Plaintiffs sued defendant for the value of certain grain in which they claimed an undivided interest, and which, upon demand of their portion, he refused to surrender, denying their rights.
The grain was grown on shares upon defendant’s land, by one William Jarvis, who was to have possession from April 1858, to April 1859, and to put in crops on shares, and to do other farm duties upon shares of other produce. Some question was raised concerning his complete fulfillment of the various arrangements; but, as there is no proof that it was agreed his rights in the crops, as a tenant in common, should be forfeited by non-fulfillment of any other conditions, and as there is no proof of dam*331ages growing out of such non-fulfillment, it becomes unnecessary to consider whether the evidence will, or will not, warrant a conclusion that he failed in any duty. As the case stands, he was very clearly a tenant in common in the crops.
While they were yet growing, he mortgaged them to plaintiffs, who, at the proper season, caused them to be harvested, when they were drawn off by defendant, who threshed the grain and put it in his granary. He seems to have intimated some formal objection, in the outset, to the right of any one but himself to cut the grain; but subsequently, while it was being cut, recognized plaintiffs’ privilege to do so.
Two questions arise upon the facts:
First, whether defendant’s denial and refusal to recognize plaintiffs’ rights or deliver their share, amounted to a conversion; and secondly, whether assumpsit will lie for such a conversion; no sale being proven, except of a trifling portion of grain, not equal to the defendant’s own separate interest.
It is laid down by most of the authorities, that a refu' sal, by one tenant in common of a chattel, to relinquish possession, is no conversion, because each has as good a right to the possession as the other. But it can hardly be questioned that the refusal of any one to give up to another that to which such other has a letter right, would be a conversion. The doctrine referred to applies to things in their nature so far indivisible that the share of one can not be distinguished from that of another. But it can have no reasonable application to such commodities as are readily divisible, by tale or measure, into portions absolutely alike in quality: as grain or money. When one person is entitled to half of twenty bushels of wheat in a mass, he is entitled to have ten bushels in severalty: and it would be destructive of all his beneficial rights to hold that his co - tenant in the heap could refuse a divi*332sion, when properly demanded; or that one who held one hundred dollars for himself and a co-tenant, could retain the fifty dollars of each. In the case at bar, defendant refused to give up any portion of the grain, and denied that he had any grain for the plaintiffs. Such an absolute denial of title, and refusal to recognize the rights of his co-tenants at all, would, we think, amount to a conversion, under any circumstances. It is difficult to see how a sale would work any greater prejudice to the co-tenants, who are effectually deprived of their property, so far as it is in his power to deprive them.
The question then arises, whether an action properly lies in assumpsit. It is said in several of the cases, that, where property has been tortiously taken, and converted by sale, the owner may affirm the sale, and sue for the proceeds in assumpsit; but that where there has been a conversion without sale, the tort can not be waived. It certainly is somewhat anomalous to place parties in contract relations against their will, where no privity exists: and the cases where it is pernlitted seem to be justified only on the ground that no prejudice can result to the defendant by allowing it. But where a party commits a breach of a duty, which the law implies from his express contract, assumpsit is as appropriate a remedy as any other, if a plaintiff sees fit to resort to it. The plaintiffs here derived their rights, as tenants, from the contract of defendant with their grantor, creating the tenancy. The grain being in marketable condition, the co - tenant in possession was bound, on reasonable request, to have the plaintiffs’ share measured out for them. His own contract precludes him from claiming more than his proportional amount. When he concludes to retain the remainder, he certainly is bound to pay for it: and the plaintiffs may, by their consent, convert the transaction into a sale; as it would have been a sale originally, had such consent been given at the time. We think no principle of law is vio*333lated by allowing tbe action to be maintained in its present form.
Judgment must be rendered for plaintiffs, for 1110.48, being the value of tbe grain when converted, with interest. They are also entitled to costs of both Courts.
Martin Ch. J. and Manning J. concurred. Christiancy J. did not sit in this case.