
    Rains vs. McNairy.
    Where one joint owner of a chattel sells the entire chattel and delivers possession to the purchaser, it is a conversion, for which trover lies,
    John McNairy and Francis McNairy were the joint owners of a jackass. A judgment was obtained in the Circuit Court of Davidson county by Stout against John McNairy, and a fi. fa. was issued thereupon, and levied on the animal, by Rains, sheriff of Davidson. F. McNairy attended on the day of sale and forbade the same, but the sheriff sold the entire interest in the animal and delivered him to the purchaser.
    Francis McNairy instituted thereupon this action of trover in the Circuit Court of Davidson county against Rains, and a verdict and judgment were rendered, Maney, Judge, presiding, in favor of the plaintiff, for the sum of $300, that being the estimated value of his interest in the animal. The defendant, Rains, appealed,
    
      Fletcher, for the plaintiff in error.
    The plaintiff in error, Rains, asks for a reversal of the judgment of the Circuit Court upon these grounds, to wit:
    1. As John McNairy owned the one half of the jack, it was his duty to levy the said execution on him, and his duty also to sell him.
    
      2. He could only sell such an interest, or whatever interest, the said John S. McNairy had in him; and no sale that he could or did make, could or did deprive the defendant in error of whatever interest he owned in the jack; and therefore whatever interest defendant in error had in said jack before the sale, he still retained after the sale.
    
      3. If John S. McNairy and Francis McNairy were tenants in common of said jack, then the purchaser at the sale became a tenant in common with Francis McNairy; and being such, he had as much right to the possession of the said jack as the said defendant in error had; and, consequently, the sheriff did no wrong in delivering said jack to the purchaser. They were tenants in common; and defendant in error still has his interest in said jack, has not been divested of it by the said sale, and can proceed by bill against his co-tenant, or otherwise, to secure his interest, should he apprehend loss by removal or other improper conduct. See Story on Partnership, page 584 and section 414, and all from page 373 to 382. See Watson on Partnership, 98, 102 and 106.
    4. Another ground. One joint tenant or tenant in common cannot sue another tenant in common in trover for the sale and delivery of the chattel so jointly owned. 1 Chitty on Pleading, 66, 155; 2 Johnson’s Reports, 468; 16 Johnson’s Reports, 106, and note c, where all the cases are reviewed; 15 Johnson, 179.
    Rains by his levy acquired an interest in said jack; and the moment he made that levy became, in the place of John S. McNairy, a tenant in common of said jack with defendant in error; and if one tenant in common cannot maintain trover against another, then this action cannot be sustained, and the judgment of the Circuit Court must be reversed. Story on Partnership, 379. See 5 Yerger, as to the interest acquired by the sheriff by a levy. 16 Johnson, 101, note c, where all the cases are reviewed.
    
      Andrew Ewing, for defendant in error.
    The only question in this case is, whether one tenant in common of a chattel can sue a sheriff for executing, selling and delivering the whole chattel on a separate execution against his co-tenant. The original doctrine was, one tenant could only sue his co-tenant in case of the loss or destruction of the chattel; but the modern decisions have so far extended the meaning of these two words as to make them include a sale of the whole chattel and its delivery to a third person. See 1 Barn & Adol. 395; 9 Wendell, 354; 3 do. 398; 21 Pickering, 559; 15 Mass. 82; 21 Wendell, 76; 6 Vermont, 452; 1 Kent’s Commentaries, 351, note; 13 Maine Reports, 196.
   Geeen, J.

delivered the opinion of the court.

Francis H. and John S. McNairy were joint owners of a jackass, upon which Rains, the sheriff, levied an execution in his hands against John S. McNairy. F.. H. McNairy forbade the sale, claiming the ownership of one half; but the sheriff sold and delivered to the purchaser the whole jack; whereupon this action of trover was brought.

The plaintiff recovered for one half the value of the jack in the Circuit Court, and Rains, the sheriff, appealed to this court.

It is now insisted; that the sheriff had a right to take and deliver the jack to the purchaser, by virtue of the execution against John S. McNairy; that the purchaser became joint owner of the jack with F. H. McNairy, the sale of the entire property having, in fact, transferred only the one half; and as a consequence of these propositions, it is contended that there has been no conversion, and that no action lies by one tenant in common against the other.

Each co-tenant having a right' to the possession, cannot be sued by the other part owner, unless there has been a conversion of the property; and the older elementary books hold, that a sale by one co-tenant of the entire property does not amount to a conversion, but that its destruction would.

It is argued, that as the sale by one tenant in common of his co-tenant’s share, passes the interest of the vendor only, the interest of the other co-tenant still remains in common with the purchaser, and therefore there can be no conversion by the act of sale. Bac. Abr. Trover. Salk. 292; 1 East, 367; Littleton, §323. And this doctrine w*s maintained in the case of Mercereau vs. Norton, (15 Jh. Rep. 179,) where it was held, that a sale was not such a destruction of the property as to destroy the tenancy in common.

But the more recent American cases hold, that as the as-, sumption of authority over, and actual sale of the property by a stranger, will constitute a conversion, so the assuming authority to sell, and actually making sale of the interest of another, under a claim of title in the vendor, although he be part owner, may be taken to be a conversion, for which an action of trover will lie. Weld vs. Oliver, 21 Pick. 559; White vs. Osborne, 21 Wend. R. 72; Melville vs. Brown, 15 Mass. 82; Lucas vs. Wasson, 3 Dev. R. 398.

It is true, such sale does not vest in the purchaser any greater interest than that of the party making the sale; and the co-tenant, who is not consulted, may so consider it, and take the property when opportunity offers; but he may sue in -trover for the conversion, and thereby vest in the purchaser the entire property 21 Wend. R. 77.

In a late case (Waddell vs. Cook, 2 Hill’s R. 47,) an action of trespass was sustained against the marshal, Waddell, for seizing and'selling goods of Cook under a fi. fa. against Bowne, who was a joint owner of the goods with Cook. The court held, that though the marshal’s authority extended to a total dispossession of both the co-tenants by an execution against one, yet the law denied him the right to sell the entire property. “In attempting to do so, though the act be nugatory, yet the law may well treat it as such an abuse of legal authority, as renders him a trespasser ah initio. 2 Kent, 351, note b, 4th ed.

We therefore think this action was well' conceived, and affirm the judgment.  