Harper v. . Rivenbark

AlleN, J. The plaintiff alleges that he was the owner and had possession of the property in controversy at the time of the alleged wrongful acts of the defendant, and these allegations are comprehensive enough to include a special property therein with a present right of possession. 38 Cyc., 1550; Cumbey v. Lovett, 26 Minn., 229; Penland v. Leatherwood, 101 N. C., 515. In the Minnesota case the Court says: “In an action of claim and delivery the plaintiff is not required to plead specially the source of his title, or the particular facts which entitle him to the .possession of the property. He may allege generally that he is the owner and entitled to the immediate possession, and under that prove any right of property, general or special, that entitles him to such possession.” In the Penland case the plaintiff, a constable, sued to recover the value of certain goods in his hands by virtue of the levy of certain executions, which had been seized by the defendant, and it was held that the plaintiff “had such special property in and ownership of the goods in dispute as entitled him to recover.” If this position is sound, and the plaintiff is entitled to maintain his action upon proof of a special property, under an allegation of ownership, it follows that his Honor was in error when he in substance charged the jury to answer the first issue “No,” *183 although, they might find from the evidence that the plaintiff bought the interest of Teachey and the defendant Rivenbark, and had the property in his possession under an agreement with Teachey that he would manage it, and when all -the debts and advancements made by the plaintiff had been paid out of the proceeds of operation, both should run and operate it. If these facts recited in the instruction are established, the plaintiff at the time of the entry by the defendant was in any event the absolute owner of one-half of the property, and he had a special property in the whole, coupled with possession, for the purpose of repaying the items of expenditure included in the agreements with Teachey, and the defendant having bought from Teachey subsequent to his agreement with the plaintiff, took subject to this agreement. If so, conceding that the defendant* is a tenant in common with the plaintiff, he had no right to the possession, as “it is competent for tenants in common to agree among themselves that one of them shall have sole or exclusive possession of the common property, and such- an agreement is valid and enforci-ble (38 Cyc., 19), and upon these facts his entry would be wrongful, and he would be liable in damages for a conversion without proof of negligence (38 Cyc., 295), the amount of the recovery being dependent on the value of the interest of the plaintiff and the value of the property at the time of the conversion. For the reasons stated, a new trial is ordered, with directions to strike out of the first issue the word “sole,” -and to submit such additional issues as may be necessary to settle the controversy between the parties. New trial.