6 Vt. 442 | Vt. | 1834
The opinion of the court was pronounced by
— From the exceptions in the case two questions arise. 1st, Whether the wool sued for was the property of the plaintiff? If it was, has there been a conversion by the defendant ? We will consider the second question, first assuming that Bosworth owned one half of the unsheared wool, and sold it to the plaintiff. Then the plaintiff and defendant were tenants in common of the whole, before and after it was clipped.
Then were the acts done by the defendant, to wit, shearing the whole, selling 28 out of 68 lbs., carrying the balance to his own house, refusing, on demand, to deliver any part of it to plaintiff, and claiming the whole as his own, a conversion in law. The general rule as laid down by Coke Lit. 200. — Brown vs. Heddes, 1 Salkeld 289. — In Fox vs. Hamby, 2 Cowper 140, and in Holliday vs. Camel & White, 1 T. R. 658, that an action of trover will no^lie in favor of one tenant in common .against another; and in none of these authorities save Coke Lit: is the proposition qualified by an exception of where there has been a destruction of the property by the defendant: But there are numerous modern authorities that say a destruction of the property is a conversion. Of this therefore there is no doubt. But the enquiry now is, what other acts, if any beside the destruction of property, will be evidence of the conversion. The authorities cited and relied upon by me jjiíiiííúuj'virñi _■ -.TSfarkie 1496, and notes, — the text says that when an action is brought by one tenant in common of an indivisible chattel, against another tenant in common, it is not sufficient to shew that the defendant took forcible possession of the chattel and carried it away, or that he changed the form of the chattel by applying it to the use for which it was not intended. But if the defendant, being tenant in common, destroy the chattel, it is a conversion, and trespass or trover will lie; and with one example to illustrate the principle, this is all'that is said in the notes. Buller N. P. 35 is cited, which is, that when the possession of a tenant in common be-
In the case from Chip. R. it was decided that the pavdi-* were not tenants in common of the boards there in question and therefore the question now before us was not decided ; but the chief justice intimates an opinion upon two supposed cases,' first, when goods owned in partnership were intended for sale, which one partner may lawfully sell, the other, where personal property is kept by partners for profit in the use only, as machinery in a factory, which for one to sell would be a tort. Neither of these cases is like the one at bar. In the case of Ladd vs. Hill, 4 Vt. R. 164, it was decided that the destruction by one, of a note owned by two, was a conversion, and also that it was a conversion in a creditor t^ qtfflHfcld
Judge Swift (Dig. Vol. 1st. 170,) says, either may sell his, share or part of such chattel, and the purchaser would be tenant in common with the others. One cannot sell the whole, and if he should attempt to do it the others might affirm the sale, and demand their proportion of the money or dissent to it and become tenant in common of the chattel with the purchaser. The defendant has therefore not in law been guilty of a conversion of the property in question. It is a very inconvenient mode of owning personal property, to be tenants in common, but this by our law comes by purchase and not by descent, and the parties must be content with what remedies the law has provided, however inadequate those may appear to be. As' the decision upon this point probably puts an end to the case, it is of no importance to decide the other.
Judgment of county court is reversed.