upon by plaintiff's counsel are to the same effect. Thus in Bredell v. Fair Grounds Real Estate Co., 95 Mo. App. 676 (69 S. W. 635), a receiver having been appointed a like conclusion was reached as in the preceding case. So too in Riggs v. Whitney, 15 Abb. Pr. (N. Y.) 388, it was held that the rents which came from the under-tenants of a judgment debtor into the hands of a receiver were not subject to distribution among the creditors until the claim of the original landlord for rent had been extinguished. To the same effect see also 2 Taylor's Land. and Ten. (9 ed.), § 659.

The complaint in the case at bar does not allege that the corporation, which is the present lessee of the real property, is insolvent. We do not, however, rest our decision on the absence of such averment, though that would be sufficient to sustain the action of the court in its ruling upon the demurrer if the plaintiffs' theory were to prevail. The demised property is not in the custody of the law, and this being so there is nothing to prevent the original landlords from re-entering the premises for a default in failing to keep the covenants of the lease. It is unnecessary to consider other questions presented by counsel for the respective parties. No error was committed as alleged, and the decree is affirmed. AFFIRMED.

MR. CHIEF JUSTICE MCBRIDE, MR. JUSTICE BEAN and MR. JUSTICE BURNETT Concur.

MR. JUSTICE MCCAMANT taking no part in the consideration of this case.

Former opinion sustained March 27, 1917.

ON PETITION FOR REHEARING.

(163 Pac. 1163.)

Department 2. Statement by MR. JUSTICE BURNETT.

For brevity's sake in this opinion we refer to the original lessors as the Fleischners; and to the present tenant, The Willamette Building & Realty Company, as the company. It will be remembered that the Fleischners leased certain realty to Widney with whom the plaintiffs here gave their collateral bond to the lessors agreeing to pay any sum of money that he might fail to pay under the lease. With the assent of the sureties and of the Fleischners, Widney assigned the lease to the company on its promise to issue to him $7,000 of first mortgage bonds or pay him that amount in cash. The defendant, as assignee of Widney's claim, after waiting until the expiration of the company's option to issue bonds, which it failed to exercise, brought action against it to recover $7,000 in money and caused a writ of attachment to issue garnishing the subtenants of the company. Claiming to have been compelled to pay to the Fleischners $6,434.74 as arrearages of rent and taxes, the plaintiffs bring this suit to restrain the defendant from proceeding with his attachment until they have been fully reimbursed for their expenditures. They say that the company is without assets or funds except the lease and the rents received from the subtenants, which returns are insufficient in amount to meet the requirements of the lease. That instrument provides, as plaintiffs state, that the tenant may pledge the same and his leasehold interest in the property to secure money with which to pay for a new building or to satisfy rents or other sums required of him. The

agreement with Widney under which the defendant is claiming in his attachment action was executed by the company by Fred H. Rothchild, as President, and F. S. Stanley, as Secretary, both of whom are plaintiffs in this action. A demurrer to this complaint was sustained in the Circuit Court whereupon the suit having been dismissed on the plaintiffs refusing to plead further, they appealed.

FORMER OPINION SUSTAINED ON REHEARING.

Mr. John H. Hall and Mr. Jesse Stearns, for the petition.

Messrs. Logan & Smith, contra.

MR. JUSTICE BURNETT delivered the opinion of the court.

In an opinion by Mr. Justice MOORE, filed February 27, 1917, the decision of the Circuit Court was affirmed. By their petition for rehearing the plaintiffs contend substantially that as against all comers the landlord is entitled to his rent and, until he is satisfied, no other creditor of the tenant can interfere with what is coming from the subtenants; and further that having paid the arrearages they are subrogated to the rights of the Fleischners and are entitled, as against the defendant here, to realize upon what is due to the company from its immediate subtenants.

The plaintiffs placed much reliance upon 1 Story's Eq. Jur. (13 ed.), § 687. The learned author, treating of equitable jurisdiction relating to rents, states that there is no privity between the original landlord and the subtenant, and that while the goods of the latter are liable to be distrained for his principal's unpaid rent, yet no action would lie in favor of the senior lessor against the under-tenant on the covenants of the

lease for want of such privity of contract. However, upon the supposition that the original lessee is insolvent and unable to pay the rent he says:

"Undoubtedly there would be no remedy at law. But it is understood that in such a case courts of equity would relieve the lessor and would direct the payment of the rent to the lessor upon a bill making the original lessee and the undertenant parties. For if the original lessee were compelled to pay the rent, he would have a remedy over against the undertenant."

No such case, however, is presented by this complaint. The lessors are not here complaining. They have realized upon their security and their rent is satisfied. Neither the tenant nor the subtenant is made a party to this suit. Indeed it is not a suit to apply the amount due from the subtenant in discharge of rent due to the first landlord, but is an attempt to stay the hand of a creditor of the company who is more diligent than the plaintiffs.

In Section 684c, of the same volume of Story the rule is laid down thus:

"The general doctrine of courts of equity certainly is, that where the party entitled to rent has a complete remedy at law, either by an action or by distress, no suit will be entertained in equity for his relief; and the cases in which a suit in equity is commonly entertained are of the kind above mentioned; namely, such as stand upon some peculiar equity between the parties, or where the remedy at law is gone without laches, or where it is inadequate or doubtful. It is not enough to show that the remedy in equity may be more beneficial if the remedy at law is complete and adequate, or even to show that the remedy at law by distress is gone if there be no fraud or default in the tenant."

In Kemp v. San Antonio Catering Co., 118 Mo. 124 (93 S. W. 342), the plaintiff was the tenant, sued for an accounting with his subtenants and had a receiver

appointed for the property. The defendants paid their stipulated rent into court. The plaintiff conceded it was in turn due to his landlord who intervened and asked that it be paid accordingly. Equity having taken custody of the property and thus having prevented the original lessor from collecting his rent by garnishment of the subtenants, protected him and awarded him the money admitted by plaintiff to be due, especially as the accumulation of the fund depended upon the first lessor not re-entering for the original tenant's default. In other words, equity would not seize upon and hold the landlord with one hand and rob him with the other, especially as he had it in his power to re-enter for condition broken and thus destroy the only source of the fund in dispute. Otis v. Conway, 114 N. Y. 13 (20 N. E. 628), was a case similar in the aspect that the property was in the custody of an equity court which being true, that tribunal would administer the whole question. Forrest v. Durnell, 86 Tex. 647 (26 S. W. 481), cited in the petition for rehearing depends upon a statute giving a landlord a lien upon crops of whatever tenant may be in possession and forbidding subletting without the first lessor's consent. Collins v. Whilldin, 3 Phila. (Pa.) 102, does not disturb the priority of a previous attachment but only protects the subtenant in his payment to the original lessor as against a subsequent execution. The same is true of Thompson v. Commercial Guano Co., 93 Ga. 283 (20 S. E. 309). There is no pretense in the present complaint that any equitable tribunal has taken charge of the property. This feature alone would render inapplicable the precedents cited in support of the petition for rehearing.

2. The plaintiffs maintain that they are subrogated to the rights of the Fleischners but, for all that, these