
    Catherine C. Felts, Respondent, v. William B. Collins and Others, Appellants.
    
      Qotenants of et herd of cattle — one cotenant is guilty of conversion of the share of the other cotenant if he forcibly takes half the herd and, sells it — a person who . assists only in the taking is not guilty of conversion — objection of non-joinder must he by answer or demurrer.
    
    A tenant in common of a one-half interest in a herd of cattle in the possession of his cotenant, who, upon the refusal of such cotenant to consent to a division of the herd, forcibly breaks into the latter’s stable, sorts the cattle into two herds and, after offering to let his cotenant choose either herd, drives one of such erds away and sells it, is guilty of conversion and is liable to his cotenant for one-half of the value of the cattle so converted.
    A person who merely assisted in the original taking of the cattle by attempting to keep them together, but took no part in the forcible entry or in the sale of the cattle, is not liable to the cotenant.
    The objection, in an action for a trespass upon land, of the non-joinder of a cotenant of the land, is waived unless taken by answer or demurrer. (Felts v. OdlUns, 46 App. Div. 332, explained.)
    Appeal by the defendants, William B. Collins and others, from a judgment of the County Court of Columbia county in favor of the plaintiff, entered in the office of the clerk of the county of Columbia on the 28th day of December, 1900, upon the verdict of a jury for $400, and also from two orders, bearing date the 19th day of. December, 1900, and entered in said clerk’s office, denying the defendants’ motions for a new trial made upon the minutes.
    
      E. R. Harder, C. E. Barrett and C. F. Eberle, for the appellants.
    
      John Cadman, for the respondent.
   Houghton, J.:

The complaint alleges that the defendants wrongfully trespassed upon the plaintiff’s real estate and took from her possession eight:,' cows and two yearlings, and converted them to their own use. . {

The specific value of the property is stated, and the general, damage claimed at a larger amount.

The plaintiff and her husband had been farm tenants of the defendant Collins from the spring of 1889 to January, 1899, when the farm upon which they were residing was sold under foreclosure, and the title passed to one Babcock, under whom they continued in possession until April, 1899, when the alleged trespass and conversion was committed.

The testimony showed that when plaintiff and her husband moved upon the farm, there was a verbal arrangement with Collins, subsequently reduced to writing, that they should work the farm on shares, each to furnish half the stock and have half the avails and increase.

After the title to the farm had passed from Collins under the foreclosure, he demanded a division of the cattle, and the plaintiff denied that he had any right in them, and refused to divide, and forbade his taking any of them.

Defendants Hand and Hunker had some lien on Collins’ alleged interest, and the three, assisted by Yan Alstyne, forcibly broke into plaintiff’s stables, sorted out one-half the cattle, and drove them away. Shortly after, Collins, with the consent of Hand and Hunker, sold the cattle.

The plaintiff’s testimony tended to show that she was the owner of all the cattle and that Collins had no interest in them, and she and her husband testified then when they came upon the farm they brought fourteen head of cattle there, and that Collins agreed to pay for half of them, but never did so, and subsequently released to the plaintiff, or her husband, all claim in the increase or avails of that class of stock, and that the cattle then on the farm were made up from the cattle thus brought there and their increase, or such as the plaintiff or her husband had purchased.

As early as 1891 the plaintiff’s husband gave to her a bill of sale of the undivided- one-half of all the cattle on the farm, and supplemented" that by another bill of sale in January, 1899, of the same thing.

Dispute arose between Collins and the plaintiff’s husband in the fall of 1898 with respect to a half ownership in the cattle by Collins, and the matter was left to arbitrators, who found that Collins was the owner of one-half, to which award the plaintiff’s husband acquiesced in writing. It does not appear that the plaintiff knew anything of this adjustment of affairs, or acquiesced in it.

Collins himself claimed that he had paid $200 to the plaintiff’s husband for one-half of the stock, and that he had the right to arbitrarily divide the same on the refusal of the plaintiff or her husband to do so.

On a former trial the plaintiff obtained a verdict, and on appeal the judgment was reversed (Felts v. Collins, 46 App. Div. 334) on the ground that the court erred in refusing to charge the jury that if they found that Collins was a co-owner of. the cattle he was not liable for conversion in merely taking possession of them, under the familiar rule that an action for conversion will not lie by one tenant in common against another for taking joint property, unless there be a denial or exclusion of right of the other cotenant, or a destruction or sale of the property, because each is entitled to possession,, and one has no greater right than the other. It did not then appear as it does now, that the property had been sold.

. The main contention of defendants on the trial under review seems to have been that the division was fair, Collins having taken one and set apart another for the plaintiff and then offered to let the plaintiff choose either herd, and that the property was divisible by nature, and, therefore, Collins had a right to take away and sell his half.

The .trial court held that the cattle were not divisible by nature,, and in this he was manifestly right. They were not in their nature separable in respect to quality or quantity by weight or measure so that they could be severed and each take his share. (Brown v. Burnap, 17 App. Div. 129, 133; Dear v. Reed, 37 Hun, 594.)

The court was also right in ruling that the plaintiff might maintain an action for trespass even if her husband was cotenant of the farm with her. In actions for tort, the non-joinder of a cotenant is not ground for dismissing the complaint, because that defect is deemed waived unless the objection is taken by demurrer or answer. (Zabriskie v. Smith, 13 N. Y. 322.)

But, on the theory that the plaintiff and Collins were joint owners of the property, the court was manifestly wrong in laying down the rule that the plaintiff could recover the full value of all the cattle which the defendants took away and sold.

If Collins had a half interest in. them, he had a half interest in each head which he took away, and the. plaintiff had only the remaining half interest which could be converted. If liable at all, therefore, under such conditions, he was liable only for converting the share or interest which the plaintiff owned.

In an action for conversion, one co-owner can recover of another co-owner who converts the property to his sole use, only the value of the interest which he owns. (Stall v. Wilbur, 77 N. Y. 158; Green v. Edick, 66 Barb. 564; Van Doren v. Balty, 11 Hun, 239.)

But the plaintiff contends that she can sustain the verdict on the ground that there was evidence that she was the sole owner of all the cattle on the premises. This might be so if the jury had been allowed to pass upon that question. But they were nowhere told in the charge of the court that in order to find a verdict against the defendants for the full value of the property, they must find that the plaintiff owned all the cattle and that the defendant Collins had no interest in them. The charge as a whole permitted the jury to infer that they might find for the plaintiff the full value of the entire property taken, even though the plaintiff was the owner of only one-half of the property.

The utmost value proved of the entire property converted was $380. While the trespass was unauthorized and unlawful, there was no special damage done, except the breaking of a board and a couple of locks, and it is fair to assume that the jury allowed only a few dollars for the trespass, and allowed the whole amount of $380 as the value of the cattle in arriving at their verdict of $400.

The motion to set aside the verdict as excessive, therefore, brings up for consideration the rule of damages laid down by the court. (De Lavalette v. Wendt, 11 Hun, 432.)

The highest entire value of the cattle taken and sold as proven being $380, the verdict was, therefore, too large by one-half that amount.

As to the defendants Collins, Kunker and Hand, the judgment should be reversed, with costs to abide the event, unless the plaintiff stipulates to reduce the damages to $210 ; and if the plaintiff so stipulates, the judgment should be affirmed, without costs of this appeal.

As to the defendant Van Alstyne the judgment should be reversed. Assuming that he assisted in the original taking of the cattle, there is no testimony that he did any breaking of the locks or gates, or did anything more than attempt to keep the cattle together. In the selling, which was the principal element of the conversion, he was a simple spectator and had nothing to do with it directly or indirectly. As to him the judgment should be reversed, but the appeal being a joint one, it is without costs to him.

Parker, P. J., Smith and Edwards, JJ., concurred; Chase, J., votes for reversal.

Judgment reversed as to the defendants Collins, Kunker and .Hand, with costs to appellant to abide • event, unless the plaintiff stipulates to reduce the damages to $210, and if plaintiff so stipulates, judgment affirmed, without costs of this appeal. As to the defendant Van Alstyne, judgment reversed, without costs.  