*1 497 P. 213, 220 206 Donahue, Cal. [273 608]; v. P. [226 Wolf 198].) P.2d 469, 473 Mensing, 3 Cal.2d [45 v. Notten 547]; testator between to a contract applies also remedy This to take legatee renounces legatee which 534 Moers, 207 Cal. (Weinstein v. [279 the will. specific performance, nature of
Since upon majority opinion, suggested depend, as does can however, reason, plaintiff fraud. For another extrinsic She cannot impressed upon property. a trust not have executory provisions showing relief that the have such without agreement of decedent’s death. were effect at the time finding precluded probate court’s doing She from so agree spouses, that as a result reconciliation ment was effect at the time of decedent’s death. This action, finding, though made another con cause issue, plaintiff litigated clusive previously decision since a rendered parties between same on the estops same issue either party relitigating the issue even in another court or on a different (English cause of action. English, v. 358 625, Cal.2d P.2d 467]; 128 A.L.R. Sut phin Speik, 195, 652, 101 Cal.2d ; P.2d P.2d 497] County Johnson v. Dist., Fontana F.P. 380, Cal.2d 389 [101 1092]; P.2d Restatement, see Judgments, § A. July No. 18087. In Bank.
[L. 1944.] HANCOCK OIL COMPANY (a OF CALIFORNIA Cor-
poration) al., et Appellants, W. L. al., HOPKINS et Respondents. *4 Dolley Appellants. & for
Pease McIntyre Robert for Ryon & McMahon and W. Schauer, Respondents. Two corporations, of certain real
EDMONDS, lessees J. persons certain other that the lessors and property, demand rights royalties oil ac- landowner’s interplead their general A and the terms the lease. crued accrue under special demurrer, interposed by also some of those and sought, sustained without against whom were question and for decision concerns the amend, leave land- to maintain a suit stranger and a to the lease. lord Hopkins in 1936 L. and According complaint, W. Hopkins, wife, property Ann leased certain real Gertrude and R. R. Bush Oil Company to Hancock Oil California royalties $1,500. Company. approximately Landowner’s alleged 1941, Independent It is have accrued. also Blox- Co., composed Merritt Distributing copartnership Eugene Olwell, brought an om, Murray M. E. dwell and asserting Hopkins, Hopkins, action L. Ann W. Gertrude names, persons real prop- and two sued fictitious hold the erty described the lease trust them. The relief sought Distributing suit Independent Co. was accounting of the rents land. copartnership together and the copartners, L. Hopkins Hopkins, Hopkins
W. and Gertrude Ann James H. Hopkins, Trust, W. Hopkins and L. trustees of Wilbur T. Hopkins Hopkins, H. L. trustees of the James W. Trust, H. James Hopkins are named as the defendants present being suit, charge complaint that the copartnership copartners and the the owners of claim be the land described in lease all of the land- and entitled to royalties agree- owner’s accrued and under that to accrue ment. A further is that the de- assertion fendants copartnership copartners other than royalties also same these conflict- claim the reason of ing claims to whom the cannot determine safely lessees rent declare that paid. conclusion, should plaintiffs suit was not in collusion with commenced defendants. *5 Eugene
To Bloxom, dwell, this Merritt E. Mur- M. ray Independent Distributing dwell and Co. filed an alleging they answer that are the of property owners of to all profits They entitled the rents and from it. also Hopkins that the holding assert defendants named are title in property to the trust for The them. defendants other than copartners and the copartnership interposed general a special upon ground demurrer and demurrer of un- certainty. demurrer was Each sustained without leave to corporations’ appeal judgment amend and is from the which followed that order.
From an opinion judge, appears the trial ground demurrers were sustained the sole that a tenant question the title of his landlord at date of the lease; accordingly, by a suit his interplead land- lord and agreed paid one who claims the rent to be ac- cordance posses- with the holds by terms lease which he sion the real is in property fundamental violation principle. appellants The assert a suit in not constitute a does denial the landlord’s simply discharge obliga- a means which the tenant pay becoming tion rent under the lease without involved in the conflict amount between different claimants to the due unpaid. They position that section 386 of take Procedure, abrogates Code Civil amended remedy the common rule per- and so as to liberalizes stranger mit a tenant to and a to the lease where both claim rent. respondents, in defending judgment favor, in their
argue rights parties governed by that the are the com- mon law prohibiting rule a tenant from interpleading his stranger landlord with a titles or lease where their privity. claims are They point out that denial of based circumstances declaratory statute “A the common law that tenant is not permitted the title of his landlord at the time of the (Code Proc., 1962(4).) commencement of the relation.” Civ. § They also governing insist the common law rules inter- pleader notwithstanding provisions still effect section 386 of the Code of Procedure. Civil
The common four law bill had essen (1) tial thing, debt, duty elements: must be The same parties against claimed both or all whom the relief (2) all demanded; adverse titles or claims must be dependent, source; from a (3) be derived the one seeking the relief must not have nor claim interest subject matter; (4) he must have incurred no in dependent liability (See to either of the claimants. Pome Equity Jurisprudence roy’s 1322, p. ed. [5th § 1941] *6 requirements
These been termed limi have historical expeditious equitable tations this otherwise proceeding (see comment, 29 35, 36, 41; Pomeroy’s Cal.L.Rev. Equity Jurisprudence ed. p. footnote 1941] § [5th 910), and 1881 section 386 the Code Civil Procedure remedy. statute, was amended to the broaden The as modified part artificial kept remove the restrictions which have interpleader declares, technical and bounds, within narrow insofar pertinent: conflicting as is here “And whenever may claims are or be made upon person relating a for or personal property, performance obligation, or the of an or thereof, any portion person such may bring an action conflicting the compel claimants to interplead them to litigate among their several claims themselves. The order of substitution be made the action of interpleader maintained, applicant plaintiff discharged be and the or all liability from or conflicting claimants, al though their titles or claims have not a or origin, identical, are not but are independent adverse to and of one ’’ provision enactment, another. The of this that interpleader “although lies their or common origin titles not a claims have . independent another,” . but are adverse to and . of one directly abrogates requirement all common law dependent adverse titles or claims must be be derived source, a common privity and it is therefore clear that be conflicting tween the claimants need not be shown to invoke remedy under the code. But amend the effect requirement concerning thing, ment upon the common law duty subject debt or is the in inter- pleader clearly only seen when the statute considered remedy. connection purpose policy with the Early history interpleader, was held that one sought outstanding who to maintain a must suit show claims, respect slightest identical in every and without the
degree variation, to the same thing, debt or duty. In the conflicting case of specific claims personal property, rigid formalism did not seriously interfere effective- ness of proceeding. where, But as is generally the situa- tion modernly, subject matter of conflicting claims obligation, was an a duty, debt requirement as to identity of the defendant’s very demands prevented often using stakeholder from doubly where he was respect vexed with liability. one For example, under the law, narrow rule of the common if person one claimed all of the fund held a bank and person another asserted the right only portion fund, of that the bank could not secure a determination liability by of its means of equitable proceeding. Legislature has restriction, removed this yet very rationale of compels the conclusion that the amendment does not allow the where each claimants asserts the to a debt, different claim or duty. conflicting If the claims mutually exclusive, inter- pleader maintained, cannot be but the fact that an identical right is not asserted by each of the claimants pre- does not remedy. clude use recognized This was Sullivan Lusk, Cal.App. P. 91, 92], where, authority statute, permitted trustee was two at- *7 torneys, one of whom claimed one-half of the amount allowed by the court as counsel fees and the right other asserted a to the entire sum. case, the present plaintiffs alleged have that
each groups against of two sought whom right claims the to receive the rents royalties reserved Independent Distributing the lease. If Co. and mem of copartnership bers should assert that en they are to titled the reasonable of occupation value the use and of the land plaintiffs, together leased to the with the mesne profits damages waste, or the trial court re would be quired to the plaintiffs right those parties with their lessors. Under such circumstances the parties obligation. claims would not relate the same But appellants’ complaint as the pleads that there are con flicting obligation claims concerning pay the rents royalties lease, reserved the lessors and the third parties and, agrees if must answer each of them that his claim right concerns royalties, to those rents and the lessees discharged liability upon payment should be accrued. has amount which govern remaining principles common law to the
As complaint conforms interpleader, appellants’ ing suit of a proceeding in such requirement plaintiff a stakeholder. disinterested position in the a must stand However, controversy centers about present much of Although the essential. specified last element which other than obligation appellants discloses no obligation to lease, respondents assert that the liability bars the independent pay rent constitutes interpleader. correctly character every obligation be Yet right liability defeat the independent ized as an which will liability is interpleader. concerning independent The rule lie will not Corpus “Interpleader follows: stated Juris as obligation to personal if the stakeholder has incurred some right claimants, or the independent either of the the title v’ in that have possession, would event because such claimant litigation him not be in a claim which could settled (33 439.) editors of with the other The claimant.” C.J. Jurisprudence in accord this statement. American (30 put 221.) Supreme of Maine Am.Jur. The Court convincingly “The mere fact matter most when it said: one of the plaintiff relation contractual exists between paid to required to be defendants, under which the fund is of inter- claimant, right not of itself defeat does Co., 153 pleader. (Love Mo.App. Ins. v. Hartford Life law, difficult 132 S.W. If such were the it would be bank, a which would enable conceive of set facts bailee, trustee, funds, to main or other or custodian even must obligation to in the rule interpleader. tain referred fund independent possession independent obligation . property question. . . ‘The litigation between by the rule such that the covered must be the defendants dismissal of the Co., 111 Ill.App. will bill. [575] ’ not determine (Byers 580.) *8 ” Sansom-Thayer (First it, in National order Commission to warrant Bank 266, 712].) The 127 340 A.L.R. Reynolds, Me. A. 60 holding reasoning in same has been this court followed interpleader. in that an maintain a suit escrow-holder the relations determining “if The factor was said to be that 506
of that the parties the such decision court’s would de responsibility the of the escrow-holder, termine ishe for the purposes scope the and within of the code section authorizing interpleader (Security stake a mere -holder.” Trust etc. Bank Carlsen, 100, 410, Cal. A.L.R.
Although Pomeroy independent Professor declares liability “arises from the very original nature of the rela- subsisting tion between” the landlord and tenant, he states proper such suit whenever there is some privity, lessor, as, between claimant and the for example, when que the relation trustee and cestui trust has been created seems, therefore, between them. It why that the reason relationship author asserts that the landlord and ten- precludes interpleader that, ant by the tenant is not under lease, independent is an liability there but because there no privity joined between the landlord and the one him as a The support defendant. eases cited the text this conclusion, for in each them the court based its decision as to proper whether was the remedy respective regard consideration claims with to their origin. derivation or common said, From then, that, what has been it is clear case, -present according alleged to the facts complaint, respondents the relations inter se of copartners and the are such that the liability decision will determine the them, independent lessees each of there is no liability remedy bar interpleader; accordingly will appellants’ complaint respect is sufficient with to those of requirements the four common abolished or modified section amendment 386 of notwithstanding the Code Civil Procedure. But fact, say respondents, remedy proper not a under the one circumstances here shown because of the rule law, the common now embodied Code of Pro Civil (§ 4), cedure dispute subd. that a tenant title of his at the time of the commencement of the relation. generally justified upon law doctrine is ground to allow the circum
stances would amount to violation ancient doctrine (97 998; attornment. Histori A.L.R. Am.Jur. cally, the rule in. arose actions wherein landlord sued
507 the con estoppel and also It is based for rent. tenant against person a tenant defend permit that to clusion latter ground that the upon the possession, him put who title, a would paramount had or that another had no 645, 646; Am.Jur. (See 15 32 against Cal.Jur. public policy. it, a tenant permit courts exception But as an
108.)
opposing
another
landlord and
where
interplead
his
after the com
title from
derived
claimant
his
said,
it
situation,
a
is
relation.
mencement
not in the
privity,
the tenant is
since the defendants
(Maulsby v. Scar
denying
his
title.
position
landlord’s
Equity
4
897];
Pomeroy’s
A.2d
borough,
In the
from the
copartnership
copartners
and
derived title
complaint
lease,
of the
would
after the execution
lessors
ground
as
a
have been sufficient
demurrer
However,
rule.
since
appears
not
it
respect,
certain
this
and from
briefs
copartners
and the
claim to be
copartnership
trust,
necessary
to de-
beneficiaries of
constructive
1962(4)
Pro-
termine whether section
Code of Civil
lacking
privity
or it
prevents interpleader
cedure
where
point
The
to the
of the relation.
prior
arose
commencement
directly adjudicated
California,
has not been
but
aspects
the problem.
court has considered some
592, 597,
v.
8
an
(1857),
In McDevitt
Sullivan
Cal.
action
by plaintiff standing
shoes,
for.rent
the lessor’s
court
by way
dictum, “The
mentioned
moment Sullivan [ten-
rents,
there
discovered that
were adverse claims to
ant]
making all
interpleader,
he should
bill of
ad-
have filed his
parties,
offering
pay
into
verse
the rents
claimants
Court,
party
to bide the
as
entitled
ultimate decision
important
to them.” This case was decided before the
amend-
in 1881 to
of Civil
ment
section 386 of the Code
Procedure.
Harvey
659],
P.
held
(1884),
Schluter
Cal.
[3
where,
original
lease,
after execution of the
landlord had
conveyed
assigned
Baumgarten
the rents
the land
Harvey,
the tenant could
both claimants to
no
obligation
rent,
hence
issue
to whether
there was
interpleader action violates the rule that
Ms landlord’s title.
case of Warnock v. Harlow
(1892),
Cal.
P.
Notwithstanding the common strict limitation law on interpleader justified in by landlord-tenant cases is an ancient rule property, provision of real the code concern ing remedy liberally must be construed. A remedial its statute, is to purpose multiplicity avoid a suits prevent litigation. contrary vexatious And rule requiring common law in derogation of it statutes are strictly construed, to be in this state such enactment is an interpreted to be effect objects “with and to view its promote justice.” (Code §4.) Proc., inappropriate Civ. Not in this connection is the comment of the District Court of Appeal upon 386 in its present section form. The court said: “In prevail jurisdic view such technical rules as in other (30 218) weight tions of authority per Am.Jur. is not for suasive, ‘the remedy conditions under which the be in by invoked prescribed state statute [the] ’ ” scope enlarged. has remedy been broadened and (Williams 684, Gilmore, Cal.App.2d P.2d [125
It should 1962, also be section subdivision noted that 4, of the Code of Civil was in when the Procedure effect Legislature, by the amendment of section broadened interpleader. 'Prom that action an intention implied away any do limitation a tenant as a plaintiff litigation in pro reason of statute him hibiting denying title of landlord. his Another as, reasonable notwithstand conclusion ing per the rule 1962(4), codified section the common law stranger mitted a tenant to interplead his landlord and a requirement Legislature abolished when privity, for eases, away with the basis it did privity questionable Moreover, rule. another, his landlord and tenant, by interpleading whether a most, At disputes the former’s title. absolutely directly and asserts that another title but his landlord’s admits the tenant Clearly, the must not obligation for rent. claims otherwise, he would be a for, landlord’s title disinterested stakeholder. against rival of a bank favor
Interpleader is allowed v. Bank deposit (Conner to a bank claimants of Bakersfield Fargo Wells, & Co. v. 801]; (1920), 183 Cal. 719), an insurer 533; 60 A.L.R. Miner, 25 F. and see policy insurance proceeds claimants to the against such Cal.App.2d 306 (1935), Ins. Senes (Mutual Co. Life as, reasons which have for the 513]). Upon principle P.2d denial a land forbidding section stated, the code been interpleader, there apply does suit lord’s position of bank no basis distinction between to a fund and facing claims company rival or an insurance persons. two more rent is demanded a tenant from whom recognition of the general judicial And with little privity, persons to maintain *11 argument upon public grounded policy. in the force is left posi in no standpoint, a tenant would be better From that forged a deed meeting grantee claim of tion when the of the his and the lease demand dated after the commencement time the lease was made asserting of one that since a before property. of the Without he has been the owner demised against question privity interpleader the rule of would allow forged deny the tenant its benefit deed To claimant. opposing rights person blaming a asserted being is derived from one not title which described as lease, to that of the lessor, prior or from the lessor at a date protecting deprive him method only would effective right interplead For in to interests. the absence of his rent, the tenant the landlord and claimant to the adverse forfeiting is faced with the unfortunate alternative Benguet (Perkins v. Cons. paying lease twice. possibly there is 55 720 And Co., Cal.App.2d Min. P.2d from adequate no action at law to shield him vexation 510 litigation
multiple obligation against over the rent, liability upon risk of double the same obligation, insecurity tenancy.
Furthermore, only is not of importance tenant; advantage it is party also to the third claim may ant. If his landlord and an rule, other under the common party the third must estab right During lish his rent in separate progress a action. this litigation pay the tenant would the rents to the land entirely It judgment lord. is conceivable before was might insolvent, rendered the tenant leaving become recourse, party third without or because of financial diffi overtaking landlord, required culties tenant would be pay obligation twice. Unquestionably may the landlord suffer some disadvant age being a suit in interpleader. forced to defend While litigation continues the rent is withheld from him with out interest. But the tenant not maintain such a suit pretext suspicion vexation; mere of double allege must showing he facts probability reasonable double accurately appraising vexation. Without interpleader, by rationale of some decisions this court has requirement plaintiff mentioned as additional allege must facts showing a doubt as which he claimant safely can pay. This was made in statement the case of Wade, 43, 51, way v. 56 Cal. echoed dictum Pfister in Fidelity Badgers, Sav. etc. Assn. v. 180 Cal. 426], Bakersfield, supra, However, 203. p. Conner plaintiff that he express demand doubt as to which adverse claimant he liable is an admission basis right to interpleader rests is the avoidance liability. remedy by double “The founded, however, not on the consideration that a man subjected on liability, to double the fact that he liability.” in respect threatened with double vexation one (Pfister Wade, supra, see, p. 47; 702; also, Cal.Jur. 438; 215; Pomeroy’s Equity Jurisprud C.J. Am.Jur. 1941], ence ed. [5th § of action therefore states cause *12 general a demurrer and denial leave to amend was of of special abuse discretion if well even demurrer was special de- of However, a reconsideration
taken. any un- require the clarification the court murrer of the elements essential of the statement in the certainties America, 21 Cal.2d Bank (Washer v. interplead. right P.2d is reversed. judgment The J., con-’ Curtis, J., Traynor, Shenk, J., and
Gibson, J.,G. Schauer, J., participate. did curred.
CARTER, I dissent. J. the case falls within agree respondents I Procedure, Civil rule, in Code of embodied now sec- agree provisions 1962(4) and I do section in 1881 Procedure as amended the Code of Civil tion 1962(4) as has any abrogative effect section have such just majority been held court. disagree in the ma-
I also with the intimation contained all jority opinion “questionable it can at whether tenant, another, directly by interpleading landlord and a herein- absolutely disputes the As and former’s title.” will in op- contrary after be this statement stands shown authority. modern The ten- position all common law and filing situation, very action in ant’s suit such showing from the absence of factors a derivative title claimant, subsequent lessor to the to commencement relationship, landlord-tenant is tantamount to an admission dispute that such back at to the commencement dated least relationship. of the landlord-tenant principle permitted that a tenant is not
title of at the his landlord time commencement relationship landlord-tenant far into the common stems back law, and undisputed therein. The rule is basis inequity allowing found posses- secure premises through sion of person lease from the then in enjoying possession, afterwards, retaining and while possession, disputing of the lessor make the lease, depriving rent or the latter of the benefits of his obligations owing. other incurred when due or As stated the annotation in at page L.R.A. 1916E 699:
. . . possession imposes upon land under lease lessee claiming recognizing and those him duty
512 lessor, the title of the in. pos- virtue of he which secured such long session; hence, as possession so he continues in lease, his he is in estopped any proceeding by commenced lessor, him against deny his the latter’s as title to defects outstanding therein or adverse claims at time of the execution of question the lease. order to be entitled landlord’s in regards, title these he must surrender first possession premises. of the . . .”
A provision correlative of in the law respect found Code, 1948 providing Civil section that “The attornment stranger of a tenant is void, unless it is made with the landlord, of consequence consent judgment of a jurisdiction.” competent court of initial question then, be considered is whether or a suit interpleads tenant his landlord and one agreed who claims the paid rent accordance with by the terms of the lease which he possession holds property real foregoing contravenes the presump- conclusive tion, that “A permitted is not his landlord at the time of the commencement the relation.”
While the matter is
impression
one of first
in California*
uniformly
has been
jurisdictions
held in other
where the
question
raised,
has-been
that a tenant
interpleading
person
asserting
with a third
an adverse title to the
leased premises
inception
antecedent to the
the landlord-
thereby
tenant relationship,
disputes his landlord’s title and
the action is
(Whitaker
not maintainable.
62
Whitaker,
v.
(Ct.
S.W. 664
of Chancery Appeals
Tenn.;
affirmed
Supreme
673);
Ct.
Tenn. without opinion, see 62 S.W.
Standley Roberts,
v.
305];
Although matter directly adjudicated has not been California, yet the fact occasions has been adverted to on *14 that a or subtenant, compel tenant to cannot the landlord litigate right the some other that for possession which the (Commissioners tenant has no claim. Yosemite v. Barnard, 982]; Cannobio, Cal. Vatuone v. Cal.App. P. 374].) Commissioners Barnard, supra, Yosemite v. an ac- was
tion in However, unlawful detainer. Plaintiff prevailed. finding trial outstanding court made there that was an person. lease in urged a third The defendant appeal plaintiff being judg- entitled to possession, finding ment should be reversed. This held court was immaterial and tenant, having said: “The received the possession by permission landlord, compel cannot litigate landlord to pos- some other session him which no claim. has As between landlord, and his obligates contract as lessee him to sur- render possession term, at he expiration of his and cannot up title, set in him- outstanding any or show self mediately immediately has been or derived from his landlord.”
From may justly what has been said it follows that we disregard the pertaining mandate to the law of tenant found in section 1962(4) of the Proce Code of Civil dure, only if the Code of amendment to section 386 of the Civil repeal Procedure enacted in 1881 be taken to section 1962(4) as far as interpleader actions are concerned.
Section 386 of the Code of Procedure as here relevant Civil provides as follows: conflicting
“And whenever be made may. claims are or upon a person for relating personal or or the property, obligation, any thereof, of an or
performance portion persons bring against conflicting an action claimants litigate compel them to their claims several among themselves. The order of substitution be made interpleader may maintained, and the action of be discharged all applicant plaintiff liability or be or conflicting although any claimants, their titles or origin, identical, not a common or are not claims have independent of are adverse to and one another.” concluding provisions The reasons for the sentence foregoing inter- code section that the claims of the origin, identical, pleaders need not be of a common nor easily rigid seen when one to the common law elements refers debt, (1) thing, of a interpleader, bill of to wit: same duty parties must be or all the claimed both demanded; (2) whom the relief is All titles of the adverse dependent, or claims must from a common be derived source; seeking nor (3) The one the relief must not have subject (4) matter; claim interest He must have independent claimants. liability incurred no either (4 1322.) Pomeroy’s Equity Jurisprudence (5th 1941) ed. § 386), (Code Proc.,
As result of provision the code Civ. § abrogated in requirements expressly the first been two have (14 being pur primary this state. Cal.Jur. Such further, pose, Legislature go an intention part on the expressly saying so, thereby repeal without such an *15 universally recognized principle ancient to pertaining in expressed the law of landlord and tenant as that section 1962(4) of the Code of Procedure as conclusive Civil noted presumption readily implied. is not to be It is be interpleader phraseology permits that of section 386 “conflicting upon person when claims are or be made relating for personal property, performance or or the effect obligation. Legislature intended the ...” If the included real appellant contends, they for which would have in wording in is contained property phraseology. Such state, in that the statutes Indiana* it has been held lease solely wording holding a of this that a tenant because * “ contract, pending upon a A whom an action is defendant answer specific personal property, may, at time before or for real (Acts Sess.) §25, p. Burns Indiana (Spec. 38, 240. . eh. . (1943). 2-223 Statutes require brought against him inter- when an action (Hall of the other 125 Ind. pleader Craig, claimant. N.E. suggested majority opinion As for the conclusion “as, notwithstanding 1962(4), the rule codified section permitted the common his land- a tenant stranger Legislature lord in privity, and a abolished when away requirement privity cases, it did presence rule,” with the basis for the common law rule, merely privity was not the basis of the common law violating one circumstance where a tenant would be by away express rule. This except rule cannot be done implied repeal the code section itself. 1962(4) The conclusion herein reached section the. Code of Civil Procedure was not intended and has not to be impliedly been modified section of the Civil Code Procedure as amended in 1881 is further out a con- borne practical sideration of results that would' ensue litigation allowance of such at the instance of the tenant. The landlord letting possession into entitled to according agreement. his rent the leasehold the event of the failure payment, of the tenant make landlord can for sue same and the tenant cannot defend on the basis of a third person, or that the landlord had no to make the lease. He must make payment (Reynolds lessor. Lewis, Cal. If allowed, is paid the rent into court and the landlord is de prived thereof the termination of litigation, until and of possible entirely. Many income therefrom of the prop erty state, owners in depression this as was shown in the late largely dependent upon the rent derived their property to monthly meet mortgage payments. trust deed and Especially is this today large housing true war scale projects recently throughout constructed state. Also taxes, premiums expenses insurance and mainte care nance to fall regardless legal entangle continue due ments that may envelop the income. With the owner’s title so effectively clouded can help expected little from financ ing institutions, readily and it is dep conceivable that rivation may easily of income in a short time result loss equity through owner’s foreclosure of encumbrances *16 execution judgment sale suffered. Standley by Judge
As stated Sanborn the case v. Roberts, 836, 59 F. C.C.A. 305]: proposition It would be a monstrous
. . . . a tenant of an owner could take a second lease of the same claiming compel from to premises them, one and then pretended litigate, only the real owner and the owner to validity to the the premises, the title leases taken, himself lessor tenant had before either could recover sustained, any his rent. If tenant proposition such a could be might many his treat landlord lawsuits as he could to as premises. obtain leases of . . his Angove, Dungey (See, also, Eng.Rep. (Eng.) Furthermore, unscrupulous by such an action an started delay quite conceivably could tenant interfere with obtaining redress use of of -unlawful owner expiration detainer,* when the tenant holds after over term, perform or has covenants failed conditions Proc., regard (Code property. Civ. upkeep (3).) §1161(1)
In my opinion more it would be consonant consider- justice equity jurisprudence principles of ations of require in real person a third asserts an adverse interest who property inception of the landlord-tenant antecedent restraining relationship, preliminary injunction to obtain a requir- paying the rent to the landlord and tenant ing litigation, requiring impounded pending that it be person appointment receiver, of a which events asserting required up be to put interest would adverse ultimately pre- protect bond landlord in the event he words, in the burden should vailed action. other landlord on to the person who asserts an interest adverse preliminary for a application convince the trial court on an give injunction case, and prima at facie he has least against landlord the trial opportunity protect court claim damage requiring asserting such adverse person undertaking protect to furnish an will ultimately loss or he should damage the event * Nor can precedence calendar. Which action takes on the court’s expiration his landlord’s who holds after term (McKissick over Ashby, surrendering premises. first title without Cal. *17 prevail. parties event all protected land- subjected perpetual lord is not to the threat that whenever suspicious tenant becomes that his landlord’s may questioned, bring he action in and re- quire his expensive resort prolonged liti- gation before he receive the rent which the tenant has agreement solemn promised written pay at stated periods. It is not difficult to visualize a situation where a might resort to an action in just without cause to prevent order receiving the landlord from the rent when due and thus cause the landlord financial em- barrassment when no real or actual controversy exists as to genuineness title. landlord’s Such a situation should permitted not be exist view of the traditional policy of the common expression law which finds in our code section that “A tenant permitted is not the title of his landlord at the time of the commencement of the rela- (Code tion.” Proc., Civ. 1962(4).) § Although, according to the majority opinion, just uncertain as to when the copartnership copartners claimed to have derived title from lessors, no contention has been made appeal, it possible is at all plaintiffs amend, so as to take rule, the case out of the being indicative to the contrary according to the briefs on file, the sustaining general plaintiff’s demurrer com- plaint should therefore be affirmed. A. July No. 19006. In 14, 1944.] Bank.
[L. Estate of CORCOFINGAS, CHRIST Deceased. LEO T CROWLEY, as United Property States Alien Custodian, . Appellant, KALLIMANIS, v. CONSTANTINOS G. Re
spondent.