The opinion of the court was delivered by
Lewis, J.The assignment of 23d January, 1846, from Sorin & Ball to Lawrence Johnson, does not include the stereotype plates in controversy; and Mr. Johnson, in his letter of 21st December, 1847, after nearly two years’ time for correcting any errors in that assignment, and when his interest was stimulated by the approaching insolvency of Sorin & Ball, does not pretend that these *378plates were intended to have been included in that assignment, although he makes claim to other plates which he says had been omitted. The letter of Sorin & Ball, of the same date with Mr. Johnson’s letter, acknowledges the claim made by Mr. Johnson, and volunteers the statement that it was their intention to have included the plates in dispute. This letter was written after the agreement with the plaintiff of the 12th October, 1846. There is no evidence of any consideration for it, as an assignment, and it does not place Mr. Johnson upon the footing of a purchaser for value without notice. As the case stood before the court below, the merits of Johnson’s title did not rise higher than the rights of Sorin & Ball. As against that firm, the plaintiff, under the articles of 23d July, 1844, and 12th October, 1846, in connection with the paper of 10th June, 1848, had an interest as part owner, unconditionally, and was entitled to the remaining interest in the plates, upon the performance of the conditions provided in the agreements. If Sorin & Ball were indebted for copyright money, it was a fair compliance with the agreement to place the notes in the hands of some disinterested and responsible person, to be deli-to Sorin & Ball when that debt ivas satisfied.
The reason why one joint tenant or tenant in common cannot maintain trover against his companion, is, that both are equally entitled to possession, and the possession of one is the possession of both, and is in accordance with the right of both. But where one misuses the joint property by appropriating it to uses for which it was not designed, and refuses to apply it to the purposes for which it was held by both, or if one delivers the property wrongfully to a stranger, for purposes inconsistent with the uses for which it was designed, and such stranger denies the title of the other, and claims the exclusive possession and ownership, the reason of the rule ceases, and trover may be maintained.
One of two joint tenants or tenants in common, may bring trover against a stranger, and recover the value of his share, where the non-joinder of his companion is not pleaded in abatement: 2 Sawn. PI. # Pv. 1164.
As the evidence stood in the court below, the plaintiff there ought to have been permitted to go to the jury. There was evidence on which the jury might properly have found in his favor.
Judgment reversed and venire de novo awarded.