Johnson v. Johnson

• Decision Date: 25 July 1917
• Court: North Dakota Supreme Court

164 N.W. 327

38 N.D. 138

SAM JOHNSON et al. v. IVER JOHNSON

Supreme Court of North Dakota

July 25, 1917

Rehearing denied September 24, 1917.

Action in trover for the proceeds of property rented to a third person by a cotenant.

Appeal from the County Court of Cass County, A. G. Hanson, J.

Judgment for defendant. Plaintiffs appeal.

Affirmed.

J. V Backlund, for appellants.

Evidence tending to prove a fact must be submitted to the jury however slight it may be. Alabama G. S. R. Co. v Hill, 93 Ala. 514, 30 Am. St. Rep. 65, 9 So. 722; Flemming v. Marine Ins. Co., 4 Whart. 59, 33 Am Dec. 33; Rodgers v. Stophel, 32 Pa. 111, 72 Am. Dec. 775.

It is competent, relevant, material, and admissible though it may not be such as of itself to establish a fact, if it is such that the jury may, in connection with it and other facts properly alleged, make a finding respecting some issue material to the cause. Cleveland, C. C. & I. R. Co. v. Closser, 126 Ind. 348, 9 L.R.A. 754, 22 Am. St. Rep. 593, 3 Inters. Com. Rep. 387, 26 N.E. 159; Clark v. Patapsco Guano Co., 144 N.C. 64, 119 Am. St. Rep. 931, 56 S.E. 858; 10 R. C. L. p. 927, P 89.

In admitting testimony, the court does not conclusively adjudge that the evidence establishing its competency is sufficient fully to prove the requisite fact. It simply declares that there is some evidence tending to make the testimony competent. Cleveland, C. C. & I. R. Co. v. Closser, supra; 10 R. C. L. p. 927, P 89.

Where one cotenant actually receives money from a third person for the use of the common property, he is liable to the other cotenants for all that he receives over and above his just share. 7 R. C. L. p. 826, P 22; Tarleton v. Goldthwaite, 23 Ala. 346, 58 Am. Dec. 296; Pico v. Calumbet, 12 Cal. 414, 73 Am. Dec. 550; Goodenow v. Ewer, 16 Cal. 461, 76 Am. Dec. 540; McCord v. Oakland Quicksilver Min. Co., 64 Cal. 134, 49 Am. Rep. 686, 27 P. 863; Crane v. Waggoner, 27 Ind. 52, 89 Am. Dec. 493; Coleman v. Hutchenson, 3 Bibb, 209, 6 Am. Dec. 649; Nelson v. Clay, 7 J. J. Marsh. 138, 23 Am. Dec. 387; Hudson v. Coe, 79 Me. 83, 1 Am. St. Rep. 288, 8 A. 249; Israel v. Israel, 30 Md. 120, 96 Am. Dec. 571; Flack v. Gosnell, 76 Md. 88, 16 L.R.A. 547, 35 Am. St. Rep. 413, 24 A. 414; Peck v. Carpenter, 7 Gray, 283, 66 Am. Dec. 477; Fenton v. Miller, 116 Mich. 45, 72 Am. St. Rep. 502, 74 N.W. 384; Bates v. Hamilton, 144 Mo. 1, 66 Am. St. Rep. 407, 45 S.W. 641; Izard v. Bodine, 11 N.J.Eq. 403, 69 Am. Dec. 595; McPherson v. McPherson, 33 N. C. (11 Ired. L.) 391, 53 Am. Dec. 416; Puckett v. Smith, 5 Strobh. L. 26, 53 Am. Dec. 686; Early v. Friend, 16 Gratt. 21, 78 Am. Dec. 649, 14 Mor. Min. Rep. 271; Ward v. Ward, 40 W.Va. 611, 29 L.R.A. 449, 52 Am. St. Rep. 911, 21 S.E. 746.

Generally trover will not lie in favor of one tenant against another except where one acquires and retains exclusive possession of the common property with intent to appropriate it to his own use or otherwise to deprive the other cotenant of its equal use and benefit. The rule that conversion will not lie in such cases has, however, no application to such articles or commodities as are readily divisible by sale, or measure into portions exactly alike in quality. 7 R. C. L. p. 894, P 91; Weeks v. Hackett, 104 Me. 264, 19 L.R.A. (N.S.) 1201, 129 Am. St. Rep. 390, 71 A. 858, 15 Ann. Cas. 1156; Fiquet v. Allison, 12 Mich. 328, 86 Am. Dec. 54; Ripley v. Davis, 15 Mich. 75, 90 Am. Dec. 262.

Where one cotenant in possession of such common property uses more than his share or refuses to allow the other to take his share, he is guilty of conversation and liable to his cotenant. Fiquet v. Allison, 12 Mich. 328, 86 Am. Dec. 54; Pickering v. Moore, 67 N.H. 533, 31 L.R.A. 698, 68 Am. St. Rep. 695, 32 A. 828; Loomis v. O'Neal, 73 Mich. 582, 41 N.W. 701; 7 R. C. L. p. 824, art. 17.

The injured cotenant may hold the other liable in an action of trover. 7 R. C. L. p. 886, art. 82; Carter v. Bailey, 64 Me. 458, 18 Am. Rep. 273; Tuttle v. Campbell, 74 Mich. 652, 16 Am. St. Rep. 652, 42 N.W. 384; Rains v. McNairy, 4 Humph. 356, 40 Am. Dec. 651; Ashland Lodge v. Williams, 100 Wis. 223, 69 Am. St. Rep. 912, 75 N.W. 954; Grigsby v. Day, 9 S.D. 585, 70 N.W. 881; 7 R. C. L. p. 896, art. 93 and cases cited.

Attempt has been made to distinguish between the sale of a chattel and a tortious destruction, but this is not correct. There is a difference in the meaning of the terms, but their legal effect upon tenants in common is the same, and trover will lie for either in favor of the injured party. 7 R. C. L. p. 986, art. 93.

When a person has been wrongfully deprived of the possession of personal property, he may elect either to sue to regain possession of sue in conversion for the value thereof. 9 R. C. L. p. 967, art. 14; Woodruff v. Zaban & Son, 133 Ga. 24, 134 Am. St. Rep. 186, 65 S.E. 123, 17 Ann. Cas. 974; Greer v. Newland, 70 Kan. 310, 70 L.R.A. 554, 109 Am. St. Rep. 424, 77 P. 98, 78 P. 835; Bradley v. Brigham, 149 Mass. 141, 3 L.R.A. 507, 21 N.E. 301; Putnam v. Wise, 1 Hill, 234, 37 Am. Dec. 309; Baird v. Howard, 51 Ohio St. 57, 22 L.R.A. 846, 46 Am. St. Rep. 550, 36 N.E. 732.

Pierce, Tenneson, & Cupler, for respondent.

It was incumbent upon plaintiffs to show the nature of the testimony of their witnesses and that the answers sought to be elicited would be material to the issues. No offer was made to show any wrongful act on the part of the defendant with reference to the crops. There is not even an intimation in the record of any wrongful appropriation or conversion. Regan v. Jones, 14 N.D. 595, 105 N.W. 613; Bristol & S. Co. v. Skapple, 17 N.D. 271, 115 N.W. 841; Madson v. Rutten, 16 N.D. 281, 13 L.R.A. (N.S.) 554, 113 N.W. 872; Soules v. Brotherhood of American Yeomen, 19 N.D. 23, 120 N.W. 760; Van Cise v. Pratt, 26 S.D. 194, 128 N.W. 619.

Defendant acted in good faith, and he has the right to set off against any claim plaintiffs may have for a share of the crops or the proceeds thereof, the plaintiffs' proportion of taxes and repairs and improvements paid by him. If defendant can be sued in tort, he loses the right to counterclaim and to have all matters of dispute settled between them. 7 R. C. L. pp. 837 et seq.; Gage v. Gage, 28 L.R.A. 829, and note, 66 N.H. 282, 29 A. 543; Schuster v. Schuster, 29 L.R.A. (N.S.) 224, and note, 84 Neb. 98, 120 N.W. 948, 18 Ann. Cas. 1078; Comp. Laws 1913, §§ 7165, 7168, 7449.

Plaintiffs have mistaken their remedy. They should have sued in assumpsit or by an action in equity for an accounting. Comp. Laws 1913, §§ 5264, 5265, 5718; 7 R. C. L. pp. 820 et seq.; 38 Cyc. 14 et seq.

One cannot complain of the mere possession of a cotenant so long as he refrains from setting up any claim to share in that possession. 7 R. C. L. pp. 829, 830.

Cotenants may be made to account for the use and occupancy or for rents and profits to each other. Gage v. Gage, 66 N.H. 282, 28 L.R.A. 829, 29 A. 543; Schuster v. Schuster, 84 Neb. 98, 29 L.R.A. (N.S.) 224, 120 N.W. 948, 18 Ann. Cas. 1078.

A cotenant is not liable for the value of the use and occupancy of real estate, in the absence of agreement or ouster of his cotenant. Schuster v. Schuster, 84 Neb. 98, 29 L.R.A. (N.S.) 229, 120 N.W. 948, 18 Ann. Cas. 1078, and cases cited; Cheney v. Ricks, 187 Ill. 171, 58 N.E. 234; McCrum v. McCrum, 36 Ind.App. 636, 76 N.E. 415; Williamson v. Jones, 43 W.Va. 562, 38 L.R.A. 694, 64 Am. St. Rep. 891, 27 S.E. 411, 19 Mor. Min. Rep. 19; Ayotte v. Nadeau, 32 Mont. 498, 81 P. 145; Pico v. Columbet, 73 Am. Dec. 550 and note, 12 Cal. 414.

"One who sows, cultivates, and harvests a crop upon the land of another is entitled to the crop as against the owner of the land, whether he came into possession of the land lawfully or not, provided he remains in possession till the crop is harvested." Comp. Laws 1913, § 7166; Nash v. Sullivan, 32 Minn. 189, 20 N.W. 144; 12 Cyc. 977; Shepard v. Pettit, 30 Minn. 119, 14 N.W. 511; Calhoun v. Curtis, 4 Met. 413, 38 Am. Dec. 380; 15 Cyc. 206.

This is true of a tenant in common who is in the sole possession of the land. His interest in the crop grown thereon is not that of a tenant in common of a specific chattel; but on the contrary as soon as he appropriates it he has a good title thereto and a sale thereof will pass complete title to the purchaser. 7 R. C. L. 823, 835, 887.

Even if plaintiffs had title to a portion of the crops they could not maintain conversion, because defendant came into possession of them lawfully, and he never refused to deliver possession of the crops to them, and no claim to any interest in the crops was made until after the crops had been sold. 38 Cyc. 84; Olin v. Martell, 83 Vt. 130, 138 Am. St. Rep. 1072, 74 A. 1060; Waller v. Bowling, 12 L.R.A. 266 and note, 108 N.C. 289, 12 S.E. 990.

OPINION

Statement of facts by BRUCE, Ch. J.

This is an action for the conversion of wheat and wood grown on a 40-acre tract of land in Ransom county, North Dakota, during the inclusive years, 1911 to 1915, the title to the land being in the name of all of the parties to the action including the defendant. The complaint is the ordinary one in conversation, and alleges "that the plaintiffs herein are the owners and entitled to the immediate possession of certain personal property, to wit, 284 bushels of wheat and 18 cords of wood, being five sixths of the crop sown, grown and harvested and of the wood cut" on the land in question and during the years 1911 to 1915 inclusive; that on or about the 11th day of April, 1916, the defendant, then being in possession of said grain and wood, or the proceeds thereon, wrongfully converted the same to his own use. A demand is then alleged to have been made of the defendant on the 12th day of April, 1916, for said property, or the proceeds thereon,...