Perminter v. Kelly

| Ala. | Jan 15, 1851

PARSONS, J.

It is clear that one joint tenant, tenant in common, or parcener, cannot maintain trover against his companion for a thing still in possession; for the possession of one is the possession of both. It is, however, fully settled, that if one tenant in common destroy the thing in common, the other may bring trover. — Fennings v. Lord Grenville, 1 Taunt. 241; Heath v. Hubbard, 4 East. 110. And a late English author observes, that “ a sale of the whole of the property by one of them, adversely, and in exclusion of the other, would, it seems, be a conversion of the other’s share, for which he might maintain trover.” — 1 Archb. N. P., 454; Barton v. Williams, 5 Barn. & A., 395. This renders the law far more adapted to the rights and the wrongs of the respective parties, than it was in former times. He who sells his co-tenant’s share of the property to a stranger who will hold against him, has violated the relation, he bore and injured his companion as much, perhaps, as if he had destroyed the property. Why then should he not have a legal remedy against the wrong-doer, instead of requiring him to look to the .purchaser for his interest in the property, and be to the wrong-doer'? To sustain the general proposition that when one joint owner of a chattel sells the entire chattel, it is a conversion, for which trover lies, there are various American cases cited on the brief of the counsel for the defendant in error, and cited in those cases, and we entirely concur with them.

2. In this case the defendant below made the sale as the agent of one of the co-tenants, but the inference from the bill of exceptions is, that he sold the entire property and also delivered the possession, as the contrary is not stated. He must stand on the same ground with his principal. ' The sale was equally a wrong by both. In Tennessee it was held that one joint owner of property might recover against the sheriff, who sold the entire chattel under an execution against the other joint owner.— Rains v. McNairy, 4 Humph. R. 356. The sheriff in that case had notice. That the sale by the defendant below was such an assumption of authority over another’s property, as to amount to a conversion, there can be no doubt. If a party claim the property in the chattels as his own, or even assert the right of another over them, it is evidence of a conversion — and where a person’s property is sold by one, whether for his own use or the use of another, it is a conversion, for it is a tortious act, and the gist of the action. — Perkins v. Smith, 1 Wils. 328; Parker v. Goden, 2 Strange, 813. A servant may be charged in trover, though the conversion be done by him for the benefit of his master. — Stephens v. Elwall, 4 M. & S., 529. And where A. consigned the goods of B. to C., and C. without notice of the right ofB. sold a part and kept the remainder in his possession, the sale was held to be a conversion. — Featherstonhaugh v. Johnstone, 8 Taunt. 237; 2 Mod. 181; 2 Saun. on Pl. & Ev., 883. These authorities, and those oh the brief of the counsel for the defendant in error, show conclusively that the defendant below was liable for selling the interest of the plaintiff in the slaves, whether he had or had not notice of the plaintiff’s right. Neither negligence, nor any other fault whatever, was imputable to the plaintiff below. Consequently his right of property, or of action, is not to be taken away by the unauthorised act of another, whether done innocently or otherwise. Even lunatics are liable for trespasses and other tortious acts, by which another person is injured.

3. It is contended that the plaintiff below should not have recovered the entire value of the slaves, ás he was only a part owner. The answer is, that we think he only recovered the value of his own interest; and, from the bill of exceptions, it is evident the court neither charged, nor was understood by the jury to charge, that he could recover for any share or interest but his own. The rule is, to construe bills of exception most strongly against the party excepting. It does not appear by this bill of exceptions, that the court charged that the plaintiff could recover for any share or interest in the slaves, but his own.

The judgment is affirmed.