Boley v. Allred

McCARTY, J. Tbe complaint in this ease alleges: “(1) That on the 23d day of February, 1899, at Price, in tbe county of Carbon, State of Utah, the plaintiff was tbe owner and entitled to tbe possession of an undivided one-balf interest in tbe following described personal property, to-wit: One annex building and fixtures, one bogpen and ten bog^, one lumber stable; all of said property being upon tbe premises of Hotel Clarke, in Price town, Carbon county, TTtab. (2) That the personal property above described was on said date of tbe value of $300, and plaintiff’s undivided one-balf interest therein was of tbe value of $150. (3) That on. said 23d day of February, 1899, and while plaintiff was such owner as aforesaid, defendants wrongfully and unlawfully took possession thereof, and converted tbe same to their own use, to plaintiff’s damage in tbe sum of $150.” Tbe complaint contains' tbe usual prayer for judgment. Tbe defendants demurred to the complaint on tbe grounds: “(1) That there is a defect of parties plaintiff ... in this: that it does not appear from said complaint who was tbe owner of tbe half interest of tbe property mentioned therein of which plaintiff was not tbe owner; (2) that there is a defect of parties defendant in this: that it does not appear from said complaint who was tbe owner of the half interest of tbe property mentioned, therein of whichi plaintiff is not the owner;” and that said complaint does not contain facts sufficient to constitute a cause of action. Tbe court sustained tbe demurrer. Tbe plaintiff declined to amend, and tbe court • entered a judgment dismissing tbe action at her costs. Plaintiff appeal's to this court, and assigns as error the ruling of tbe court in dismissing tbe action. There is no merit whatever in the first two' grounds alleged in the demurrer. Counsel for respondents, in their brief, concede the well-established rule that one joint or co-tenant may maintain an action for tbe conversion of 1 personal property in which be owns an undivided interest, [404] without joining his co-owners. This right of action is also provided for by section 2919, Revised Statutes 1898, which is as follows: “All persons holding as tenants in common or as joint tenants, or any number less than all, may jointly or severally commence or defend any civil action or proceeding for the enforcement or protection of the rights of such party. In all cases one tenant in common or joint tenant can sue his co-tenant.” It is urged that the complaint does not state facts- sufficient to constitute a cause of action because it does not appear who the parties were who- owned the half interest in the prop*-erty not claimed by plaintiff, and, for aught that appears in the complaint;, it may have been the respondents- themselves* The complaint charges the defendants with the conversion of the property mentioned therein; in fact, it contains all the essential allegations to constitute a conversion; and 2 even if defendants were co-owners with plaintiff in the property, and they converted it to their own use, thereby depriving plaintiff of her interest therein, she would have a right of action against them for such conversion (Freeman, Co-Ten. and Part., sec. 306; 26 Am. and Eng. Ency. of Law, pp. 787-789), and proof of the conversion would be admissible under the allegations of the complaint. But, say counsel in their brief, the defendants may have taken possession 3 of the property for a legitimate purpose without depriving plaintiff of her interest therein, and therefore, if such were the case, a suit for conversion can not be maintained; and they cite the case of Lillianskyoldt v. Goss, 2 Utah 292, in support of their contention on this point. In that case the ,complaint alleged that plaintiff and defendant were joint owners and tenants in common in the property that was the subject-matter of the action, whereas the complaint under consideration fails to show any such state of facts* Therefore the defendants, in order to avail themselves of a defense of this character, must plead it in their answer. A pleader is [405] not required to anticipate and negative every conceivable bind of a defense that might be interposed to defeat Ms action. Bliss, Code, Pl., sec. 200; 1 Chitty, Pl., 222. The judgment, is reversed, with, directions to the trial court to reinstate the case and overrule the demurrer, costs of appeal to be taxed against respondents. BASKIN, C. J., and BARTCH, J., concur.'