46 N.Y. 354 | NY | 1871
It must be taken as one of the facts in this case, that there was an absolute sale, of one equal undivided half of the sloop, by the defendant to John W. Ward, and that Ward became the unconditional owner of that one-half. The referee has so found, and there is testimony to sustain the finding.
When then, the defendant afterward sold the whole of the sloop to Malcolm, ignoring the rights in her of Ward, his act authorized Ward to sue for a conversion of the property (White
v. Osborn, 21 Wend., 72; Dyckman v. Valiente,
Ward then had two courses, either of which he might pursue. He could sue the defendant for the conversion, or he could assert his right of possession, by keeping a permanent possession, or regaining possession if it was interrupted. (Id.) The effectually taking of either of these two courses, precluded him from taking the other.
If he actually insisted on keeping the possession of the vessel, and refusing to recognize the sale by the defendant, he could not sue the defendant for the conversion. There does not seem to be any doubt that he did so insist. At the time of the sale by the defendant to Malcolm, the sloop was fast in the ice, and in the actual possession as much of one tenant in common as of the other. As soon as she was free from the ice, Ward took actual possession of her, and continued it until legal proceedings were taken by Malcolm, for the delivery of the sloop to him. Ward still insisted upon the ownership of an interest in the sloop, and upon retaining the possession of her, by requiring a return of the possession of her to him by the sheriff. It is not perceived, how Malcolm could have obtained the possession of the sloop to the exclusion of Ward, if the last named had persisted in his defence to that action, and so had retained the possession, the right to which he had asserted. The defendant could pass to Malcolm no greater right in her than he had himself, and that was to an equal undivided half. So far Ward had elected his course and had *357 succeeded in it, and the proceedings of Malcolm had been ineffectual to dispossess him. Ward had taken his position. He had chosen to assert, and to act upon the assertion, that the defendant had no right to sell the whole of the sloop, and that his attempt to do so had not divested, and should not divest, the interest of Ward in her.
In our judgment he had then gone so far, as that he could not afterward entirely change his position, and that neither he nor the plaintiff, his assignee, recognizing the act of the defendant as having worked the destruction of his half of the sloop, could yield to the claim of Malcolm, asserted in the action in the United States court, submit to the seizure in the behalf of Malcolm of the vessel in that action, and then have a right of action against the defendant for the conversion.
The mode Ward had first chosen had, until then, been effectual to preserve to him his property and the possession of it. And when that was interfered with by Malcolm, in his suit in the United States court, it was the duty of Ward and the plaintiff not to abandon the property, but to persist in a defence of his right.
Where there exists an election between inconsistent remedies, the party is confined to the remedy which he first prefers and adopts. The remedies are not concurrent, and the choice between them being once made, the right to follow the other is forever gone. (Morris v. Rexford,
The judgment of the court below should be reversed, with costs to the appellants.
ALLEN, GROVER, and ANDREWS, JJ., concur; PECKHAM and RAPALLO, JJ., dissent; Ch. J. not voting.
Judgment reversed. *358