Bates v. Marsh

33 Vt. 122 | Vt. | 1860

Redeield, Ch. J.

This is an action of trover for a piano. The plaintiff claims to recover the value of one undivided half of the instrument, on the ground that the defendant, after having sold the whole instrument to him, or allowed his partner to do it asserted title to one half of it, and after the plaintiff had transferred one half of the instrument to one Kellogg by means of a sale or execution against himself, the defendant sold one half of it to Kellogg and he carried the instrument out of the country.

This is the only evidence of conversion by the defendant. And it seems to us not sufficient. It is well settled in this State that the sale of the whole property to a stranger, by one tenant in common is not a conversion; Tubbs v. Richardson, 6 Vt. 442.

We do not see how the purchase of the claim of a stranger to one half by the co-tenant should be any more a conversion than a sale by the co-tenant. It is less of an assertion of an independent right of control, perhaps ; certainly it is not more so. It is not claimed that the sale to Kellogg is a conversion by him. This must be upon the ground that he did no more in regard to the property than he had a right to do independent of that purchase. A legal act does not become a wrong, because it was done under ■a false claim. If so a sale of the whole chattel by one co-tenant must also amount to a conversion. But it does not, because it only transfers the claim’ of one co-tenant, leaving the right of the other unaffected.

So also in the present case ; as Kellogg had the right to use the piano and to carry it off, his purchasing the right of the ■defendant did not render him a Wrong doer.

And if Kellogg was not a wrong doer, no more could the defendant he, since he did not actually intermeddle with the property, but at most was accessory to the act of Kellogg, and if that were justifiable, so also was the defendant’s act, in counselling or encouraging him in doing it. And that is the most which could be claimed. .And it does not very distinctly appear that the defendant’s sale to Kellogg had an influence in inducing -him to carry off the instrument.

'The defendant’s sale was a mere assertion of title, without .Just right, and the transferring of that false claim to one who before had perfect right to do all that he did do. We think this •cannot, in any sense, amount to a conversion. Had the defendant sold to a stranger and he carried off the property, the case would -have been very different.

•Judgment affirmed.