
    Farr & Emmons vs. Smith.
    ALBANY,
    Oct. 1832.
    One tenant in common of a chattel cannot bring trover against his co-tenant for dispossessing him; if the chattel be destroyed or sold, which is constructively a destruction, the action lies.
    
      A justice’s execution, which should be made returnable in 90 days, is void if made returnable in 30 days, and a creditor as well as the defendant in the execution may take the objection.
    Error from the Seneca common pleas. Smith sued Farr and Emmons in an action of trover for taking a quantity of wheat in the sheaf cut by the plaintiff and left standing in the field. The plaintiff shewed title to the wheat by virtue of a purchase made 27th May, 1830, under an execution on a judgment in his favor against one David Jones, obtained on attachment; the judgment was for $41,88, and the execution issued thereon was returnable in thirty days. He also claimed under a mortgage of the wheat executed by Jones to one Swick, bearing date 9th October, 1829, to secure the payment of $80 on the 9th October, 1830, and authorizing Swick to take possession of the wheat at harvest time and retain the same until tho mortgage money was paid, which mortgage was in August, 1830, assigned to the plaintiff. The wheat in question had, in the autumn of 1829, been sowed by Jones on alarm then in the possession of one Kelly, on shares, Jones to have one third of tho crop, and each to harvest his own share. When the wheat was ripe, in 1830, one third of the crop was cut and left on the field by Smith, from whence it was taken by the defendants. In their defence the defendants contended that the execution in favor of the plaintiff against Jones was void, having been made returnable in thirty instead of ninety days ; the court decided that none but the defendant in the execution could object to the execution on that account. The defendants next shewed that on the day the mortgage from Jones to Swick fell due, they tendered to the plaintiff $60, in satisfaction of the same, which was refused to be accepted, the defendants being unwilling to pay the costs which had then accrued in this suit. The court decided the tender to be insufficient. They next shewed a judgment and execution in favor of Emmons against Jones, obtained on attachment, and a sale of the wheat in question to Emmons previous to 1st June, 1830; which attachment in favor of Emmons, although served on the same day that the attachment in favor of Smith was served, was subsequent in point of time. The defendants also shewed that on the 14th March, 1829, the date of the agreement between Jones and Kelly relative to the putting in of the crop, Kelly was the tenant of John DeMolt; that in October, 1829, De Mott entered into a contract for the sale of the farm on which the crop had been put in, to Emmons, one of the defendants, without any reservation of crops; that in December, 1829, Emmons contracted to sell the same premises to Farr, the other defendant, who early in the next spring entered into possession, until when, Kelly had remained on the farm, having been in possession for 12 years. It also appeared that in October, 1829, Kelly assigned his interest in the agreement between himself and Jones to Emmons. The plaintiff liad a verdict for $94,18, on which judgment was entered. The defendants sued out a writ of error.
    A. Gibbs, for plaintiffs in error.
    
      W. B. Canfield, for defendant in error.
   By the Court,

Savage, Ch. J.

The plaintiff below undertook to shew title to the wheat in two ways: 1. By a judicial sale under his judgment and execution; and 2. As assignee of a mortgage. By the first, he acquired no interest in the wheat; and the execution being returnable in 30 instead of 90 days, was unwarranted by the statute, and void, 5 Wendell, 276; but by the mortgage, of which the plaintiff was assignee, he did become entitled to take possession of Jones’ part of the wheat, and this title is older than that of the purchase by Emmons under his judgment and execution. On the supposition, therefore, that Kelly and Jones were entitled to the crop, Smith, the plaintiff below, having the interest of Jones, was the owner of one third of the wheat, and the other two thirds belonged either to Emmons, as the assignee of Kelly’s interest, or to Farr, to whom Emmons had sold the farm, without any reservation of the crops. The defendants therefore, or one of them, were tenants in common with the plaintiff of the wheat. By the contract, Jones was to harvest one third and Kelly two thirds, but their interest was joint until a division ; of the wheat, which was cut, the defendants were the owners of two thirds, and the plaintiff was owner of the remainder. The law is well settled that one tenant in common of a chattel cannot bring trover against his co-tenant for dispossessing him. If one tenant in common of a chattel destroy or sell, (which is constructively a destruction,) then he is accountable in this action. 9 Cowen, 230. 3 Johns. R. 175. 15 id. 181. As this point disposes of the whole case, it seems unnecessary to consider the nature of Kelly’s tenancy. The tender upon the mortgage was certainly ineffectual, as this suit was then commenced and there was no offer to pay the costs.

Judgment of Seneca common pleas reversed with single costs, and the costs to abide the event of a new trial.  