Lucas v. Wasson, 14 N.C. 398, 3 Dev. 398 (1832)

Dec. 1832 · Supreme Court of North Carolina

14 N.C. 398, 3 Dev. 398

James Lucas v. Patsey Wasson & John Hardin.

Joint tenants of a chattel have equal rights to its possession, and cannot maintain trover against each other unless the joint property is destroyed. But a disposition of a perishable article by one joint tenant, which prevents the other from recovering it, is equivalent to' its destruction.

Trover. Plea — JVof guilty, and on the trial before Swain, Judge, at Rutherford, on the last circuit, the case was, that the plaintiff and the defendant Wasson were joint owners of a quantity of cotton ; that the defendant Hardin, by the directions of the defendant Was-Son, carried the cotton away and disposed of it in some place not known. His Honor instructed the jury, that if they were satisfied that the cotton was removed by the defendants, entirely beyond the reach and control of the plaintiff, so as to be wholly lost to him, it was such a destruction of the property as would entitle him to recover,

A verdict was returned for the plaintiff, and the de-lend ants appealed. - ’

No counsel appeared for either party. ,

Daniel, Judge.

One tenant in common of a personal chattel has as much right to the possession of it as the,other; therefore, one tenant in common cannot maintain trespass or trover against his co-tenant without sho^ig that the co-tenant has destroyed the joint property. (St. John v. Standring, 2 John. R. 468.) it is not sufficient to shew., that the defendant took forcible possession of- the chattel and carried it away, (Heath v. Hubbard, 4 East. 121.) or that lie changed its form-by applying it to the use it was intended for. (Fennings v. Greenville, 1 Taunt. 241.) In the present case, it was in evidence, that the defendant Wasson, did not retain the possession of the cotton, but caused it to be sent off by thjá other defendant to a place unknown to the plaintiff, so that as to him it is wholly lost, and from its perishable nature, must be destroyed as far as his intereSpin it is concerned. We think the charge of the judge was correct, and the judgment must be affirmed.

Per Curiam. — Judgmektt appirme».