
    Webb v. Danforth.
    In die Court below,
    Edward Danforth,. Plaintiff',- William . Webb^ Richard Price, and Frederick Robbins, Defendants. .
    
    An action of trover cannot be sustained by one tenant in comma:;, avainst his co-tenant, unless the property be destroyed. A party to an instrument may be a witness to facts, subsequent to the execution thereof, which tend to invalidate it.
    TTHIS was an action of trover, stating, that the plaintiff was, on the 1st of August, 1801, possessed of the one undivided half of a vessel, and her appurtenances, the other half - of which was owned by the defendants, as tenants in common with the plaintiff. On the 26th of said August, the plaintiff lost the same, which came into the defendants’ hands by finding, and they neglected and refused to deliver it, though demanded. On the 22d of October, and on the first of November, 1801, the defendants convened and disposed of the said half of the vessel to their own use, See.
    Upon trial of tnis cause to the jury,, on the general issue, the plaintiff claimed, by virtue of a bill of sale, signed by Kinne &? .Par/;, dal'.cl 'he iithof April, ISO.l; and the defendants, bv sundry hills of sale from Kinne‘iS’ Park, subsequent thereto. The defendants contended, they had no knowledge of the saleta Dmfortli; and offered Kinne, as a witness, to prove, that subsequent to the execution and delivery of the «-bill-of sale to the plaintiff, and before the sales to the defendants, the plaintiff agreed with Kinne &? Park, that they should keep possession of the vessel, after it should be finished, that it should be-registered ⅛ their names, that they should.sell it, as their own, and that, in the mean time, the bill of sale to the plaintiff should be 'kept secret; and that, in pursuance thereof, the plaintiff did keep said bill of sale secret, and that the vessel was registered in the names of Kinne ■■&?■ Park, and of the defendants. The plaintiff objected to the admission of Kinne as a witness, on the ground, that his testimony went to invalidate his own bill of sale. The Ccsutt .excluded the witness ; and a bill erf exceptions was fifed.
    1804.
    
      Williams, (of Hartford) for the plaintiffs in error.
    1. This action cannot be «us-tained. Trover will not lie, by one tenant in common of personal property; egainst another tenant in common ; and the-reason is obvious, — the possession of one is the possession of both. Upon this subject, the authorities are too explicit ¡o be doubted, and too numerous to be denied. So sai s the text of Littleton ; so say the comments of Coke ; 
      
       and Lord Manstield says, “there is no dictum -to the “ contrary. The.,reason/’ .he adds, u is unanswerable ; “ there can be no conversion.”  -One joint owner of personal property could hardly be punished for stealing 
      that property. No more can he be answerable for converting it. Jn abate case,  it has been decided, that such an action would not lie, though a stranger was likewise made a defendsnt.-
    - ⅞. ; Kinne ought to have been- admitted to testify;, even if his testimony went to invalidate an instrument execu--ted by him. In Title v. Grevtt, 
       a person, who had conveved land, was admitted, to prove, that he had no title. Witnesses to wills have been repeatedly admitted to den-’ the sanity of the testator, 
       And so far has this principle been extended, that in Wright v, Littfer, 
       the death-bed confessions of a witness to a forged instrument, were admitted as evidence. Lord Mansfield, indeed, in Walton v. Shelly, 
       speaks of á rule established, that a man may not invalidate an instrument, to whidi his name is affixed, as a party, or a witness ; hut we surely have a right to ⅞⅜ when, and by •whom, this rule was established ; or in what case it was recognized, prior to that of Walton v. Shelly f If one pleads usury, fraud, duress, or illegal ccr.si deration to a note, cm bond, may not the witnesses be called upon to support such plea ? Are they bound always to conceal Ae truth, because they put their names to an instrument, which did not disclose it ? The rule of the civil law, ne-mo allegan í mam turpitudinem est mtdiendus, is cited in the case of Walton v. Sheik;. But, if you are to take your rules of evidence from the civil law, let it be remembered, that, by that law, father and son cannot be witnesses for each other ; neither can those, who are related to persons interested ; nor can any fact be established, by the mouth of a single witness.  In Rich v. Topping,  Lord Kenyon said, there had been different opinions about the case of Walton v. Shelly, and .seemed at least to doubt it himself ; and, in Adams v. Lingoody 
      
       declared his opinion to be opposed to it. In Jordaine v. Lashbrook, 
       the case of Walton v. Shelly was overruled, by the Court of King’s Bench.
    But, if this rule is established, it is founded upon the paper currency of Great-Britain, and ought not tobe extended farther than to negotiable instruments. The reason given, that third persons will be affected, applies, if not exclusively, yet certainly more strongly, to such instruments. Justice Bullek., the champion of the rule established in the case of Walton v., Shelly r agrees, in Bent v. Baker,  with Lord Kenyon, that the rule extends to negotiable instruments only. And in conformity to their opinions have the courts in Pennsylvania decided. 
    
    Objections to witnesses have lately been directed rather to their credit, than to their competency, both by the courts of Great-Britain, and our own courts. Were the rule as contended for by the defendant in error, it would only be necessary to get the names of those acquainted with the facts, on the instrument, and all evidence of its illegality would be excluded. .
    But, in this case, the witness was not called to impeach his own deed, but to show a fact, independent of R, which, with the subsequent conduct of the party, would render the deed, not void, but of no use. The facts, to prove which the witness was called, would not have rendered the deed, originally void ; indeed, they ara expressly stated to have been subsequent to the execution of the bill of sale, and, therefore, do not interfere even with the rule established ¡n Walton v. 'Shelly. In Char” ring ton v. Milner,  in a suit by an indorsee against the maker of a note, Lord Kenyon admitted the indorser to prove, that the note had been paid, as such evidence would not prove it to have been originally void.
    
    
      Edwards, (of New-Haven) and Daggett, for the defendant in error,
    admitted, that one tenant in common could not have an action against his fellow tenant, while the property was in. existence. But that question could have been made only while the case was on trial to the jury. Where the possession is a tortious one, the principle does not apply ; and if the property be destroyed, by one tenant in common, the other may have an action, 
       So, in case of real property, a tenancy in common may be destroyed, by the act of one of the parties, 
       In trover for a ship, Lord King left it for the jury to say, whether the ship was not destroyed, 
       Had we brought trespass, the common allegations, that the defendant carried away, and the plaintiff lost, this property, would have been sufficient; and where trespass vi et armis will lie, trover will also lie. v
    From this declaration it appears, that the plaintiff and defendants were tenants in common of this property, in August, 1801 j that it was converted by the defendants in November, 1801 j here is nothing inconsistent with the supposition, that the property has been destroyed. The jury could not have found the conversion, without having found such facts as constitute a conversion, if the Court, therefore, think the destruction of the property the only evidence of a conversion, they will presume the jury have found it. It cannot be necessary to state in the declaration, that the property is destroyed. This: declaration is drawn precisely according to the English forms.
    The case of Fox v. Hanbury only shows, that one partner cannot maintain trover against another.
    2. The witness veas properly rejected, on the ground of interest. He was called upon to swear, that Kinne ⅞⅜ Fark were to dispose of a vessel, which they had already sold. No stronger case of interest can be put.
    The case of Title v. Grevet is not law, in Great-Britain, any more than in Connecticut. A munis nevcj permitted to contradict his own covenant; it is always an estoppel. But it does not appear, in that case, that the party warranted the land; he might only have released it.
    The cases of Lowe v. Joliffe, and Goodtitle v. Clayton are cases of witnesses to wills ; and it is singular, that Lord Kenton should say, those cases compared with the cases where the signers of notes and deeds are called as witnesses. In the one class of cases, they attest -merely to the sanity of the party; in the other, ihe\ become parties. ■
    In Abrahams v. Burn,  Lord Mansfield recognizes the rule for which we contend ; and in Walton v, Shelly he speaks of it as a settled principle or law. Ashurst, J. in a late case, says, it is yet law.
    In Jordahie v. Lashbrook, the question arose under the revenue laws ; and, in such cases, it is to be expect* ed, that judges will lean as far as is consistent within* tegrity. The reasoning of Lord Kenyon, in that case, however, is remarkable rather for its pat ho ?, than its soundness; for, if the name of á person is procured to be placed upon a writing to prevent his being- a -witness, hé will not be disqualified. In England, four judges of thé King’s Bench have concurred in the rule adopted in Walton v. Shelly, and but three have opposed it.  That rule was recognized, by this Court, in Allen v. Holkins, 
      
       and several of the judges expressed an opinion, that Walton v. Shelly was good law.
    But an attempt is made to distinguish this case from that, by saying that Kinne was called to prove facts subsequent to the making of the deed. Bat these facts go directly to show, that the deed was originally fraudulent. They must have been designed so to operate, or the plaintiffs in error must have expected to defeat our title by parol. ■ "
    
      Terry, (of Hartford) for the plaintiffs in error, in reply.
    1. Thegehcral doctrine is, that one tenant in common cannot maintain trover against his co-tenant; and there is no exception to this rale. The reason is, that the use of the tiling held in common, by one of the owner, is owner, is not an injur)’, for which any action will lie ; for, by the tenure, they have an equal right to the me. If the property he destroyed, an action will lie, but not trover, BulleR,  indeed, speaks of the case of Barnardiatmi v, Chapman as an action of trover ; but Espinassc does not call it trover. If it was trover, it must have contained some allegation, that the property was destroyed.
    It is said, the Court are to presume, that the jury have found the facts. It is admitted, that they must have found the facts stated to be fully proved ; but from the facts stated in this declaration, it does not follow, that the property was destroyed, but merely that the defendants used it as their own. r
    It is said, that it does not appear from this declaration, that the plaintifi and defendants were tenants in common. It is alleged, that they were tenants in common, on the 1st of August; that the property was lost on the 26th, and then found by the defendants, and converted, on the 1st of November. They must, therefore, at the time of the conversion, have been tenants in common.
    2. The question of Kinne’s interest is not before the Court, and the Counsel had no right to argue from it. He was ■objected to, and excluded, upon another point. The party must be considered as having waived this objection; for we cannot now shew, as we might have shewn, had it been made at the trial, how that interest was destroyed. . ■
    But admitting his interest in the case, it was equally strong on both sides. He had given a mortgage to Danforih, and a bill of sale to Webb, &c. If he estab iished the second bill of sale, he remained debtor to Danforth to the amount of the first, for which Danforth had his note. His interest, therefore, was exactly bal-lanced, ■
    The only question, then, is, whether he could not prove the facts, lest it should invalidate his own security ?
    In Great-Britain, this question, is settled, beyond all controversy ; and Bullek, J. in the case ciBent v. Briber, admitted, that -,vhat he then considered as the rule could not be extended, except to negotiable instruments. This Court, it must be admitted, in Allen, v» Kolkim⅜ held a contrary opinion. Halkins claimed under a lease, and Allen under a deed, from Mumford ; Mumford was offered as a witness, to prove the lease a fraudulent one, and was excluded. The civil law rule was adopted, that a party to an instrument, shall not be admitted, to prove that instrument to have been originally void.
    
    But, in this ease, it is stated, that at a time subsequent to the bill of sale to Danforth, the agreement between Kinne and Danforth, which we wished to prove, was entered into. This admits the bill of sale to be good, to pass the property from Kinne to Danforth, but goes to show, not that the bill of sale was originally void, or that the debt was destroyed, but merely that it should not operate as against those persons. Ncr was the witness offered to prove any turpitude in himself, but merely to show, that the transaction between him and Danforlh was such, that the claim of Danforth should be postponed to dftrs.
    Suppose A. conveys to B. and B. to C.- — B. sues €h for the property; may not A. be a witness? Or suppose A. buys a watch of B. and leaves it with him to sell, and he sells it to C. and A. brings trover for it; may not B, ⅛ a witness ? Lord Mansfield’s opinion, in Levi v. Essex 
      
       seems to decide this. In the case read from Peake, the principle for which we contend is expressly recognized. There, the evidence went to prevent the recovery upon the note, not to prove it originally void» Herey Ae evidence was to show, that the bill of sale should have no effect in this case, not that it was originally void.
    
      
      
         Co. Lin. 199. I Salí. 290, Brean v. Hedges.
      
    
    
      
      
        -Ccv^p. 450} Fox v. Manhury.
    
    
      
       1 Te 'i,i Tep, <½8, Hcíild-.y v. CatnttU.
      
    
    
      
      
         2 LordSavm. 1008. '
    
    
      
       1 EUi. Sep. 365, 'Love v fclfpc. 4 Bur. 2225. Gomititle v. Clayton.
      
    
    
      
      
         R r ¡212
    
    
      
      
        1 Term Rep. 296.
      
    
    
      
      
        IB'.vat. US. "
      
    
    
      
      
        lisp. Hep. 176:
      
    
    
      
       iK'-’C C?. Ilf.
    
    
      
      
        7 Term Rep. 601.
    
    
      
       3 Term. Rep. 34, 6.
    
    
      
      
         Dalias 196, Pleasants v. Pemberton.
      
    
    
      
      
         Peake’s Ca. 6.
    
    
      
      
         Esp. Eg. 586. Pub. ed. Co. Hit 200.
    
    
      
      
         Cc-ivp. 217, .Dos v. Fisher.
      
    
    
      
      
         Bul. iV, F. 5⅛~
    
    
      
       4 Bur. 2256.
    
    
      
       1 Esp. Rep. 298.
    
    
      
       Ante 17.
    
    
      
       Bul. N. P. 35.
    
    
      
      
        Esp. Eg. 70S. Dub. Ed.
      
    
   The judgment veas reversed.

By the Court.

It appears by the bill of exceptions, that the defendants claimed, that Danforih, the vendee of the vessel, at a time subsequent to his purchase, constituted Kinne ⅛? Park, the vendors, from whom he derived his title, his agents, or factors, to sell and dispose of the vessel, and left the same in their possession, for that purpose. Such was the agreement, which the defendants claim was entered into. Proof that such agreement was made, or that such authority was given, and executed, though derived from the original vendor, does not impugn the title derived from the vendor. It only shews, that the title so derived has been divested, by his subsequent consent, through the medium of his agent, or factor. The facts disclosed exhibit' the witness as acting, in the first instance, in his own behalf, as the owner and seller of an article, and transferring a right or title to his purchaser ; and, afterwards, as acting, by the subsequent .appointment of the purchaser, as his agent, authorized to transfer the same article, and, by virtue of his agency, to divest the title originally derived from him. It is a known rule, that an agent or attorney may be sworn as a witness, to testify cither lor, or against, his principal. The testimony required war.of this species. Nor is the rule varied, from the circumstance, that the witness offered has conveyed the article in question to one of the parties. Neither the agreement alleged, nor the acts claimed to have been done, by Kin-tie ⅛? Park, in pursuance of the agreement, went to invalidate the title derived from them. The objection to Kinne as a witness should not, therefore, have been allowed. Tt is on this ground, that the judgment of the Superior Court is reversed.

The second point may ¡¡ave been urged on the issue to the jury. It does not, however, appear by the record, to have come under the consideration of the Superior Court. It is a general rule, that one tenant in common cannot maintain trover against his co-tenant. It is, however, contended, that there are exceptions to this rule. This question does not appear to have received the decision of the Superior Court, to which this cause is remanded for further proceedings ; and it is, of course, needless, that this Court express any opinion on that point. 
      
      
         This was the uir-'í-'hi Ihe erfrument.
     