Rosenau v. Syring

• Decision Date: 14 February 1894
• Citation: 25 Or. 386,35 P. 844
• Parties: ROSENAU v. SYRING et al.
• Court: Oregon Supreme Court

35 P. 844

25 Or. 386

ROSENAU v. SYRING et al.

Supreme Court of Oregon

February 14, 1894

Appeal from circuit court, Multnomah county; E.D. Shattuck, Judge.

Action by Minnie Rosenau against Albert Syring and Amelia Syring. From a judgment for plaintiff, defendants appeal. Affirmed.

T.J. Geisler, for appellants.

W.L Nutting, for respondent.

BEAN J.

This is an action to recover damages for the unlawful conversion of personal property. The complaint, in substance avers: That on December 2, 1892, Gustav Lichthorn and Anna Lichthorn were the owners and in possession of certain personal property, which, for the purposes of this case, may be segregated and considered in three parts: First, sundry small articles, of the aggregate value of $135; second, 20 sacks of flour, of the value of $23; and, third, a bake oven of the value of $350. That on the day named the defendants wrongfully and unlawfully took and carried away said property, and converted the same to their own use. That prior to the commencement of this action the Lichthorns assigned and transferred to the plaintiff their right, title, and interest in and to the property, and their claim against the defendants for its conversion.

The defendants answered jointly, denying the allegations of the complaint, and, among other defenses, alleged, in substance, that at all the times mentioned in the complaint the property therein described, except the bake oven and flour, belonged to Gustav Lichthorn alone, and was on December 1, 1892, seized under a writ of attachment issued in an action brought by the defendant Amelia Syring against him to recover the sum of $58, and afterwards sold to satisfy the judgment recovered in the action; that the 20 sacks of flour belonged to, and was the property of, Kratz & Kernan, and was by them replevied from the sheriff after the levy of the execution, and before the sale; that the bake oven referred to was constructed by Gustav Lichthorn upon the property of defendant Amelia Syring, which he occupied as her tenant, and that the same is an irremovable fixture, the ownership and title to which go with the land; and that about December 1, 1892, the Lichthorns surrendered possession of the premises, and abandoned whatever interest they had in the oven to the landlord. The reply put in issue the new matter alleged in the answer. Upon the issues thus joined the cause was tried, and a verdict rendered in favor of the plaintiff for the sum of $200, and from the judgment entered thereon this appeal is taken.

1. The evidence tended to show that plaintiff's assignors, who were conducting a bakery on property leased of the defendants, were the joint owners of the property in controversy on the 1st day of December, 1892, when Gustav Lichthorn's interest therein,--except the bake oven,--was duly attached in an action brought against him by the defendant Amelia Syring, and afterwards sold to satisfy a judgment recovered therein, and purchased by the defendants. Upon these facts the contention for defendants is that the plaintiff cannot, in this action, recover for the alleged conversion of Anna Lichthorn's interest in the property because the defendants, by their purchase at the execution sale, became the owners of Gustav Lichthorn's interest, and therefore tenants in common, or joint owners, with her. The general rule is that one tenant in common of chattels cannot maintain an action of trover against his cotenant, because the right of possession lies at the foundation of the action, and the one is as much entitled to the possession as the other. But where one tenant in common, denying the right and title of his cotenant, and claiming the exclusive ownership in himself, applies the joint property to his own exclusive use, it will amount to a conversion, and enable his cotenant to support trover against him therefor. Cooley, Torts, § 455; Agnew v....