
    Elijah Cheek, vs. W. W. Wheatley, Adm’r.
    1. ABMiifisTTBATOBS an» ExEOtrTOBS. May maintain trover for wrongful cow-version of slave. Secus, as to administrator de bonis non. until the condition of an estate can be ascertained and distribution made, it is the duty of the personal representative to protect the property — the slaves as •well as other, property. — .and he has-such a temporary, qualified-interest in the slaves in consequence of his liability, as will entitle him to maintain trover against a wrong-doer having no title. But an administrator. de boms non, -whose rights and duties are limited and specific, being administrator alone upon such assets of the estate as remain in specie at the death of the first administrator, cannot maintain trover for a slave wrongfully sold by the first'administrator.
    2. Tenan® in common. Exclusive possession of chattel by a co-tenant..' Remedy. The exclusive possession of a chattel by one tenant in common, and his refusal to permit the other to participate in the use thereof, will not entitle the other to sue at law, because each has-an- equal right to the possession, and the possession of one is the possession of both. If the other cannot regain possession, his remedy is in equity for a-sale, and- division of the proceeds.
    EKOM S-HEEBY..
    This was an action of trover, instituted by Wheat-ley,. as administrator de bonis von of H. J. Simmons, deceased, against Cheek, in the Common Law Court at Memphis. Said Simmons in Ms lifetime, and B. P. Brocket, were tenants in common of a slave, the subject oí this controversy. Upon the death of Simmons, one Collingsworth obtained letters of administration upon his estate, and by agreement with Brocket, to •effect a division, they jointly sold the slave to Cheek executing a bill of sale to him. Collingsworth soon afterwards died, and Wheatley was appointed administrator of Simmons, and brought this suit against Cheek for the -alleged conversion of the slave. At the March Term, 1855, before Judge Humphreys, there was verdict and judgment for the plaintiff. The defendant appealed in -error.
    E. M. Yerger and Munford, for the plaintiff in' error:
    The proof shows that Simmons and Brocket were partners in trade, and bought the slave for use in their business. Did the title in the slave survive to Bi’ocket? See .act of 1784, ch. 22, § 6, Car. & Nich., 417.
    The title to slaves, since the passage of the act of 1827, ch. 61, does not pass to the personal representative of the estate, but vests directly in the distributees or legatees .as the case may be, subject, however, to fee made liable for the debts of the estate, by the personal representative, according to the act of 1827. — Elliott ws. Cochran, 2 Sneed, 468. This decision places slaves, in regard to the vesting of the title, in the same position as real estate. And no one ever heard of a personal representative suing for land belonging to the estate he represented, The title vests in the heirs, .and they must sue. So as to slaves. The title vests in the distributees or legatees, and they must sue. True, the representative has a right to sell them, in a proper proceeding, to pay debts. So, he has the right fto subject >the ¡land, in the very same manner.
    
      Wheatley then ha& no title, and could not sue im this action.
    Again we say, that if the title of the slave, or the-interest of Simmons, vested in the administrator,. Wheatley, then he and plaintiff in error, Cheek, are tenants in common of the slave, for undoubtedly •Cheek has bought Brocket’s interests
    Can the action of trover be brought by one tenant in common against the other, and- when? That it can, is well- established, but only where the tenant sued has been guilty of a conversion. — Cooke’s Rep.,. 53-60; 2 Meigs’ Digest, 1009; 1 Chitty’s Plead., 156.
    What is a conversion by a tenant in common ? In the case in Cooke’s Rep\, it is said, that merely holding exclusive possession by a tenant in common! is no conversion. To sell it or destroy it would be a conversion.- — Also, see 1 Chitty, 156.
    But the sale, to make it a conversion,, must be by the co-tenant as exclusively his own property. He must undertake to sell the whole — not merely his interest. — 7 Wend., 354; 21 Pick., 559, et seq.
    
    The proof in this case simply shows that Cheek has possession of the slave. There is no proof of a sale, or attempt to sell, or in any way to destroy the property, by him. Nothing like a conversion established. And he can get no title by the statute of limitations, for his holding is not adverse, but will be-regarded as a holding for both. So that, in fact, there is no proof of a destruction of the interest of his co-tenant, or ' any attempt at it, whatever.
    Further-: Cheek being tenant in common, is lawfully possessed of the slave. His possession is not tortious. And in all cases where a. defendant in the first instance, becomes lawfully possessed of the property, a demand and refusal are necessary, before trover can be sustained, unless the plaintiff proves a distinct, actual conversion.' — 1 Chitty’s PL, 157.
    There is no proof of demand and refusal by the plaintiff in this case, whatever. There never was any.
    R. V. Richardson, for the defendant in error:
    The plaintiff in error contends, in the first place— that the bill of sale made by Collingsworth, a former administrator of Simmons, estops the present administrator. If it had been an act that the former administrator might have legally performed, the proposition would be true. But the sale of a negro by an administrator, without first having obtained an order of a Court to authorise such sale, is clearly null and void. It therefore communicates no title, and the property belongs, as it did before, to the estate of the decedent. The act of 1827, ch. 61, § 1 and 2, prohibits the sale of a slave by an administrator, unless he has obtained the order of a Court; and declares - such sale null and void'. If the sale is null and void, and the property still remains as it was before, who shall claim it for the benefit of creditors and distributees, if the administrator de bonis non may not ?
    It is contended, in the second place — that the sale was good, because Brocket, the surviving partner, joined in the sale with Collingsworth. We think the Court gave the proper instructions to the jury on this point. The survivor of a partnership cannot sell the slave belonging to the. firm but on the one condition. It must be done to pay the debts. But to authorise such sale, the property must have been owned by the firm as a part of their joint stock or effects for the purpose of carrying on the business or trade; and it would certainly fall upon the defendant below, to show the character of the partnership trade; second, that the negro was a part of the joint stock, or effects; and, third, was used for the purpose of carrying on the business ; and fourth, that there were partnership debts, to pay which it was necessary for him to sell the negro. See act of 1784, ch. 22, § 6, N. & C., p. 417. The proof does not make out such a case.
    It was contended that the giving a bill of sale, firstly to John Cheek, was a sale to him, and consequently Elijah Cheek is not liable. The parties were all present, and a bill of sale was first executed to John, but Elijah, who paid the money, said it was not right, and wrote another bill of sale to himself. It is a question of fact as to who bought the slave, and the jury found upon the testimony, that Elijah was the man.
    It is said that Brocket’s having joined in the bill of sale, who owned one moiety of the slave, gave Cheek a right to claim Brocket’s interest, and therefore his possession of the negro was not a conversion. If Cheek claimed the entire slave, it was a conversion of the moiety belonging to Simmons’ estate. The jury found upon the testimony, that although he had only purchased Brocket’s interest in legal contemplation, still he was claiming the entire interest.
    Davis proved the substance of a bill of sale executed to defendant, E. Cheek. It is contended that inasmuch as defendant had produced a bill of sale made to John Cheek, the effect of Davis’ testimony is to vary a written contract. The plaintiff below, proved that he had given due notice to defendant below to produce a bill of sale executed to himself; and instead of producing such bill of sale, he produces one executed to John Cheek. It was competent in this state of the case to prove that another bill of sale had been executed to E. Cheek, which he had in his possession, and had refused to produce. Besides this use of Davis’ testimony, it was competent to attack the bill of sale there produced, executed to John Cheek, for fraud, or as a forgery.
    Rose’s testimony was competent. Pie proved from an office book, kept by him, what was a universal custom with him, in the course of his official action. Entries on this book, and that official custom showed circumstances which tended to prove that Elijah Cheek had bought the negro, instead of John Cheek, and that the bilí of sale purporting to have been executed to John Cheek was a forgery, or a cheat; all of which was legitimate to be proven.— Vide 11 Humph., 556.
   McKinney, J.,

delivered the opinion of the Court:

This case presents a novel state of facts. The declaration is in trover, for the supposed conversion of a slave named Henry, alleged to be the property of Wheatley, as administrator, de bonis non of the estate of one Simmons. Verdict and judgment were for the plaintiff for $351.10, and the defendant, Cheek, appealed in error.

It appears from the proof, that one B. F. Brocket and the plaintiff’s intestate, Hugh J. Simmons, were owners of the slave in controversy. They had owned a grist-mill jointly in the city of Memphis, which they sold to the defendant Cheek, and received from him in part consideration of the sale, the slave in question.

Simmons died, and one Collingsworth, it seems, was appointed administrator of his estate. The slave Henry, remained to be divided equally between Brocket and the estate of Simmons. And for the purpose of division, Brocket, as surviving owner, and Collingsworth, as administrator, of the deceased, assuming that under the circumstances, they had the right to do so, joined in a sale of the slave to Cheek, for the sum of five hundred dollars; one-half of which sum was paid to Brocket, and the remaining half to Collingsworth.

The record shows that there were no debts due from the joint concern of Brocket & Simmons, at the death of the latter. Shortly after receiving the moiety of the proceeds of the sale of said slave, Collingsworth died. But as to what disposition he made of said sum of money, whether he disbursed any of it in due course of administration, or appropriated the same to his own use, there is no intimation in the record. Soon after his death, a second administration was granted on the estate of Simmons, to the plaintiff, Wheatley. This latter administration is, by its terms, general; though, in legal effect, it is limited, and is but an administration de bonis non. Assuming the sale of the slave by the first administrator to be a nullity, and that a moiety of the interest in said slave still remained in the estate of Simmons, Wheatley, in his representative character, brought this action to recover the same.

There is no proof of a demand of the slave before the institution of the suit. It is conceded, however, that Cheek, by virtue of his bill of sale from Brocket and Collingsworth, claims to be vested with the entire and absolute title to the slave, and holds him in opposition to the right of the estate of the deceased, and all other persons.

Upon this statement of the facts of the case, it is clear that the slave was held by Brocket and Simmons, not as partners, but as tenants in common. The • community of interest between them in respect to the mill, of whatever nature it may have been, was dissolved and at an end by the sale of the mill.

The legal effect of the sale of the slave is then to be considered! with reference to the power of the administrator, as well as of the surviving co-tenant, to make the sale, and the interest vested in Cheek by such sale.

That the sale, as regards the moiety attempted to be conveyed by Collingsworth, is a nullity, admits of no question. Since the act of 1827, an administrator has no more right to dispose of a moiety than of the entirety of a slave. This proposition is too clear to require any discussion.

Next as regards the power of the surviving part-owner to sell. It is to be observed that the relation of part-owner is different from that of partners. In virtue of the community of rights and interests between partners, each partner may sell or dispose of, not merely his own share, but the entirety of any personal property belonging to the firm, for purposes within the scope of the partnership. He has the right to do so as to his own share as owner; and in respect to the share of his co-partner, he has authority to do so as agent and representative of the firm:. But not so as to part-owners of a chattel. The latter are but tenants in common, and not joint tenants ; and neither has a disposing power over anything more than his own interest, and can sell only his own share of the property. This he may rightfully do, and the purchaser from him will become vested with a valid title to his share of the property, and be substituted in his stead as a tenant in common with the co-tenant. And upon the death of either, the personal representative of the deceased, in general, becomes tenant in common of the property with the surviving tenant.

It seems to be well settled, that the exclusive possession of a chattel, by one tenant in common, and his refusal to permit the other to participate in the use thereof, will not entitle the other to sue at law, because each has an equal right to the possession, and the possession of one is the possession of both. If the other cannot regain possession, his remedy is in equity, for a sale and division of the proceeds.

But upon the point — whether or not the absolute sale of the entire chattel by one of several partners, is of itself sufficient evidence of a conversion to subject him to an action of trover, at the suit of his co-tenant, there is considerable difference of judicial opinion. Our predecessors adopted the doctrine, in Rains vs. McNairy, 4 Humph. R., 356, that a sale by one tenant in common, of the entirety of the chattel, is such a conversion as will entitle the other to maintain trover. And, without enquiring on which side the weight of authority lies, we are disposed to adhere to that decision.

There can be no doubt in the case under consideration, but the sale by Brocket was operative to vest Cheek with a valid title to a moiety of the slave and this is the extent of the interest acquired by his purchase. The other moiety still remains in the estate of Simmons. If trover had been brought against Brocket, the case should have turned upon the bona fides- of the transaction. If the latter fairly assumed to sell, and did in fact sell, nothing more than his own interest in the slave, it is clear that the action could not have been maintained. But, if by fraud and collusion, he procured Collingsworth to join him, for the purpose of effecting a sale of the entire property in the slave, then, it is equally clear, that he would have been liable in trover.

It cannot admit of a doubt, that Cheek, in purchasing from Collingsworth, the moiety of the slave belonging to the estate of Simmons, and asserting a claim in virtue thereof, to the entire ownership of the slave, was guilty of a conversion, and liable in trover.

And this brings us to the question, whether the action can be maintained by the present plaintiff.

It is argued that it cannot, because the title is in the distributees of the estate of Simmons, and not in the plaintiff. And in support of this proposition, is cited the case of Elliott vs. Cochran 2 Sneed, R. 468. Thié case does not sanction the deduction upon which the argument rests. While it is true, that, if a sale of slaves belonging to the estate of an intestate, be not required for the payment of debts, the title passes immediately to the distributee; yet it is no less true, that until the condition of the estate can be ascertained, and distribution made, it is the duty of the personal representative to protect the property of the estate, and the slaves as well as other property; and in this view he must be regarded as having such a temporary, qualified interest- in the slaves, in consequence of his liability, as will entitle him to maintain trover, at least against a wrongdoer having no title. We do not say that the action might not be well supported by the distributees, that question not necessarily arising in the case.

But upon a different ground, we think the plaintiff cannot maintain this action: and that is, that it is not the province of an administrator de bonis non. The rights and duties of an administrator de bonis non are limited and specific. He is to administer such assets of the estate as remain in specie at the death of the former administrator. To this extent merely, in the absence of statutory regulations — is he the representative of the estate. “ He can claim nothing but the goods of the intestate remaining in specie, unconverted and unchanged at the time of the death of the original administrator.”—See 4 Bac. Abr. (Bouvier’s Ed.) Title Executors and Administrators, letter B. and cases there cited. He is not responsible for the mal-administration or devastavit of his predecessor. He cannot inquire into or impeach the validity of his acts. Nor can he do that which the former representative had precluded himself from doing, Though the administrations are distinct, yet there is such a privity of estate between them as that the latter administrator will, at law, be bound by the acts of the former.

If the former by parting with the interest in property, vested in him by law as personal representative of the estate, — whether such interest was special or general, and whether the alienation was rightful or wrongful, so as to be estopped from re-asserting a right to. recover the same; the administrator de bonis non,, will likewise be estopped, at law, to recover. This must necessarily result from the relation of the latter, standing as he does in the shoes of the former, to some extent, and taking up the administration at the point where it was left off by his predecessor. It might be conceded without affecting the force of the argument in the present case, that in equity, if the former administrator had by collusion disposed of goods of the estate for his own use, the latter might apply to have the fraudulent sale set aside. But how this may be, it is not necessary at present to enquire.

It is assumed in opposition to this reasoning, that because the sale by the former administrator, in the present case, was absolutely void, and the title still remained in the estate, that, therefore, the administrator de bonis non may sue. This conclusion, we think, is not tenable. True, as against the distributees and creditors, the title is unchanged, and no obstacle is thrown in their way by such wrongful sale. But this is nothing more than may, in general, be affirmed of any and all acts of devastavit, or fraudulent alienation by a former administrator; By such acts — ' though conclusive against the administrator de bonis non — the rights of distributees and others cannot, generally speaking, be prejudiced. But still, their rights can no more be asserted, or their wrongs redressed, in the one case, than in the other, through the medium of the administrator de bonis non.10 Yerg. 434; 2 Sneed, 650.

The remedies in favor of the distributees, upon the facts in this record, are ample, both legal and equitable. But this is not the point in judgment.

The result is, that the judgment must be reversed and arrested.

Caiiuthers, J.

dissented. I do not think an administrator de bonis non is precluded from suing for slaves in trover, which have been sold and converted by his predecessor, because since the act of 1827, such sales are void and the slaves still remain the property of the estate in specie. This is not the case with other personal property, because the title to that vested in him, and he might effe’ctually dispose of it; consequently his successor could not recover it or enquire into the correctness of his administration according to all the authorities. This, I think, is the ground of the distinction, in the one case the sale passed the property, and in the other not.  