Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1901-06-23
OrIN ION
BY Massey. c. J.

By this action under the complaint as
originally filed, the appellant seeks, as
the surviving partner of the firm of :
Stock 4 Schwartz, an alleged co-partner-
ship, to recover a judgment against the
respondent. the EXecutriX of the last will
and testament of William Stock. the de-
ceased partner, for the conversion of GER
tain property alleged to be the property
of said firm. The answer makes the
same issues as those presented in the
case of Schwartz, surviving partner, v
Stock, Executrix, No. 1892, to recover the
possession of certain alleged partnership
property, submitted and decided at this
term, and the record presents the same
questions passed upon in that case, with |
one exception. 1t will therefore be nee
essary to discuss but one question raised |
in this action in addition to the questions
discussed and passed upon in the other
case, and that question involves the
Statute of Limitations interposed as a
plea to the amended complaint, setting
up the joint ownership of the property in
controversy. The original complaint
alleging the co-partnership was drawn
upon the assumption that the respondent,
as Executrix, had converted the property
for which judgment is asked, but the
proof showed that William Stock, de-
ceased, had in his lifetime sold and dis
posed of the same. Upon this showing,
the appellant was permitted to amend
the complaint showing conversion by
the deceased. Not being willing or able
to reverse the judgment upon the claim
:, that the evidence established the partner
ship relation for the reasons given in the
other appeal. the only question
to be considered is, wasl the right to re-
cover in this action for conversi II
barred by the four year provision
Of Section 1922 of the Compiled Laws?
The facts controlling this question are
the same as presented in the other ap-
peal. The denial by Stock in August, 1895,
of the title Of Schwartz to the property,
and his exclusion therefrom, and from
the management and control thereof
and from the sharing of the necessary
expenses thereto, and the profits thereof
from that date, are presented by this
record. Four years time had not
elapsed from the time of the exclusive
appropriation of the property in 1895 to
the time of Stocks death, or to the time
of the filing the original complaint, but
more than four years had elapsed from
the time Of such appropriation up to the
time Of filing the amended complaint
claiming right to recover as a co-tenant
In this case, as in the other, we do not de
eide nor intend to decide that under tn,
facts OF the record this action will lie
but if the appellant had any right o
action under a claim of joint ownership
it accrued on the 10th day of August
1895, at the time of the exclusive appro
priation by Stock. 1t may be stated as
general rule, that the action of trove
will not lie in favor of one tenan
against his cO-tenant for the mere deten
ton or exclusive use of the commo
property, but it is otherwise where on
tenant has lost or destroyed the property
or SO converted it or appropriated it
his own use as to render any further er
joyment by his co-tenant impossible, c
when one tenant takes the exclusiy
possession of the common property an
denies the right or title of his co-tenaI
thereto, as shown in this case.
Webb v. Mann, 3 Mich. $780,
Bray v. Bray, 30 Mich. 49,