Williams v. Braden , 63 Mo. App. 513 ( 1895 )

Ellison, J.

This action is an attachment for rent, under the landlord and tenant act. The cause is Rere on plaintiff’s appeal from the judgment rendered by the trial court in favor of the interpleader.

It appears that plaintiff leased the lands to defendant for three years, by written lease, containing a provision that they should not be sublet, without the written consent of the plaintiff. Afterward, the inter-pleader rented a portion of the premises of defendant, thus becoming a sublessee. A portion of the crop attached is that which was raised by interpleader, on that part of the land which was sublet to him; and it is for this portion he now interpleads.

1. The point is suggested that there can be no interplea in the usual form in ordinary attachments, under the landlord and tenant act — it being contended that such act makes no provision for an interplea, such as is found in the statute of attachment. It is true there is no direct provision, but by section 6385, Revised Statutes, 1889, of the landlord and tenant act, it is provided that, all “proceedings on attachments issued under this chapter shall be the same as provided by law in case of suits by attachment.” This, we think, is sufficient authority for an interplea, in cases, arising in attachment for rent.

2. The circuit court found for the interpleader, on the theory that plaintiff had estopped himself from claiming rent from interpleader. In our opinion, there is no evidence upon which to base the finding. The law is that the landlord’s lien will extend, not only to the crop grown by the tenant, but also the subtenant. Sec. 6388, R. S. 1889; Heulett v. Stockwell, 27 Mo. App. 328; Garroutte v. White, 92 Mo. 237. The landlord has a lien upon the crop grown by the subtenant, but, by the provision of the contract of lease between plaintiff and the principal tenant, there could be no subtenant without the consent of plaintiff. Now, the evidence tends to show plaintiff’s consent to interpleader’s becoming a subtenant, but does not appear in any way to bear upon the question whether he would release his lien on the crop to be grown. If the mere fact of consenting to a subletting was a waiver of the lien, then there would never be a lien against a subtenant, for he can not exist, except by consent of the landlord. That the landlord must consent is provided by statute, in leases of two years or under, and it was provided by contract in the case at bar. It is true, the evidence tends to show that after interpleader had put in his crop plaintiff said to him, “ not to be in a hurry to pay Braden the rent, ’’and that he did not pay it until Braden sued him. It seems to us that this was more of a warning to him not to pay Braden until plaintiff’s lien was satisfied, than anything else. It certainly does not show that plaintiff waived his lien. Besides, it was said to him after he had made his bargain with Braden and had put in his crop, and could not have been an inducement thereto. And, though he afterward paid the rent to Braden, which he had agreed to pay him, he did so at his. peril. He must be charged with knowledge of plaintiff’s lien, and he should have protected, himself when sued by Braden.

We find it impossible to sustain the judgment, and it must, therefore, be reversed.

All concur.