Carrico v. Tomlinson , 17 Mo. 499 ( 1853 )

Scott, Judge,

delivered the opinion of the court.

1. There cannot be a greater error than to suppose, that the code creates a remedy or enlarges the defence in actions which may be brought under it. It was merely designed to direct the mode by which causes of action and defences already existing might be made available. Nothing is now a cause of action which was not so before the introduction of the code, nor is any thing now a defence which was not so previously. In the adoption of the code, the legislature designed to abolish the distinction between common law and equity pleadings, and to substitute for the previous forms a simple statement of the facts which constitute the cause of action or the grounds of defence, in such a manner as to present to the court the precise points in dispute; and when the controversy is ended to preserve a record of the precise matters determined. Facts which, under the former practice, would have formed ground of relief against a legal demand upon a bill filed for that purpose, may now be interposed by way of answer in-the action on the legal demand.

It is not easy to perceive the ground on which this proceeding is attempted to be sustained. It is an effort by a purchaser of land to enforce a specific performance of his contract by a bill in the nature of an interpleader, bringing in all those who claim title to the land and requiring them to interplead. This is certainly an action of the first impression, and a suit of the hind has not been found reported in the books. The cases cited do not warrant it. In Parks v. Jackson, 11 Wend. 442, under its peculiar circumstances, it was merely intimated that a vendee might obtain relief by a bill in the nature of an interpleader. There, a purchaser by contract entered into possession, performed in pprt his contract before suit was brought, and then, pendente lite, without actual notice, fulfilled his contract and took a deed for the land. It was held, that under this state of facts, the purchaser was not affected by the rule, that a conveyance obtained pendente lite is void; and it was intimated, under the circumstances, he might compel the parties, by a bill in tbe nature of an interpleader, to liti.gate their rights. In that case, a creditor was enforcing his judgment against the land of his debtor, and had no other claim to it than as a creditor; his object was to obtain satisfaction of Ms demand out of the proceeds of its sale, and .not to acquire the land itself by reason of any title to it. The case referred to in 2 Paige’s Rep. 200, Bedell v. Hoffman, and that of the Mohawk and Hudson Railroad Co. v. Clute, 4 Paige, 392, and also in Story’s Equity Jurisprudence, was that of a complainant, who was entitled to the equity of redemption in land, who filed a bill in the nature of an interpleader against two conflicting claimants of a debt which was a specific lien upon the premises. But this case does not seem to differ from all bills for redeeming equities of redemption, in which the plaintiff is required to make all persons interested, parties. A decree between co-defendants, grounded on pleadings and proofs between plaintiff and defendant, is regular. 2 Schoales & Lefroy, 710, 718.

Carrico, the plaintiff, had no right to call in the defendants, Feaster and Tomlinson and their wives, in this suit. Had he paid the entire purchase money, and received a deed from Ross, he could then have called upon Tomlinson and wife, for the conveyance of the mere legal title, which he alleges was only in them as heirs of the trustee, John Ross. Had he failed in obtaining such title, he had his recourse on the covenants in his deed. We do not see how the notice of Feaster to the plaintiff not to pay over the purchase money to J. C. Ross, could have affected him, had it been disregarded. Feaster and wife, at the instance of Ross, had conveyed to the plaintiff. The compensation for that deed was due from Ross. It is not alleged that Ross had assigned to Feaster any portion of the purchase money due him from the plaintiff. The notice then, to the plaintiff not to pay, was no more than a notice to any other of Ross’ debtors. The motion in arrest of judgment should have been sustained; and, the other judges concurring, the judgment of the court below will be reversed and the judgment arrested.