Spooner v. Ross

Philips, P. J.

I. This proceeding is certainly somewhat novel, and the judgment of the circuit court is unique. . The sheriff under the writ of attachment had only seized eleven head of calves. The interpleader asserted ownership in seven of these. His proof was that he became, by purchase from Ross, an owner of an undivided half interest in these eleven calves, and three others not in controversy in this action. His interest in the calves had never been severed. By his own showing he was only the owner of an undivided one-half interest in the eleven calves in controversy, which, in kind, would have been just five and a half calves. Yet the court gave him judgment for the recovery of seven whole calves out of the eleven. By what'process of reasoning this conclusion was reached is not apparent.

II. The whole action, on the part of interpleader, in my opinion, was misconceived. Waiving any discussion of the question raised, at this hearing, by appellant’s counsel, as to whether an interplea is admissible in this proceeding under the landlord and tenant act, *603 it is sufficient to say, that the interpleader cannot maintain his claim on its merits.

An interplea is in the nature of a replevin, engrafted by statute on the proceeding in attachment. Bergert v. Borchert, 59 Mo. 85 . Certainly, then, it will not lie where the action of replevin will not. The very object of the action in replevin is the recovery of specific personal property, in kind. It partakes in this respect, of the nature of a proceeding in rem. Wells Eeplev. sects. 33-34.

Especially is this true of an interplea. It is a claim for the recovery of the possession of the specific thing. Unlike the action of replevin, no money judgment in damages can be awarded in lieu of the specific property claimed. It is peculiarly a possessory action, “the right to present possession of the property being the principal question in controversy.” Wells Replev. sect. 39. It involves the exclusive right of the claimant to the immediate possession of the chattel, and the fact of the-' wrongful detention thereof by the defendant as against the claimant. Ib. 46, 94, 98; Hunt v. Chambers, 1 Zab. 21 N. J. 623; Kingsberry v. Buchanan, 11 Iowa, 387 ; Noble v. Epperly, 6 Port. (Ind.) 416.

An inevitable corrolary of these propositions is, that one joint tenant cannot sustain replevin against his co-' tenant; for the obvious reason that the possession of one joint tenant is the possession of all, and one has no more' right to the exclusive possession than the other. Therefore, an action of replevin does not lie for an undivided interest in a chattel. Nor can such tenant in common sue alone as against a stranger in possession. Wells Replev. sects. 152, 154, 156, 160; Hart v. Fitzgerald, 2 Mass. 509 ; See also, Kamerickv. Castleman et al. ; 23 Mo. App. 481 .

So it has been held that a right of action alleged to be in one is a fatal variance where the proof shows it to be in two or more. Converse v. Symms, 10 Mass. 377 ; Goodnight v. Thieman, 17 Mo. App. 429 . This rests on the logic of the rule, that the title, or right of- action, *604 alleged, is constitutive, and must be proved as alleged. Pier v. Heinrichoffen, 52 Mo. 333; Bruce v. Pullis, 34 Mo. 246 ; Seibert v. Allen, 61 Mo. 482, 488 ; Capital Bank v. Armstrong, 62 Mo. 59 ; Weil v. Posten, 77 Mo. 287 .

Applying these principles to the facts of this case, I do not see how this judgment can stand. By the express provisions of the contract between plaintiff and Ross: “all the calves, or increase, from said cows shall be the joint property of the first and second parties.” When Arbuckle became, as he claims, the purchaser of the undivided interest of Ross, he became, by substitution, or privity of contract, only a joint owner with plaintiff. McCoy v. Hyatt, 80 Mo. 138, 139 ; Wells Replev. sect. 164. By his purchase he took the interest of Ross cum onere, subject to all the rights of plaintiff secured, and all the incidents imposed, by the contract of lease between the lessor and the lessee. As the burden of keeping this property was laid upon Ross, until the expiration of the lease on March 1, 1885, and the division in kind was then to occur, and not sooner, the interpleader could not, by interposing as a purchaser under Ross, in 1884, force upon plaintiff a new incident of the contract, by demanding an immediate division of the property, and thereby escape the burden imposed by the contract on Ross of taking care of the whole interest in the calves until March, 1885.

If, by the seizure of plaintiff under his writ of attachment, he had wrongfully converted the entire isterest, the interpleader, provided there was a valid sale, might maintain an action of trover for his interest in damages. McCoy v. Hyatt, supra. But there could be no equitable partition, in the form of- action adopted by interpleader, as was attempted by the judgment of the circuit court.

The other judges concurring, its judgment is reversed, and the cause remanded with directions to the circuit court to enter judgment against the interpleader.