15 Barb. 333 | N.Y. Sup. Ct. | 1863
Hare raised the wheat in question upon shares. He was to deliver to Wells, his landlord, one-half the crop, thrashed and cleaned in the half bushel. He agreed with the plaintiff to thrash the crop on shares, he the plaintiff to have one tenth, or every tenth bushel, for thrashing.
The common law gave tenants in common of personal property no remedy by any legal proceeding for partition. They were compelled to resort to equity when they could not agree upon a severance of their respective interests, and the common property was not in its nature severable. But I apprehend the right of severance, amongst tenants in common, by one tenant of his share, 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
If the foregoing views of the rights of tenants in common are correct, it follows that the plaintiff had forty bushels of wheat of the quantity remaining on hand at the time of the conversion. But in addition to this, Hare testifies that he left this expressly for the plaintiff. This is clear evidence of his intention, at the time of severing a portion, to take his own share merely, and if necessary an assent on the part of the plaintiff might be presumed, under the circumstances, so as to work a partition to the extent to which it was made by mutual assent and agreement The defendants, from aught that appears in the evidence, were entire strangers to all the owners of the common property, and naked wrongdoers.
One tenant in common may maintain an action against a stranger, for a conversion, and recover his separate interest, when the nonjoinder is not pleaded in abatement. (Gilbert v. Dick
Selden, T. R. Strong and Johnson, Justices.]
Judgment of the county court reversed, and that of the justice affirmed.