Willie M. Lowry et al., Appellants, v. Downing Manufacturing Company, a Corporation et al., Appellees, 80 Fla. 745

Browne, C. J. Willie M. Lowry, joined by her husband, S. M. Lowry, brought bill of interpleader against D. C. Walker, with whom they had a contract to furnish all labor and material for the erection and construction of a dwelling house on the separate statutory property of Willie. M. Lowry, and against the other defendants who performed labor and furnished material for the erection of the building. The complainants acknowledged an indebtedness to Walker in the sum of $584.00. The bill contained the essential averments of a bill of interpleader.

Decrees pro confesso were entered against three of the defendants and the others filed answers; Some of the defendants denied the allegations of the bill that $584.00 represented the balance due upon the contract, and averred that the complainants were indebted to D. C. Walker, the contractor, a sum of money in excess of the amount alleged in the bill and that such sum equals or exceeds the sum of $1,500.00. The answer of another of the defendants denies that $584.00 is all that is due the contractor from the complainants, and avers that the amount due him is about $2,000.00. The answer of D. C.

Walker, the contractor, also denies that the complainants are indebted to him only in the sum of $584.00, but avers that Willie M. Lowry is indebted to him in the sum of $1,803.00, “less such sums as were necessarily paid in and about the final completion of the work, amounting to not more than $50.00.” A special master was appointed to take testimony upon the issues made by the pleadings, and upon the coming in of his report, the chancellor rendered his decree in which he found Willie M.

Lowry to be a married woman; that the property on which the building had been erected was her statutory separate estate; that the contract price tor the construction of the building was $8,650.00, and that they1 had paid him the sum $6,847.00, leaving $1,803.00 in the hands of the complainant.

He further found that the complainants had “not sustained their bill, nor shown themselves to be innocent stake holders of the fund tendered into court, but are claimants for certain credits as against the contract price for the construction of said building and claim allowance for certain expenditures which were not part of the contract.” The chancellor thereupon'adjudged and decreed that “the complainant, Willie M.

Lowry, or some one in her behalf, do pay into the registry of the court within a space of thirty days Horn date hereof the said sum of $1,871.52, together with costs of this suit to be taxed by the clerk of this court, .and in default whereof the said sum, together with costs to be taxed herein by the clerk, is decreed to be a specific lien and charge against the separate statutory estate of the said complainant, Willie M.

Lowry, and specifically against the said premises herein-before described, w: Lots 8 and 9 of Beach Place, according to map of plat thereof on record in the office of the clerk of the circuit court of Hillsborough County, Florida, and that the said premises be sold to satisfy this decree.” A bill of interpleader is defined to be, “a bill exhibited where two or more persons severally claim the same debt, duty or thing from the complainant under different titles or in separate interests; and he, not claiming .any title or interest therein himself, and not knowing to' which of the claimants he ought of right to render the debt or duty or deliver the property, is either molested by an action brought against him or fears that lie may suffer injury from their conflicting claims, and therefore prays that they may be compelled to interplead, and state their several claims so that the court may adjudge to whom the matter or thing in controversy belongs.” 23 Cyc. 3.

One of the essential elements to entitle a person to be discharged from obligation to persons claiming any part of a fund in his hands who is doubtful as to whom it should be paid, is, that he has no interest in the litigation, and only seeks to be relieved of the danger of being molested by the conflicting rights of others- among themselves.

If the answer denies the allegation in the bill of the amount the complainant alleges that he has in his hands which lie is ready to turn over to the court to be litigated among the defendants, the complainant should be put to his proof before the ease is ready for a decree as to whether the respondents should be required to interplead, and if the court finds that the complainant has in his hands a sum in excess of the amount which he offers to pay into court, he should be denied the relief prayed and the bill dismissed. The rule is thus stated in Grass v. Memphis & C. R. Co., 96 Ala. 447, 11 South.

Rep. 480: “There can be no bill of interpleader, or bill in the nature of a bill of interpleader, when the defendants contest and litigate Avith the plaintiff himself as to the validity and alloAvance of a claim set up by himself. Such a rule is at variance with the very nature and purpose of a bill of interpleader.

Under such circumstances, the complainant has a personal interest in the result of the suit, directly antagonistic to that of respondents. * * * When the answer denies the facts upon Avhich the bill depends as a bill of inter-pleader,, the plaintiff is put to his proof .before the case is ready for a decree as to whether the respondents should he required to interplead.” In the instant case the chancellor found that the complainants had in their hands a sum of money considerably in excess of the amount they offered to pay'into court. Upon that finding, the bill should have been dismissed.

If the complainant in a bill of interpleader has an interest in the litigation other than to have the fund properly applied or paid to the proper party, the inter-pleader will not be allowed. Southwestern Telegraph & Telephone Co. v. Benson, 63 Ark. 283, 38 S. W. Rep. 341. The testimony discloses that the complainants claimed the right to deduct from the amount remaining unpaid to the contractor the sum of $727.00, the premium on a life insurance policy taken out by Walker through S. L. Lowry, who is an insurance agent.

Walker in his testimony denied the obligation, and Lowry’s right to deduct it from the balance due him. It seems well settled that a complainant cannot adjust his own claims against the matter in controversy, and ask the defendant's to interplead as to the remainder. Southwestern Telegraph & Telephone Co. v. Benson, supra.

It has been held that if the amount brought into court is not the difference between the payments and the contract price, but the result of complainant’s own adjustment of deductions he thinks should be made, the defendants are entilted to show that in their answers, and while the amount is not an issue to be settled by decree in a strict interpleader, it may be inquired into t'oo ascertain whether complainant can maintain the suit. Williams v. Matthews, 47 N. J. Eq. 196, 20 Atl. Rep. 261. In the case of Diplock v.

Hammond, 2 Sm. & Giff. 141, text 145 (65 Full English Reprint, 339), there* was a dispute over the amount of the fund. The plaintiffs in the interpleader suit, admitted having in their possession 365 pounds, but claimed certain allowances and prayed that the defendants interplead as to the balance, amounting to 325 pounds. The Yice Chancellor said: “I think the circumstance, that this question is raised as to the amount of the fund, depi’ives them of the right to maintain this as an interpleader suit. Sir J.

Leach held that a claim by the stake holder to deduct from the fund in his hands a small sum for warehouse rent prevented him from maintaining a bill of interpleader.” In another English case, Mitchell v. Hayne, reported in 2 Simonds and Stewart 63 (1 Eng. Ch. 63), an auctioneer sold an estate for one of the defendants, and another defendant, the purchaser, commenced an action against him for the deposit of the purchase money.

The auctioneer filed a bill of interpleader offering to pay into the court the purchase price of the land in his hands, and claimed against both defendants the right to retain his commission and the auction duty, and called upon the defendants to interplead for the balance which he desired to pay into court. It was held that he could not maintain his action if he insisted upon retaining either his commission or the duty. It seems quite clear that a differense between the debt claimed and the sum the complainant is willing to pay presents an insuperable objection to the prosecution of a bill of interpleader.

Glasner v. Weisberg, 43 Mo. App. 214; Willetts v. Finlay, 11 How. Pr. (N. Y.) 468; Baltimore & Ohio R. R. Co. v. Arthur, 90 N. Y. 234; Appeal of Bridesburg Mfg. Co., 106 Pa. St. 275; Note to Conn. Mut. Life Ins. Co. v. Tucker, 91 Am. St. Rep. 590. The claims from which Willie M. Lowry sought relief by bill of interpleader were for labor performed and materials furnished by sub-contractors. In the case of Mary Bell Agin and Harry Agin v.

Gainesville Planing & Coffin Company, decided at this term of the court, we held that the separate statutory property of a married woman cannot be charged with a lien of a material man who was not in privity with the owner. As this question is fully treated in that ease, it is unnecessary to repeat the discussion here. When the instant case was before this court at the January term, 1917 (73 Fla. 535, 74 South.

Rep. 525) we held that the bill presented a situation in which the complainants were merely stakeholders having no interest in the fund claimed, and that the essential allegations of a bill of interpleader were found in the bill, and that it was not bad on attack by demurrer.

In that case we said: “If any facts exist, not shown by the bill whose allegations are admitted by the demurrer, which constitute a valid reason why the bill of interpleader should not lie. they are matters of defense and can be set up in the answer.” It appearing from the answer and the testimony adduced upon the hearing, that there was a dispute as to the extent of the complainants’ liability, the complainants could not maintain their bill of interpleader. Instead of dismissing the bill, the Chancellor ordered “Willie M.

Lowry, or some one in her behalf,” to pay into the registry of the court $1,871.52, together with costs, and in default thereof a lien was declared against her separate statutory estate, “and that the said premises be sold to satisfy” the decree. Under the decision in the case of Agin v. Gainesville Planing & Coffin Co., supra, there can be no lien against the separate statutory property of a married woman for labor done or materials furnished by sub-contractors in the erection of a building on her separate statutory property, with whom she was not privity, and the Chancellor err.ed in decreeing such a lien.

As there could be no decree compelling the defendants to interplead under the fact's disclosed in this case, the bill should have been dismissed. The decree is reversed with directions to dismiss the bill and tax the costs in the lower court against the complainants, and the costs of this appeal against the defendant's. Taylor, Whitfield, Ellis and West, J. J., concur.