2 Barb. 633 | N.Y. Sup. Ct. | 1848
Clow and the plaintiff were tenants in common in all the products of the farm until a division. Clow worked the plaintiff’s farm on shares. There was no lease. Their shares were uncertain in amount, and there was no reservation in favor of the plaintiff of a fixed quantity of the products. (Putnam v. Wise, 1 Hill, 234. Caswell v. Districh, 15 Wend. 379. 8 Cowen, 220. Foote v. Colvis, 3 John. 221.) A tenant in common cannot maintain trover against his co-tenant, without proving a sale by the latter, or a loss or destruction of the article whilst under his management. It is not sufficient, to maintain the action, that one tenant in common has obtained the exclusive possession of the chattel owned in common, and claims to be the sole owner, and refuses to deliver it up to his co-tenant, or to permit him to share in the possession. ( Wilson v. Read, 3 John. 178. Gilbert v. Dickerson, 7 Wend. 450. 2 John. 458.) In this case, Hubbell, after the sale, became a tenant in common with the plaintiff, and as such tenant in common, he had a right to take exclusive possession of the property, and remove the same; and he was not liable for these acts, to either the action of trover or trespass, at the suit of the plaintiff. Even if the constable assumed to sell, and did sell, the entire property, the only interest which passed at the sale was the interest or share of Clow in the property; and Hubbell only succeeded to his right therein as a tenant in common. He, therefore, after the sale, became a tenant in common with the plaintiff. (2 Cowen’s Trea. 1351. Mersereau v. Norton, 15 John. 180. Matter of Smith, 16 Id. 106. Waddell v. Cook, 2 Hill, 49, 50, and note.)
The constable was authorized to levy on and seize the whole
If then any action lies against Hubbell, it must be trover, or perhaps By waiving the tort, assumpsit for go.ods sold and delivered. (Putnam v. Wiser, 1 Hill, 240.) Trespass does not lie against him.
A new trial must be granted; costs to abide the event.