73 Mo. App. 424 | Mo. Ct. App. | 1898
This is a controversy as to the ownership of a debt or sum of money which it is conceded the Wabash Railway Company owes for the rent of part of a building in Kansas City, Missouri. ■ Mrs. V.osburg, the interpleader, owns the property and while so owning she leased the same to one Peck for a term of three years. Peck sublet the
The issues between the interpleader and plaintiff were tried by the court on an agreed statement of facts (the substance of which is above stated), resulting in a judgment for interpleader and plaintiff appealed.
Notwithstanding the apparent justice of the inter-pleader’s claim to the rent owing by the Wabash Railway Company, we know of no rule of law that will sustain it. Mrs. Yosburg comes into this case and in effect claims that the Wabash company is her debtor, that it owes her and not Fred-erieks, for the rent of the building. This is the only theory upon which her claim can proceed. Plaintiff Grlasner by reason of his attachment against Fredericks, occupies the position of the latter; he has become subrogated to the rights of Fred-ericks, and by virtue of the attachment and garnishment proceedings the plaintiff may reach the debt owing by the garnishee to the defendant and subject it to the payment of his own claim.
Mrs. Yosburg, the interpleader, could not sue the garnishee railway company on the covenants of her lessee to pay rent for the property. The Wabash
But the contention of interpleader’s counsel seems to be that our statute has modified the common law, and that under section 6388 of the landlord and tenant statute the subtenant is made liable to a direct action for the rent by the lessor. That section reads: “Rent may be recovered from the lessee or person owing it, or his assignee or undertenant; or the representative of either, by the same remedies given in the preceding sections; but no assignee or undertenant shall be liable for rent which became due before his interest began.”
In Hicks v. Martin, 25 Mo. App. 359, this court, through Judge Philips, construed the foregoing section as wiping out the common law distinction between an assignee and a mere subtenant of the lessee, and in effect held that under our statute both were alike personally liable to the lessor on the covenants to pay rent entered into by the original lessee. But our supreme court in a late case has held otherwise. In R’y v. R’y, 135 Mo. 173, it was, in effect, decided that the
Counsel for interpleader calls attention to the fact admitted in the agreed statement that at the time and before this suit was brought Peck, the original lessee, died insolvent, and that Fredericks, the first sublessee, is also in like financial condition, and that therefore Mrs. Vosburg, the original les-gor; 0Ugj1^ in good conscience be allowed to reach this debt owing by the Wabash company for the use of said interpleader’s property.
Conceding the right and justice to this proposition, it can not be worked out through this particular action. We have here an action or proceeding at law and not a suit in equity. Judge Stout, in his valuable work on equity jurisprudence, has suggested a remedy for this class of cases. He says: “It is well known that, although a derivative lessee or under-tenant is liable to be distrained for rent during his possession, yet he is not liable to be sued for rent on the covenants of the lease, there being no privity of contract between him and the lessor. But suppose the case to be that the original lessee is insolvent and un
For the reasons heretofore stated, then, we feel bound to decide that, under the agreed statement of facts, the judgment below should have been for the plaintiff instead of for the interpleader. The judgment will therefore be reversed and cause remanded.
