Blood v. Blood , 110 Mass. 545 ( 1872 )

Gbay, J.

It is of the very essence of a tenancy in common, that the tenants have each and equally the right to occupy the property and take the profits. One tenant in common of personal chattels therefore is not liable to be sued by the other for taking or retaining possession thereof, unless his dealing with them is such as to amount to a conversion, in which case he is liable to an action of tort in the nature of trover. Weld v. Oliver, 21 Pick. 559. Delaney v. Root, 99 Mass. 546. And he is not bound to pay his co-tenant any compensation for the use of the common property; nor to account for the profits, unless he has received more than his just proportion, in which event he is liable to an action of contract in the nature of an implied assumpsit. Jones v. Harraden, 9 Mass. 340, note. Shepard v. Richards, 2 Gray, 424. Peck v. Carpenter, 7 Gray, 283.

It is not necessary to consider whether the facts stated in the bill and admitted by the demurrer amount to a conversion of the common property to the defendant’s own use. If they do, the plaintiff has an adequate and complete remedy at law, by action of tort. If they do not, the defendant’s exclusive possession of the chattels has worked no legal injury to the plaintiff.

The bill cannot be maintained for an account, because, if the plaintiff is entitled to one, there is nothing to show that it is too complicated to be properly and conveniently adjusted in an action of contract. Fanning v. Chadwick, 3 Pick. 420. Nor is any discovery prayed for, as in Ferry v. Henry, 4 Pick. 75.

It cannot be maintained for a sale and division of the chattels, because it does not show that they were agreed to be or were used in carrying on any business for the joint benefit of the parties, as partners or otherwise; or that the tenancy in common was of such a character as to require or contemplate a sale of the chattels or termination of the tenancy, except by the consent of the parties; or that, by reason of the death or insolvency of either, a sale and division of the property was necessary or expedient for the purpose of settling his estate. The case differs in these respects from Field v. Craig, 8 Allen, 357.

In Low v. Holmes, 2 C. E. Green, 148, in which the chancellor of New Jersey granted a preliminary injunction and appointed a receiver upon the filing of a similar bill, he prefaced his opinion by observing: “ The only question now before the court is the complainant’s right to an injunction and a receiver. The equity of the complainant’s bill and his right to the enjoyment of his share of the property are not drawn in question.”

But in the present case, after full argument upon a general demurrer to the bill, it appears that the plaintiff is not entitled to final relief upon any of the grounds on which he invokes the jurisdiction of the court. The whole ultimate purpose of the bill being defeated, the injunction and receiver prayed for as means to secure that purpose fall with it.

Demurrer sustained, and bill dismissed.