The opinion of the court was delivered by
Redeield, Ch. J.The leading question in this caséis, whether the defendant’s proceeding with the property was equivalent to a public sale of the whole property. If so, it is well settled that plaintiff may maintain trover for his interest therein. Ladd v. Hill, 4 Vt. 164. Bradley v. Arnold, 16 Vt. 382. White v. Morton, 22 Vt. 15. This is regarded as settled law, in this state, notwithstanding we hold, that the sale of the entire chattel, by one tenant in common, will not enable his co-tenant to maintain trespass, or trover, against him, inasmuch as the title is not divested, and no right of possession is violated. Tubbs v. Richardson, 6 Vt. 442. Hurd v. Darling, 14 Vt. 214. Sanborn v. Morrill, 15 Vt. 700.
The property was attached, upon the debt of both tenants, by the defendant, and if the officer had proceeded to sell, it would have been incumbent upon him to have notified all the parties to the suits or attachments, of the appraisal, under the statute. Its terms seem to imply that,, in ordinary cases, perhaps not in all; *428and tlie bill of exceptions, in this ease, seems to import, but not very explicitly, that the plaintiff had no notice of the appraisal. It would then, so far as he was concerned, be the same, as if no appraisal had been made. But we are unable to see, why giving up the property to the other tenant, amounts to a conversion. The defendant had the right, to take the whole property, upon the process, against one of the tenants. Reed v. Stephenson, 2 Vt. 120. Whitney v. Ladd, 10 Vt. 165. If the defendant rightfully retained the property up to the time of the appraisal, on one, or both the processes, the abandoning it at that time, could not make him a wrong doer. Nor could the fact, that he received a sum of money of the other joint owner, equal to the appraised or agreed value of the whole property, without the knowledge of the plaintiff, be any thing of which he could complain, so long as he was-not compelled to pay the money. If there was any wrong committed by the defendant, it would seem to be in compelling Stedman to deposit the value of the whole property, when only an undivided half was attached on his debt. But of this the plaintiff need not complain, as it does not seem to have wrought him any injury. And it would seem to have been altogether voluntary on Stedman’s part, and very probably to save the necessity of giving notice to plaintiff, Stedman being the creditor, in the suit against plaintiff. The transaction then, so far as the plaintiff was concerned, was equivalent to a surrender of Stedman’s attachment. It might not have been so intended; Stedman might have supposed that by the appraisal, and depositing the money, he acquired a legal estate in the whole property attached ; but there is nothing in the statute giving it that effect, and nothing in the transaction, tending to any such result. It is, so far as plaintiff is concerned, or the attachment of his half, but a deposit of the value of the property attached, by the creditor, and giving up the property to the debtor. For the possession of one tenant is the possession of both, and the property being taken by defendant, from the joint possession of both tenants, he might well surrender it to either. He could not surrender it to both, and he could not divide it. He must surrender it to one, and to which, was indifferent, according to the decision in Frost v. Kellogg, 28 Vt. 308. And that there has been nothing; in this case, in the nature of a public sale, is most__manifest. The apparent confusion in the case arises un*429cloubteclly, from the peculiarity of the rights growing out of the tenancy in common. If it is considered, in this case, that the defendant took the value of the property of the creditor, and surrendered it to him, as his own, it might be treated, no doubt, at the election of the debtor, as a conversion of the property.
But the officer attaching property, in any case, might if he chose, deliver the property to the creditor, for safe keeping, during the pendency of the suit, and as security for the re-delivery, take its value in money of the creditor. And of this the debtor could not complain, so long as the suit was pending. And when that was determined in favor of the debtor, the property would belong to him, and the money to the creditor. And so here, if both suits were determined. But this case only shows the determination of one suit. And the defendant may still retain the property, upon one suit, and the half of the money, (if one half can fairly be regarded as released, by the failure of the suit against plaintiff,) belongs to Stedman, who deposited it. And plaintiff’s right to the absolute restitution of the property, will not accrue, until both suits are determined, and then the property being in the possession of his co-tenant, will be, to all intents, a restitution, the same precisely, as if restored to himself This is the very point decided in Frost v. Kellogg, and not matter of argument, in the opinion, more than it is here. "We feel that we could not sustain the plaintiff’s claim, on the facts stated, without overruling that case, and departing very essentially from long established principles.
Had the party chosen to wait for the defendant to sell the property, and made no deposit, it is by no means certain the defendant would have proceeded. The presumption is perhaps, that he would have proceeded, in conformity to the statute, either to sell only the interest of Stedman, or else to give the plaintiff notice, before he proceeded against his interest. Certain it is, he does not appear to have sold plaintiff’s interest, or to have done any act equivalent. There is nothing in the case of Abbott v. Kimball, 19 Vt. 552, which seems to us to favor the view, that defendant has been here, guilty of any abuse of authority. Nor is there any testimony detailed in the bill of exceptions, which could be justly regarded as having had any legal tendency, to show a conversion by defendant, so as to conclude that question, by the finding of the county court upon the facts.
Judgment reversed,, and case remanded.