The opinion
WESTHUES, Chief Justice
(dissenting).
I cannot concur in the result reached in the able opinion of STORCKMAN, J.
The amount paid into the registry of the court by the condemnor for the benefit of the condemnee is treated in the opinion as a fund in litigation. The fund is not in fact in litigation. The condemnee, and only the condemnee, has the only control over the fund. He may withdraw it and do with it as he pleases. If he spends it or loses it in a poor investment, he has not thereby breached any obligation to the condemnor or anyone else. Payment by the condemnor of *426 the fund into court is treated in the condemnation statute as a payment to the con-demnee.
The statute, Sec. 523.045 RSMo 1959, V.A.M.S., now before us for construction, does not say that the condemnee shall pay interest in case he has withdrawn the money, but provides in mandatory language that in the event the verdict is for less than the award, “then judgment shall be entered against said persons named to repay to con-demnor the amount by which the award paid exceeds the amount of the verdict, with six per cent interest on such excess payment from the date of the payment of the award.”
In my opinion, the court has placed a strained construction on the statute and has interpolated a provision not contained therein to reach a more equitable result for the benefit of the property owner. To attain such a result, application should be made to the legislature for relief. I have no doubt that the legislature would amend the statute if the matter were called to its attention.
I, therefore, respectfully dissent.