Perminter v. Kelly
Supreme Court of Alabama
Error to the Circuit Court of Dallas. Tried before the Hon. Geo. Goldthwarte. Trover by the defendant against the plaintiff in error for the conversion of several slaves. It appears from the bill of exceptions that the slaves belonged jointly to the plaintiff and his brothers, Alfred and John Kelly, and that the defendant obtained possession of them as the agent of Alfred Kelly, one of the joint owners, and as such agent sold them.
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Error to the Circuit Court of Dallas. Tried before the Hon. Geo. Goldthwarte. Trover by the defendant against the plaintiff in error for the conversion of several slaves. It appears from the bill of exceptions that the slaves belonged jointly to the plaintiff and his brothers, Alfred and John Kelly, and that the defendant obtained possession of them as the agent of Alfred Kelly, one of the joint owners, and as such agent sold them. The court refused to charge the jury that the plaintiff, suing alone, could not maintain the action, as requested by the defendant, but instructed the jury that…
1Opinion of the CourtParsons, J.
It is clear that one joint tenant, tenant in common, or parcener, cannot maintain trover against his companion for a thing still in possession; for the possession of one is the possession of both. It is, however, fully settled, that if one tenant in common destroy the thing in common, the other may bring trover. — Fennings v. Lord Grenville, 1 Taunt. 241; Heath v. Hubbard, 4 East. 110. And a late English author observes, that “ a sale of the whole of the property by one of them, adversely, and in exclusion of the other, would, it seems, be a conversion of the other’s share, for which he might…
2Cited by36 opinions
- Smyth v. TankersleySupreme Court of Alabama · 1852
- Wright v. McCordSupreme Court of Alabama · 1920
- Doyle v. BurnsSupreme Court of Iowa · 1904
- Robinson v. HartridgeSupreme Court of Florida · 1869
- Howton v. MathiasSupreme Court of Alabama · 1916
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