Opinion
(June Term, 1837.)
Joint owners of a chattel have equal right to the possession of it; and therefore the exclusive possession of the chattel by one, will not entitle the other to maintain trover against him for it.
THIS was an action of TROVER, brought to recover damages, for the conversion of a negro slave named Charlotte, tried at Richmond, on the last Fall Circuit, before SAUNDERS, Judge. The facts of the case appeared on the trial to be as follows: Thomas Foxhall, by his will, made in the year 1791, bequeathed a female slave named Fann, and her increase, to his daughter, Joanna Surginor, for life, and after her death to be equally divided between all her children. The slave Charlotte was the daughter of Fann, and was born after the probate of the will. The executors assented to the legacy, and the husband of Joanna Surginor took possession of the slaves Fann and Charlotte. Joanna Surginor had eight children; and she, together with her husband and two of her children, to wit, James and Charlotte Surginor, in the year 1804, conveyed by a bill of sale to the defendant, the slave Charlotte, then about two years of age; who took possession of her, and held her, claiming her as his own absolute property. Joanna Surginor, the owner for life, died in the year 1831, and this suit was brought by those of the children who had not joined in the bill of sale above mentioned. His Honor, in his charge to the jury, told them, "that before they could charge the defendant with a conversion, they must be satisfied, that after the death of Joanna, he held possession of the slave adverse to the plaintiffs, claiming her absolutely as his own property, denying any right or interest of the plaintiffs to the said slave."
Badger, for the defendant.
Devereux, contra.
There was a verdict for the plaintiffs; and the defendant appealed.
— The bill of sale, transferred to the defendant, all the interest in the slave Charlotte, during the life of Joanna Surginor, and on her death two-eights of the remainder in said slave. The defendant therefore, on the death of Mrs. Surginor, became tenant in common of the slave with the plaintiffs. The law having fixed and established the rights of the parties, the defendant could not alter the relation in which he stood to the plaintiffs, by denying their title, or claiming adversely to them. In Smith v. Oriell, 1 East's Rep. 367, it was decided, that after the bankruptcy of one of two partners, if the other, being solvent, delivers partnership goods to a third person for a valuable consideration, the assignees of the former cannot maintain trover, for they are tenants in common with the consignee by relation. The same doctrine is to be found in Fox v. Hanburg, 2 Cowp. Rep. 445. Ramsbottom v. Lewis, 1 Camp. Rep. 279. Smith v. Stokes, 1 East's Rep. 363. The law, for reasons of policy, and on account of the difficulty of legislating on the subject, does not interfere to regulate the enjoyment of chattels amongst part owners, except in the instance of ships, to prevent their being unemployed. Abbott's Shipping, 70. If one of two tenants in common take the whole into his possession, the other has no remedy at common law, but to take the joint property from him who has done the wrong, when he can do so without a breach of the peace. Litt. sec. 123; and per Lord COKE, Co. Litt. 202 a. Brown v. Hedges, 1 Salk. 290. The reason why one tenant in common cannot maintain trover against a co-tenant, seems to be, that the possession by one is in law the possession of both. 1 Salk. 290. The defendant in this case obtained the possession rightfully and not tortiously. This Court, in the case of Lucas v. Wasson, 3 Dev. Rep. 398, decided that joint tenants of a chattel have equal rights to its possession, and cannot maintain trover against each other, unless the joint property is destroyed. We are of the opinion that the judge was mistaken as to the law in his charge; and that there must be a new trial.
PER CURIAM. Judgment reversed.