Conover v. Earl, 26 Iowa 167

Conover v. Earl

26 Iowa 167 | Iowa | 1868

Dillon, Ch. J.

1. Tenancy in common: of chose in action: trover. — I. Appellant makes a point which if well taken would be decisive against the plaintiff. It is this: a promissory note cannot legally be assigned by piecemeal to different personst jpence the plaintiff’s assignor, McCoy, acquired nothing by the assignment of a portion (the onefourtli part) of the note to him; and, acquiring nothing, at least at law, it is impossible that the defendant could be liable at law for a conversion. This is a mistake. It may be true that a note connot be parceled out by the' holder, so as to render the maker liable to distinct actions by the different assignees. The principle here referred to has no application to this case. The owner of a note may sell distinct shares thereof to different persons, who thus become co-owners; and the interest thus acquired by one co-owner is such as to enable him to protect it by an action; and he may maintain trover if a co-owner be guilty of a conversion. '

2. — of chattels: conversion. II. One part owner of a chattel is as much entitled to the possession thereof, as the other. The defendant, as co-owner with the plaintiff, being in posses- . _ _ _CT . , _ sion, was not bound to comply with the demand of the. latter to deliver him the note. His refusal to do so is no conversion. Frans v. Young & Sewell, 24 Iowa, 375, and authorities there cited. The judgment in the plaintiff’s favor must be reversed, upon *170■the ground that neither the evidence nor the findings of fact establish the gravamen of the plaintiff’s action, viz., ■a conversion of the note by the defendant.

The sixth finding of the court does not show a conver sion of the note. The false statements therein referred to, are shown by the evidence to have been made to the plaintiff’s attornéy, who was not misled thereby; and by the evidence it further appears, that tbe defendant bad not surrendered the note and canceled tbe mortgage.

3. — remedy. On the case made in the record, the plaintiff’s remedy is not by an action for conversion, but for partition of tbe chattel, or in equity, making tbe other part owners, and the debtor parties.

Reversed.