69 Mo. 28 | Mo. | 1878
C. W. Whitehead brought a suit before a justice of the peace against C. B. Webster, as defendant, to recover the sum of $20.82. Whitehead was the agent of Webster for the collection of certain rents, and the said $20.82 was money advanced to said Webster on said rents over and above the amount received. Said rents accrued
In the special law and equity court of Jackson county, from which the case comes into this court, the trial was had upon the following agreed .statement: The issue in this case is between the plaintiff, Whitehead, and inter-pleader. The matter in controversy is $25, rent of a house, belonging to defendant’s, Webster’s, wife, the title to the property being in her generally. Plaintiff was defendant’s Webster’s, agent, and had the collection of this rent. Defendant drew against this fund, and plaintiff’ advanced him
The plaintiff insists that the court erred in holding that he was not entitled to the money attached, and relies uPon Wagner’s Statute, section 14, page 935, to sustain his objection. Said section pi'ovides that “ the x'ents, issues and products of the real estate of any married woman * * shall, during coverture, be exempt from attachment or levy of execution for the sole debts of her husband, provided such annual products may be attached or levied upon for any debt or liability of her husband created for necessaries for the wife and family of such husband.” This exemption is made for the benefit of the wife, and confers a personal right which she can assert as against the creditors of her husband. When, however, such rents are seized to satisfy her husband’s sole debts, it is for her, and ixot her husband or any third person, to claim the benefit of the
It is, however, insisted that Abernathy, under the provisions of Wag. Stat., sec. 52, p. 192, had the right to in- . terplead and claim the funds. The section referred to contemplates that only persons who claim to own the, property attached may interplead. The garnishment of Richards under Abernathy’s execution did not transfer the property, nor make him the .owner of the debt. Nor can the interplea of Abernathy be maintained under the.provisions of /Wag. Stat., sec. 56, p. 192, for if Abernathy by virtue of the garnishment of Richards is to be regarded as an attaching creditor of Webster, (of which there is serious question,) and had a right to appear and defend the attachment suit of Whitehead against Webster, he could only make such defense as could have been made by Webster. Webster could have neither disputed the fact which Richards the garnishee admits, viz.: that he owed Webster so much money, nor could he have set up for his wife that the debt was for rent of the wife’s real estate.
The only defense under section 56, supra, which an attaching creditor in one suit can make in an attachment suit of another creditor, where there has been no personal service, is such defense as the defendant in the attachment could have made himself. As Webster could not have interposed in the attachment suit of'Whitehead the defense set up by Abernathy, it follows that Abernathy could not.
Judgment affirmed with the. concurrence of the other judges.
Affirmed.