
    Lineas Le Barron, App’lt, v. Alphonso House, Samuel Babcock and Charles Babcock, Resp’ts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed October 7,1890.)
    
    Tenants in common—Right oe one co-tenant to crop produced by ms industry—Conversion.
    Where one co-tenant, while peaceably in possession with the acquiescence of the other owners, in the due course of husbandry grows and severs grass and oats from the land, he becomes the sole owner of such products of the soil, and if the other co-tenants draw the same away they are guilty of conversion and liable for the value thereof.
    Appeal from an order of the general term of the supreme court, of the fifth judicial department, reversing a judgment entered on a verdict
    
      W. F. Thrasher, for app’lt; Morris & Lambert, for resp’ts.
    
      
       Reversing 12 N. Y. State Rep., 688.
    
   Follett, Ch. J.

March 19, 1882, Lineas Le Barron, the elder, died intestate, seized of a farm of 288 acres, and leaving eleven children, his only heirs, one of whom is the plaintiff, and another is the wife of Alphonso House, one of the defendants. The plaintiff was the administrator of his father’s estate, and being in possession of the farm in the year 1885, he plowed two and a half acres of land and sowed it to oats. Upon the farm there was about forty acres of meadow land. In August of that year he cut these oats and also the grass on about fifteen acres of the meadow. He left the oats in the swath to dry and the hay, which had been partly dried, he had raked into wind-rows. Ho one but the plaintiff had bestowed any labor on the grain or hay, or on the farm whereon they grew. These products being in this situation, the defendants entered in the night-time and drew away the oats and entered in the day-time and drew away the hay, claiming to do so in the right of Mrs. House and by her direction. The plaintiff forbade the removal of the property, bat openly admitted the right of anyone of his co-Lenants to eat and take his or her share of the standing grass from the meadow. None of the tenants had ever been excluded from the farm, nor had the right to possess or enjoy it ever been denied to them or to any one of them.

This action was brought to recover the value of the hay and oats upon the theory that the defendants were liable in trover, and at circuit it was held that they were so liable and the plaintiff had a verdict for the value of both, but their values were not separately assessed. The judgment entered upon the verdict was reversed at general term, where it was held that the plaintiff was rhe sole owner of the oats and could recover their value; but that he was a mere tenant in common of, the hay, and could not recover its value of his co-tenant, who had carried it away.

The oats and hay were personal chattels, the former being such before as well as after they were cut, and the latter became such when severed from the-meadow. 2 Steph. Com., 8th ed., 212. If they were owned in common by the plaintiff and Mrs. House it was not a conversion in law for the defendants, acting by her (a co-tenant’s) authority, to merely draw them away. Carr v. Dodge, 40 N. H, 404; Ballou v. Hale, 47 id., 347; Russell v. Allen, 13 N. Y., 173; Lobdell v. Stowell, 51 id., 70; Freem. Cot., § 306. But if the plaintiff owned the products in his own right, then the defendants’ act in carrying them away was a conversion in law, and they are liable for the damages.

When one of several tenants in common of a farm (all being of full age), occupies it and has taken, in the usual course of husbandry, the annual products thereof without having entered into any contract in respect to its use, and without having ousted or denied the rights of any of his co-tenants, he is not liable to account to them, or to any one of them, for its use, or for the products so taken. Woolever v. Knapp, 18 Barb., 265; Wilcox v. Wilcox, 48 id., 327; Dresser v. Dresser, 40 id., 300 ; Roseboom v. Roseboom, 15 Hun, 309; aff’d 81 N. Y, 356 ; Zapp v. Miller, 109 N. Y., 51, 57; 14 N. Y. State Rep., 77; Henderson v. Eason, 17 Q. B., 701; 4 Kent’s Com., 369 ; Freem. Cot., § 286. The judgments which hold that a tenant in common of farming land, who while in peaceable possession takes and uses the products which have grown while so in possession, is not .liable to account for their value to his co-tenant, rest necessarily on the assumption that he becomes the sole owner of such products; for if a tenant in common of a chattel uses it up or sells it for his own exclusive benefit without the express or implied assent of his co-tenants, he is liable to them for its conversion. Wilson v. Reed, 3 Johns., 175; Nowlen v. Colt, 6 Hill, 461; Dyckman v. Valiente, 42 N. Y., 560; Freem. Cot, §§ 307, 308.

When a co-tenant of such lands peaceably takes the products grown during his possession, there comes a time when he is vested with the sole title, which cannot be later than when in the due course of husbandry they are peaceably and in good faith severed by him from the common estate on which they were grown. If they do not then become the individual property of the co-tenant who grew and severed them, it is difficult to see what subsequent act he could perform which would vest him with the title.

Storing the hay and grain in a barn would not strengthen his title, and unless it becomes perfect when the products are severed, a co-tenant out of possession can lie by and permit the one in possession to rear ana prepare crops for market, and then peaceably take them whenever and whereever he can, or, under certain circumstances, of the purchasers so .long as the property can be traced. This would not be a convenient nor an equitable rule, and we find no authority which justifies the court in declaring it to be the legal one.

The plaintiff, having in the due course of husbandry grown and severed the grass and oats while being with the acquiescence of his co-tenants legally and peaceably in possession of the land whereon they grew, became the sole owner of them, and the defendants by taking them away became liable for their value. Calhoun v. Curtis, 45 Mass. (4 Met.), 413; Brown v. Wellington, 106 id., 318; Bird v. Bird, 15 Fla., 424; Henderson v. Eason, 17 Q. B., 701; 1 Dom. Civil Law (Cushing’s Ed.), 952.

The order should be reversed, and the judgment entered on the verdict affirmed, with cos’ts.

All concur, except Bradley and Haight, JJ., not sitting.  