Fiquet v. Allison

• Decision Date: 03 May 1864
• Citation: 12 Mich. 328
• Court: Michigan Supreme Court
• Parties: John B. Fiquet, Jr., and another v. James Allison

12 Mich. 328

John B. Fiquet, Jr., and another v. James Allison

Supreme Court of Michigan

May 3, 1864

Heard April 7, 1864

Case made after judgment, from Livingston Circuit. The facts, so far as necessary to an understanding of the legal questions are stated in the opinion.

Judgment rendered for plaintiffs, for $ 110.48, with interest. They entitled to costs of both courts.

G. V N. Lothrop, for plaintiffs:

We claim the plaintiffs entitled to recover.

1. They prove by Jarvis the agreement to take defendant's farm on shares, for one year, and his entry on it and the putting in the crops.

2. This contract gives him a title as tenant in common to his share of the crops put in by him: 8 Johns. 151; 8 Cow. 220; 15 Wend. 379; 21 Vt. 172; 15 Barb. 333; 17 Ala. 162; 17 Ala. 172.

This contract is not a lease, but a contract to work on shares.

Whether Jarvis performed his whole agreement or not; whether he was justified in leaving the farm or not in November, is a matter of no consequence. It does not affect his title to his share of the growing crops. And this action is based on that title.

The defendant refused to deliver the plaintiffs their share of the wheat; denied their right to any of it, and actually sold part of it.

This was, in effect, a conversion of the wheat to his own use, and trover would lie: 31 Barb. 569; Webb v. Mann, 3 Mich. 139.

And the plaintiffs can waive the tort and maintain assumpsit: 3 N. H., 384; 3 Eng. 202; 4 Penn. 295; 15 Ohio 9; 1 Hill 240; 5 Hill 583.

M. B. Wilcox, for defendant:

Jarvis had no interest in the grain that he could mortgage. His contract with defendant was not severable, and to entitle him to any portion of the crops, there should have been, at least, a substantial performance on his part. Whereas, he utterly failed in every essential particular of his agreement: 5 Mich. 449; 1 Chit. Pl., 303; 10 Mass. 287; 10 Pick. 205.

If Jarvis had any interest in the grain mortgaged, the plaintiffs, by virtue of the mortgages, became tenants in common of the same with defendant.

And to enable them to maintain this action they must show a conversion of the whole property by defendant: 2 Greenl. Ev, § 646, and note 8; taking the exclusive possession of the property, and refusing to deliver it on demand not being sufficient: Co. Litt., 200; 3 Johns. 175; 1 Taunt. 241; 13 Me. 192; 15 Johns. 179.

For this, either may lawfully do, each being equally entitled to the possession: 7 Mass. 137; 2 Greenl. Ev., § 646.

Trover is the action usually brought by a tenant in common against his co-tenant for conversion of common property; and to sustain that action, a "loss, destruction or sale" must be shown: 2 Hill 47; 22 Me. 287; 9 Cow. 230; 7 Wend. 449; 3 Mich. 143; 1 Taunt. 241.

Assumpsit can only be brought in case of a sale of the property: 2 Greenl. Ev., § 120. An actual sale must be shown: 5 Pick. 285; 10 Ibid. 161; 12 Ibid. 120; 3 Watts 277.

In such cases it is said the tort may be waived and assumpsit may be brought to recover the proceeds of the sale, but there must be a tort to be waived for which trespass or case would lie:10 Pick. 161.

It is difficult to conceive, then, so long as there is no tortious act shown, no conversion, no sale, how this action can be maintained.

Campbell, J. Martin, Ch. J. and Manning, J. concurred. Christiancy, J. did not sit in this case.

OPINION

Campbell J.:

Plaintiffs sued defendant for the value of certain grain in which they claimed an undivided interest, and which, upon demand of their portion, he refused to surrender, denying their rights.

The grain was grown on shares upon defendant's land, by one William Jarvis, who was to have possession from April, 1858, to April, 1859, and to put in crops on shares, and to do other farm duties upon shares of other produce. Some question was raised concerning his complete fulfillment of the various arrangements; but, as there is no proof that it was agreed his rights in the crops, as a tenant in common, should be forfeited by non-fulfillment of any other conditions, and as there is no proof of damages growing out of such non-fulfillment, it becomes unnecessary to consider whether the evidence will, or will not, warrant a conclusion that he failed in any duty. As the case stands, he was very clearly a tenant in common in the crops.

While they were yet growing, he mortgaged them to plaintiffs, who, at the proper season, caused them to be harvested, when they were drawn off by defendant, who threshed the grain and put it in his granary. He seems to have intimated some formal objection, in the outset, to the right of any one but himself to cut the grain; but subsequently, while it was being cut, recognized plaintiffs' privilege to do so.

Two questions arise upon the facts:

First, whether defendant's denial and refusal to recognize plaintiffs' rights or deliver their share, amounted to a conversion; and secondly, whether assumpsit will lie for such a conversion; no sale being proven, except of a trifling portion of grain, not equal to the defendant's own separate interest.

It is laid down by most of the authorities, that a refusal, by one tenant in common of a chattel, to relinquish possession, is no conversion, because each has as good a right to the possession as the other. But it can hardly be questioned that the refusal of any one to give up to another that to which such other has a better right, would be a conversion. The doctrine referred to applies to things in their nature so far indivisible that the share of one can not be distinguished from that of another....