Mansur v. Hill

Ellison, J. It appears from the testimony in the cause that interpleader was in possession of the property [375] now claimed by Mm, at the time of the levy of the attachment, and that, upon its seizure, he notified the sheriff of his ownership. The sheriff, persisting in his levy, interpleader executed a forthcoming bond with the statutory conditions. It further appears from the testimony that interpleader had theretofore contracted the corn to one Standley, who had paid him ten dollars thereon. That the corn was to be gathered and delivered to Standley on his farm in pens and to stand twenty days before being measured. The com was delivered to Standley and he sold it to one Zimmerman. That Standley’s contract was about ten days before the levy and that the delivery thereunder was about twenty days after the levy. Standley also notified the sheriff of his contract of purchase. The plaintiff in the attachment suit, by his answer to the interplea, pleaded the delivery, or forthcoming bond as an estoppel and the court refusing to declare in an instruction that it was not an estoppel and giving instructions wMch would prevent a recovery by interpleader, he took a non-suit with leave. His motion to set it aside being overruled, he appeals. The respondent contends that the judgment should not be disturbed, for the reason that the interpleader, having sold the property, he has not such an interest in it as permits a recovery by him. It is said that “the right to interplead is, in the nature of an action of replevin, engrafted upon a suit by attachment.” Burgert et al. v. Borchert et al., 59 Mo. 80. Viewing the interplea as an action in replevin we find the point has been passed upon by the supreme court in the case of Donahoe v. McAleer (37 Mo. 312), where it is held the trial court properly refused an instruction declaring a sale of the property by plaintiff since the commencement of the suit prevented his recovery. It is, however, further contended by. plaintiff that the evidence here discloses a sale before the interplea was filed, and that, consequently, interpleader had no interest in the property at the time of filing the inter376 plea. This point has likewise been determined in the supreme court. That court has said that where a part of the purchase money has been paid and notes given for the balance, the vendor may yet maintain an action for possession, in order that he might deliver the property to the vendee. So long as the sale is so far incomplete that the purchaser may look to the seller for further action, so as to perfect the sale, the seller has sufficient interest to maintain an action for possession. Pace v. Pierce, 49 Mo. 393. In this case, the sale was not complete at the time of the levy,. as there had been no delivery. Notwithstanding a sale of the property, as possession was not delivered, the seller may maintain an action for the possession in order that he make delivery to the buyer. Lacy v. Gibony, 36 Mo. 320. The next point raised is, that the interpleader is estopped by reason of his having executed the delivery bond for the production of the property when and where directed by the court. The evidence clearly shows that interpleader notified the sheriff that the property did not belong to the defendant in the attachment writ, but that it did belong to interpleader. The bond contains no recital tending to show that the property was not that of the interpleader. Interpleader has done nothing to create an estoppel in the cause. If he had remained silent when his property was being taken as that of another an argument might be advanced 'against him that his silence had led the plaintiff in the writ to rest content with his levy, and possibly permit other property to escape, and thereby work a change in his position to his injury, but, as before said, interpleader promptly protested against the levy, and made claim of the property to the sheriff. This branch of this case was fully considered by this court in the case of Bradley Hubbard Mfg. Co. v. Bean (20 Mo. App. 111); the principle governing this case is there clearly and fully stated by Hall, J., and we see no reason for departing therefrom. It follows that the judgment should be reversed and the cause remanded. All concur.