Mersereau v. Norton

| N.Y. Sup. Ct. | Jan 15, 1818

Per Curiam.

The defendant in the court below pleaded not guilty, and stated that he should justify under the statute for giving relief against absent and absconding debtors. Why the defendant below7 interfered in any manner to direct the sheriff who had the attachment, does not appear. It is most likely that he was a creditor of Amasa Norton ; but unless the sheriff was a trespasser, the defendant below could not be deemed so. He must be justified equally with the sheriff, under the attachment. There does not seem to be any complaint that the proceedings under the attachment were not regular; and the only question that appears to be raised on the return is, whether a sheriff, under an attachment like this, has a right to take and sell property of which the absconding debtor was only a tenant in common, when that property is found in the possession of the other co-tenant. Of this there can be no doubt. There is no other way to get at the interest of the one against whom the attachment issues. It is observable in this case, that although upon the trial it appeared that the plaintiff below and the absconding debtor were tenants in common of the oxen, yet neither when they were first taken, nor when they were sold, did the plaintiff allege this, or that he had any claim to the property. Had a claim of properly been interposed, the sheriff must have summoned a jury to try the right, and the sale would have been only of the interest of the absconding debtor, as in case of a sale under an ex-, ecution of the property of joint partners. The sheriff, in such cases, seizes all, and not a moiety of the goods sufficient to cover the debt, and sells a moiety thereof undivided,

and the vendee becomes tenant in common with the other partner. (Salk. 292. 1 East, 367.) Although the sheriff sold the oxen as the sole property of Norton, yet no more than his interest passed, and the plaintiff below became tenant in common with the purchaser. The sheriff who took the oxen, and all who aided him, and the purchaser, must certainly have all the rights and interest of Norton, the absconding debtor; and one tenant in common of a chattel cannot maintain trover or trespass against his co-tenant. This doctrine is expressly laid down by Littleton, (§ 323.) and sanctioned by Lord Coke, who says, if one tenant in common take all the chattels personal, the other has no remedy by action, but he may take them again; this has been so held by this court. (2 Johns. Rep. 468.) The sale here was not such a destruction of the property as to destroy the tenancy in common, as will be seen by the distinctions taken upon the trial, in Wilson and Gibbs v. Reed. (3 Johns. Rep. 176.) The judgment must be reversed.^(a)

Judgment reversed.

(a) Vide Moody v. Payne, 2 Johns. Ch. Rep. 548,