The logs for which this action of trover is brought, were cut on land owned in common and undivided by one Wm. W. Bragg and the plaintiff; the plaintiff owning two-thirds, and Bragg one third of the land. The defendant, as agent for the Lewiston Steam Mill Co., in Nov., 1865, bargained for them before they were cut, with Bragg, who agreed to sell and deliver them at a stipulated price on the banks of Bear river. They were worth $1 per M. on the stump, and $6, when delivered as stipulated. Bragg received from the defendant an advance of $1200 on the timber, at the time of the bargain, and employed one Widbur to get it to the banks of the river, at $5 per M. Widbur was paid by the defendant; the amount to be paid being settled by him with Bragg. Bragg testifies that he informed Alvah Kilgore, the father aud agent of the plaintiff, (who being out of health, lives with his father, and entrusts the management of his business to him,) of this sale, on the day it was made; that he told Alvah that he could not pay. *153plaintiff then, but would in the spring, and that Alvah made no objection, either to the sale or to the time of payment. This Alvah denies, but admits that he knew that Widbur drew timber from the same land for Bragg, the winter before, which the Lewiston Steam Mill Co. had, and that he knew of this transaction about the time they commenced operating. It appears that the timber was all drawn past the house occupied by the plaintiff and his father, and landed upon the bank, about fifty rods from the house, on laud belonging to Alvah Kilgore’s wife ; and, it cannot be doubted, that both the plaintiff and his father wore fully cognizant of the operation and its purpose throughout its entire progress. Yet neither of them interposed any objection or claimed any right in or lien on the logs, until the defendant came in the spring to turn the logs into the river.
The plaintiff now claims that ho alone was entitled to the possession of the timber, (notwithstanding it was cut upon land owned by him in common with Bragg, the defendant’s vendor,) by virtue of an agreement made between himself and Bragg, Nov. 15, 1864, whereby the plaintiff agreed to sell the land to Bragg for $75 cash down, §100 in January, 1865, and $225 in April, 1865, containing also the following provision;—"and all timber or lumber is to be kolden to him the said Stephen P. Kilgore, either on the landing of the lumber at the river or at the mill.” There is a further stipulation, that " said Kilgore is to give the said Bragg a good and sufficient deed soon as convenient or possible, said timber to be holden for said payments to all intents and purposes.”
Bragg had paid only $125 on the agreement,—had never received a deed from plaintiff nor called for one.
Under these circumstances, the defendant came to the landing in the spring of 1866, to turn the logs into the river, which is a rapid and narrow one, capable of being driven only in the spring; and, while he was thus engaged, the plaintiff’s agent forbade his doing it, thus first making known *154the plaintiff’s claim on the timber. The defendant persisted in turning the logs into the river, saying that plaintiff’s claim was as good at Lewiston as it was there ; and this suit was commenced forthwith, long before the logs could have arrived at Lewiston.
It is not necessary to decide in this case whether, if the plaintiff’s claim of lien upon all the timber cut on the common land could be sustained, he has so conducted as to preclude him from asserting it, or has ratified Bragg’s sale to the defendant. A fair construction of the plaintiff’s agreement with Bragg will not extend the plaintiff’s lien to the interest which Bragg previously had in the timber, as tenant in common with the plaintiff of the laud on which it was cut. The agreement provides for a sale of the plaintiff’s interest in the land to his co-tenant Bragg, and the lien reserved to secure the payments attaches to the plaintiff’s two-thirds of the timber only. To hold it valid and binding on Bragg’s third, as against his grantee, would be to ignore the statute requiring mortgages of personal property to be recorded. The operation upon the common land was carried on by Bragg with the consent of his co-tenant, the plaintiff. The existence of this agreement and the reservation .of the lien upon the timber, both at the landing and at the mill, proves this beyond question. Bragg and the plaintiff, then, were owners of the timber as tenants in common. The purchase from Bragg made the defendant, at the worst, a tenant in common with the plaintiff therein. In this condition of things the plaintiff assumed to prevent his co-tenant, the defendant, from turning the logs into the river. The defendant, scarcely denying the plaintiff’s claim, but saying it was as good at Lewiston as it was there, declined to yield to this assumption, maintained his possession of the common property, and proceeded to do what was necessary, as it appears, to save it from a heavy depreciation, to wit, to drive it out of Bear river while the season and state of the water permitted. Hereupon an action of trover is brought against him by his co-tenant. When the action was commenced, *155the defendant was in possession of the property and doing his best for its preservation. As between tenants in common, here is no proof of a conversion.
It is settled that trover will not lie against the vendee of the original co-tenant while he remains in possession of the property, although claiming it as sole owner. Dain v. Cowing, 22 Maine, 347 ; Gilbert v. Dickenson, 7 Wendell, 449.
The action was at all events prematurely brought.
Plaintiff' nonsuit.
Kent, Dickerson, Daneorth and Tapley, JJ., concurred.