Newton v. Howe

Tenant in common, when may sevw' his share. When officer may srnes'.. Appeal, affidavit for. Amendment. 1. One of two tenants in common of chattels, naturally severable (such as grain,) may sever and appropriate, without the consent of the other, the quantity to which he is entitled. 2. The share of such tenant in common, if not exempt, may he severed, and seized by his creditor on attachment or execution. 3. In case of such a severance and seizure by the creditor, if the property he exempt, the debtor may recover the possession, or the value, as in other cáses. 4. An affidavit for an. appeal from a justice of the peace is sufficient, under the statute (E. S., ch. 120, sec. 205), if it states that the appeal is made in good faith and not for the purpose of delay. . 5. If the justification of the sureties in the appeal bond is defective, the appellate court may allow a new justification to cure the defect.

ERROR to tRe Circuit Court for Fond du Lac County. This action was brought before a justice of tbe peace to recover a quantity of oats, hay and wheat, which, with a greater quantity of each, had been seized by the defendant Howe, a constable, by virtue of a writ of attachment against the property of the plaintiff:, issued in due form of law, at the suit of the defendant Drury. The property is claimed to be exempt from seizure upon attachment or execution. The complaint is in the form prescribed by the statute. The defendants am swered, justifying the seizure by virtue of such writ of attachment, and alleging also that “ the plaintiff was not, at the commencement of this action, the owner of said property, but that he held the same only by virtue of his title as tenant in common with one Anthony Wheelright.” The plaintiff recovered judgment before the justice, and the defendants appealed therefrom to the circuit court. The notice of appeal was signed by both defendants, but the affidavit was made by the defendant Drury alone, who swears “ that he has appealed,” and that “ such appeal is made in good faith,” etc. The property was delivered to the defendants upon their filing an undertaking in the sum of $400, the sureties each justifying in half that sum. It appeared on the trial in the court, that the plaintiff and Wheelright owned the property seized in common; that less than one-half of each kind of property so seized is claimed in this action; that each of said tenants then owned an undivided half thereof; and that, after the seizure and before this action was commenced, the tenants agreed to divide the property, and stipulated the quantities of each kind that each was to have as his share, and each of them released to the other all interest in the residue thereof over and above his share. The quantity of each kind of property tbus assigned to the plaintiff exceeds the quantity thereof respectively which he claims in this action. The plaintiff introduced testimony tending to show, and which perhaps did show, that the property claimed in the action was by law exempt from seizure on attachment, and that, when the levy was made, he demanded of the officer to set apart so much of-said property as was thus exempt The defendants proved that the writ of attachment was duly issued, and the property in controversy seized by virtue thereof The plaintiff recovered for one load of oats which had been divided and assigned to him. before the levy; but, as to the wheat and hay and the residue of the oats, the circuit court held that the plaintiff alone could not maintain the action, because no division thereof had been made when such property was so seized; and, as to such undivided property, a verdict was found for the defendants under the direction of the court, upon which judgment was duly entered. The plaintiff sued out a writ of error to reverse such judgment. The affidavit of appeal does not comply with the statute, because it does not refer to the appeal actually taken; and the undertaking is fatally defective. Ohinnoclc v. Stevens, 23 Wis., 396; Widner v. Wood, 19 id. 190; Brown v.Pratt, 4 Chand., 32; Cothren v. Gonnaughton, 24 Wis., 134. 2. The circuit court could not acquire jurisdiction by means of the amended undertaking filed in that court. Ex parte Ghryslin, 4 Cow., 80. 3. The plaintiff was entitled to his exemption out of this hay and grain, although it had not been previously divided or separated. Gilman v. Williams, 7 Wis., 329; Stewart v. Brown, 37 N. Y., 350; Wilcox v. liaioley, 31 id., 648 ; Maxwell v. Reed, 7 Wis., 582. . Tenants in common, like partners, are each entitled to the statutory exemption, {In re Rupp, Alb. Law. Jour., Nov. 5, 1870, p. 350); and if the property is in its nature severable by weight or measure, they may sever their respective portions and take them away at will, Ghanrion v. Lush, 2 Lans., 211; Lobdell v. Stoivell, 37 How., 88; Tripp v. Riley, 15 Barb., 333. 4. The officer, in this case, had the same right and should have severed that belonging to the plaintiff, and set aside his exemption. Carlton v. Davis, 8 Allen, 94; Young v. Miles, 20 Wis., 615; Frost v. Molt, 34 N. Y., 253; Woods v. Keyes, 14 Allen, 236; Bean v. Hubbard, 4 Cush., 85; JDavlin v. Stone, id., 359. 5. A division of the property having been made before the attachment, the plaintiff was entitled to recover. Newton v. Gardner, 24 Wis., 232; Kimberly v. Patchin, 19 N. Y., 330. 6. One tenant in common can sue and recover his own interest, if the non-joinder is not pleaded in abatement Tripp v. Riley, 15 Barb., 333; Depuy v. Strong, 37 N. Y., 372; Merritt v. Walsh, 32 id., 685; Zabrislcie v. Smith, 3 Kern., 322. Tenants in common must join in an action for injury done to their joint property, and cannot sever. Rich v. Penfield, 1 Wend., 380; Putnam v. Wise, 1 Hill, 234; Hill v. Gibbs., 5id., 56; Porterv. Bleiler, 17 Barb., 149 ; Bicev. Hollenbeck,, 19'id., 664 ; Coster v. N. Y. & K. B. B. Co., 6 Duer, 43 ; Welch v. Saclcett, 12 Wis., 243. 2.* The objection to the non-joinder of Wheelright was properly taken by answer in the justice’s court. The plaintiff and his co-tenant could not, after the attachment, divide their inte-est in the property so as to bring separate actions. 3. The affidavit for the appeal was sufficient. Kearney v. Andrews, 5 Wis., 23; Bremér v. Koenig, id., 156. The undertaking was also good, and the appeal would have been goód without any.