Rosenau v. Syring

Opinion by Mr. Justice Bean.

1. The evidence tended to show that plaintiff’s assignors, who were conducting a bakery on property leased of the defendants, were the joint owners of the property in controversy on the first day of December, eighteen hundred and ninety-two, when Gustav Lichthorn’s interest therein,— except the bake oven,—was duly attached in an action brought against him by the defendant Amelia Syring, and afterwards sold to satisfy a judgment recovered therein, and purchased by the defendants. Upon these facts the contention for the defendants is that the plaintiff cannot in this action recover for the alleged conversion of Anna Lichthorn’s interest in the property, because the defendants, by their purchase at the,execution sale, became the owners of Gustav Lichthorn’s interest, and therefore tenants in common, or *389 joint owners, with her. The general rule is that one tenant in common of chattels cannot maintain an action of trover against his cotenant, because the right of possession lies at the foundation of the action, and the one is as much entitled to the possession as the other. But where one tenant in common, denying the right and title of his cotenant, and claiming the exclusive ownership in himself, applies the joint property to his own exclusive use, it will amount to a conversion, and enable his cotenant to support trover against him therefor: Cooley on Torts, § 455; Agnew v. Johnson, 17 Pa. St. 373, 55 Am. Dec. 565 ; Winner v. Penniman, 35 Md. 163 , 6 Am. Rep. 385 ; Fiquet v. Allison, 12 Mich. 328 , 86 Am. Dec. 54 ; Grove v. Wise, 39 Mich. 161 . Now, in this case, the defendants, by their answer, and all through the trial denied and refused to recognize or admit Mrs. Lichthorn’s interest in the property, but asserted exclusive title and ownership in themselves, which would amount to a conversion, and enable plaintiff to recover the value of Mrs. Lichthorn’s interest in this action.

2. It is next contended that the property came rightfully into the possession of the defendants by virtue of the attachment and execution proceedings, and no action for its conversion can be maintained without allegation and proof of demand and refusal to deliver. The undoubted general rule is that when property belonging to one is rightfully in the possession of another, no action for its conversion can be maintained until after a demand and refusal. The reason for this rule is the presumption that one in possession of property belonging to another will, upon demand, surrender it to the true owner, and. hence ought not to be harrassed by an action to recover its possession until after an opportunity to do so. But where the defendant, in his answer, denies plaintiff’s title, and pleads ownership and right to the possession in *390 himself, or another, he cannot defeat a recovery on the pretence that he would have surrendered the property if demand had been made. By such an answer he admits the detention, and justifies it by claiming title and right of possession in himself, and in such case it is not necessary for plaintiff to allege and prove demand previous to bringing the action: Cobbey on Replevin, § 448; Lewis v. Smart, 67 Me. 206 ; Roper v. Harrison, 37 Kan. 243 .

3. The next assignment of error is in refusing to instruct the jury that the bake oven could not be considered by them in assessing damages, because it is so attached as to become part of the realty, and therefore not the proper subject of an action in replevin or trover; but in this we think there was no error. On July eighth, eighteen hundred and eighty-two, the Lichthorns leased of the defendants, for a term of ten years, certain premises in Albina, for use as a bakery, and there was evidence tending to show that the oven in question, which was built of brick and rested on a platform supported by posts set on the ground, was a removable trade fixture erected by them for the purpose of the business in which they were engaged, and which they had a right to sever and remove during their term. Before the expiration of the term the landlord entered and took possession of the demised premises, and applied and converted the oven to his own use, and the weight of authority seems to be that the tenant may maintain trover against the landlord under such circumstances, unless he has surrendered the premises and abandoned the term, which was one of the issues made by the pleadings in this case, and was for the determination of the jury: 2 Woodfall on Landlord and Tenant, 620, and note; Ex parte Hemenway, 2 Lowell, 496 ; Finney v. Watkins, 13 Mo. 291 ; Watts v. Lehman, 107 Pa. St. 106; Vilas v. Mason, 25 Wis. 310 . The court could not, therefore, have properly instructed the jury, as' a *391 matter of law, that the oven was not to be considered by them in estimating plaintiff’s damages. There were several other questions suggested at the argument, but the consideration given them has disclosed that they are without merit. The judgment of the court below is inerefore affirmed. Affirmed.