22 Barb. 568 | N.Y. Sup. Ct. | 1854
This presents an inquiry into the rights and liabilities of tenants in common of pergonal property. Tenants in common are said to be seised or possessed of the subject of the tenancy per my et per tout, by the moiety and by all; having each the possession as well of every part as of the whole. Consequently, one tenant in common cannot maintain an action of trespass or trover against his co-tenant, for the thing held in common, merely for taking and holding it. (2 Cannes' R. 166. 2 John. 468. 3 id. 175. 15 id. 179. 9 Wend. 338.) As a general rule, the property held in common cannot be divided, unless by the consent of all the owners. One tenant in common cannot set apart a portion of the common property, for his co-tenant, and hold the remainder as his own, however just may be the division. (4 Wend. 530.) This must be so, when the property held in common consists of several things of different qualities or value, or where it embraceg
Mr. Justice Johnson, in delivering the opinion of the court in the case of Tripp v. Riley, (15 Barb. 334,) says : “«The common law gave tenants in common, of personal property, no remedy by any legal proceedings for partition. They were compelled to resort to equity when they could not agree upon severance of their respective interests, and the common property was not in its nature severable. But I apprehend that the right of severance, amongst tenants in common, by one tenant, of his share, always existed at common law, as to all property in its nature severable. That partition of personal property, held in common, was always a matter of absolute right, both by the civil and common law; and might be called for by either tenant, at any time.” And the learned judge gave it as his opinion that where personal property, severable in its nature, in common bulk, and of the same quality, is owned by several as tenants in common, each tenant may go and sever and appropriate his share, if it can be determined by measurement or weight, without the consent of the others, and sell or destroy it without being liable to them, in an action for the conversion of the common property. It appears that this opinion of Judge Johnson was adopted by the learned court of the 7th district, at a general term, who allowed the plaintiff to recover for his individual share of a quantity of thrashed wheat held by him in common with another, and which had been taken and carried away by the de
The plaintiff, at the trial and on the argument of the appeal, claimed all the straw as his, and demanded judgment against the defendant for carrying away and converting one half of it. of the value of $20. The plaintiff’s claim to the whole of the straw is founded on the assumption that, by the practice of good husbandry, the straw of wheat is spread upon the land where it grew, to repair the soil, and is therefore to be considered in law as manure. In the case of Middlebrook v. Corwin, decided in 1836, Mr. Justice Nelson, giving the opinion, (15 Wend. 169,) the court held that where a farm is taken by a tenant, for agricultural purposes, the manure made upon it belongs to the farm, and not to the tenant, and at the expiration of his term the tenant has no right to remove or dispose of it. This was a case between landlord and tenant, and related to the manure produced by twenty cowSj a pair of working oxen, and other cattle, put on the farm by the landlord, and which was sold by the tenant to the defendant, and taken from the barn-yard, on the farm, shortly before the expiration of the tenant’s term» In the case of Goodrich v. Jones, decided in 1841, Cowen, J. delivering the opinion, (2 Hill, 142,) it was held that manure lying in a barn-yard, on a farm, at the time of the conveyance, though laid up in heaps, passed by the conveyance of the farm to the purchaser. (See the cases referred to by Judge Cowen.) The correctness of those decisions is not doubted, but it is denied that wheat straw is embraced by the term manure, as used in those cases; or that it is shown to be so uniformly used by farmers to enrich their land, as to constitute a reservation of it for that purpose an implied stipulation on the part of the landlord who lets his land for agricultural purposes. Admitting that the defendant was under an implied engagement to use the plaintiff’s land according to good husbandry, there was no proof that good husbandry in that section of country or neighborhood required the straw to be used upon the land, as manure. (4 East, 154.) As remarked by Mr. Justice Nelson, in the case of Middlebrook v. Corwin, what may be good husbandry in re
The judgment appealed from must be affirmed.
Marvin, Mullett, Bowen and Greene, Justices.]