Legal Opinion

Witham v. Witham

Supreme Judicial Court of Maine

Decided July 1, 1870PublishedCited by 3 opinions

On exceptions. Replevin for one mare, wagon, and harness. Plea, general issue, with a brief statement claiming title to be in the defendant, and not in the plaintiff, and that the plaintiff is the wife of the defendant. The defendant put in a bill of sale from one Smith to the plaintiff and defendant. There was no evidence of title in any person other than the parties to the action.

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On exceptions. Replevin for one mare, wagon, and harness. Plea, general issue, with a brief statement claiming title to be in the defendant, and not in the plaintiff, and that the plaintiff is the wife of the defendant. The defendant put in a bill of sale from one Smith to the plaintiff and defendant. There was no evidence of title in any person other than the parties to the action. The jury found the parties were co-tenants of the property in controversy, and returned a verdict for the defendant, upon whose motion the presiding judge ordered a return of the property. And thereupon the…

1Opinion of the CourtAppleton, C. J.

The plaintiff and defendant are co-tenants of the property replevied. If one takes the common property, the other has no remedy by action, unless in case of unlawful conversion or destruction. Strickland v. Parker, 54 Maine, 322. He may take it back if he can, but the law is well settled that he cannot maintain replevin, for one co-tenant has an equal right with the other cortenant to the possession. Hardy v. Sprowle, 32 Maine, 322. Wells v. Noyes, 12 Pick. 324.

The jury having found the fact of co-tenancy, and in favor of the defendant, the presiding judge ordered a return. This was the…

2Cases cited1 opinion

  1. Rogers v. ArnoldNew York Supreme Court · 1834

3Cited by3 opinions

  1. Bradway v. ThompsonSupreme Court of Arkansas · 1919
  2. Pitts Agricultural Works v. YoungSouth Dakota Supreme Court · 1895
  3. Sullivan v. RinglandSupreme Court of New Hampshire · 1977

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