13 N.Y. 173 | NY | 1855
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *175 The judge instructed the jury to find the full value of the property replevied at Buffalo, if they should find for the defendant, and refused to charge that the recovery must be limited to the value of the interest of Holmes therein as part owner. To this instruction and refusal the plaintiff duly excepted. There are two answers to the objections to the charge and refusal: First. Holmes, whom the defendant represented, as joint owner with the plaintiff, and in the lawful possession of the property, could not be deprived of that possession by the act, or any proceeding founded on the right of property in his co-tenant. (2 Mass. R., 509.) The defendant was therefore entitled to a judgment for the return of the property replevied, in order to reinstate him in the possession of which he had unlawfully been divested, by the writ issued at the instance of the plaintiff. The statute "Of the action of replevin" provides "that the defendant, whenever he shall be entitled to a return of the property replevied, instead of taking judgment for such return, may take judgment for the value of the property replevied." (2 R.S., 531, § 55.) The cases to which we are referred by the counsel for the plaintiff, only prove that one having a special interest in property, cannot, as against the general owner or those claiming by his direction, recover more than the value of that interest. (Spoor v. Holland, 8Wend., 445.) In this case, however, the defendant is a carrier, and prima facie responsible to his consignee for the property in dispute, to its whole value. The request for instructions assumes that the defendant represents the undisputed owners of one-half of it, with right to the possession of the whole. If a return had been adjudged, he must have delivered the property according to the directions of his bill of lading, or paid its value. He is not, therefore, protected without a recovery equivalent to his responsibility over.
Second. The jury were authorized to infer from the evidence, that by the agreement between Holmes and Nichols, *178 either of the joint owners, after the hogs were fattened and killed, had the right to dispose of the whole property, accounting to the other for his share of the proceeds; that the sale made by Holmes to Slocum was in pursuance of this arrangement, and vested a title to all the property replevied in the latter. But, however this may be, upon the ground first suggested, we think there was no error in the instructions of the learned judge, or in his refusal to charge as requested by the counsel of the plaintiff.
The judgment of the supreme court must be affirmed.
Concurrence Opinion
The plaintiff's claim in this writ of replevin was not based upon the theory that he was a joint owner or tenant in common, and therefore entitled to the possession of the whole, but that he was the entire and sole owner. Proceeding upon this theory, the plaintiff obtained, by virtue of his writ, the possession of the whole property. And as I understand that action, he must, as against the defendant, have been entitled to the entire possession or fail. The defendant, as a common carrier, was at the time bailee of the property from a purchaser, and the bailment had not terminated. It is well settled that one joint owner or tenant in common of chattels, cannot sell the whole property, but his undivided share only. It is as well settled that each joint owner is possessed per my et per tout, or of each parcel or share and of the whole, while tenants in common of chattels hold undivided portions of the property by several titles or in several rights; but their possession is in common and undivided. The sale, therefore, by Nichols to the plaintiff of the whole property, was unauthorized. He had a right to sell his own share only. The plaintiff, by this, perhaps, acquired only the interest of Nichols. After the hogs had been slaughtered and converted into pork and lard neither party, independently of an express or implied agreement, had a right to sell the whole. Holmes did, however, sell to Slocum and transferred to him the *179 possession and right to the possession of the whole. The defendant, as his bailee, had all Slocum's right to the possession. Several questions might have been raised in this case, which would have made it one of difficulty and doubt. But as this is a bill of exceptions, only so much of the evidences is returned as is material to the points actually presented for decision.
The principal question is as to the measure of damages, the jury having found that the defendant, on the facts, had a right to recover.
The point raised by the requests and refusals to charge, as also by the charge itself, is this: Where a bailee has received property from one who is unquestionably at the time entitled to the possession, can another entitled to an undivided interest, in an action of replevin where he has claimed and taken the whole property from the bailee, failing in that, reduce the damages by showing his own title? It is not necessary to say what the rule would be now, where all the parties necessary to a complete determination of the controversy, may be brought before the court. But in an action of replevin under the statute as it existed prior to the Code, the statute itself regulated the recovery. (2 R.S., 531, § 55.) The defendant, whenever he shall be entitled to a return af the property replevied, instead of taking judgment for the return of the property and damages for its detention, may take judgment for the value of the property replevied. It will not be contended that this was a proper action for a partition or division between tenants in common or joint tenants. The plaintiff did not ask for his share, but the whole. The defendant was entitled to the possession of the whole until a division between the parties. The plaintiff failed to sustain his claim, and consequently failed in his action. The defendant was therefore entitled to a return of the whole property, or at his election, to a judgment for the value. The rights of the several owners are to be settled in another action, and cannot be in this. It follows, that as one joint tenant or *180 tenant in common, has a right to the possession of the whole as well as each part, and as the defendant was the bailee of a person who had this right, that the detention was not illegal and that the plaintiff could not recover. The defendant being entitled to a return, must be placed where he was when the action was commenced, namely, in possession of the whole of the property, or have judgment for the value thereof.
The judgment should be affirmed.
JOHNSON, DENIO, CRIPPEN and MARVIN, Js., were also for affirmance.
HAND J., was of opinion that the defendant should have recovered only the value of the interest of Holmes in the property.
Judgment affirmed.
