Opinion
(December Term, 1832.)
Joint tenants of a chattel have equal rights to its possession, and cannot maintain trover against each other unless the joint property is destroyed. But a disposition of a perishable article by one joint tenant, which prevents the other from recovering it, is equivalent to its destruction.
TROVER. Plea — not guilty, and on the trial before Swain, J., at RUTHERFORD, on the last circuit, the case was, that the plaintiff and the defendant Wasson were joint owners of a quantity of cotton; that the defendant Hardin, by the directions of the defendant Wasson, carried the cotton away and disposed of it in some place not known. His Honor instructed the jury that if they were satisfied that the cotton was removed by the defendants entirely beyond the reach and control of the plaintiff, so as to be wholly lost to him, it was such a destruction of the property as would entitle him to recover.
No counsel for either party.
A verdict was returned for the plaintiff, and the defendants (399) appealed.
One tenant in common of a personal chattel has as much right to the possession of it as the other; therefore, one tenant in common cannot maintain trespass or trover against his cotenant without showing that the cotenant has destroyed the joint property. St. John v. Standring, 2 John. R., 468. It is not sufficient to show that the defendant took forcible possession of the chattel and carried it away. Heath v. Hubbard, 4 East, 121, or that he changed its form by applying it to the use it was intended for. Fennings v. Greenville, 1 Taunt., 241. In the present case it was in evidence that the defendant Wasson did not retain the possession of the cotton, but caused it to be sent off by the other defendant to a place unknown to the plaintiff, so that as to him it is wholly lost, and from its perishable nature, must be destroyed as far as his interest in it is concerned. We think the charge of the judge was correct, and the judgment must be affirmed.
PER CURIAM. Judgment affirmed.
Cited: Cole v. Terry, 19 N.C. 254; Bonner v. Latham, 23 N.C. 275; Guyther v. Pettijohn, 28 N.C. 389; Weeks v. Weeks, 40 N.C. 119; Moore v. Love, 48 N.C. 222; Grim v. Wicker, 80 N.C. 344; S. v. McCoy, 89 N.C. 468; Newby v. Harrell, 99 N.C. 156; Moore v. Eure, 101 N.C. 15; Waller v. Bowling, 108 N.C. 294; Thompson v. Silverthorne, 142 N.C. 14; Doyle v. Bush, 171 N.C. 12.