Wright v. Pratt

Cole, J.

We are of tbe opinion that tbe circuit court erred in refusing to permit tbe defendants to sbow that tbe plaintiff owned only a one-third interest in tbe property claimed to have been wrongfully sold and converted by tbe sheriff. It appears the sheriff sold the property on an execution in favor of McCoy, who also owned a one-third interest.

Now, assuming for tbe moment that tbe plaintiff was entitled to bold bis interest in tbe horse, buggy and harness as being exempt, upon what principle is be permitted to recover in this action tbe entire value, or anything more than bis actual interest? The property has been sold on an execution against him, and bid in by tbe execution creditor, who is a tenant in common with tbe plaintiff. What amount, then, is tbe plaintiff entitled to recover, assuming that be can maintain tbe action for an undivided third on tbe ground that tbe property was exempt by law from a sale on execution ? We know of no principle of law which will permit him to recover more than tbe full value of his interest. If he owned but one-third of tbe property, the value of that interest measures tbe loss be has sustained by tbe conversion. He surely ought not — upon tbe facts proposed to be proven — to recover tbe full value of tbe property, when be owns only a third. It seems to us that this is a very plain and obviously correct proposition of law.

It is suggested that tbe defendants are estopped from denying that tbe plaintiff was the sole owner of tbe property. On tbe trial, tbe record of certain garnishee proceedings were introduced in evidence by tbe plaintiff, against tbe objection of the defendants, in which proceedings McCoy was plaintiff, and tbe plaintiff in this suit was defendant. In tbe affidavit which was tbe foundation of tbe garnishee proceeding, McCoy, among other things, stated that be bad good reason to believe and did believe that one George Winton, of Oconomowoc, had property in bis bands belonging to Wright. Tbe property in controversy in this action was then in tbe possession of Winton, and was tbe property referred to by McCoy in his affidavits. Tbe sher *103 iff afterwards levied upon tbis property, and advertised it for sale. When he was about to offer the property for sale, the attorney of McCoy stated that the property belonged to McCoy & Co., and that Wright, the defendant in the execution, had but a one-third interest. It appears that this was the interest which was sold and bid in by McCoy.

Admitting, for the purpose of the argument, that the record of the garnishee proceedings was competent evidence in this case — a point, however, which we do not wish to be understood as deciding in the affirmative — and that the sheriff stands precisely in the shoes of McCoy, and then what is there to constitute an estoppel?

We suppose it is the statement contained in the affidavit of McCoy in respect to the ownership of the property, which is mainly relied on for that purpose. And yet it is entirely consistent with the statement there made, to assume that McCoy was only attempting to sell a one-third interest. He was evidently proceeding to attach whatever interest Wright had in the property, and nothing more. And there is nothing in those proceedings which estops McCoy or the defendants from showing what that interest was. If Wright owned a one-third interest in the property, that interest might be sold upon execution, unless the property was exempt.

And upon that question, whether it was exempt or not, perhaps we ought to give some indication of our views, for the information of the court below on another trial of the cause, in case the evidence should show that the plaintiff only owned a one-third interest in the horse, buggy and harness. In that case, could he claim his share in the property as exempt? We do not see how he could. The property is incapable of division, and each of his cotenants has the same right to the possession of the horse, buggy and harness that he has. There can be no exclusive possession rightfully belonging to one tenant in common in such property, except with the consent of the other co-tenants. How can the principle of exemption then be worked out *104 and applied to tbe share oí the plaintiff ? We have held, in a case decided at the present term (Newton v. Howe et al., 29 Wis., 531 ) that where tenants in common, owned grain and other personal property in its nature severable, and where the share oí each might be determined by weight or measurement, and be severed and appropriated by one tenant without the consent of the others, there one tenant might have his exemption. But this was upon the principle and for the reason that the property was severable in its nature, and that one tenant had the right, without the consent of his cotenant, to sever and take exclusive possession of his share and make it his own property. But that rule cannot be applied to this property. The horse, buggy and harness are incapable of division, as a matter of course, and it is impossible for the court to say .that the plaintiff might have the possession of them to the exclusion of his cotenants.

In the case of Gilman v. Williams, 7 Wis., 329 , this court held that a span of horses owned by two persons in partnership, as partnership property, was exempt from sale on an execution against both partners, in like manner as if owned by them separately. In that case both the owners claimed the exemption, and therefore the doctrine of that case will not apply here, where possibly the evidence will show that only one of the owner’s is claiming that his third is exempt. Immunity from sale upon execution seems to imply or be founded upon the idea that the exempt property is necessary for the support of the debtor and his family; and that it may be held, possessed and used by him in carrying on his business, trade or profession. This seems to be the principle underlying the exemption laws. But it is obviously impracticable to apply that principle to an undivided interest in a horse or buggy, which the debtor cannot claim to hold to the exclusion of his coten-ants. The doctrine of the case of West v. Ward, 26 Wis., 579 , seems to have a very strong bearing upon the question we are considering. There it was held that an undivided interest in real estate was not susceptible of such an ownership and occu- *105 panev as to give one tenant in common tbe benefit of a homestead therein; but that the statute contemplated that the property exempt as a homestead should be owned by the claimant in severalty. . And we cannot perceive any reason why the same principle is not applicable to an undivided interest in personal property, where such interest is utterly incapable of separation or exclusive possession and ownership. This is all that we deem it necessary to say upon the question at the present time. We have made these remarks to meet one aspect of the case, should the defendants make good their offer on another trial.

The judgment of the circuit court must be reversed for the error in excluding the evidence offered to show the plaintiff’s interest.

By the Court. — The judgment is reversed, and a venire de novo awarded.