94 Vt. 258 | Vt. | 1920
This is an action of general assumpsit to recover the value of hay cut by the plaintiff in the summers of 1915 and 1916 on a farm then owned by him.
It appears that the plaintiff and one Harrison were tenants in common of the hay cut in 1916 and that Harrison conveyed his interest therein to W. H. Worthen and F. D. and D. T. Gilman.
The defendant claims, and the plaintiff does not dispute, that F. D. Gilman sold the hay cut in 1916 and a small quantity cut the year previous, it being all the.hay on the plaintiff’s farm, to the defendant. The defendant drew the hay to his farm and fed it to his stock, but has not paid any one for it. The plaintiff did not know of the sale to the defendant until after the hay had been fed out.
At the close of all the evidence, the defendant moved for a directed verdict on the grounds, in substance: (1) That no basis appeared for an action of assumpsit, that on the facts disclosed no action could be maintained except trover, and (2) that on the undisputed evidence Harrison was a tenant in common of the hay, and that he sold it to the Gilman Brothers, and that thereby title in full passed to them, and therefore the plaintiff could not maintain any action for it.
At the time of the sale to the defendant, Worthen and the Gilmans were co-owners, although not equal owners, with the plaintiff.
In Chase v. Soules, 76 Vt. 353, 57 Atl. 754, the Court recognizes the right of one cotenant to sell the entire property, if done with the consent of his cotenant.
Mr. Freeman, in his work above cited, at section 188, speaking of a deed of real estate by one cotenant, says: “A deed of a specific parcel of land by one cotenant is not binding on the others, nor can their rights be, to any extent, prejudiced by it. Such a conveyance, however, is not void, but voidable only. It may therefore be approved and ratified by the cotenants, and thereby be made to operate as a conveyance in severalty. ’ ’ Dall v. Brown, 5 Cush. (Mass.) 289. See also, Oviatt v. Sage, 7 Conn. 95; Putnam v. Wise, 1 Hill (N. Y.) 234, 27 A. D. 309.
Counsel for neither party expressed any dissatisfaction with the action of the court in so treating all of the hay, and there is therefore no occasion for us to consider the matter.
We hold that the plaintiff is entitled to recover in this action one-half the value of all the hay the defendant purchased from Gilman.
The remaining exceptions raise questions that relate either to the right of the plaintiff to maintain this action or to the extent of recovery that may be had, and, in view of our holding before stated, need not be considered.
Judgment reversed, and judgment rendered for the plaintiff to recover $136, with interest thereon from April 29, 1919, the date of the verdict, with costs in the county court, less the defendant’s costs in this Court.