Doyle v. . Bush

AlleN, J. It was decided in Ledford v. Emerson, 143 N. C., 527, that an execution against the person cannot issue simply because of allegations in the complaint, and that the facts alleged entitling the plaintiff to such an execution must be passed upon and must enter *12 into the judgment. It is therefore apparent that the issue tendered by the plaintiff is material, and that the refusal to submit it is a denial of a substantial right if the pleadings raised the issue, and an examination of the complaint discloses that a fraudulent and wrongful conversion of the horse referred to in the evidence and of the proceeds of the sale of the horse is alleged. Two questions are, then, involved in the appeal: 1. Can one tenant in common maintain an action against his co-tenant for a wrongful conversion of the property belonging to them? 2. If so, is a cause of action for the wrongful conversion of personal property one in which an execution against the person may issue ? The first question is determined by the case of Waller v. Bowling, 108 N. C., 294, in which the Court says: “A tenant in common of a chattel cannot maintain an action of or in the nature of trover against his cotenant upon the ground merely that his demand for possession of the common property has been refused by the latter, unless he can show that the cotenant had subsequently consumed it or placed it beyond recovery by means of legal process. Newby v. Harrell, 99 N. C., 149; Pitt v. Petway, 34 N. C., 69; Lucas v. Wasson, 14 N. C., 398; Cooley on Torts, 455; Ripley v. Davis, 15 Mich., 75, 90 Am. Dec., 262. But where the tenant in possession of personal chattels withholds the common property from his cotenant, or wrests it from him and exercises a dominion over it, either in direct, denial of or inconsistent with the rights of the latter, an action will lie for conversion. Shearin v. Riggsbee, 97 N. C., 221; 2 Greenleaf, par. 642; University v. Bank, 96 N. C., 284; Cooley on Torts, supra; 2 Greenleaf Ev., 636a; Grove v. Wise, 39 Mich., 161." This case is also reported in 12 L. R. A., 265, and in the note many authorities are collected which show that this is the general rule. The same principle was also applied in the later case of Ledford v. Emerson, 140 N. C., 288, upon facts similar in many respects to those in the record before us. The other question presents no difficulty, because it is provided by section 625 of the Eevisal that an execution may issue against the person “if the action be one in which the defendant might have been arrested,” and by Eevisal, sec. 727, subsec. 1, that the defendant may be arrested when the action is “for injuring, or for-wrongfully taking, detaining, or converting property, real or personal.” If it be said that the plaintiff cannot recover for a wrongful conversion of the horse, upon the ground that he has ratified the sale, this does not preclude a recovery for the wrongful conversion of the proceeds of the sale, which the defendant received for himself and the plaintiff. Organ Co. v. Snyder, 147 N. C., 271. *13 We are, therefore, of opinion that it was error to refuse to submit the issue tendered by the plaintiff. The judgment will be set aside, with directions to submit an issue or issues involving the question of fraudulent and wrongful conversion in addition to the issues already determined by the jury. Partial new trial.