White v. Osborn

21 Wend. 72

• Court: New York Supreme Court
• Decided: January 15, 1839
• Status: Published

Opinion

By the Court,

Cowen, J.

There is no foundation for saying that the suit in Vermont was a bar. The judgment being satisfied, and the defendant having been a co-trespasser with the deputy, it was a bar to any farther action founded on the lien for Griffin’s debt, but nothing more. The alleged conversion of the one eighth, the gravamen of the present action had not yet taken place. That arose, if at all, from the sale of the sloop and the consequent exclusive dominion exercised by Comstock, the purchaser.

The objection of the defendant is, that a general bill of sale by him of the whole, though followed by an exclusive claim and dominion in the purchaser, is not adequate evidence of a conversion as against his co-tenant. The contrary has been often said without qualification. Spencer, J. in Wilson v. Reed, 3 Johns. R. 178. Woodworth, J. in Hyde v. Stone, 9 Cowen, 232. Sutherland, J. in Mumford v. McKay, 8 Wendell, 444. 2 Kent’s Comm. 350, 3d ed. note. Mattocks, J. in Tubbs v. Richardson, 6 Verm. R.447. Abbott, Ch. J. and Bayley, J. in Barton v. Williams, 5 Barn. & Ald. 395. And it has been distinctly held, where the sale was such as to work a total destruction: as by retailing rum held in common, Wilson v. Reed, 3 Johns. R. 175; or selling grain, Mumford v. McKay, 8 Wendell, 442—these were total sales of consumable articles, the almost certain consequence of which would be a physical destruction.

In Wilson v. Reed, the judge at the circuit denied that the rule applied to the scale beams sold, and in suit in the same action with the rum, but that question was not reviewed on the motion for a new trial.

But we think Hyde v. Stone, 7 Wendell, 354, goes the whole length of the plaintiff’s claim here. There the plaintiff, a tenant in common, sued his co-tenant for a sale of household furniture, farming utensils and other, personal property, some of which the defendant admitted he had sold, and that others were destroyed; and on his refusing to account for and deliver the goods, the plaintiff was allowed to recover his interest in the whole without distinction between what was sold and what was lost. The evidence of conversion was the simple admission of the defendant, that a part had been sold and a part destroyed.

That a mere sale by one tenant in common of the entire chattel is itself a conversion, is also presumed to accord with the general sense of the profession, and the course of decisions at the circuit, at least in this state. Jennings v. Lord, Granville, 1 Taunt. 241, is not incompatible with the doctrine. It conceded that a sale may work a conversion, if it put the property beyond the reach of the co-tenant; but denied the action of trover, because, though the property •in dispute, a whale, was converted by extracting the oil, &c., yet this was but converting it to its proper use, and the plaintiff might still take the oil. There was no sale, but a mere refusal to deliver. Tubbs v. Richardson, 6 Verm. R. 442, which was a sale by one tenant in common of a part of certain wool, being less than his own share, though he refused on demand to deliver the residue, denied an action on the same principle.

On the whole, though there may be exceptions, we think, as a general rule, .that a sale of the whole chattel by one tenant in common entitles his co-tenant to an action of trover. And a general sale, such as indicated by this bill of sale, without restricting it to part, is prima facie, at least, evidence of a total sale. In legal effect, to be sure, it passes but the share belonging to the vendor, and the co-tenant who is not consulted may so consider it, and take the property when opportunity offers. But he may, at his election, bring trover.

New trial denied.