Witham v. Witham

Appleton, C. J. The plaintiff and defendant are co-tenants of the property replevied. If one takes the common property, the other has no remedy by action, unless in case of unlawful conversion or destruction. Strickland v. Parker, 54 Maine, 322. He may take it back if he can, but the law is well settled that he cannot maintain replevin, for one co-tenant has an equal right with the other cortenant to the possession. Hardy v. Sprowle, 32 Maine, 322. Wells v. Noyes, 12 Pick. 324. The jury having found the fact of co-tenancy, and in favor of the defendant, the presiding judge ordered a return. This was the necessary result. The action not being maintainable, the parties are to be restored to their condition before the suit was instituted. Were it not so, a plaintiff, without right to maintain an action, would have the same benefits as if he had the right. He would succeed in obtaining and retaining possession of the desired property by virtue of a suit, which by law he had no right to bring, and in which, having brought it, he is defeated. The plaintiff, to recover, must show he is the exclusive owner, and has an exclusive right to the possession and -control of the property replevied. This he has failed to do. The right of the defendant is equal to his. The goods replevied were not “ unlawfully taken or detained from the owner or person entitled to the possession thereof.” They were rightfully in the possession of the defendant, and the action not being [449] maintainable, must be restored to lnm. Rogers v. Arnold, 12 Wend. 30. While the defendant is entitled to a return, yet, if the property replevied be not returned, the measure of damages would seem to be only to the extent of his interest. Bartlett v. Kidder, 14 Gray, 449. The exceptions relate only to the order for a return. They present no question as to whether the wife could maintain a suit against her husband. None such has been argued by counsel, or is before us. ^Exceptions overruled. Cutting, Walton, Dickerson, and Daneortil, JJ., concurred.