Tinney v. Stebbins , 28 Barb. 290 ( 1858 )

By the Court, E. Darwin Smith, J.

The plaintiff and defendant were tenants in common of the 112 pounds of oil in controversy, and the same was in the defendant’s possession at the time of the commencement of this suit, and he had refused to let the plaintiff have his half thereof, bio action at law will lie, at the suit of one tenant in common, in respect to the common property, without proving a loss, destruction or sale, of the article by the co-tenant. (Gilbert v. Dickenson, 7 Wend. 450. 2 John. 468. 3 Id. 175.) Nor can any action at law be maintained by one joint tenant or tenant in common, for the partition of personal property. But the law is not subject to the reproach that there is no remedy for the joint tenant or tenant in common deprived of his just rights, to the possession, use or fruits of the common property. A court of equity is competent to give relief in such cases, by decreeing a partition of the property, or a sale thereof where partition is impracticable, and a division of the proceeds. The powers of a court of equity were conferred and exist, to meet just such cases, where no adequate remedy exists at common law. (Smith v. Smith, 4 Rand. 95. Kelsey v. Clay, 4 Bibb, 441. 15 Barb. 336.) This case was treated at the circuit as a common law action, and was rightly disposed of upon that ground; but the plaintiff’s case was one for equitable relief, and his prayer was adapted to such relief, and he was clearly, upon the proofs, entitled to a decree in rem in respect to the oil. There should, therefore, be a new trial, with costs to abide the event.

[Monroe General Term, September 6, 1858.

Welles, Johnson and Smith, Justices.]

Hew trial granted.