Sanders v. Ohlhausen

51 Mo. 163

• Court: Supreme Court of Missouri
• Decided: October 15, 1872
• Status: Published

Opinion

Wagner, Judge,

delivered the opinion of the Court.

The only question important to be considered in this ease if whether the interplea of the respondent was maintainable. The respondent owned certain land which he rented for one year and the tenant sowed the land in grain. After this, and before harvest, the tenant left the premises, and the respondent-advanced money to pay for the harvesting and took possession of the grain. The tenant never returned.

Appellant had a debt against the tenant and attached apart of the grain, then in the respondent's possession.. Respondent appeared and filed his interplea and claimed that he was entitled to the grain by virtxie of his landlord’s lien. Judgment was rendered in his favor.

It 4is insisted that the statute, (1 Wag. Stat., 192, § 52) authorizing the assertion of a claim by interplea in attachment suits, only applies when a person claims the identical property in kind, and that the respondent’s case does not come within that classification, and that his only remedy was' to proceed under the 26th and 27th sections of the Landlord and Tenant act. (2 Wag. Stat., 881, 882.)

The 18th section of the act regarding landlords and tenants, gives the landlord a lien upon the crop grown on the premises in any one year, and continues the' same for eight months after the rent becomes due and payable. The 26th and 27th sections provide for the manner of enforcing the lien, but is the manner therein pointed out exclusive ?

If the crop was in the possession of the tenant or his assignee, then clearly the landlord could not enforce his lien, or acquire any right to the property except by resorting to legal process. (Knox vs. Hunt, 18 Mo., 248.)

But the crop during the existence of the lien is not subject to the process of the law without payment of the rent, at the suit of another creditor, as the lien of the landlord protects it from sale. Nothing can be seized under execution which cannot be sold. (Cross on Liens, 48; Knox vs. Hunt, supra.)

As the landlord had the property in possession with a special lien thereon, which protected it from seizure and sale till the lien was paid off, I think he had such a right of property as enabled him to claim it by interpleader.

Judgment affirmed.

The other judges concur.