Welch v. Clark

The opinion of the court was delivered by Bennett J. — Can this action be Sustained upon the facts disclosed in this bill of exceptions? We think not. The court, in substance, charged the jury that if they found that the plaintiff and William C. Clark were tenants in common of the mare in question, the plaintiff could not recover. The general rule is, that one tenant in common cannot maintain trespass or trover against his co-tenant, because they have each an equal right to the possession of the chattel, and the law gives no action to the one dispossessed, because his right is not superior to the right of the other. It is, however, equally well established, that, if there has been a destruction of the chattel by one co-tenant, the other, in such case, may maintain the action ; and it has beep held that the sale of an entire chattel, held in common, by one of [685] the co-tenants, without the consent of the other, is equivalent to a destruction. This, however, cannot be regarded as set-tied law. In the case of Heath v. Hubbard, 4 East’s R. 128, the court intimate a different opinion, while in the case of Barton v. Williams, 5 B. & A. 395, great doubt is entertained whether the effect of such sale would not amount to a conversion, and some of the court think it would. In the case of Daniels v. Daniels, 7 Mass. R. 137, Chief Justice Parsons says, trover will not lie by one or more of the heirs against the other heirs for the conversion of their title deeds, unless they are absolutely destroyed. In Obiatt v. Sage, 7 Conn. R. 95, there had been a sale by one co-tenant of the entire chattel, and judge Daggett says “that nothing done by one tenant in common of a chattel, short of a destruction of it, will render, him liable to his co-tenant in tort, and that this is familiar law.” In the state of New York, in the case of Wilson & Gibbs v. Reed, 3 Johns. R. 175, it was expressly adjudged that if one tenant in common of a chattel sell it, an action of trover will lie against him by the other co-tenant. This case is not supported by any adjudged case, cited either by the counsel or by the court, though it has been regarded as settling the law in that state. In the case of Tubbs v. Richardson, 6 Vt. R. 442, where the parties were tenants in common of a quantity of wool in the possession of the defendant, and he had sold a part of it and retained the rest, claiming the whole as his own, and refused to deliver any portion of it to the plaintiff on demand, it was held that trover would not lie, even for a moiety of what had been sold. I am not aware of any adjudged case in this state, that trover could be sustained upon a sale of the entire chattel held in common, and perhaps there may be some reason to question the soundness of the doctrine in the state of New York on this subject. If one of two tenants in common take the whole chattel into his possession, the other has no remedy against him who has done the wrong, but to take it himself out of his possession when an opportunity presents. And, if one tenant in common sells the whole chattel without the consent of the other tenant, the purchaser acquires a right to the possession of the whole chattel, as tenant in common, [686] the possession of one being the possession of both, but a title to one moiety only. The tenant is not divested of any right by the sale of his co-tenant, but becomes a tenant in common with his purchaser, who succeeds to all the rights of a tenant in common. How, then, is such a sale equivalent to a destruction of the chattel ? No doubt, the tenant may, at his election, affirm the sale, and sustain his action against his co-tenant for a moiety of the consideration received. But, if he brings his action for the tort, this is not an affirmance of the sale, though, probably, a recovery and satisfaction in trover against the co-tenant, might have the effect to vest the entire chattel in the purchaser. It is not necessary, however, in this case, for the court to decide upon the effect of a sale of a chattel by a co-tenant, and, whether, if upon such sale trover will lie, there should be a distinction between trover and trespass. This mare, while in the possession of Wm. C. Clark, had been attached on two several writs, and was, at the time of the attachment by the defendant, in the custody of the law. The defendant’s writ was served by the same officer, which would háve the effect to give him a lien, subject to the two first attachments; but he would have no right in, or control of the property, only as subject to the two first attachments. The mare was sold to satisfy the two first liens; but there were no proceedings, in regard to the sale of the mare, on the defendant’s execution. The defendant, in this case, as the creditor of Wm. C. Clark, as it respects the plaintiff, relies upon his rights and stands in his place. The defendant had the right to attach, at least, all the interest Wm. C. Clark had in the mare, as tenant in common with the plaintiff, and the officer had, by virtue of such attachment, the right to take the entire and exclusive possession of the mare, subject only to the prior attachments, to the dispossession of the plaintiff. Reed & Root v. Shepardson, 2 Vt. R. 120. Whitney v. Ladd, 10 Vt. R. 165. In Heydon v. Heydon, 1 Salk. R. 392, it was held that the sheriff, in the casé of co-partners and judgment against one, in levying the execution upon the goods of the partnership, must seize all, because the moieties are undivided; for, it is said, if he seize but a moiety, and sell that, the other will have a right to a moiety of that moeity ; [687] therefore, he must seize the whole, and sell an undivided moiety, and the vendee will then be a tenant in common with the other partner. The same reason will apply to tenants in common. It is, then, very manifest that the attachment of a chattel, held in common, on a process against one of the tenants in common, as his sole property, cannot in any point of view be considered equivalent to a destruction of the chattel, so as to give the other tenant the right to an action of trespass or trover against the attaching creditor, who succeeds to the rights of one of the tenants, or the officer who made the attachment. The fact that the officer, after the sale of the mare on the two first executions, applied the surplus of the money, remaining after the satisfaction of those executions, on the defendant’s execution, can have no effect in this action. The officer held such surplus in trust for those who were entitled to it, and must, at his peril, make a legal application of it. If the defendant is not entitled to retain it, he might be compelled to refund it, in an action for money had and received, but his reception of it can have no possible effect in this case. As this is an action of trespass, there is another ground which is fatal to the plaintiff’s right of recovery. To sustain trespass, the plaintiff must have either the actual or constructive possession of the chattel, at the time of the trespass complained of. He must have such a right as to be entitled to reduce the goods to actual possession when he pleases. In this case, the plaintiff’s right to the possession of the mare, at the time of the defendant’s attachment, was, for the time being, tolled by the prior attachments, the mare then being in the custody of the law, and the plaintiff, not having, at that time, the actual possession nor the right of possession, could not, for this cause, maintain trespass. The charge of the court to the jury, that if they found the young horse, which was had of Wright, was owned by the plaintiff and William C. Clark jointly or in common, and that this horse was turned out in part payment of the mare in question, they ought to infer (in the absence of any contract or evident understanding shown to the contrary) that they had a common interest in the mare in question, is most certainly unexceptionable. If the consideration paid for the mare in question moved from the plantiff and William [688] C. Clark, the effect of it, in the absence of any proof to the contrary, would be to vest the property in those who paid the consideration for it, and, indeed, this part of the charge was not resisted in the argument of the case. The result is that the judgment below is affirmed.