Newton v. Howe, 29 Wis. 531

Newton v. Howe

29 Wis. 531 | Wis. | 1872

Lyon, J.

The interest of the plaintiff in the property which he held in common with Wheelright, exceeded the portion of such property which he claims in this action. The question to be determined is: Does the fact that the same was so held in common when it was seized by virtue of the writ of attachment, defeat the action ?

It will doubtless be conceded that, if the plaintiff had a lawful right to sever his interest in the property and take away his share, without the consent of his co-tenant, he might maintain an action against any person who unlawfully took his share, or any portion of it; and consequently, in such case, if the property is exempt from seizure, that he can maintain this action.

*535The general rule of the common law is, that property held in common can only be divided by the consent of the owners, or by a proceeding in a court of equity. This is necessarily so when such property consists of several things of different qualities or value,' or where it embraces but a single thing which cannot be divided without destroying its character or identity. But is this rule applicable in a case like the present, where the property is in its nature severable?

This question is ably discussed by Mr. Justice Johnson, in Tripp v. Riley, 15 Barb., 333; and, inasmuch as his views accord with ours, we cannot do better than to quote his language. He says: “ But, I apprehend, the light of severance, amongst tenants in common, always existed at common law as to all property in its nature severable. I do not find the point any where expressly adjudged, and no case is referred to. But it seems to me 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. And where one tenant in common takes from the common property under such circumstances, if he does not take beyond his proportion or share, he will be presumed, in law, to have severed and taken his own merely. The rule would be different in the case of property not severable in its nature; as animals, for instance, where each tenant has the same right to every animal.”

The same principle has been applied in the following cases: Fobes v. Shattuck, 22 Barb., 568; Channon v. Lusk, 2 Lansing, 211; Fiquet v. Allison, 12 Mich., 328; Lobdell v. Stowell, 37 How. Pr. R., 88. See also Carlton v. Davis, 8 Allen, 94; Kimberly v. Patchin, 19 N. Y., 330; Clark v. Griffith, 24 N. Y., 595; Young v. Miles, 20 Wis., 615.

The property in controversy in this action is unquestionably *536severable, within, the meaning of the foregoing authorities. One bushel or one ton thereof is of the same character and value as any other bushel or any other ton thereof; and for the purpose of dividing it nothing was necessary but to ascertain the quantity.' Approving of the doctrine of the above cases, we must necessarily hold that the plaintiff had* the right, without the consent of his co-tenant, to sever and take exclusive possession of his share of the property so held in common ; which share would upon such' severence become the exclusive property of the plaintiff. It would follow from this, that a creditor of the plaintiff might lawfully seize and sever the plaintiff’s share therein, or at least, so much thereof as is not exempt by law from being thus seized.

That it also follows from these views that the plaintiff may lawfully assert his exemption rights in such property so held in common, seems to us to be too clear for argument. To hold that he could not do so would be a plain violation of the rule that exemption laws are to be construed liberally in favor of the debtor. Gilman v. Williams, 7 Wis., 329 ; Maxwell v. Reed, id., 582 ; Stewart v. Brown, 37 N. Y., 350.

We think, therefore, that the learned circuit judge erred in directing a verdict for the defendants for the undivided property seized under the attachment.

II. Certain objections are taken to the affidavit for the appeal, and to the justification of the sureties in the undertaking given by the defendants, to prevent a delivery of the property to the plaintiff; but we do not deem these objections well taken.

The affidavit states that the appeal was made in good faith and not for the purpose of delay, which is all that the statute requires, (E. S., ch. 120, sec. 205); and if the justification of the sureties was defective in the-first instance, the defect was cured by a new justification, which it was competent for the court to-allow.

By the Court. — The judgment of the circuit court is reversed, and a new trial awarded.