Loomis v. Shriner

CAULFIELD, J. (after stating the facts). — The finding and judgment of the trial court was right in so far as it refused to hold the garnishee answerable for the rent due in advance on December 15, 1908, after the reversion had passed to Essen. This rent did not become subject to the garnishment, because the tenant’s liability therefore to the defendants Shriner was contingent upon the latter being the owners of the reversion when it became due, and that contingency never happened. [14 Am. & Eng. Ency. Law 766; Blankenship & Blake Co. v. Moore et al., 4 Tex. App. (Civ. Cas.) 208, 16 S. W. 780; Thorp v. Preston, 42 Mich. 511; State ex rel. v. McCullough, 85 Mo. App. 68.] There was nothing to prevent this rent passing to Essen with the reversion. Not being due it was not personal property such as the notice [29] of garnishment had the effect of attaching. [R. S. 1909, sec. 2416; Ordway v. Remington, 12 R. I. 319.] And the mere general lien of plaintiff’s judgment did not affect it, it having accrued and been collected by the owner of the reversion without the land having been levied upon and sold under the execution. [1 Black on Judgments (2 Ed.), sec. 400; School. District, etc. v. Werner, 43 Iowa, 643.] But otherwise the finding and judgment in favor of the garnishee was erroneous. He was clearly answerable for the entire installment of rent, amounting to sixty dollars, which was payable in advance on November 15, 1908. On that day said sum, though payable in advance, became absolutely and unconditionally due to the defendants Shriner. Thereafter it was rent in arrears which they might have sued for and recovered at any time. [Building & Const. Co. v. Kinnerk, 127 Mo. App. 451, 452, 105 S. W. 673.] Being rent in arrear, it was no part of the reversion, but was a mere chose in action (2 Wood’s Landlord & Tenant [2 Ed.], sec. 455; Sharp v. Key, 8 M. & W. 379), such as would inure in case of the landlord’s death to the benefit of his personal representatives, and not of his heirs. [Coberly v. Coberly, 189 Mo. 1, 19, 87 S. W. 957.] It no more passed by implication with the land to Essen than any other personal claim of the defendants Shriner against their tenant, this garnishee. [Vaughn v. Locke, 27 Mo. 290.] It could not have passed even by express assignment, so as to defeat plaintiff’s right under the garnishment, after that right had attached. Plaintiff’s right did attach at the moment this rent became due to the defendants Shriner,. that event having occurred between the time of service and the time of filing garnishee’s answer. [Dinkins v. Crunden-Martin Woodenware Co., 99 Mo. App. 310, 73 S. W. 246.] Thereafter the defendants Shriner could not by any [30] act of their own defeat the rights of the garnishee. [14 Am. & Eng. of Law (2 Ed.), p. 858.] Judgment reversed and cause remanded. Reynolds, P. J., concurs; Nortoni, J., not sitting.