Brown v. Graham , 24 Ill. 628 ( 1860 )

Walker, J.

Property indivisible in its character, owned by tenants in common, is incapable of a several possession by each tenant. It therefore follows, that the possession of one of the tenants is a constructive possession of the others. And when one of the joint owners, not in the hctual possession, sells his interest in the property, the purchaser succeeds to all of the rights of his vendor, as held by him, without an actual delivery of possession. He, by such a purchase, becomes, a tenant in common, and the possession of his co-tenant is constructively his possession. It is, however, otherwise, when the tenant in common, having the actual possession, makes a sale of his interest, as the possession must in that case, to be valid as against creditors and purchasers, accompany and remain with the title.

If Gould was the owner of an undivided half of the property in controversy, and Brewer of the other half, then the possession of the latter was the constructive possession of the former, and the appellee only acquired a title to an undivided half of the horse, by the levy under the execution and his purchase at the sheriff’s sale. He only succeeded to Brewer’s title, and became thereby a tenant in common with Gould. And whether Gould was a part owner of the property was a question of fact, for the consideration of the jury. By their verdict, they have found that he had no interest in the property, and we are not prepared to say that the verdict is unwarranted by the evidence.

It is urged that the instructions are such as must have misled the jury in their finding. The first of appellee’s instructions refers to a sale of one-half of a horse by Brewer to Gould, which, after' the execution came to the hands of the officer, was traded for the horse in controversy, and was therefore inapplicable to the evidence in this case. By the second, the jury are told, that if Gould was not in the lawful possession of the horse when he sold to appellant, but if appellee or his agent was in possession, claiming ownership, a sale by Gould would convey no title or interest in the property. This instruction denies all right in the tenant in common to sell his interest in the property, unless he is in the actual possession, notwithstanding it is in the possession of his co-tenant. This instruction, as we have seen, does not state the law correctly, and should have been refused. By the third, the jury are informed, that if appellee purchased the horse at the sheriff’s sale, and caused it to be placed in appellant’s stable, that his possession would be that of appellee, and that appellant could not deliver such a possession to Gould, as would warrant a sale by him, so as to pass any title. The power to sell by a tenant in common, we have seen, does not depend upon his being in actual possession, but depends upon the possession of his co-tenant, and this instruction asserted a different rule, and should have been refused.

The instructions given for appellant did not sufficiently modify or explain those given for the appellee, so as to prevent them from misleading the jury. It is true, that they are told to find for the defendant, if they believe that the plaintiff was not the owner, and that if they found that plaintiff and defendant were tenants in common of the property, or defendant owned an undivided half of it, they should find for him, and also, that if plaintiff only held title by his purchase at the sheriff’s sale, that he only succeeded to Brewer’s interest in the horse. The instructions given for plaintiff had precluded the idea that defendant could acquire title of Gould unless he was in possession, and the evidence showed that he had acquired his possession of plaintiff’s custodian, and they were told that such possession would not support a sale. We are of the opinion that the plaintiff’s instructions were calculated to mislead, and must have misled the jury in their finding, and that the judgment must be reversed.

Judgment reversed.