17 Pa. 373 | Pa. | 1851
The opinion of the court was delivered by
The assignment of 23d January, 1846, from Sorin & Ball to Lawrence Johnson, does not include the stereotype plates in controversy; and Mr. Johnson, in his letter of 21st December, 1847, after nearly two years’ time for correcting any errors in that assignment, and when his interest was stimulated by the approaching insolvency of Sorin & Ball, does not pretend that these
The reason why one joint tenant or tenant in common cannot maintain trover against his companion, is, that both are equally entitled to possession, and the possession of one is the possession of both, and is in accordance with the right of both. But where one misuses the joint property by appropriating it to uses for which it was not designed, and refuses to apply it to the purposes for which it was held by both, or if one delivers the property wrongfully to a stranger, for purposes inconsistent with the uses for which it was designed, and such stranger denies the title of the other, and claims the exclusive possession and ownership, the reason of the rule ceases, and trover may be maintained.
One of two joint tenants or tenants in common, may bring trover against a stranger, and recover the value of his share, where the non-joinder of his companion is not pleaded in abatement: 2 Sawn. PI. # Pv. 1164.
As the evidence stood in the court below, the plaintiff there ought to have been permitted to go to the jury. There was evidence on which the jury might properly have found in his favor.
Judgment reversed and venire de novo awarded.