¶1By the Court,
¶2The plaintiff below undertook to shew title to the wheat in two ways: 1. By a judicial sale under his judgment and execution; and 2. As assignee of a mortgage. By the first, he acquired no interest in the wheat; and the execution being returnable in 30 instead of 90 days, was unwarranted by the statute, and void, 5 Wendell, 276; but by the mortgage, of which the plaintiff was assignee, he did become entitled to take possession of Jones’ part of the wheat, and this title is older than that of the purchase by Emmons under his judgment and execution. On the supposition, therefore, that Kelly and Jones were entitled to the crop, Smith, the plaintiff below, having the interest of Jones, was the owner of one third of the wheat, and the other two thirds belonged either to Emmons, as the assignee of Kelly’s interest, or to Farr, to whom Emmons had sold the *340farm, without any reservation of the crops. The defendants therefore, or one of them, were tenants in common with the plaintiff of the wheat. By the contract, Jones was to harvest one third and Kelly two thirds, but their interest was joint until a division ; of the wheat, which was cut, the defendants were the owners of two thirds, and the plaintiff was owner of the remainder. The law is well settled that one tenant in common of a chattel cannot bring trover against his co-tenant for dispossessing him. If one tenant in common of a chattel destroy or sell, (which is constructively a destruction,) then he is accountable in this action. 9 Cowen, 230. 3 Johns. R. 175. 15 id. 181. As this point disposes of the whole case, it seems unnecessary to consider the nature of Kelly’s tenancy. The tender upon the mortgage was certainly ineffectual, as this suit was then commenced and there was no offer to pay the costs.
¶3Judgment of Seneca common pleas reversed with single costs, and the costs to abide the event of a new trial.