Clowes v. Hawley , 12 Johns. 484 ( 1815 )

Per Curiam.

As to the count on the conversion of the bond, the only point for consideration, is, whether the judge was correct in ruling-that the.plaintiff was entitled to recover nominal damages only. , We must consider the conversion as proved, because no objection was taken to the proof of- it at the trial.' By the assignment of the bond: to the plaintiff, by the obligee, "he acquired an interest in- it, which courts of law will protect; ■and it is no answer to this action, to say, that the plaintiff might have sued directly on the bond, in the name of the obligee, or proceeded in equity for a specific performance. We are-to presume that the plaintiff had done every thing to. entitle himself to the deed, conditioned to be given, as the evidence to sustain the "action and to prove the damages was overruled. . If the plaint .tiff became entitled to a performance of the condition, tfyp damages sustained would be the value of the land. ■ The ncirH suit,/therefore, must- be set aside.

As to the lease, the' conversion of .which form's a part of the .plaintiff’s cause of .action,: it is proper to dispose of that also. From the plaintiff’s, own showing, it was executed by him and the. defendant, .as the attorney to- Kelchum, wko confessedly ■ owned one ..half of the demised premises,- as joint lessor to Stoxcr.. The defendant was not'bound, in this action, to .show his authority feomkreíeÁMW ;t(D: execute" the lease in his behalf. The• plaintiff has no right to the exclusive possession.of the-lease! Ope. tenant in common cannot sue the other, to recover, possession of documents relative to their .joint estate, kit op--. pears t'hat.the defendant had acquired Kefchurrts interest in the lands leased; and was,, therefore, as fully entitled to keep the lease,"-as .the plaintiff; is to demand its possession. It avails, nothing tp’ spy, that the defendant’s purchase of ft etchant was* pending an action-of ejectment, against Stored; it not'being ., ■shown that the defendant knew of that suit when he purchased; and, unless he,did know of it,,the p.urqhase was not atifact* of; xt^i (8 Johns. Rep. 479.)

.MotiongrátitédV.