. 1326, Vol. 4, page 913; 33 C.J., page 439, Sec. 22 note (46); 48 C.J.S., Sec. 16 "Interpleader" page 59 note (36); Hyer v. Boyd, 133 S.W.2d 1036, 234 Mo. App. 492. An adverse claimant to the leasehold cannot assert any claim to the rent and has no standing in court as an adverse claimant of the rent. 1 Am. Jur., Sec. 227, Page 922; O'Fallon v. Boismenu, 3 Mo. 405; Lloyd v. Hough, 1 How. (U.S.) 153, 11 Law Ed. 83. The new Code, Sec. 847.18 does not alter the rules and principles of common law governing the action of interpleader except as it is expressly provided in the said statute. John A. Moore Co. v. McConkey, 203 S.W.2d 514; 48 C.J.S., Sec. 4, Page 40; Sec. 847.18 New Missouri Code; 48 C.J.S., Sec. 15, Interpleader, Page 55, notes 97, 98, 99.
Marcy K. Brown, Jr., for respondent.
This court has no jurisdiction in this case. The sustaining of the order of interpleader is not a final judgment and does not dispose of all the issues as to all the parties. Hanover Fire Insurance Company v. Ins. Co., 215 S.W.2d 444, l.c. 455; Stone et al. v. Boston et al., 218 S.W.2d 783, l.c. 786-7; W.A. Ross Construction Company v. Chiles, 130 S.W.2d 524, l.c. 528-9. Regardless of whether the court determines it has jurisdiction there is no error in ordering an interpleader, the petition clearly stating a cause of action. The respondent is disinterested and threatened with double liability. Code of Civil Procedure, Section 18; John A. Moore v. McConkey, 203 S.W.2d 512, l.c. 514; Barr v. Snyder et al., 219 S.W.2d 305, l.c. 308. Title to the property leased by respondent is disputed and clearly involved. Goodman v. Costello et al., 212 S.W. 804; Goodman v. Holland et al., 200 S.W.2d 588; Costello v. Goodman et al., 210 S.W. 804, l.c. 807. Even without the broadening provisions of the Code, Section 18, plaintiff had a right under the old practice to bring a bill of interpleader against the direct landlord and other claimant. Glazier v. Priest, 29 Mo. App. 1; Glazier v. Weisberg, 43 Mo. App. 214; Geitz v. Blank, 108 S.W.2d 1066, l.c. 1068-9.
This is an appeal by defendant, Zillah Goodwin, administratrix of Harrie O. Goodwin, deceased, from an order requiring her and defendants, Maxwell and Marie Costello, to interplead.
Grace C. Dodds owned an undivided one-half interest in certain real estate and Maxwell and Marie Costello owned the other undivided one-half interest therein, by the entirety. Mrs. Dodds, without the knowledge or consent of the Costellos, leased said real estate to Harrie O. Goodwin, deceased, defendant Zillah Goodwin being his administratrix. Goodwin v. Costello, 212 S.W.2d 804. Goodwin subleased to plaintiff a filling station located thereon, as described in plaintiff's petition. In August, 1948, the Costellos, defendants herein, demanded payment to them of rents accruing in future, demanded an accounting and payment to them of all rents previously paid to Goodwin, and threatened suit therefor. Two suits in ejectment are now pending against Goodwin, in the Circuit Court of Jackson County, wherein Mrs. Dodds and the Costellos seek recovery of possession of the property.
Plaintiff, respondent, contends that an order sustaining a bill of interpleader is not appealable. This contention is without merit. Hyer v. Baker, 130 S.W.2d 516, l.c. 517. Lafayette-South Side Bank Trust Company, 18 S.W.2d 572, l.c. 574; Moore v. Dowling Realty Company, 166 S.W.2d 238, l.c. 242.
Defendant contends that a tenant may not implead his landlord in an interpleader action involving rent money. This court so held, in McGinn v. Interstate Bank, 166 S.W. 345, 178 Mo. App. 347, and said: "And the reason why such a suit cannot be maintained is because, in the very nature of things, there is an independent personal liability, with respect to the subject-matter, of the tenant to his landlord, which the maintenance of the suit would destroy." There are other decisions and various authorities to the same effect; but they are no longer controlling.
Since the rendition of that decision, and others of a like character, we have adopted a new Civil Code. Section 18 thereof, (Section 847.18, R.S.A. 3) provides, in part, as follows: "Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability." We have heretofore held that the statute broadens and extends the scope of bills of interpleader and bills in the nature of interpleader; and that the above quoted language now constitutes virtually the sole test of whether or not a bill of interpleader will lie in a given case. What we have had to say in that respect has been noticed and approved by the Supreme Court. Barr v. Snyder, 219 S.W.2d 305, l.c. 308.
The language quoted is surely broad enough to embrace within its meaning a case involving landlord and tenant; and no other language appears in the statute which tends to limit it in this respect, or to exclude such cases from its operation.
The following language, however, does appear therein to wit: "It is not ground for objection to the joinder that * * * the plaintiff avers that he not liable in the whole or in part to any or all of the claimants." That provision appears to be definite and clear; and it cannot be said that landlords are immune from its effect.
The object of a bill of interpleader is not to protect against a double liability, but to protect a party against a double vexation in respect to one liability. Barr v. Snyder, supra. So far as this case is concerned it is, therefore, immaterial as to whether or not anyone other than Goodwin can collect the rent.
The judgment should be affirmed. Bour, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is affirmed. All concur.