¶1The plaintiff's claim in this writ of replevin was not based upon the theory that he was a joint owner or tenant in common, and therefore entitled to the possession of the whole, but that he was the entire and sole owner. Proceeding upon this theory, the plaintiff obtained, by virtue of his writ, the possession of the whole property. And as I understand that action, he must, as against the defendant, have been entitled to the entire possession or fail. The defendant, as a common carrier, was at the time bailee of the property from a purchaser, and the bailment had not terminated. It is well settled that one joint owner or tenant in common of chattels, cannot sell the whole property, but his undivided share only. It is as well settled that each joint owner is possessed per my et per tout, or of each parcel or share and of the whole, while tenants in common of chattels hold undivided portions of the property by several titles or in several rights; but their possession is in common and undivided. The sale, therefore, by Nichols to the plaintiff of the whole property, was unauthorized. He had a right to sell his own share only. The plaintiff, by this, perhaps, acquired only the interest of Nichols. After the hogs had been slaughtered and converted into pork and lard neither party, independently of an express or implied agreement, had a right to sell the whole. Holmes did, however, sell to Slocum and transferred to him the *179 possession and right to the possession of the whole. The defendant, as his bailee, had all Slocum's right to the possession. Several questions might have been raised in this case, which would have made it one of difficulty and doubt. But as this is a bill of exceptions, only so much of the evidences is returned as is material to the points actually presented for decision.
¶2The principal question is as to the measure of damages, the jury having found that the defendant, on the facts, had a right to recover.
¶3The point raised by the requests and refusals to charge, as also by the charge itself, is this: Where a bailee has received property from one who is unquestionably at the time entitled to the possession, can another entitled to an undivided interest, in an action of replevin where he has claimed and taken the whole property from the bailee, failing in that, reduce the damages by showing his own title? It is not necessary to say what the rule would be now, where all the parties necessary to a complete determination of the controversy, may be brought before the court. But in an action of replevin under the statute as it existed prior to the Code, the statute itself regulated the recovery. (2 R.S., 531, § 55.) The defendant, whenever he shall be entitled to a return af the property replevied, instead of taking judgment for the return of the property and damages for its detention, may take judgment for the value of the property replevied. It will not be contended that this was a proper action for a partition or division between tenants in common or joint tenants. The plaintiff did not ask for his share, but the whole. The defendant was entitled to the possession of the whole until a division between the parties. The plaintiff failed to sustain his claim, and consequently failed in his action. The defendant was therefore entitled to a return of the whole property, or at his election, to a judgment for the value. The rights of the several owners are to be settled in another action, and cannot be in this. It follows, that as one joint tenant or *180 tenant in common, has a right to the possession of the whole as well as each part, and as the defendant was the bailee of a person who had this right, that the detention was not illegal and that the plaintiff could not recover. The defendant being entitled to a return, must be placed where he was when the action was commenced, namely, in possession of the whole of the property, or have judgment for the value thereof.
¶4The judgment should be affirmed.
¶5JOHNSON, DENIO, CRIPPEN and MARVIN, Js., were also for affirmance.
¶6HAND J., was of opinion that the defendant should have recovered only the value of the interest of Holmes in the property.
¶7Judgment affirmed.