Waller v. Bowling

Avery, J. after stating the facts: The rule in reference to issues laid down by this Court in Emry v. Railroad, 102 N. C., 209, has been repeatedly approved since. Lineberger v. Tidwell, 104 N. C., 510; Brown v. Mitchell, 102 N. C., 367; McAdoo v. Railroad, 105 N. C., 151. The defendant, in order to sustain his assignment of error, must show that the Court has erred in refusing or failing, at his request, to present to the jury, through the medium of some issue submitted, a pertinent view of the law applicable to the testimony, whereby the jury may have been misled. Bonds v. Smith, 106 N. C., 564. A tenant in common of a chattel cannot maintain an action of or in the nature of trover against his co-tenant upon the ground merely that his demand for possession of the common property has been refused by the latter, unless he can show that the co-tenant had subsequently consumed it or placed it beyond recovery by, means of legal process. Newby v. Harrell, 99 N. C., 149; Pitt v. Petway, 12 Ired., 69; Lucas v. Wasson, 3 Dev., 398; Cooley on Torts, 455; Ripey v. Davis, 15 Mich., 75. But where the tenant in possession of personal chattels withholds the common property from his co-tenant, or wrests it from him and exercises a dominion over it, either in direct denial of or inconsistent with the rights of the latter, an action will lie for conversion. Shearin v. Rigsbee, 97 N. C., 221; 2 Greenleaf, §642; University v. Bank, 96 N. C., 284; Cooley on Torts, supra; 2 Greenleaf Ev., 636a; Grove v. Wise, [295] 39 Mich., 161. There is some conflict among the authorities, and it is difficult to draw or trace the shadowy line that marks the limit to which a tenant in common may go in the exercise of control over the common property without subjecting himself to liability for conversion. But Schouler (in his work on Personal Property, Vol. 1., p. 200), after taking the extreme ground that at common law nothing short of the destruction of a chattel, or a conversion of the whole to his own use, or something equivalent, will render the owner in possession liable to his co-owners — says that mere dispossession of a co-tenant might, “if accompanied with other ads showing a hostile intent,” amount to a conversion. It would seem that the violent wrenching of the machinery from the mill, when the plaintiff was present forbidding, was the strongest evidence of such intent. In the case of Strickland v. Parker, 54 Me., 263, the facts were that the purchaser at execution sale of an undivided interest in a tract of land, removed the superstructure of a marine railway located on the land, consisting of iron and wooden rails and sleepers, &c., and placed it upon another tract of land. The Court held that the property removed constituted a part of the land and passed with it, but that the co-tenant of the purchaser might maintain trover against him for removing it. The Supreme Court of Michigan, in the case of Grove v. Wise, supra, held that even before condition broken, any person wrongfully interfering with a mortgagee’s possession of a chattel under his mortgage deed, would subject himself to liability to damage in an action of trover brought against him by such mortgagee. The facts in that case were, that an undivided half interest in a steam-engine, boiler and some planing-mill machinery had been mortgaged to the plaintiffs, and the defendant Wise, having previously owned the other half interest, had, subsequent to the date of the mortgage, bought at bankrupt sale the land on which the building containing the engine, boiler [296] and machinery stood. The case is cited with approval both by Cooley and in the Notes to Greenleaf’s Evidence. It seems to be settled that where personal property, after being subjected to the lien of a mortgage, is attached to mortgaged land, it will be held to have passed to the mortgagee in the chattel mortgage as against the assignee or holder of the real estate mortgage, who had notice of the first mortgage when it was attached. Hermon on Chat. Mort., §138; Sheldon v. Edwards, 35 N. Y., 279; Smith v. Benson, Hill, 176. Where a steam-mill was mortgaged, not including the land on which it stood, it was held by the Supreme Court of Iowa that subsequent purchasers of the mill and premises on which it stood, who had notice of the chattel mortgage, took title to the mill subject to it. Gunter v. Alexander, 15 Iowa, 470; Hermon, supra, § 138. The general principle that exclusive possession of personal property by one tenant in common, and a denial of the rights of his co-tenants, is a conversion for which trover will lie, is supported by numerous adjudications in the Courts of other States. Figuet v. Allison, 8 Cooley (Mich.), 328; Well v. Oliver, 21 Pick., 563; Winner v. Penniman, 35 Md., 163; Person v. Wilson, 20 Minn., 189. In Stephens v. Koonce, 103 N. C., 266, the defendant tendered to the plaintiff a judgment for the possession of a steam-engine, boiler, saw-mill, grht-mill, &c., removed from his land, and the costs of the action. The Court held that the defendant was not only liable for costs, notwithstanding such offer, but for the full value of the property converted, and interest allowed by the jury, and could not be compelled to take the property back. The general rule is, that where one of the owners of an undivided interest in a chattel exercises such dominion over the common property as is inconsistent -with the rights of his co-owner, the latter may bring claim and delivery, if the property can be found, and recover the specific property, with damage for deterioration as well [297] as detention, or he may elect to sue for damages for the wrongful conversion and. recover the value of the property at the time of the taking, and costs. Stephens v. Koonce, supra; Ripey v. Davis, 15 Mich., 75; Hall v. Younts, 87 N. C., 285. After suit has been brought for the conversion, the owner cannot be compelled to take the property back, but when he does allow it to be returned in damaged condition, its diminished value can be considered in mitigation of damages. 3 Southerland on Damages, 530. The rule as to the measure of damages would be different where fixtures, such as gas piping, are torn from a building and the building is thereby rendered unfit for occupation and use. There the measure of damages is the cost of restoring the building to its original state and the loss in its rental value while it was uninhabitable. Willis v. Branch, 94 N. C., 142. It was- not necessary that the plaintiff should make a formal demand for possession of the property before bringing the action, if, as both plaintiff and defendant testified, he was present, forbidding when it was removed from the land. The law did not require him to act on the assumption that one who took it away in the face of his protest would return it at his request, or to accept it in full satisfaction of his damages, if there was a voluntary offer to return it. The exceptions insisted on in this Court were the first, fourth and fifth. For the reasons given, we do not think that the Judge erred in refusing the instruction asked, or substituting that given, or in the rulings excepted to. Affirmed.