The opinion of the Court was delivered by
Gibson, C. J.
The sheriff’s sale certainly discharged the mortgage at law; and if Clark, then a part owner of it, but now a terre-tenant *218defendant at the suit of the other part owner, is to be precluded from insisting on the discharge, his purchase from the sheriff’s vendor, must be treated as a trust. But a misfeasance, to make him a trustee ex maleficio, must be such as would subject him to an action at law; and it is settled that an action on the case lies not for an act which, though it be to the damage of the party, is not prohibited by the law. Thus it was in Semayne’s case, 5 Co. 91, where the defendant had shut the door of his house against the sheriff coming to do execution of the goods of another in it; or as it was in the Countess of Salop v. Crampton, Cro. Eliz. 784, where a lessee at will had negligently burned his house; or as it is said in R. Mo. 420, 453, where a man builds a dove-cote or coney-warren on his land, and the doves or conies hurt the neighbours—in these, and a countless number of other instances, there is damnum absque injuria. The sum of the maxim sic utere tuo is, that you so use your own as to do no wanton damage to another; in consonance with which'is Townsend v. Wathen, 9 East. 277, where the defendant, having set traps for dogs, with an intent to allure them into his grounds by the scent of bait prepared for the purpose, was held to be liable only because the purpose was malicious and unlawful. But the bona fide exercise of a right, how prejudicial soever its consequences to another, is followed by no such liability. Thus, an arrest for a debt mistakingly supposed due, though ruinous to the party, is justifiable as a fair use of a legal remedy. And the principle is decisive in its application to the duties of part owners, the rule being that a tenant in common is answerable to his fellow only for a voluntary destruction or abuse of the thing. In Martyn v. Knowlys 8 Term Rep. 146, it was ruled that the one could not maintain an action against the other for cutting down trees of a proper age and growth, else an obstinate co-tenant might hinder the others from taking the fair profits of their estates. For the same reason, it was held in Fennings v. Lord Grenville, Taunt. 241, that the conversion of a chattel to its general and profitable application, even by changing the form of its substance, is not a destruction of the thing to give an action for it betwixt tenants in common, because each has an equal right to take it and use it in its altered state. Nor do I apprehend that an accidental diminution of its value by the process, would have made a difference; for joint owners, having equal right to manage the property for the advantage of their respective interests, are answerable to each other for nothing but positive misfea-, sanee. In the application of this principle to the matter in hand, it is to be borne in mind that there was no officious intermeddling with the plaintiff’s interest; for Clark professed not to act further than to the extent of his ownership, or for any one but himself. It had not been settled that a sale on a judgment discharged a mortgage; the current of popular opinion was that it did not, and indeed such was the advice of counsel in the particular instance. Clark, the present terre-tenant, then, being a part owner of the mortgage *219which stood as a security for bonds separately assigned to the plaintiff and himself, and the land being put up for sale on the judgment of another, warned the bidders of the existence of the mortgage; and desired them to take notice that he meant to enforce it against the land, which consequently sold for about a twentieth of its value, and the mortgage creditors got nothing from the purchase money. Now, though it was,-in any event, unnecessary to give verbal notice of a registered mortgage, the warning was, nevertheless, an act of good faith; nor could its tendency to remove misconception, be deemed a legal injury to the plaintiff. On the contrary, it might well have been thought a service to him, as it would preclude an imputation of concealment by him. It was, in truth, no more than a repetition of the notice afforded by the register. Thus it stood at the sale; and it will not be said that Clark had not a right to take measures for the protection of his own interest without the consent of one whose interest was involved with it. To that other, the loss which ensued, was damnum absque injuria; while to Clark it was enough that he himself was equally a sufferer, especially as the connection was not of his seeking. And the principle is founded in justice and reason. Parties who have coincident but separate interests, may abridge the freedom of their action, in respect to them, by agreeing to make common cause in the prosecution of them; but pursuing them separately, they are not reciprocally answerable for acts which occasioned no wanton sacrifice. Why, then, ought Clark to have been diverted from the prosecution of a promising measure, by the risk of its consequences, to another? He surely had a right to act for his own preservation, without consulting one whom accident had embarked in the same bottom with him. In the unsettled state of the law at the time, notice of an intended prosecution of the mortgage, might have proved to be indispensable to the safety of all parties; but as it could have given Clark no claim on the plaintiff for a benefit, it shall not subject him to his action for a loss. Even partners in a voluntary association, share the losses which are occasioned by the acts of each other; and there is, to say the least, no room for the application of a severer rule to the mischances of joint owners.
There was nothing in the original transaction, therefore, to affect the terre-tenant’s conscience, and it is unimportant whether in analogy to the doctrine of notice, he stands as a purchaser of the imputed innocence of the sheriff’s vendee. The court put the cause on the doctrine of estoppel, according to which, it was said, a party who has affirmed a fact in a judicial proceeding, by which he gained an advantage over another, may not gain a further advantage over him by disaffirming it. Thus it was assumed that Clark’s act was adverse to the plaintiff’s right; and that he had gained, while the other had lost by it, neither of which is accurately predicable. It was destined, for good or for evil, to have the same effect on the interest of each; and the loss occasioned by it was mu*220tual. Moreover, the parties stood in no such relation of privity or mutuality as is essential to an estoppel, which binds both or neither. The proceeding was not betwixt themselves, for as joint owners they had no antagonist rights; and for that reason, also, it was impossible for the one to gain at the other’s expense. But, though their interests were coincident, they, might take opposite courses in the pursuit of them, for there was nothing to hinder the plaintiff from encouraging the bidders, by denying the legality of Clark’s pretensions; and had he done so, instead of acquiescing in it, the act would not have precluded him .from resorting to the land had his own position been found a false one; for a bidder proceeds on his own judgment of the law. A collusive misrepresentation of legal consequences to frighten bidders, might make a different case; but collusion could not be imputed to Clark without imputing to him a design to counteract his obvious interest, unless he were a secret purchaser, which has not been insinuated. Acting in good faith, therefore, his assertion that the sale would not discharge the mortgage, drew after it no legal or equitable responsibility.
Judgment reversed, and a venire de novo awarded.