Insurance Company v. . Davis

*20 Rodman, J. The main question is, did Lewis, by virtue of his contract with the plaintiffs, acquire a property as a co-tenant with them, in the iron saved by him, which was liable to levy under execution against him ? We think he did. It depends altogether on the' intent and meaning of the written contract. It was contended that this did not amount to a sale of an undivided share of the iron, as, and when it was recovered and put in a place of safety, but that it was merely executory until the iron should be carried to Morehead and divided in the presence of Perry. To seek for the meaning of the parties in a contract not accurately or technically drawn, by considering particular words or phrases in it, which incline more or less to either one side or the other, though in some cases necessary, rarely gives a clear and satisfactory result. It is in general safer to draw a conclusion from the circumstances of the contracting parties and the general provisions of the instrument. If, in this case, the plaintiffs had agreed to pay Lewis a certain sum per ton of iron saved, he would, in the absence of a contrary agreement, have had a lien upon the iron for the sum earned. The actual agreement was, that he should have an undivided share in lieu of a certain sum and a lien. But this share could not be a security in the nature of a lien, unless a property in the share passed, to him at once. The provisions for the iron being carried to Morehead and there divided, or sent to Boston for sale, at the pleasure of Lewis, are not conditions precedent to the vesting of the property, but merely provisions for its division, and directing its disposition after' it should have become common property. We consider that Lewis was a tenant in common with the plaintiffs in the iron, while it laid on Core beach. Now, it is settled law, that a sheriff may sell under execution the undivided share of a tenant in common in goods, and for that purpose he may seize the whole. Blevins v. Baker, 11 Ired., 291. His right is the *21 same as respects the seizure, and. as far as concerns this question, under an attachment, as it would he under final process. In the case cited, the officer divided the common property and sold only the share of the defendant in execution. In England it is held that a sheriff, under an execution against one partner, may seize all the goods of the partnership, and may sell the interest of the insolvent partner in them, to be ascertained, on the taking of the partnership account, but that he ought not to deliver the goods to the purchaser, so as to exclude the possession of the solvent partners. Lindley on Partnership, 584. How this may be in North Carolina, and whether the same rule would apply to the case of goods held in common, but not in partnership, it is unnecessary to inquire. It is equally well settled that a sheriff who seizes goods under execution, acquires the property of the defendant in the execution in them. The defendant thus became pro hac vice a tenant in common with the plaintiff. It is also settled, that one tenant in common cannot maintain any action to recover the possession of the common goods from his co-tenant. Each is equally entitled to the possession of the whole. Powell v. Hill, 64 N. C. Rep. 169. The judgment below is reversed, and as the plaintiffs have obtained possession, the case is remanded to that Court, in order that a judgment may be given there, in conformity to this opinion, and that such further proceedings he had as the law requires. The defendant will recover his costs in this Court. Let this opinion he certified. Per Curiam. Judgment reversed.