Van Doren v. Balty

New York Supreme Court

Van Doren v. Balty

18 N.Y. Sup. Ct. 239

DecidedJune 15, 1877

StatusPublished

This text of 18 N.Y. Sup. Ct. 239 (Van Doren v. Balty) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Van Doren v. Balty, 18 N.Y. Sup. Ct. 239 (N.Y. Super. Ct. 1877).

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Opinion

Smith, J.:

It is understood that the right of the plaintiff to recover for the value of the harness is not questioned by the appellant’s counsel, and the contention in the case relates to the buggy alone. As to that, Olp and the plaintiff were tenants in common at the' time of the sale by the former. Olp undertook and professed to sell the whole, and thus made himself liable to his co-tenant for a conversion of the share of the latter. This the counsel for the appellant concedes. But he contends that the plaintiff cannot maintain trover [241]*241against Baity, the purchaser; that he is a co-tenant with Baity, and Baity’s possession i.s his possession. To that position we do not assent. As the sale of the plaintiff’s share was a wrong to the plaintiff, for which the seller is liable, it follows that the defendant, who participated in it by purchasing the whole, with notice of the plaintiff’s rights, and thereafter asserting an exclusive title to the property, is equally liable as a wrong-doer, and the plaintiff may I maintain an action against him for the conversion of his share. Undoubtedly -the plaintiff might waive the tort, and treat the defendant as his co-tenant at his election, but he is not confined to that remedy. The> wrongful act of Olp^texminated the co-tenancy, and the defendamos fiable, not as a co-tenant, but as a joint wrong- / doer with Olp. This results from the doctrine, now well estab-l fished, that -one tenant in common has no right to sell the share of l his co-tenant, and that such sale is a conversion for which he is j liable in trover. A purchase of property from one who has no ) power to sell, where the purchaser takes a delivery of it and retains the possession, claiming it under the sale, after notice of the title of the true owner, is a conversion of it. (2 Hilliard on Torts, 246; Hyde v. Noble, 13 N. H., 494; Parker v. Middlebrook, 24 Conn., 207.) The ease was tried in the County Court upon these principles, and the judgment and order should be affirmed.

Present — Mullin, P. J., Talcott and Smith, JJ.

Judgment and order of County Court affirmed.

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Smith, J.:

It is understood that the right of the plaintiff to recover for the value of the harness is not questioned by the appellant’s counsel, and the contention in the case relates to the buggy alone. As to that, Olp and the plaintiff were tenants in common at the' time of the sale by the former. Olp undertook and professed to sell the whole, and thus made himself liable to his co-tenant for a conversion of the share of the latter. This the counsel for the appellant concedes. But he contends that the plaintiff cannot maintain trover [241]*241against Baity, the purchaser; that he is a co-tenant with Baity, and Baity’s possession i.s his possession. To that position we do not assent. As the sale of the plaintiff’s share was a wrong to the plaintiff, for which the seller is liable, it follows that the defendant, who participated in it by purchasing the whole, with notice of the plaintiff’s rights, and thereafter asserting an exclusive title to the property, is equally liable as a wrong-doer, and the plaintiff may I maintain an action against him for the conversion of his share. Undoubtedly -the plaintiff might waive the tort, and treat the defendant as his co-tenant at his election, but he is not confined to that remedy. The> wrongful act of Olp^texminated the co-tenancy, and the defendamos fiable, not as a co-tenant, but as a joint wrong- / doer with Olp. This results from the doctrine, now well estab-l fished, that -one tenant in common has no right to sell the share of l his co-tenant, and that such sale is a conversion for which he is j liable in trover. A purchase of property from one who has no ) power to sell, where the purchaser takes a delivery of it and retains the possession, claiming it under the sale, after notice of the title of the true owner, is a conversion of it. (2 Hilliard on Torts, 246; Hyde v. Noble, 13 N. H., 494; Parker v. Middlebrook, 24 Conn., 207.) The ease was tried in the County Court upon these principles, and the judgment and order should be affirmed.

Present — Mullin, P. J., Talcott and Smith, JJ.

Judgment and order of County Court affirmed.

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18 N.Y. Sup. Ct. 239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/van-doren-v-balty-nysupct-1877.

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