Southworth v. Smith

Storrs, C. J. We are of the opinion that the bill in this case is insufficient. It is brought by a major part of the owners of a vessel against the other part owners who are in the possession of it, and prays, first, for an account from the defendants, and secondly, that they may be compelled, by injunction, to deliver the vessel specifically to the plaintiffs. In regard to the claim for an account, there is no doubt that if there were a matter of account between these parties growing out of the use, by any of them, of the vessel owned — 358 — by them jointly, and of which they are tenants in common, as if one of them had received more than his proportion of the avails or use of it, and there has been a refusal to render such an account, a court of equity would have jurisdiction of such matter on a proper bill brought for the purpose of compelling the rendering of an account. But it would be necessary, in such a bill, to state the facts upon which the owners called on to render an account had made themselves liable to do so, and a refusal on their part. In this case no such facts are alleged. It is not stated that the defendants have received more than their proportion of the avails or earnings of the vessel, or even that they have received any of such avails or earnings; or that they have ever employed the vessel in any business or manner whatever, either on account or for the benefit of themselves or the plaintiffs. Nor is any refusal by them to render an account, or that which is tantamount to such refusal, alleged in-the bill. Indeed, it contains nothing which bears on the matter of accounting, except an allegation that the defendants have had the possession of the vessel, and that they and the plaintiffs are joint owners of it, and a prayer for an account. No authority or reasoning is necessary to show that a statement merely, that some of the joint owners of personal property have had the sole possession of it, without an averment of any facts from which it appears that there exists any proper subject matter of an account between them and the other owners growing out of such possession, and of what it consists, lays no foundation for a bill of account against them by the other owners. The bill, therefore, so far as it calls for an account, can not be sustained. As to the other relief sought in this case, an injunction directing the defendants specifically to deliver to the plaintiffs the possession of the vessel in question, the bill is obnoxious to the same general objection which has just been pointed out in respect to it as a bill for an account. It alleges no facts upon which such relief should be granted, whether it is sought in a court of equity or admiralty. It is a general principle of the common law, that, where — 359 — personal property is owned by several persons, all of them are equally entitled to the possession of it. It results from this principle, that where one of them is in the actual possession of it he has a right to maintain it against the others. His possession is deemed, in law, to be the possession of all the owners, and there is no specific remedy by which he can be compelled to deliver the possession of it to the others. Nor does the mere possession of it render him liable to them, or any of them, for an injury done to it by him, short of a destruction of it, or a conversion of the whole of it to his own use, or that which is equivalent. The principle which prevails in regard to real estate owned by several persons, that where one ousts another of the possession the latter may be restored to the possession of his part by a proper action for that purpose, is not applicable to personal property. The only mode by which one of the joint owners can obtain the possession of it from another, except by consent of the latter, is by taking possession when he finds a fit opportunity to do so. The law on this subject is thus fully and clearly stated by Littleton in his Tenures. “If two have an estate in common [in land] for term of years, &c., and the one occupy all, and put the other out of possession and occupation, he which is put out of occupation shall have, against the other, a writ of ejectione firmce of the moietie,” &c., (sect. 322.) “In the same manner it is, where two hold the wardship of lands or tenements during the non-age of an infant, if the one ousts the other of his possession, he which is ousted shall have a writ of ejectione de gard of the moietie, &e., because that these things are chattels reals, and may be apportioned and severed, &c., but no action of trespass—videlicet: quare clausum suumfregit, et herbam suam Sf-c., conculcavit et consumpsit 8fc., et hujus modi actiones, 8fc.—the one can not have against the other, for that each of them may enter and occupie in common, &c., per my et per tout, the lands and tenements which they hold in common. But if two be possessed of chat-tells personals in common, by divers titles, as of a horse, an oxe, a cowe, &c., if the one take the whole to himself out of the possession of the other, the other hath no other remedie but to — 360 — take this from him who hath done to him the wrong to oecupie in common, &c., when he can see his time, &c. In the same manner it is of chattels reals, which can not be severed,” &c., (section 323.) These, as general principles, are fully recognized not only by courts of law and equity, but also, with a modification which will be hereafter mentioned, by courts of admiralty. It is not necessary to determine whether a court of chancery, in the exercise of its original and appropriate jurisdiction, might not in a peculiar case calling for its equitable interposition, require a joint owner of personal property in his possession, on an application by the others, to furnish security to the latter for the preservation or protection of their interest in it, or even direct the possession of it to be delivered to them; as if the former should threaten-to waste or destroy the property wantonly and should be unable to respond in damages to the latter for such injury. It has been decided, in consonance with the general rule of law, that where one tenant in common of a ship has not destroyed the common property, but only taken it out of the possession of another and carried it away, the latter can not sustain an action at law against him upon a charge of fraudulently and deceitfully sending the ship to foreign parts where she was lost. But we are inclined to the opinion that where such a wrong is meditated, a court of equity would furnish relief by injunction or otherwise, on the principle of preventing remediless injury, upon which it often interposes to protect property of which one person has the possession in the character or nature of a trustee for another and there is danger of its improper disposition or willful destruction. Hinde’s Prac., 126. AmbL, 273. 1 Bro., 105, 279. 1 Ch. R., 110. 2 AtL, 82. 6 Yes., 172. It is not, however, necessary to inquire as to the extent of the jurisdiction of a court of equity in regard to such cases, because there is, in the present case, an entire want of any averment in respect to any meditated injury to the vessel in question which would lay the foundation for any relief to the plaintiffs by such a court, either in the mode sought by them or by requiring security from the defendants. The only allegation pertinent to the claim for any such relief — 361 — is, that the defendants threaten to send the vessel out of the state, and that, of itself, independent of the circumstances under which that act is contemplated, or its object, is clearly insufficient to require or justify the interference of a court of equity. The case of Halley v. Goodson, 2 Merivale’s R., 77, has been relied on by the plaintiffs to show that the ordinary equitable jurisdiction of a court of chancery is sufficiently extensive to reach the present ease. Without questioning the correctness of that decision, it does not aid the plaintiffs, because, even conceding, what is however very doubtful, that it sufficiently appears in the present case that the shares of the different owners of the vessel in question are not ascertained, upon which fact the court in the case cited entertained jurisdiction, the bill here alleges no further fact, in connection with such an averment, which would entitle the plaintiffs to any assistance in a court of equity on such ascertainment. Upon ordinary equitable principles, therefore, the plaintiffs are not entitled to relief. But it is claimed that in accordance with the rules which prevail in the court of admiralty, a court of equity should direct the vessel to be delivered to the plaintiffs, and that the jurisdiction of these courts on this subject is concurrent. It is settled as a principle of maritime law, which will be enforced in a court of admiralty, on the ground of national policy and in favor of commerce, in respect to that particular species of personal property which consists of ships and vessels, where they are owned by several persons, that, irrespective of the fact that they are in the possession of all or only a part of the joint owners, a majority of the owners in value have a right to employ them, even against the will of the minority, on giving a stipulation to the dissenting owners for their safe return, if required to do so by the latter on a proper application to the admiralty; and that if the majority decline to employ them, the minority of the owners may employ them in like manner; and that, in these cases, a court of admiralty will, if necessary, compel the dissenting part owners, if they are in possession of the ship, to yield the property to — 362 — those who have thus the right to employ it for that purpose. It is also laid down in the treatises on this subject, that if the minority happen to have possession of the ship and refuse to employ it, the majority may, by a warrant for that purpose, obtain possession of the ship and send it to sea, upon giving the customary security to the minority for its safe return. Flanders on Shipping, 359. 3 Kent’s Com., part 5, lept. 45. Abbot on Shipping, 101, part 1, eh. 3. From the limitation, as thus expressed, of the right of the majority to a case where the minority in possession of a ship refuse to employ it, it seems to be implied that, unless there is such a refusal, the majority could not by such a proceeding dispossess them of the ship; and it does not appear to be explicitly settled that the majority could do so. If they could not, the present bill is plainly defective in not alleging that the defendants, who are stated to be in possession of the vessel, refuse or are unwilling to employ it. But it is unnecessary here to decide this point, for it is obvious that the rules which have been mentioned as having been established in courts of admiralty, have been adopted only for the purpose of providing that the ship should not be kept idle, but employed where it is desired by any of the owners, notwithstanding-the others may object, and that it is only for the purpose of carrying that objeét into effect that those courts will interfere in the manner which has been stated.' But'where it does not appear that it is the object of a portion of the owners of a ship, in applying for the possession of it, to' employ it themselves, or no purpose appears excepting merely to procure a transfer of the possession of the vessel to themselves, such interposition, as it would be wholly useless, would be refused. Applying these principles to this case, it is clear that this bill can not be sustained, since it not only does not allege that the defendants are unwilling to employ the vessel in question, but it is not stated that the plaintiffs desire the possession of it for the purpose or with the intention of employing it, nor is any object whatever mentioned for which they ask to have it delivered to them. It hence becomes unnecessary to determine the question — 363 — which has been so elaborately and ably argued before us, as to whether, and to what extent, a court of chancery and a court of admiralty have concurrent jurisdiction on this subject. There is no error in the judgment complained of. In this opinion the other judges concurred. Judgment affirmed.