I concur. The judgment appealed from is erroneous. In an action by one tenant in common against a co-tenant to recover an undivided interest in the common property, judgment can not be rendered for a return of the whole property, nor for an undivided interest in the property, because the co-ten*237ant has an equal right to the possession of the whole; therefore, an action of replevin, or of claim and delivery of the common property, is not maintainable by one tenant in common against another (Davis v. Lottich, 46 N. Y. 395; Witham v. Witham, 57 Maine, 448; Wells v. Noyes, 12 Pick. 324); nor is trover, unless there has been such a loss, destruction, or disposal of the property as amounts to a conversion; or the property be divisible in its nature and ascertainable by measurement, weight or count. In such a case a tenant in common may-demand of his co-tenants, having possession of the whole, his share, and on a refusal, or conversion, he may sue in trover. (Lobdell v. Stowell, 51 N. Y. 70; Stall v. Wilbur, 77 id. 158.)