Dain v. Cowing

22 Me. 347 | Me. | 1843

The opinion of the Court was drawn up by

Whitman C. J.

— The plaintiff contends that a nonsuit should not have been ordered, insisting that his evidence tended to establish a matter of fact, upon which the jury should have been allowed to decide. It has, however, been repeatedly held in this Stale, that if the mailer offered in evidence by a plaintiff is not, when taken to be true, sufficient to sustain his case, a nonsuit may be ordered. In this case the plaintiff may be considered as having proved, that he was, at the time of instituting his suit, the owner, as tenant in common, of one half of the horse in question, with the defendant; and that the defendant then had him in possession, denying any right of the plaintiff to any portion of him ; and alleging that he had bought him of a third person. The Judge, at the trial, was of opinion that, in such case, trover would not lie, and ordered a nonsuit.

It will not be questioned, that one tenant in common cannot maintain trover against his original co-tenant, while he remains in possession of the property. It is equally well established, if one co-tenant has possession of the common property, and sells the whole of it as his, that his co-tenant may maintain trover against him for his half of the value. But no decision has gone so far as to authorize the maintaining of an action of that kind against a vendee of the original co-tenant remaining in possession of the article; or against any one in possession of the property by virtue of a sale under him ; any one, being in possession of the property under such sale, being deemed a co-tenant with any other rightful owner of any portion thereof. But every successive sale of such co-tenants may amount to a conversion, so that trover might be maintained against each until satisfaction were obtained of some one of them. In the case of Weld v. Oliver, cited and confidently relied upon by the counsel for the plaintiff, the defendant was the vendee of the original co-tenant, and had sold the property to a second vendee. In the case of Gilbert v. Dickerson, cited for the defendant, it was expressly decided that trover would not lie against the vendee of the original co-tenant, so long as he continued in possession of the property, although claiming it as sole owner.

It does not appear, that any question was made at the trial, as to the derivation of title by the defendant under Wilson, the original co-tenant with the plaintiff. Wilson went off leaving the horse in the custody of one Edgcomb, and, after-wards, Edgcomb went off leaving him in the custody of one Kempton, of whom the defendant alleged he had bought him. These facts were derived from the plaintiff’s witnesses at the trial; one of whom stated that the plaintiff said the defendant bought the horse of Wilson. And in the argument of the plaintiff’s counsel, no notice was taken of any want of regularity in the derivation of title by the defendant from Wilson. We therefore consider the defendant as properly a co-tenant with the plaintiff; and-the action therefore not sustainable.

Exceptions overruled, and judgment on the nonsuit affirmed.