
    Elijah A. Brown, Respondent, v. Isaac Burnap, Appellant.
    
      Conversion—what is not a demand — sale of growing crops, etc., by a tenant working a fcvrm on shares and abandoning it, during the term, to the landlord.
    
    One White, who took a lease of .a farm on shares for a year, abandoned it after a few months, and in consideration of a debt owing by him to the lessor, sold a half interest he then had in some butter, somé young calves and some growing crops and chattels upon the farm to the lessor, who resumed possession of the farm,harvested the crops, sold the butter and the calves and retained possession ' of the rest of the property. In an action for conversion, brought by a creditor of White, to whom the latter had assigned his interest in che property thus sold, it was
    
      Held, that the relation of the defendant and of White after he had abandoned the premises was that of tenants in common of the property as it was when the sale was made;
    That a sale of all the property by one co-tenant did not amount to a conversion thereof, unless it ignored the rights therein of the other co-tenant, an element not present in this case, as it was apparent that, when White abandoned the farm, it was his intention that the defendant should thereafter conduct it and merely account to him for his share of the proceeds;
    That as a sale was necessary in order to divide the . property, the sale of the butter and of the calves could not amount to a conversion;
    
      That the defendant was not bound ■ to divide the growing crops, and need only account to White for their value at the-time When he abandoned them;
    That a statement made by the plaintiff to the defendant in the words, /' I told him that. I had come to get Ed. White’s interest in that property. l asted him to figure up and see what it was; ” did not amount- to- a demand for the property itself, but was rather a request to the defendant to keep. all -the property and -to account for and pay ovef to the plaintiff so much as was due to White.
    Appeal by the defendant,. Isaac Burnap, from a. judgment of the .-County Court of Cheiiango county in favor of- the plaintiff, entered in the office of'the clerk of the county of Chenango, on the.loth ■day of June, 1896, which modified, and" affirmed as modified-, a judgment in favor of the plaintiff rendered by a justice of the peace. . -' .•
    The defendant leased his farm to- one White to work, on shares. W.hi-te held possession of the farm. under such leasing from March 1, 1894,, until the early part of July, and then abandoned it. . At the ■ time he left there were eleven firkins- of butter, some young, calves, - several acres; of oats, corn and buckwheat sown, some potatoes planted,- and certain other personal property there,-in all of which he had an interest - as such ■ tenant. By a bill of sale, absolute in form,, and hearing date July 13, 1894, in consideration of $100, he sold and assigned all his- interest in such property to the defendant, The defendant, -retook possession of the farm,' harvested -the crops, sold the butter and 'calves and retained possession of the rest of the property. - ' ■
    On the nineteenth-of-July, White-sold to the plaintiff by a hill of sale,.absolute in form, all of his interest in- such property, and-recited therein that the- hill of . sale to the' defendant, although absolute ■ in form, was in fact: for the purpose of securing to him the ■sum of sixty dollars. Such bill of sale to the plaintiff .recites that it is in consideration of fifty dollars and eighty-seven cents.
    Subsequently, in October, 1895, the plaintiff- brought this action against -defendant to recover for Ms conversion- of the property mentioned therein.. '' ,
    On -the trial White testified that he owed defendant -about- eighty-eight dollars at thé time: he gave the. bill of sale to -him; that the consideration of the bill of sale was.the indebtedness he owed Mm; that such indebtedness had never been ascertained exactly, and that he could not then state it exactly ; that they did not figure up the amount of indebtedness when tlíe bill of sale was given, and that he had never paid any part of it. .He further testified that the bill-of sale was given to secure defendant his pay and to keep creditors off, so that they could not come and take the balance. He also testified that, when he gave the bill of sale to the plaintiff, he owed him one hundred and two dollars and eighty cents.
    Upon the above facts, substantially uncontradicted, the plaintiff rested his case. The defendant thereupon moved for a nonsuit, which ■was denied, and the justice thereupon rendered judgment against the defendant “ for the wrongful conversion of personal property in the sum of ninety dollars and six cents ($90.06) damages and eleven dollars and thirty-five cents ($11.35), making in all the sum of $101.46.”
    The defendant took an appeal from such judgment to the County Court, where the judgment was reduced to fifty dollars and eighty-seven cents damages, and eleven dollars and thirty-five cents costs, amounting in all to sixty-two dollars and twenty-two cents, and as so modified, affirmed. Prom such judgment of the County Court the defendant brings this appeal.
    
      Hubert G. Stratton, for the -appellant.
    
      W. J. Annas, for the respondent.
   Parker, P. J.:

This action is brought, and- plaintiff has recovered, upon the theory that by the bill of sale from White to him, he succeeded to White’s undivided interest in the property mentioned therein, and that the defendant has converted such interest to his own use. Unless that claim is a correct one this judgment cannot be sustained.

The plaintiff contends that White and the defendant were tenants in common of-the property; that by -the bill of sale and the agreement under which it was given, White in effect mortgaged to him his undivided one-half, and (conceding such mortgage to be a valid one) that defendant had the right to sell only so much thereof as was necessary to pay his debt; that by the sale of the butter, he received from White’s share more than enough to satisfy his claim, and that, therefore, the sale of so much of the butter was not needed to satisfy that claim; the sale of the calves, and the use. or .detention ■of the grain and potatoes ■ was á conversion of White’s interest therein. , And judgment against the defendant has been rendered upon that theory.

I do not .think that such claim correctly states the interest of White in the property ini question. Under his lease, it was the duty of White to work the farm and,care for all the stock thereon for o.ne year from March 1, 1894. He was not only to sow and plant the crops, but to cultivate', harvest, thresh and market them. So as to the calves, he was to feed and care for them during the year, or until sold. It was because of the performanceof this-work, as well as the general care of the farm, that he became, entitled at the" end of the year1 to his half interest in such property.

In the. early part of July lie abandoned his lease and inoved off of the farm. Thereupon the bill of sale and the. agreement above ■ mentioned was made. Evidently the defendant w;as"willing to recognize White’s interest.in,the property in the condition" in which.it." then was. There was some reason why the labor and expense lie had already put into it should be preserved to White; but there was-no reason, nor equity, why he should continue- to have an interest ■' in the increase of these calves or ' the product of those crops. Defendant must take all the care and do all the rest of the work necessary to perfect them,, and. hence the growth" of such property, was to belong tb-him alone. In- other "words, the bill of sale, and agreement accompanying the sainé does not recognize a continuing cotenancy in the growing calves and crops.. It recognizes a claim on White’s part to a half interest, in the property in the Condition in which it then, was, to. wit: Crops advanced to. a certain' stage, .in the ground, and. calves of-a certain condition and age. That specific property in that, condition both parties recognized as belonging .to White,, but neither party had any idea that thereafter such an . ownership, was to continue in White as would require defendant, to account to him for the grain and potatoes produced or the increased value of the calves.

Assuming then that ■ White’s ..ownership extended • only to the - ■ specific articles mentioned in the bill of. sale, in' the condition in . which.they then were, We may consider him and defendant, as ten- . ants in common of that particular property. We may "also> concede that White has mortgaged his undivided one-half thereof to defendant, and yet it does not appear that defendant is liable to either him or the plaintiff for a conversion of any part thereof.

Defendant sold all of the butter and nine of the calves. A sale of the whole property by the cotenant does not necessarily amount to a conversion of it. It must be a sale which ignores the rights of the cotenant and which is made in opposition to his claim. (Osborn v. Schenck, 83 N. Y. 201.) -Evidently the sale of the butter and calves in this case was not, within the above rule, a conversion of White’s interest therein. It is evident that White intended that defendant should sell it all and account to him for the proceeds. It was left in his hands by White to sell, and is clearly a case of one tenant in common selling the whole with the consent of the other. Hence the sale of tire butter did not amount to a conversion of it. It is claimed that he was not authorized to sell more of the butter than was needed to pay his debt; that his debt was only $88, and that he sold $110 worth of butter belonging to White. But this claim is not sustained by the proofs. White was entitled to 5^- firkins of 100 pounds each,, and each firkin came to $20. The bill of sale to defendant is in consideration of $100. White testified that he could not tell exactly what his debt to defendant was ; that they had never settled their accounts. If the debt was $100, as expressed in the bill of sale, defendant sold no more butter than was necessary, unless he divided a firkin. Under such circumstances, he clearly should not be charged with the conversion of any part of the butter.

As to the nine calves which he sold, it does not appear when he sold them, but evidently it was some time after the bill of sale. They had by growth acquired a value in which White had no interest. 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. Hence, defendant as a tenant in common — even though he had no rights under the bill of sale — did not, by a sale of the whole title, convert White’s interest therein. A sale was necessary in order to divide the property, and it was not made in denial of White’s interests. (Channon v. Lusk, 2 Lans. 211; Lobdell v. Stowell, 37 How. Pr. 88; S. C., 51 N. Y. 70.) The same may be said of the remaining two calves which were not sold. ■ They were not of that: separable character which.required defendant to deliver them or any part of them to. White or his-, assignee on demand. ' • ■ • • •" ' . .

As to the grain and' potatoes, the" products of the, crops on the ground, in the view which I have taken of .White’s interest therein, it is evident that defendant was under no obligation to divide the same. White had no property in anything more than the growing crops on the ground at the time defendant took them. - Tor the then value of such crops, it is evident that, under .their arrangement, defendant must account,; but it; is equally, evident that •he is not .guilty of a conversion of the- grain and potatoes therefrom, because he refused to. divide them with White’s assignee.

.. I conclude,, therefore, that no conversion of either the butter, the calves or the crops has been proven against defendant.

As to the lumber wagon and bob sleds, they were taken by White himself ; as to the mowing machine, of the value of" twenty-five dollars, it would seem that if defendant had received'his pay for the same from the proceeds of the butter, he should have delivered it tin demand to White or his assignee ; but it is not definitely established, •how much the indebtedness fro'm White to defendant was; and if a conversion of that machine was pi oven; it, falls considerably short-of sustaining the judgment appealed from: ."

There is another feature of the case that tends strongly towards ' the conclusion which I have reached. ' . ■ ■ . ,'

Assume that plaintiff was entitled to the possession of one-half" of the grain,, potatoes and calves,, and to the mowing machine, upon demand, the evidence does not show that any .such demand has been made. The evidence upon that question is substantially as follows :

“ I told him that I had come, to get Ed. White’s interest .in that property." I asked him to figure up and. see what it was.” And,, at another place, witness says: I asked him, defendant, for the amount due to White as assigned to E. A. Brown.”. Evidently., the . claim made was, that defendant should settle his account with White ■ and pay oyer any balance found due him. It was not a demand for the grain, or the calves or the butter, "or any part of them ; much less was it a demand for the mowing machine. It was rather .a demand that' defendant keep all'the property and account for arid pay over to.. plaintiff wliat was due to White thereon-.- Defendant’s, refusal to do that is not a refusal to deliver White’s share in the property itself, nor does it amount to a conversion thereof.

Upon the evidence, it is clear that. White had the right to require defendant to account to him for the proceeds of the sale of the butter and the value of the calves and growing crops at the time he left them in his possession; but it does not appear therefrom that defendant has, as against either White or his assignee, been guilty of a conversion of any part thereof.

In the view I have taken of this case, it is not material whether or not the bill of sale was void as against White’s creditors, It certainly evidences a consent on White’s part that defendant should sell the whole interest in the property that was left with him, and beyond that it is not needed to justify defendant’s treatment of the property.

For these reasons the judgment of the County Court and of the Justice’s Court should be reversed, with costs in each court and of this appeal.

All concurred.

Judgment of County Court and of the Justice’s Court reversed, with costs in each court and of this appeal.  