When, and for what cause, one of two or more tenants in common of personal property may maintain trover against those retaining its possession is sufficiently clear on principle, but not always of easy application to confused and varying facts. The right of each to the use and possession of
the property is precisely the same, and neither can have or exercise a superior authority over the other. It follows necessarily that the mere fact of such possession and use by one, even though it prevents the use and possession of the other can furnish no ground of action, since it is rightful, and rests upon a lawful authority. But it also follows that if that possession develops into a destruction of the property or of the interest of the co-tenant, or into such a hostile appropriation of it as excludes the possibility of beneficial enjoyment by him, or ends in a sale of the whole property which ignores and denies any other right, then a conversion is established and trover may be maintained against the wrong-doer. The earlier cases on the subject hesitated to decide that a mere sale of the whole of the common property by one of the owners was sufficient proof of a conversion (Wilson v. Reed, 3 Johns. 176; Hyde v. Stone,
9 Cow. 230" court="N.Y. Sup. Ct." date_filed="1828-08-15" href="https://app.midpage.ai/document/hyde-v-stone-5465131?utm_source=webapp" opinion_id="5465131">9 Cow. 230; Mumford v. McKay, 8 Wend. 444), and the loss or destruction of the property, so that it had passed out of the reach of the injured party, was to some extent coupled with the fact of a sale as furnishing the ground of an action. But inWhite v. Osborn (21 Wend. 75), the rule freed itself from any such incumbrance, and it was decided that the sale of the whole property which ignored and denied the right of the co-tenant, furnished sufficient proof of a conversion. That case has been steadily followed and the doctrine is now fully established. (Tyler v. Taylor, 8 Barb. 585" court="N.Y. Sup. Ct." date_filed="1850-05-06" href="https://app.midpage.ai/document/tyler-v-taylor-5457867?utm_source=webapp" opinion_id="5457867">8 Barb. 585; Van Doren v. Balty, 11 Hun, 239; Delaney v. Root, 99 Mass. 547; Wheeler v.Wheeler, 33 Me. 348; Dyckman v. Valiente, 42 N.Y. 560.) The application of that rule to the case before us makes it possible to say that the plaintiff could have maintained trover against Platt who was his co-tenant, although there were modifying circumstances which create a doubt. The two were owners in common of a planing machine which, with the building in which it stood and other appliances, they had leased to tenants for a term of years. Platt, being indebted to the defendants, gave them a chattel mortgage upon the whole machine as security for the debt. But when he did so he explained to them
that he was but the half-owner, and that the plaintiff owned the other half, and the payments reserved in the mortgage were shaped in amounts and date of maturity to correspond with the stipulated payments of rent which were looked to as the means of discharging the mortgage debt. The execution and delivery of this mortgage was a conditional sale of the property, which upon default ripened into an absolute title. It is claimed that this transaction constituted a conversion of the plaintiff's interest, for which trover would lie against either of the wrong-doers. That may be true as to Platt. The general language of his mortgage was presumptively evidence of a total sale (White v.Osborn, supra), but the notice given of part ownership in another, and the arrangement made for an application of the rents to the extinguishment of the mortgage debt, indicate a purpose, not to deny or ignore the right of the co-tenant, and so qualify the inference to be drawn from the broad language of the mortgage. If, however, it be conceded that Platt was liable for a conversion because he mortgaged the whole property, it does not follow that the defendants were also wrong-doers, and equally liable. Assuredly their mere acceptance of the mortgage did not amount to a conversion. (Matteawan Co. v. Bentley, 13 Barb. 641" court="N.Y. Sup. Ct." date_filed="1852-10-04" href="https://app.midpage.ai/document/matteawan-co-v-bentley-5458310?utm_source=webapp" opinion_id="5458310">13 Barb. 641.) The mortgage by itself in no manner interfered with plaintiff's interest. It transferred no title to that interest. The cases which authorize an action for conversion expressly concede that only the interest of the vendor passes to the purchaser. Upon default title to the interest of the mortgagor became vested in the defendants. Nothing more than that could pass; nothing more did pass. If no other event had happened than the mere acceptance of this mortgage by Schenck, that fact alone would not have made him liable for a conversion. (St. John v.Standring, 2 Johns. 467" court="N.Y. Sup. Ct." date_filed="1807-11-15" href="https://app.midpage.ai/document/talcot-v-commercial-insurance-co-5472155?utm_source=webapp" opinion_id="5472155">2 Johns. 467; Gilbert v. Dickerson, 7 Wend. 449" court="N.Y. Sup. Ct." date_filed="1831-10-15" href="https://app.midpage.ai/document/gilbert-v-dickerson-5513769?utm_source=webapp" opinion_id="5513769">7 Wend. 449;Dyckman v. Valiente, supra; Dain v. Cowing, 22 Me. 347" court="Me." date_filed="1843-04-15" href="https://app.midpage.ai/document/dain-v-cowing-4927720?utm_source=webapp" opinion_id="4927720">22 Me. 347.) The case last cited states the rule plainly that the purchaser from a co-tenant who had assumed to sell the whole property was not liable without proof of a conversion other than that arising out of his becoming a purchaser and claiming to be sole owner.
Schenck, therefore, was not liable for a conversion when he accepted the mortgage. He acquired a lien by that instrument only upon the interest of Platt, and after default, becoming vested with that interest, was a tenant in common with plaintiff, and his further action must be tested accordingly. The question now comes, whether that action made him liable in trover. The sole thing he did was to remove the machine from the possession of the lessees to his own. The only claim he made was that he took it and had a right to take it. There is no evidence that he used it. No demand was made of him before the action was brought. He neither did nor said any thing in denial of plaintiff's right as a co-tenant until after he was sued. He neither sold it nor destroyed it, nor so appropriated it as to bar any future enjoyment of it by plaintiff. In taking it he only exercised his admitted right as a co-tenant. He asserted no exclusive dominion over it. That assertion was not made until driven to an answer after action commenced for a conversion, and even then was not urged or intimated upon the trial. The defense was rested wholly and alone upon the right of the defendant as a co-tenant. To sustain his liability in this case we must practically abrogate the rule so long and thoroughly established, of the absolute equality of right of tenants in common, and hold that the mere taking possession of the common property by one, coupled with an assertion of his right to do so, is a wrong for which trover may be maintained. No case goes that length. In all there was some additional and decisive fact beyond the possession and claim of right to retain it. There was either a destruction of the property itself or of the power of beneficial enjoyment by the co-tenant. In Benedict v. Howard (31 Barb. 569" court="N.Y. Sup. Ct." date_filed="1860-05-14" href="https://app.midpage.ai/document/benedict-v-howard-5459851?utm_source=webapp" opinion_id="5459851">31 Barb. 569), there was a practical destruction of the property as personal by changing it into real, and so barring the possibility of future use by the co-tenant. There was no such destruction of the property or the power of beneficial enjoyment in this case. In Van Doren v.Balty (11 Hun, 239), the mortgagee of half presumed to sell the whole at public auction, and the purchaser who was sued used and claimed it as his own, denying any other right and refusing
to deliver it on a demand. No sale has been made by the mortgagees here; there has been no demand and no refusal, and not even a claim of exclusive right. These were the cases most relied upon to sustain the right of action, but do not justify the inference sought to be drawn from them.
The difficulty is intensified when we pass beyond Schenck, who took the machine, and consider the case as against the two other defendants. There is a total absence of evidence as against them. We may guess or believe that they are partners of Schenck, but the fact can scarcely be said to be proved. If a wrong was done they neither joined in its commission, authorized the act, nor ratified it when done. Their sole connection with the transaction is that the mortgage was made to "John B. Schenck's Sons," and they probably were members of that firm.
It is unnecessary to discuss other questions. The views already expressed justify the reversal by the General Term. That order should be affirmed, and judgment absolute upon the stipulation be rendered in favor of the defendants.
All concur, except RAPALLO, J., absent.
Order affirmed and judgment accordingly.