Johnson was barred from asserting the affirmative defense and counterclaim based on implied warranty of habitability because she failed to either vacate the premises or tender her rent to the court in custodia legis, per the trial judge's interpretation of King v.
SHOULD THERE BE AN IN CUSTODIA LEGIS REQUIREMENT IN MISSOURI?
While the Missouri Court of Appeals restated the King framework as to what constitutes a material breach, the court explicitly disagreed with King's conclusion that a tenant who retains possession shall be required to deposit the rent as it becomes due, in custodia legis, pending the litigation to assure the landlord that those rents adjudicated for distribution to him will be available to correct the defects inhabitability.
The Missouri Court of Appeals determined that the in custodia legis requirement articulated in King is dicta, stating that "[a] careful review of King demonstrates its pronouncement that a tenant asserting a claim of breach of the implied warranty of habitability, who retains possession of the premises, is required to deposit his rent with the court pending litigation is nonbinding dicta." (53) "Because the tenant [in King] had already vacated the premises, any alleged recondition to bringing the defense or counterclaim when the tenant remained in possession was not before the court and was unnecessary to the decision." (54) According to the Missouri Court of Appeals:
[A] tenant's submission of the entire contracted-for rent to the court in custodia legis is not an automatic prerequisite to a tenant raising the landlord's breach of the warranty as a defense or counterclaim in a rent and possession suit against her.
"The National Museum is equipped with the appropriate facilities and expertise necessary for the preservation and storage of the subject paintings The National Museum is ready to assist the Republic by taking possession of the paintings for safekeeping, while they continue to be in custodia legis
or for as long as the Honorable Court deems it proper and appropriate," the motion read.