Strong v. Colter

McMillan, J. By the Oourt The plaintiff and Mary Middleton, under the agreement offered in evidence — which appears not to be disputed — or her husband, Samuel Middleton, were owners, tenants in common, of the grain which is involved in this action; the defendant in his conduct in regard to this grain acted in the presence and under the direction of Mrs. Middleton, and as the agent of her husband, [84] •Samuel Middleton, in Ms absence; unless, therefore, an action will lie against the principal, the agent is not responsible. As between tenants in common, the possession- of one is the possession of all; and unless the property has been actually converted or destroyed, an action at law will not lie in favor of one against another. 1 Ch. Pl. 79, (Marg.) There is no evidence of any destruction or conversion of the property; the defendant testifies that he had the grain in his possession at the time of the commencement of the action. But there is evidence in the case, pro and con, relating to a sale by Mrs. Middleton of her share, or that of her husband, to the plaintiff in July, 1864, and subsequent to the date of the agreement referred to. If the grain was the separate property of Mrs. Middleton, and was disposed of by her as such, in the absence of any testimony to withdraw it from the operation of the statute in regard to the rights of married women, the assent of her husband to the sale is essential to its validity. Comp. Stat. Chap. 61, Sec. 106, p. 571. If sold as the agent of her husband, there must be some evidence of the fact. In this case we discover no evidence of agency of the wife, but there is the positive evidence of the defendant.that Samuel Middleton, the husband,, on the eve of-his departure in March, 1864, gave defendant direction tó take charge of all his affairs in Ms absence, particularly to see to all the property on the farm, and that in June, 1864, he forbade Strong to purchase the crops. Mr. Middleton died in the IT. S. service in February, 1865. Ve think there is nothing in the case to authorize the jury in finding a valid sale of the Middleton interest in the crops. The plaintiff was, therefore, a tenant in common with Middleton, and it does not appear that the property has been actually converted or destroyed; -an action, therefore, will not lie against the defendant, who acted as the agent of the Middletons, and did [85] no adt which his principal might not lawfully have clone. The judgment should be reversed, and the verdict set aside, and a new trial granted.