Estey v. Boardman , 61 Me. 595 ( 1873 )

PjstbRS, J.

This case comes tip on a motion for a new trial, and presents the question whether as a matter of law, upon all the facts proved, the plaintiffs were entitled to recover. We think not.

Hold and Cookson built a vessel, the proportions of respective ownership being uncertain. But it maybe regarded as ascertained by the verdict that Hold owned one, and Cookson three-quarters of her. Cookson, owning less than the whole, mortgaged the vessel to the plaintiffs. Afterwards Cookson and Hold jointly mortgaged her to the defendant. This would make the plaintiffs and the defendant tenants in common, in the proportion of the respective ownership and interests of Cookson and Hold.

There is no foundation in the .plaintiffs’ claim, that the defendant would take nothing primarily by his mortgage, but only as a second mortgagee. There is no reference made to the earlier in the later mortgage, and while the plaintiffs would be first in representing Cookson’s share, the defendant would be a second mortgagee so far as that share was concerned, and would be the only person having any claim upon the share which belonged to Hold.

The plaintiffs first got possession of the vessel, and, as there was a dispute about the ownership between the parties, put her upon a beach where she remained out of use and with no one on board of her. Then the defendant took possession and carried her to a dry dock for the purpose of putting her into some employment, or availing himself of a chance to sell. In this the defendant committed no act amounting to a conversion of the property as between tenants in common. The vessel was not carried beyond the reach of the plaintiffs, nor was she taken by any forcible act against the resistance of anybody. Lord Coke says the remedy for such taking would be for the co-tenant to retake her “ when he can see his time.”

After this the defendant undertook to sell his interest in the vessel at auction, and proceeded so far as that a Mr. Cook bid her off. It is not certain from the evidence what proportion of the vessel was undertaken to be sold. It was stated at the sale that only the defendant’s actual interest was offered, but it may be admitted as found by the verdict, that the proposition was made to sell an undivided half. The sale was not completed, inasmuch as the person, to whom she was struck off, refused to comply with his bid as he immediately ascertained that there was a dispute of ownership. Nor did the defendant claim to hold the bidder as a purchaser. This act, as between tenants in common, was not a conversion. Whether the absolute sale of the whole of an entire chattel by one of several owners would amount to a conversion, by one tenant of his co-tenants’ share, is a point upon which in different courts there have been different opinions, though decided in this State affirmatively; but the doctrine has never been anywhere carried so far as to make anything less than an absolute sale a conversion. To authorize an action of trover for conversion it must appear, not only that the defendant assumed to sell, but that he actually did sell his co-tenants’ share. There must be an actual completed sale, or something equivalent to it, or as efficacious as that would be to show actual appropriation. Here was, at most, but an abortive sale. Nothing was delivered over; nothing passed; and no change whatever took place either in possession or title. As the facts in this case fall short of showing an absolute completed sale, the verdict cannot be. sustained upon the rule nor upon the reason of the rule as stated in the cases of Dain v. Cowing, 22 Maine, 347, and Weld v. Oliver, 21 Pick. 559, and other cases cited. Motion sustained. Verdict set aside and new trial granted.

Appleton, O. J.-; Cutting, Walton, DickeRson, and BARROWS, JJ., concurred.