Winner v. Penniman

Brent, J., delivered the opinion of the Court. This action was brought by the appellant to recover damages from the appellee for the conversion of a promissory note, given to the appellant by the Rockland and Venango Coal Oil Company, for $5,000, dated the 21st of January, 1865, and payable sixty days after date. The appellee pleaded the general issue, and also “ that he did what is complained of by the plaintiff’s leave.” That part of the proof in the case to which it is necessary more particularly to refer for a proper understanding of the question presented by this appeal, is as follows: The appellant, it appears, had sold to the Rockland and Venango Coal Oil Company certain oil lands, known as the Blakely Well, for twenty thousand dollars, of which ten thousand dollars were to be paid in cash on the delivery of the deed, five thousand to be secured by the note of the Company at sixty days, and five thousand dollars to be paid in the stock of the Company at $2.50 a share. The sale was duly consummated according to these terms.

A deed was executed, the cash payment made, and the note in question delivered to the appellant. This note was afterwards placed by him in the hands of the appellee for collection. While, so held certain disputes and difficulties arose between the Company and the appellant— ¹⁶⁵ the Company alleging that the property did not turn out as represented, but was entirely valueless for the purpose for which it had been purchased. They not only refused to pay the note, but demanded that the cash payment of ten thousand dollars, which had been made, should be returned.

These difficulties, the appellee testifies, were afterwards the subject of compromise between the parties, and that he in accordance with the terms of such compromise and with the consent of the appellant, surrendered to the Company the note in question. The appellant, on the other hand, who was also examined as a witness, testifies that he had not entered into any such compromise with the Company, and that the note was surrendered without his leave or authority. It was also in proof that the appellee was interested in the note to the extent of one-half or one-fourth. Upon this state of the proof the defendant’s counsel prayed the Court to instruct the jury, “that if they shall find from the evidence that the plaintiff and the defendant were jointly interested in the note, for the conversion of which this action of trover is brought, and that the said note was left by agreement between them in the hands of the defendant for collection, then the plaintiff cannot recover.” This instruction the Court granted, and the propriety of so doing forms the subject of inquiry upon this appeal.

It is undoubtedly the general rule, that a tenant in common cannot maintain trover against-his-Go-tenant. The right of possession lies at the foundation of the action, and where two are equally entitled to possession, he who has it cannot be guilty of a conversion by retaining it. But there may be such an use, or rather misuse, of the joint property as will constitute a conversion, and enable a plaintiff to support trover against a party who is jointly interested with him in the ownership. Where there has been a destruction of the joint property by one of the parties, all the authorities concur in the right of the other to maintain this form of action to recover such damages as will compensate him for the loss of ¹⁶⁶ his share or proportion.

But whether any act short of destruction will amount to a conversion has been doubted, and the decisions upon this point have not been uniform. Some of the English cases, coinciding with the intimation thrown out by Lord Ellenborough, in Heath vs. Hubbard, 4 Hast., 128, hold that a sale of the entire property by one of the joint or common owners does not constitute a conversion. But in Barton vs. Williams, 5 Barn. & Aid., 395, it was otherwise held by two of the Judges who heard the cause, and although its final decision did not turn upon this point, the soundness of their views seems to be conclusive of the question. Abbott, C. J., says: “It is laid down by Lord Chief Baron Comyn, that if a bailee sells the goods of another, the very act of sale on his part is such a conversion as to entitle the owner to maintain trover, and if that be so, it follows that if a bailee, in possession of undivided shares belonging to two persons sells the whole, it must be a conversion as to the undivided part belonging to one, over which he has no right or title whatever.” And Bayley, J., says: “ There may be cases in which the indivisible nature of the subject-matter of the tenancy in common, may raise an implied authority in rone to sell the whole.

But unless there be such authority, < either express or implied, a sale of the whole by one tenant in / common is, with respect to the other, a wrongful conversion ' of his undivided part.” This doctrine is found to be fully supported