53 Vt. 305 | Vt. | 1880
The opinion of the court was delivered by
It is well settled law in this State that a tenant in common of personal property can only recover in trespass or trover to the extent of his interest in the property against an officer who has regularly attached, levied upon, and sold the entire property as the property of the other tenant in common. Ladd v. Hill, 4 Vt. 164; Bradley v. Arnold, 16 Vt. 382; White v. Morton, 22 Vt. 17; Chandler v. Spear, 22 Vt. 407, citing Addison v. Overrand, 6 T. R. 766; Sedgworth v. Overrand, 7 T. R. 279; Bloxham v. Hubbard, 5 East. 407. In Chandler v. Spear, the judgment was reversed, because the pláintiff was allowed to recover the entire value of the property; and the court distinguish such an action from an action by one tenant in common to recover possession of the real estate owned in common, against a stranger to the title. This last case has been recognized as the settled law on this subject in Hubbard v. Foster, 24 Vt. 546; and Briggs v. Taylor, 35 Vt. 66. Hence the County Court was in error when it charged: “ that if the plaintiff was a joint owner of one half of the property sued for with Charles, he could recover the whole value, because the defendant as a creditor or an officer of the creditor, would become a trespasser by relation back if he sold it illegally ” ; and the defendant’s exception thereto was well taken. But it is claimed by the plaintiff that inasmuch as he has recovered only one half the value of the property sued for, as shown by the special verdict, except for the sugar tools, the defendant has not sustained any injury by the error, and for this reason the exception becomes unavailing.' It is well settled that an error which this court can clearly see, worked the excepting party no injury, will be unavailing to reverse the judgment. It is not entirely clear that the defendant has suffered no damage by this error. On the statement in the
Again: although the court held that the deed of 1859 from John Wilson to Charles, conveyed to the latter one half of the sugar-place, the plaintiff was allowed to show that in fact it was not so understood and treated by the parties thereto ; and that from 1859 to 1878, when James took his deed, John had been in possession of the sugar-place, claiming to own it and the sugar tools as against Charles, and that whatever Charles had done in the sugar-place towards carrying it on, he did as the servant and agent of John, and not in the assertion of any right he had acquired under the deed of 1859. If the jury found this to be true, whatever the record of the title might show, John Wilson owned, by adverse possession, the sugar-place and the sugar tools. Conceding that the County Court was correct in holding, as we think it was ; (see Flanagan v. Ward, 33 Vt. 343; Chandler v. Spear, 22 Vt. 407; and Paine et al. v. Hutchins, 49 Vt. 314, for a full development of the doctrine of constructive possession,) that the sugar-place being wood-land, and separated from the home farm by land owned by other parties, and used only for a sugar place, was not in the actual, continuous possession of either John or Charles Wilson, at the time James placed his deed of one undivided half thereof on record, and that by that act James obtained
We also think the County Court was in error in regard to the sale of the pigs, oats, and kettles being irregular and illegal. This property was attached simultaneously on two writs, placed in the defendant’s hands at the same time; one against John and Charles Wilson, and the other against Charles Wilson. Judgments were recovered in each suit, and the executions were placed in the hands of the defendant simultaneously. He levied the two executions on the property at the same time, and advertised it for sale on each, at the same time and place. On these facts each plaintiff in the executions was entitled to an equal part of the avails of the sale. Drake Attach, s. 368. In this section it is laid down as established law, and it seems to rest on an equitable as well as a legal basis, that where several attachments are simultaneously placed on the same property, they each take an equal interest therein. The exceptions state that the defendant sold the entire property, and then divided the avails of the sale equally