Browning v. Cover

Mb. Justice Tbunkey delivered the opinion of the Court-March 30th, 1885. Hurst, Rutter, Sellers and John Cover purchased the portable saw mill in 1871, and engaged in the manufacture of lumber. Within the same year Sellers and Hurst sold their interests to George W. Cover, and early in 1872 Rutter sold his interest to John Cover, who, soon after, sold one half interest in the mill to Jacob Rist. On October-12th, 1872. Rist’s in [598] terest in the mill and fixtures was sold at sheriff’s sale to John Cover. There is no evidence that after said purchase at sheriff’s sale John Cover and George W. Cover did business as partners; nor is there evidence that any debts existed against the firm of Cover & Rist, or that there were any partnership matters to adjust between the members of that firm. Browning and Serpell on November 21st, 1872, bought the mill, with other personal property, from George W. Cover. Browning and John Cover both testify that at the making of that purchase, Browning had notice of John Cover’s claim of one half interest, and that said John objected to the sale. Upon the undisputed facts, with the facts the jury were warranted in finding, the plaintiff was entitled to recover, and the defendants’ first point was rightly refused. Nor was it error to refuse the defendants’ third point. The evidence was sufficient to justify a finding that George W. Cover and Rist were partners, but not that they owned the mill as partnership property. There seems to have been numerous short-lived partnerships engaged in the sawing of lumber with this mill, and all along the parties treated the mill as if owned by them as tenants in common. In no instance was -it taken into the account or settlement of any of the successive partnerships. The portion of‘the charge set out in the fourth assignment, with its context is not erroneous. The words, “we instruct you that that is true in this case,” evidently related to the proposition that the defendants, having sold the whole mill, must account to the plaintiff for his interest, not that it was true that the defendants bought of George W. Cover only one half interest. What each party claimed was fully stated by the Court, followed by this instruction: “ If you find from the evidence that the plaintiff had a half interest in that mill and that the defendants sold it and received the money for it, then the plaintiff would be entitled to recover the one half of whatever they sold it for, with its interest down to the present time from the date of sale. If you are not satisfied that he had a half interest, or any interest, or satisfied that he acquiesced in the sale made by his brother, then he would not be entitled to recover as against these defendants.” That submission was explicit and free of error. The remaining assignment is to the refusal of the Court to charge, that if the defendants bought and took possession of the mill in November, 1872, and claimed and used it as their own until they sold it in 1877, the plaintiff’s action, brought in 1879, is barred by the Statute of Limitations. Where parties are joint owners of a chattel the right of each to the possession is equal; and if one. sell the chattel the sale passes to the [599] vendee, the individual interest only of the vendor: Given v. Kelly, 85 Pa. St., 309. Each joint owner has an interest in the whole, and each has a right of possession. One cannot sell the entirety; the vendee must take the seller’s interest, and hold the chattel as the seller did: Trout v. Kennedy, 47 Id., 387. The possession of one co-tenant is the possession of all, and he who has the present possession cannot be ousted. Nor can one co-tenant object to the mere sale by the other of his interest in the common property and delivery of the chattel to the purchaser. A sale of the whole by one co-tenant does not impair the legal rights of the other: Weld v. Oliver, 21 Pick., 559. In that case it was decided that if personal property held in common be sold by one of the tenants as exclusively his own, such sale is a conversion, and the co-tenant may maintain trover therefor against him; or in case the purchaser shall sell and deliver the property as his own, the co-tenant may maintain trover against such purchaser for the subsequent conversion. Although in this state, upon like facts, trover may not lie, assumpsit will. As the sale by one co-tenant of the entire chattel does not pass the title of the other, unless he ratifies it, the latter may continue a co-tenant with the purchaser. The purchaser has no election — the co-tenant whose title was not divested by the sale may elect either to ratify the sale or to hold his interest in the chattel. Then if said purchaser should destroy the chattel, or sell it as exclusively his own, for the destruction he would be liable to his co-tenant in trespass or trover, and for the sale, if ratified by his co-tenant, he would be liable in assumpsit. The mere fact that the defendants bought the mill, took possession and used it as their own gave the plaintiff no right of action against them, for the possession of one tenant in common is the possession of all. The plaintiff was not bound to elect to pursue George W. Cover. He had no right of action against the defendants until they sold the property as exclusively their own. Their second point was properly refused. Judgment affirmed.