Shearin v. . Riggsbee

Smith, C. J., (after stating the facts). The sole question to be determined is, whether upon the facts, the plaintiff’s share of the tobacco has been converted by the defendant to his own use, so that he has become answerable for the loss, whatever care he may have bestowed upon the property in preserving it for the common benefit of both. Assuming a tenancy in common to exist, and a bona fide controversy between them as to some of its terms preceding the division, and as to the fitness of -the article in its then dry *219 condition to undergo the handling necessary thereto, wast the present retention and refusal to divide, an appropriation of the plaintiff’s share, or such an exercise of dominion or tortious withholding, as subjects him to a responsibility for the entire loss ? Judge Cooley, in his work on Torts, 455, in reference to irreconcilable rulings as to what constitutes a conversion by one tenant in common of the share of another, says: “ The rule in England is, that neither a claim to exclusive ownership by one, nor the exclusion of the other from possession, nor even a sale of the whole, can be treated in law, as the equivalent of loss or destruction, or be considered a conversion; and this rule is adopted in some cases in Vermont, and in North Carolina it is also followed, but with this qualification, that a sale of the property out of the State may be treated as a loss or destruction,” — referring to Pitt v. Petway, 12 Ired., 69. But he adds that the rule “ can have no reasonable application to such commodities as are readily devi-sable by tale or measure, into portions absolutely alike in quality, such as grain or money. Thus, if one is entitled to a half of a certain number of bushels of wheat, he is entitled to the half in severalty; and if his co-tenant in actual possession refuses to surrender the half on demand and deny his right, this is a conversion, because it deprives him of his right as effectually as would a sale455, 456. The act of withholding, to warrant the action of the plaintiff tenant in common against his co-tenant, must be tortious, “having the effect, so far as the plaintiff is concerned, of a total destruction of the property ” at the time. 2 Green-leaf Evidence, §646. Our own rulings do not to the same extent recognize the distinctions made by Judge Cooley in reference to the subject-matters of the tenancy. Thus, in Hill v. Robinson, 3 Jones, 501, Nash, C. J., says: “ The fifteen sacks of salt were purchased with the joint funds of the plaintiffs and of Howell— *220 five for the latter and ten for the former; but no specific bags were set apart, either by Howell or Robinson, as the property of the plaintiffs; and until that was done, an action of trover could not be sustained by the plaintiffs for any portion of the salt.” “ If A sell to B all the corn in a particular barn, and after-wards refuses to deliver it. B may maintain an action of trover for the conversion. But if the contract is for a portion less than the whole, then B could maintain an action for a violation of the contract in the refusal to deliver, but not an action of trover;” citing Jones v. Morriss, 7 Ired., 370. In this case there had been a demand and refusal. But the more recent case of Powell v. Hill, 64 N. C., 169, has the essential features of that before us. The plaintiff was employed bj7 one Brodie to work on a farm the latter had rented, for a share of the crop. The crop was measured and the plaintiff’s part ascertained but not separated from the bulk. The defendant, an incoming tenant, bought from Brodie the whole crop except the plaintiff’s share, and took possession of the whole. Rodman, J., delivering the opinion, says: “On the proof, he (the plaintiff] is a tenant in common with the defendant, and the Court could not order the sheriff to put him in possession of any distinct and specific quantity of corn or fodder out of the common mass. Neither is he entitled to damages for the conversion of his share of the common property. It is well settled, that one tenant in common cannot recover in trover upon a mere demand and refusal to deliver to him his share.” In Rooks v. Moore, Busb., 1, it was held, that one who was to receive a share of the crop, could not maintain a trover before a division. Had a portion of the common property been accidentally destroyed, would not loss have fallen on the parties in proportion to their respective interests ? *221 The authorities referred to in the argument for the plaintiff, apply when the tenant not only withholds from the co-tenant, but exercises a dominion over the common property, in denial of, and inconsistent with the rights of the latter, and not in the mere assertion of his own. Nowhere in the action of the defendant, is found any appropriation of the tobacco to his sole use. Where is the exertion of any dominion incompatible with the recognition of the equal claim of the plaintiff thereto ? He refuses to-permit partition, because, according to his understanding, something more was to be done before, and an injury would come to the article in the attempt to make it at the time. He sets up no claim to the plaintiff’s undivided share, but keeps possession, only postponing the separation. Upon the verdict, this was wrongful, but it is not a conversion to the defendant’s use. The plaintiff could have recovered his share under §1755 of The Code, had the tobacco not been destroyed, and it was destroyed by no fault or negligence of the defendant. The mere fact that the plaintiff was debarred access to the house in order to force a division, and the crop was retained for a division afterwards, does not amount to a conversion, nor warrant an inference of an exclusive appropriation to his own use. But while not a conversion, it was a wrongful resistance to the plaintiff’s demand of a right to an immediate division, which entitles him to some, if no more than nominal damages, but not to the full extent of the value of his share, which can only be maintained by deeming the retention a conversion. For the errors mentioned the verdict must be set aside and a new trial ordered. Let this be certified. Error. Reversed.