St. John v. Standring — 2 Johns. 468

Majority

p. 467

St. John against Standring.

Headnote

A- and B. be-jngjoinl owners of certain chine°S sold his half C. agreed to work-togeth-qji ^iOOU &f“a terwards, the jnachmes by B. and de-sheriff who took and sold Jeri

This was an action of trover, for the equal half of two . . carding machines. 1 he cause was tried at the Rensse-^oer circuit, in May, 1807, before Mr. Justice Spencer. On the trial, the following facts appeared in evidence.— One Schermerhorn, ontheldth day of March, 1803, demise(j to Smith and Babcocle, a mill, a small house, and a piece of ground for the purpose of erecting the carding machines, for the term of eight years at the yearly rent of 60 dollars. On the 4th day of March, 1803, Smith and babcocle assigned all their right in the demised premises to the plaintiff, and also conveyed to him the one half of the carding machines, erected on the premises, the dev

p. 468

facias, against A. In an action of trover, bro’i. by C. against B for half of the machines, it was hold, that tenants in common of a chattel, cannot maintain Irmer against each other; that the tenancy m this case was not severed by the sale from A. to (’•• and that the action would not lie.

fendant being owner of the other half of the said machines. Soon after the purchase made by the plaintiff, the defendant agreed with him to work the machines on the same terms as he had done with Smith and Babcock, that is, that the defendant should receive one fourth of the nett profits, after deducting all expenses. The plaintiff repaired the machines,and worked them about six weeks, when the defendant entered the premises, and delivered the machines to a deputy sheriff, who sold them at auction, by virtue of a fieri facias, issued on a judgment against Babcock. The defendant purchased the machines at the sheriffs sale for 300 dollars, and retained the possession.

The counsel for the defendant moved for a nonsuit, on the ground that the plaintiff and defendant being tenants in common, of the machines, an action of trover would not lie; and the judge, being of that opinion, a nonsuit was accordingly entered, .

On a motion made to set aside the nonsuit,

Russell, for the plaintiff, contended,

that by the sale of Smith and Babcock, of their half of the machines to the plaintiff, the tenancy in common was severed ; that according to'the principle decided in Selden v. Hitchcock,^[1] if one tenant in common, with the assent of the other, sell his share, there is a severance of the tenancy in common.

That though the original sale, in this case, was not made with the express consent of the defendant, yet he afterwards acquiesced in it. His taking possession, therefore, of the whole, was a tortious act. So, if the property be destroyed, an action will lie; and this need not be a physical destruction of the thing, but a technical loss of the thing is sufficient.^[2]

Foot and Skinner, contra, insisted,

on the principle as established, that one tenant in common cannot maintain trover against his co-tenant* The plaintiff, by his purchase

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0f Smith and Babcock, became tenant in common with the defendant.^[3] He stands precisely in the same sifuation ag ¿[¡j (.jjg ven(jors jn relation to the defendant.

Three points are raised for the consideration of the court, in this cause ; 1. That the purchase by , , , . the plaintiff severed the tenancy m common. 2. I hat the talting1 and the sale, by the defendant, was tortious; and where one tenant in common usurps the possession, and wrongfully excludes his co-tenant, the other may maintain trover against him; 3. That the plaintiff had aright to the exclusive possession and enjoyment of the property, for one year at least, under the agreement, and that the defendant was liable, for a partial conversion of the property, before the year had expired.

In support of the first point, the case of Selden v. Hitchcock, is relied on. But that case differs from the present. There, the property, which consisted of a cargo of salt, was, in its nature, divisible; and the plaintiff purchased the undivided share of one of the partners, with the approbation, and by the advice of the other partner, and on the engagement of the latter to deliver the quantity so purchased, whenever it should be called for. None of these circumstances attended the transfer by Babcock, of his share in the carding machines, to the plaintiff. There is, therefore, no analogy between the two cases. But it is said, that the defendant has severed the tenancy in common, by seizing and selling the machines, and by subsequently possessing and using the same, exclusively of the plaintiff. This is directly against all the authorities.-— Lyitleton (sect. 323.) says, “ if two be possessed of chattels personal, by divers titles, as of a horse, &c. and one take the whole to himself, out of the possession of the other, the other hath no remedy, but to take this from him, who hath done the wrong, to occupy in common, &c. when he can see his time.” Coke, in his comment, on the above passage, says, “ if one tenant in common take all the chattels

p. 470

personal, the other has no remedy by action; but he may take them againand this has, ever since, been the law on the subject. That the defendant has deprived the plaintiff of the possession, under colour of th eji.fa. does not alter the case,^[1] Neither the defendant, nor sheriff could devest the plaintiff of his right of property by a fi* fa. against Babcock, who had previously parted with all his interest.

• The agreement upon which the plaintiff rests the third point, is so imperfectly and obscurely stated in the case, that he must fail in that also. It does not appear that the defendant let to him his moiety of the machines for a year, or any other determinate period.

I am of opinion,therefore, that the plaintiff take nothing by his motion.

Kent, Ch. J. and SpenceR, J. concurred.

Thompson, J., not having heard the argument, gave no opinion.

Rule refused.

(a) (a) One tenant in common cannot maintain trover against the other. Miter if one destroys the property, or acts inconsistently with the fundamental principles of the partnership, and which in the ordinary course of things would either destroy the other’s interest in the property, or the property itself. See Report of Tennessee Cases. Cowan v. Bayers. Cooke, 53.