C. and J. Seldon against Hickock

C. and J. Seldon against Hickock. A sale of the proportion of one of joint owners of a cargo, with tho consent and advice of all the others, severs the tenancy in common, and the vendee may maintain trover for it against the other partners. Troven for five hundred bushels of Turk’s Island salt. The defendant and two-others were joint owners of a cargo of sixte.en hundred bushels of salt, one thousand only of which was that of Turk’s Island. The two other partners, being unable to pay their proportion of duties and charges, by the advice and eousent of the defendant, sold their shares to the plaintiffs. On a refusal to deliver, after payment made, the present action was brought, and a verdict having been found for the plaintiffs, the application was to set it aside, and order a nonsuit to be entered. Allen, for -the defendant. The plaintiffs and defendant wvere tenants in common, under the sale by the two former partners. “ If two have jointly, •by buying, a horse, or an ox, and the one sell to another his part of the said horse, or ox, the purchaser and the other 'shall possess suoli chattel in common.” Co. Lift. 299, b. Therefore, if a creditor take out execution against one partner, the vendee is tenant in common with the other. Heydon v. Heydon, 1 Salk. 392. So, every one deriving title under one partner. Fox v. Hanbury, Cowp. 445; Smith v. Stolces, 1 East, 363. The persons thus coming in, stand in.exactly the same situation as the person from •whom they claim ; and, therefore, cannot maintain trover against their other co-tenants in common. Esp. N. P. 586; ■1 D. & E. 658, Holiday v. Gamsell & White, and the authorities already cited. SPENCER, J. It is settled that one tenant in common cannot maintaiu trover against another, unless that other has destroyed the subject matter of the tenancy. See Co. Litt.. 200, a.; Burnadiston v. Chapman, Bull. N. P. 34, S. P. But I do not see how that principle will help you. Allen. The damages are excessive: it is in evidence there were only one thousand bushels of Turk’s Island salt on board. The sale was of one third of the interest, and the verdict is for five hundred and thirty bushels, which is more than half of the salt for which the action was instituted. Foot, contra. Without denying anything that has been said, the sale by and with the consent of all the partners severed the tenancy in common. The undivided third part became the separate right of the plaintiffs. [MAJORITY — Spencer, J.] Spencer, J. delivered the opinion of the court. The defendant, with two others, (Lord and Sherman,) who were copartners, were tenants in common of the salt. One tenant in common cannot maintain trover- against his co-tenant, unless the thing holden in common be destroyed. In case of a sale by one, and a receipt of tbe money, an action for money bad and received will lie. In this case Lord and Sherman sold their share, being five hundred and thirty bushels, to the plaintiffs, with the assent of the defendant, and on his advice. He promised to deliver the plaintiffs that quantity, and received from them the proportion of the duties, chargeable to Lord and Sherman. This, then, was a valid sale, and severed the tenancy in common. The damages are not excessive. It does not appear that Turk’s Island salt *was of a value superior to the other, which was from the island of St. Thomas. The plaintiffs gave six and six pence per bushel, and have recovered only that amount, with interest. The verdict invades no principle of law or justice: we are, therefore, against the motion. The plaintiff however, must stipulate not to bring any other action for St. Thomas’s salt. Postea to the plaintifPs.