Grim v. . Wicker

80 N.C. 343

• Court: Supreme Court of North Carolina
• Decided: January 5, 1879
• Status: Published

Opinion

Ashe, J.

(After stating the case.) It is a well established principle of law that one tenant in common of a chattel cannot sue the other for a conversion. Moye v. ........., 2 Hay. 186; Campbell v. Campbell, 2 Mur., 65; Bonner v. Latham, 1 Ire., 271 ; Pitt v. Petway, 12 Ire., 69.

The only exceptions to this principle are where the property is destroyed, carried beyond the limits of the state, or when being of a perishable nature such a disposition of it is made as to prevent the other from recovering it. Lucas v. Wasson, 3 Dev., 398; Lowthorp v. Smith, 1 Hay., 255.

• A petition for the division of personal property held in common, or a sale for the purpose of division depending upon the nature of the property, is the only remedy one tenánt in common has against another for withholding from him the possession. Powell v. Hill, 64 N. C., 169.

Monger is not liable in damages to the plaintiff for a conversion of the still, because he had as much right to the possession as the- plaintiff, and it was not destroyed by him nor carried beyond the limits of the state, nor was it of a perishable nature and disposed of by him so that he could not recover it. Nor was the other defendant liable because he seized the still by the direction of Monger, and delivered it to him, who had a legal right to the possession. 4 Dev. & Bat., 199.

If Monger could take possession of the still himself, he certainly could do so by an agent, and we cannot see how the fact of that agent’s being a sheriff and having- an execution in his hands could change the application of the principle.

Error, . Venire de novo.