Balch v. Jones

61 Cal. 234 | Cal. | 1882

Lead Opinion

McKinstry, J.:

This is an action to recover a mare and an undivided one half of five colte. The verdict was for the mare and one half of the colts, or, in case a return could not be had, for the value of all the property fixed at six hundred and twenty-five dollars. The judgment followed the verdict.

A tenant in common in a chattel can not maintain an action against his co-tenant for a recovery of the specific chattel or for his undivided moiety thereof, or interest therein. This would seem plain upon its statement; but see vol 1, Chitty’s Pleadings, Perkins’ Notes, 16th American edition, p. 183, note “0.” The present is not an action in the nature of trover. The complaint contains no averment of a “conversion.” A formal demand for the possession of personal property, and a refusal to deliver it is not necessarily proof of conversion, but

i only evidence which may or may not establish the conversion. The conversion, when properly alleged may often be shown by proof of other facts than those of demand and refusal. Hence an averment of demand and refusal is not the equivalent of an averment of conversion. If it were, there is no distinct averment in the complaint of a demand of the possession.

If there were an averment of conversion, trover would not lie in a case like the present. The motion, as for nonsuit, upon the opening statement of plaintiff’s counsel, should have been granted. It appeared that the common property was still alive and in the possession of defendant. The property was not lost or destroyed, it had not been sold by defendant, the interests of plaintiff and defendant were indivisible, the property not being of a nature which could be separated into portions absolutely alike in quality. The facts stated did not bring the case within any of the classes in which a tenant in common may recover as for a conversion of the property by his co-tenant. (Cooley on Torts, 445 and notes.)

Schwartz v. Slcinner, 47 Cal. 3, is not authority to the contrary. There the complaint was held to be a good complaint in trover, and the defendant’s counsel admitted that trover would lie. Neither Buckley v. Carlisle, 2 Cal. 420, nor Williams v. Chadbourne, 6 id. 559, sustain trover in a case like the present. The first case has no bearing on the question, and the second only holds that trover will lie against a co-tenant who has converted the common property by a sale of it, and an appropriation of the proceeds. The appeal was taken within sixty days after the rendition of the judgment.

Judgment reversed and cause remanded.

Mybick, J., concurred.

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Concurrence Opinion

McKee, J., concurring:

I concur. The judgment appealed from is erroneous. In an action by one tenant in common against a co-tenant to recover an undivided interest in the common property, judgment can not be rendered for a return of the whole property, nor for an undivided interest in the property, because the co-tenant has an equal right to the possession of the whole; therefore, an action of replevin, or of claim and delivery of the common property, is not maintainable by one tenant in common against another (Davis v. Lottich, 46 N. Y. 395; Witham v. Witham, 57 Maine, 448; Wells v. Noyes, 12 Pick. 324); nor is trover, unless there has been such a loss, destruction, or disposal of the property as amounts to a conversion; or the property be divisible in its nature and ascertainable by measurement, weight or count. In such a case a tenant in common may-demand of his co-tenants, having possession of the whole, his share, and on a refusal, or conversion, he may sue in trover. (Lobdell v. Stowell, 51 N. Y. 70; Stall v. Wilbur, 77 id. 158.)