Arthur v. Gayle

R. W. WALKER, J. 1. The question..presented by the demurrers to the second and third .counts of the complaint is, whether an action is maintainable by one tenant in .córner mon of a remainder in slaves, against his co-tenant, on the ground that the latter, during.the existence of the particular estate, obtains possession of the slaves, and sells and conveys them as absolutely his own. If such, a sale, were made after, instead of before tbe termination of tbe particular estate, it is clear, both upon .principle and authority, that it would be a conversion, for which tbe co-tenant could [265] maintain-trover. — Welch v. Oliver, 21 Pick. 559 ; Wilson v. Reed, 3 Johns. 174; Perminter v. Kelly, 18 Ala. 716; Smyth v. Tankersley, 20 Ala. 212 ; Cowles v. Garrett, 30 Ala. 350. And if upon such sale money was received, the tort could be waived, and assumpsit for money had and received maintained. — Smyth v. Tankersley, supra ; Cowles v. Garrett, supra. The fact that the sale was made during the existence of the particular estate,, however material in determining the remedy to be pursued, and the quantum of damages recoverable, does not impair the right of action. The reason for sustaining the action, when the title and possession are vested, applies-fully when the title is vested and the possession postponed. When the title and- possession are vested, the action is maintainable, because each tenant in common sustains to- his co-tenant a relation of trust and confidence, for any violation of which* the law holds him liable. — Van Horn v. Fonder, 5 Johns. Ch. 406 ; Flagg v. Wann, 2 Sumner, 522. It is his- duty to preserve the subject of the tenancy. If, having possession of it, he willfully mismanages it, or tortiously destroys it,- he becomes liable to his co-tenants. — Chesley v. Thompson, 3 N. H. 1 ; Anders v. Meredith, 4 Dev. & Batt. 199 ; Hyde v. Stone, 7 Wend. 354; Wilson v. Reed, supra ; 1 Chitty’s Pl. (12th Am. ed.) 155. A sale by a tenant in common,' of the entire interest, is, so far as he is concerned, equivalent in its legal consequencos to a tortious destruction*of the subject of the tenancy- It is a violation of the trust and confidence springing, from the relation he occupies. It is an attempt to invest himself with the entire interest, in-that in which his co-tenants have an interests in common, with him. Therefore,. though, ordinarily, no action can be maintained at lato by one tenant in common against another-, ins such a case the law permits the co-tenant to sue. The same relation exists when the subject;of the tenancy is a remainder, that exists-when it is an-dnterest in possession. There is the same- community of interest and of duty. There is the same tr-ust and confidence that the one [266] wall do nothing prejudicial to the r^jits and interests of the other. The violation of that duty and trust is as tortious when the subject of the tenancy is a future, as when it is a present interest; and every reason for maintaining the action applies as forcibly in the one case as the other. True, the same remedies cannot be pursued in each case. When the sale is made during the existence of the particular estate, it is probable that no action at law could be maintained, except a special action on the case ; for the reason, that there is not a right of immediate possession. But, that an action on the case will lie, cannot, we think, be denied. — See Cole v. Robinson, 1 Iredell, 544; Ramey v. Green, 18 Ala. 776 ; Nations v. Hawkins, 11 Ala. 859. It matters not that the sale would only operate to pass the interest of the tenant making it, not affecting the rights of his co-tenant. The same argument could be made with equal force in the case of a sale of a present interest, or where a stranger sells the property of another. In neither of these cases does the sale divest the title of the true owner; and yet, in each, it would be a good cause of action. There is, indeed, one reason for holding the tenant, making •sale of a remainder, liable to bis co-tenants, which does not exist in either of the cases just supposed. Such a sale converts the estate in remainder, from an interest in possession, in legal contemplation, for many purposes, into a chose in action. — Broome v. King, 10 Ala. 819 ; Price v. Tally, 18 Ala. 21. So far as the liability of the tenant making the sale is concerned, it is not material whether he has possession of the slaves rightfully or tortiously. The ground of his liability is, that he has made sale of an absolute interest, in violation of his duty to his co-tenants, and has unlawfully assumed authority over and disposed of the property of another. 2. The fourth and fifth counts allege the sale to have been made by defendant, but do not aver that he was a co-tenant with the plaintiffs. These counts present the case of a suit by a remainder-man, for an injury by a stranger to the estate in remainder.' Such suits have often been main [267] tained; the test of their propriety -being, whether the injury complained of was permanent-in its character, affecting the right of the remainder-man3 or temporary, affecting only the interest of the tenant-of-the particular estate. 1 Chitty’s Pl. 62-3; Beavers v. Trinsmer, 1 Dutcher, 97 ; Trusman v. Railroad Co., ib. 255; Mumford v. Railway Co., 36 Eng. L. & Eq. 580 ; Oxford v. Hallett, 14 East, 489. A sale of the absolute interest-is an injury affecting the rights of the remainder-man. It Is designed, and oftem operates, as a destruction of his interest. If the title of the plaintiffs had been a present, instead'of a future interest, the sale would have rendered the person making it without authority liable to the true owner. — Upchurch v. Norsworthy, 15 Ala. 765. That it Avaha future interest, does not change the principle.- — See Keyes on Chattels, §§ 532, 374 ; Dean v. Whitaker, 1 C. & P. 347; Coffey v. Wilkinson, 1 Metcalf, (Ky.) 101; Cole v. Robinson, supra. 3. We consider it unnecessary' to .notice in detail the numerous exceptions founded oh the suppression of interrogatories, and the exclusion' of evidence. One or two propositions will furnish a sufficient guide forth© future conduct of the cause. The rule is, that a man’s admissions against his own interest are "admissible in evidence against him, and those claiming under him by .a title arising after the making of such admissions. " The title-which the defendant set up was derived through Mrs. Arthur. Consequently, her declarations in disparagement of her own title, made while she was in possession, and before her sale to Diggs, were admissible against the defendant. — Jennings v. Blocker, 25 Ala. 415 ; Fralick v. Presley, 29 Ala. 462; Gillespie v. Burleson, 28 Ala. 552; Cole v. Varner, 31 Ala. 244. 4. We think that the necessary predicate was laid for the introduction of secondary etidence of the contents of the deed of John Singleton. Its execution was shown by the admissions of Mrs. Arthur,- under whom the defendant claimed; and its loss was established by her admissions and the other facts testified to by Mrs. Clary. The exist [268] ence and loss of the deed being established, the examined copy from the records of tbe probate court of Clarke county should have been received as evidence of its contents. It was shown that, after the loss of the original, Mrs. Arthur stated that she had obtained from South Carolina a correct copy, and that shedrad had the same recorded. in Clarke county. It was also admitted, that the copy offered in evidence was a cop)i of the only deed of the sort on record in that county. Upon this state of facts, the court erred in excluding from the jury the copy-deed appended to the deposition of Judge Bettis. — Fralick v. Presley, 29 Ala. 457, (462); 2 Phill. Ev. (C. & H.’s Notes, Edwards’ ed. 1859,) p. 517, note 446; ib. p. 532, note 458; Corbin v. Jackson, 14 Wend. 619; Allen v. Parish, 3 Hammond, (Ohio,) 111, &c.; Winn v. Patterson, 9 Peters, 663, 677. Judgment reversed, and causewemandedi.