*704The opinion of the court was delivered by
Hebard J.For the purpose of considering this question, the facts offered to be proved by the plaintiff, and excluded by the court, must be considered .as true. The defendant, then, stood in the same relationship to this property that ¡Isaac M. Sanborn did, so far as the plaintiff’s interest in the property comes in question. And the plaintiff and the defendant became tenants in common of the property ; for when Isaac M., transfered to the defendant his interest in the logs, the latter stood in the place of Isaac M.; and if he transcended the power and right conferred upon him by Isaac M., still that would not necessarily affect the legal rights of the plaintiff.
It seems to be conceded by the counsel, and so are the authorities, that one tenant in common, of personal property, may maintain trover against his co-tenant, for a destruction of the property. So that the question to be determined, in the present case is, whether a sale of the chattel, for this purpose, is equivalent to its destruction.
The question upon which the case is to be determined, belongs to the class of technicalities; for if the facts exist which the plaintiff offered to prove, there is no doubt that the plaintiff is entitled to some sort of remedy ; and the question is, in relation to the form, of the action. In other words, the question is, whether the remedy shall be by action, ex delicto, or ex contractu. And upon this point, the authorities, to some extent, are conflicting ; and the case, like many others, must be settled by the weight and current of authorities. If the question was entirely res integra, it could not be regarded as very important, which way it should now be settled ; but the doctrine of stare decisis, even in matters of form, and technicalities, is not to be disregarded.
In determining this question, one or two points here are worthy of consideration, before proceeding further. We have already remarked, that this action may be maintained for a destruction of the property, by one tenant in common, against his co-tenant ; and those authorities which sustain the action, do so upon the notion that a sale is equivalent to destruction. I think there is a difficulty in sustaining the action upon this ground. If the defendant had no right to sell this property, then his attempting to do so, did not divest *705the plaintiff of his interest in it ; and while the plaintiff had “ an interest in the property, so that he could pursue it, I cannot see how it can be said that the property was destroyed. There can be no destruction of the property arising from the sale, only upon the supposition that the defendant was authorised to sell it; or, having sold it, that the plaintiff has ratified the sale ; and, in either of these cases, it would not be pretended that the plaintiff could maintain trover ; but action should be in form, ex contractu.
Another reason exists in this state, that does not in some other states, why the action should not be sustained upon doubtful authority ; and that is, the distinction which our statute has made between actions founded on contract, and those founded on tort, the body being'free from arrest in one case, and not in the other.
There have been a variety of decisions, bearing upon this case. The plaintiff relies upon Wilson & Gibbs v. Reed, S Johns.175. In that case, Judge Spencer says, that “for a sale of a chattel, an action of trover will lie, by one tenant in common against another.” The question, however, is very little discussed by the Judge in giving this opinion ; but he is merely understood to affirm the opinion and charge of Judge Kent in the circuit court, who there says that “ the presumption is that the rum had been retailed by the defendant, which in law, was a destruction ” ; and whether the nature and kind of property, had anything to do with the propriety of sustaining the action, in the minds of either court, does not appeared but it seems to have been sustained upon the principle, that the sale was a destruction of the chattel. The case of Weld v. Oliver, 21 Pick. 559, is also a prominent authority relied upon by the plaintiff, and there is no doubt but it goes as far, at least, as the case under consideration. But there will be some difficulty in following out that case. The case goes upon the ground, that thgfe must be a destruction of the property ; and still Judge Dewey goes on to show that the property, in that case, still had a legal existence. Pie says that “ the unlawful sale by the first vendor, of the property, does not necessarily impair the rights of the other co-tenant, or pass any title, unless he ratify the sale. ” It would be difficult to understand how, in a legal sense, there can be a destruction of the plaintiff’s prop*706erty by a sale, which does not even “ impair his right or pass any estate.” And he goes on to say, “ that you may proceed by action, either against the first or any subsequent vendor.” J a “ 1
. The two cases above cited, if followed, would,without doubt, be authority to sustain the present action. But it is believed that the weight of authority is the other way ; and such authority, too, as we are^not at liberty to disregard.
The English authorities, though not as decisive and not as much to the point as might be desirable, if they alone were to be relied on, go very far to sustain the doctrine, that for a sale by a tenant in common, his co-tenant cannot maintain trover, but that there must be a destruction of the property. The case of Oviatt v. Sage, 7 Con. 95, holds the converse of the doctrine which is attempted to be established by the two cases before cited. In that case, Oviatt and Cobb were tenants in common of a quantity of cheese, and Cobb sold the cheese to Sage, and Sage disposed of the cheese in market, and refused to account with Oviatt, who sued him in an action of account, and the objection taken, was that it should not have been account but trover, the sale being a destruction of the property. But the court, (Judge Daggett,) denies that doctrine, and says that nothing short of a destruction of the property will make a co-tenant liable in trover ; and, in short, that a sale is not equivalent to a destruction of the property. In the case of Oviatt v. Sage, the court seem to put some stress upon the fact, that the property, in that case, being cheese, was intended for market, and that the sale of the article was in accordance with its original destination. I apprehend that consideration is not altogether unimportant ; and if important in that case, it is ¡equally so in the present. These pine logs were useful to the owners, only as an article of traffic and sale. The case of Webb v. Danforth, 1 Day, 301, is to the same import; and also Swift’s Dig. 170. All go upon the ground that the sale of the • chattel makes the purchaser co-tenant with the other owner, and does 'dot pass his title to the property. And such is the reasoning of Judge Dewey, in the case of Weld v. Oliver,
When one tenant in common makes sale of the whole chattel, the other tenant has his election, either to disaffirm the sale, and stand as co-tenant with the purchaser, or to affirm the sale, and call the seller to his accounting for the *707proceeds. And when he ratifies the sale, it ceases, of course, to be a tortious act.
But there is another view of this case, aside from the authorities to which I have referred. We are disposed to regard this as not an open question. The case of Tubbs v. Richardson, 6 Vt. R. 442, has settled the law in this state; and, to sustain the present action, would overturn the whole doctrine of that case. There is but one feature in that case to distinguish it from the present, and that is not of the essence of the question. In that case, the whole of the property thus owned in common, was not sold. But that cannot alter the principle. It was not upon that principle that the action in 21 Pickering, was sustained, for, in that case, the whole of the salt was not sold. The only reason for such a distinction is, that if less than half is sold, it may be considered as working a severance of so much of the property, if it is a commodity susceptible of being severed. But that argument is answered by saying, that the authorities agree that one tenant in common cannot compel a severance.
In the case of these logs, there was no tortious taking, for one tenant in common has as good a right to the possession as the other ; and each tenant owned an undivided half of each log, and so it was in the case of the wool. The right of action, then, could not be made to depend upon the fact, whether the whole, or only a part, of the property was sold. If selling the whole would be unauthorized and tortious, so equally, in principle, would be the selling a part. When this distinction is disposed of, the two cases are parallel. And this is a distinction without a difference. And even if it might be said that a different determination of that case should have been made, that will avail us nothing, unless we now come to the determination to overrule that case. But the case of Isaacs v. Clark, 12 Vt. 681, shows that the court had no disposition to disturb the doctrine settled in the case of Tubbs v. Richardson. And although, as is said, the reasoning of Judge Bennett in that case was not called for by the question to be decided, it shows that the court were disposed to adhere to the doctrine. As we have already said, we consider the law upon this point settled by the case of Tubbs v. Richardson; and if the doctrine of stare decisis is worth preserving, the conclusion, in the present case would seem to be inevitable. Judgment of the county court affirmed.