Wesley A. Williams v. McQuinney H. Wright, 20 Tex. 499

Wheeler, J. In the practice in Courts of Chancery, a bill of interpleader lies where two or more persons claim the same debt or duty of the complainant by separate interests; when he, not knowing to which of the complainants he ought, of right, to pay or render it, fears that he may sustain injury by the conflicting claims of the parties. He then applies to a Court of Equity to protect him, not only from rendering the debt or duty to both the claimants, but also from the vexation attending upon the suits, which are, or may be instituted against him. (Story’s Eq.

Sec. 806; 1 Cowen, 703.) “ It claims no right in opposition to those claimed by the persons against whom the bill is exhibited, but only prays the decree of the Court, to decide between the rights of those persons for the safety of the complainant.” (Ib.; Cooper’s Eq. Pl. 456.) “ If a debt or other claim has been assigned, and a controversy arises between the assignor and assignee respecting the title, a bill of interpleader may be brought by the debtor, to have the point settled, to whom he shall pay.” (Story, Eq. Sec. 808, and cases cited; and see Marion v.

Elwood, 11 Paige, 365; 2 Id. 209; 8 Id. 339.) From these authorities it would seem that the ease exhibited by the defendant’s answer was a proper case for the awarding of equitable relief. It is objected that the answer is not sufficient to authorize the awarding of an interpleader, because there was no tender of the money by the defendant. If this objection had been taken to the answer, it would be entitled to consideration. For in the case of money due by the party asking the equitable aid of the Court, he should bring the money into Court, or, at least, should offer to do so. (Story, Eq.

Sec. 809; 8 Paige, 339.) But an objection of this nature, which, had it been intimated in the Court below, might have been immediately obviated by amendment, will not be considered under a general demurrer, or a mo-' tion in the nature of a demurrer, which did not point out the objection. Whether the present was a proper case for an interpleader, it is not necessary positively to decide. It appeared by the answer that the right of the plaintiff had been contested, and was in litigation in a suit previously instituted, to which all the parties in interest, were made parties in another county.

This made it unnecessary that the adverse claimants should interplead in this suit, as their right must be determined in that. But while that suit was pending and the right remained undetermined, the defendant in this suit was entitled to protection. Had both suits been depending in the same Court, they might, perhaps, have been consolidated. But as the former was in a different Court, the defendant had the right to have proceedings stayed in this, until that suit was determined. Otherwise his condition would be a perilous one. It is said the party contesting his right ought to have intervened in this suit.

But it does not appear that she had notice of the suit. Lis pendens, I apprehend would not be such notice as to conclude her by the judgment. The defendant might have relieved himself from liability by bringing the money into Court, subject to the determination of the rights of the parties in the former suit.

And had the plaintiffs excepted to the answer for the want of an allegation, that he had answered in that suit and offered to pay to the party entitled to receive it, it would have become necessary to determine whether it was not his duty to do so or show some excuse for the omission, to entitle him to relief in the present suit. But a motion to strike out the answer was not the proper mode of raising the question of its legal sufficiency, even in matter of substance. But considered, as the Court treated it, as a general demurrer, it ought to have been overruled.

The answer disclosed sufficient matter of substance to entitle the defendant to have the proceeding stayed until the former suit was determined, or until the party contesting the right of the plaintiff could have notice to come in and assert her claims. The judgment is reversed and the cause remanded. Reversed and remanded.