By the Court
— Johnson, P. J.Unless we can hold that the act of the defendant in refusing to allow the plaintiff to clean up the oats, so that they might be divided in the half bushel, according to the contract, and to divide them and take away his share, is a conversion of the plaintiff’s sole property, this action cannot be maintained. Unless that was-a conversion, there was nothing which amounted to a conversion by the defendant, until some time after the action w|ts commenced before the justice, which was the 27th of *213April, 1863. The plaintiff’s agreement for the occupation of the premises expired on the 15th of April, 1863. He left the premises, as he testifies, three or four days after that. He then came back, as he says, three or four times before the action was commenced, for the purpose of cleaning up the oats and dividing them, and taking his share away. He testifies, that the defendant on these occasions refused to allow him to clean up the oats; refused to allow him to divide them and take his share away, and ordered him off the premises. He then commenced this action for the conversion of his share of the oats.
This court held in Tripp v. Riley (15 Barb., 335), that where tenants in common held property, severable in its nature, like grain, where the share of each could be determined by measurement or weight, each tenant had the right to sever it, and take his share and sell it, or otherwise appropriate it without being liable to his co-tenants for a conversion of the common property. The same rule was laid down in Fobes v. Shattuck (22 id., 568). This is in accordance with the rule of the civil law (1 Domat, Cush, ed., § 1498), as to things held in common which are divisible in equal proportions.
The rule should, of course, be confined to property readily divisible and commonly divided by weight, tale, or measure, into portions absolutely alike in quality and value, as grain in bulk, money, and the like. It could not reasonably be applied in principle, or in practice, to things in their nature so far undivisible that the share of one cannot be distinguished from that of another, and where each article or item has a distinct identity, plainly distinguishable from the others, and a different value. The doctrine that one tenant in common cannot maintain trover against his co-tenant as long as the latter keeps possession of the common .property, and until a loss, sale, or destruction of it can be shown, was applied originally to property of this latter description. '•
Thus in Coke on Litt, 199 b, it is laid down: “ But if two ' be possessed of chattels personals in common by divers titles, ' *214as of a horse, an ox, a cow, &c., if the one take the whole to himself out of the possession of the other, the other hath n.o remedy hut to take this from him who hath done the .wrong, to occupy in common, &c., when he can see his time, &c.” fie might “take to occupying in common when he could see his time.” It will be found, I apprehend, on examination, that most, if not all the modern cases in which this general rule has been laid. down, relate .to property of "this latter description, which is in its nature adapted to common use, and is not divisible or severable readily without a change of its con dition. But this rule has no reasonable or proper application to articles like grains or fluids in bulk or money not adapted to common ,use amongst several owners. Such property is most commonly used in several portions,, according to the respective rights of the common owners, for sale, consumption or other use, by each, and indeed it scarcely admits of any other.
The case of Figuet v. Allison (12 Mich. R., 328) was in its facts precisely like the case at bar, and the court, in a careful and well reasoned opinion, held that the plaintiff might recover. The court in that case say “it can hardly be.questioned that the refusal of any one to give up to another that to which such other has a better right, would be a conversion.” It must be admitted, as the decisions in this State now stand, that the plaintiff had the absolute and unconditional right, when the oats in question were cleared up and in readiness flu; partition and market, to go and take his one-third of the whole quantity and use it or sell it without any infringement of the rights of the defendant. It was his right .to sever and take his share of the common bulk. This right he was prohibited from exercising by the defendant. He was not allowed to put the oats in the condition, in which he was, by the agreement, to put them, before delivering to the defendant his two-thirds. Nor was he allowed to take his share, which was all lie sought to take. He did not seek or wish to take the common property, but only to sever it and take his own. The refusal of the defendant was not to deliver to the *215plaintiff the common property. If it had been, the action could not have been maintained; but he denied the plaintiff and refused to permit him to exercise the right of severance and to take what would, had that right been exercised, become the plaintiff’s own exclusive property. It is not very material whether this is called a conversion of the plaintiff’s property or., an unlawful interference with his legal rights. In either case the plaintiff is deprived of his property, and the privilege of using it or selling it, as he might see fit. He is damnified to the extent of the value of his property.
This rule thus limited, seems to us to commend itself to general acceptance, by its obvious good sense, its feasibility, and its easy adaptation to all the rights, interests, and conveniences of common owners of the kind of property in question.
In Farr v. Smith (9 Wend., 338), which was an action of traver for grain in the sheaf, the question presented in this case did not arise. All that was held in that case, and all which the facts called for, was, that no action would lie, merely for the dispossession by one tenant in common of the other tenant, of the common property. The denial of the right of severance was not in that case.
In addition to the cases before cited, decided by this court, touching the right of one tenant in common to sever and take his own share by his own act, may be cited the case of Kimberly v. Patchin (19 N. Y., 330). Judge Comstock, at page 210 of that case, says: “ I think each party would have the right of severing the tenancy by his own act; that is, the right of taking the portion of the mass which belonged to him, being accountable only if he.invaded the quantity which belonged to the other.” The action in that case, related to a quantity of wheat in store. The same principle is also recognized and held by the same court, in Clark v. Griffith (24 N. Y., 595). In that case, the defendants had severed and taken away their share by their own act merely, and then took the remaining share also which belonged to the plaintiff. It was *216held that the action of trover could be maintained in such a case for the talcing merely without any demand and refusal.
We are, therefore, clearly of the opinion that the action was well brought, and the plaintiff entitled to recover the value of his share of the oats, with interest by way of damages.
As to the objection that the recovery in the County Court is for a greater amount than it was before the justice, or than was claimed in the complaint before the justice, we are of the opinion that it is not well taken. It is made here upon the argument, so far as appears, for the first time. No. such question was raised upon the rendition of the verdict in the County Court, or at any other time in that court. The County Court liad jurisdiction of the action, and the amount of the verdict is not beyond their jurisdiction. The case does not show whether or not the complaint was amended in the County Court, to correspond with the verdict, and there is nothing before us on which any question can be raised of this kind.
The judgment of the County Court must therefore he affirmed.
Judgment affirmed.*
The following note by Judge Johnson was added after the above decision had been given. [Rap.]
Since this case was decided, the case of Lobdell v. Stowell (37 How. Pr. R., 88), haa fallen under my notice. It was not cited or referred to upon the argument, but is nearly identical in facts with this case. The opinion of the county judge is well reasoned.and as his decision appears, from the report of the case, to have been affirmed by the General Term of the sixth district, it was an authority binding upon our court, and ought not to have been overlooked. I refer to it here as a conclusive authority in favor of our conclusions on the question of conversion.”