Nowlen v. Colt

6 Hill & Den. 461

Opinion

By the Court, Nelson, Ch. J.

I am of opinion that the ruling of the learned judge was correct. Mingling the wheat in a common bin, with the knowledge and assent of both parties, made them tenants in common; and the disposal of the entire mass by one of the co-tenants subjected him to this action. (Inst. lib. 2, tit. 1, § 28 ; Vin. Ab. tit. Property (E); White v. Osborn, 21 Wend. 72.)

(a)

New trial denied.

Where the mixture is by mutual consent, the proprietors have a joint interest, in proportion to their respective shares. (2 Bl. Comm. 405 ; 2 Kent’s Comm. 364.) As to the several distinctions which prevail in cases of mixture without mutual consent, see Story On Bailm. 43 to 45, § 40,3d ed.; 2 Kent's Comm. 364, 5; Bouv. Law Dict. tit. “ Confusion Of Goods;" Met. & Perk. Dig. tit. “ Confusion and Accession;” Dane’s Abr. Ch. 76, Art. 5.