It is entirely apparent that the stump puller involved in this controversy became the property in common of Albert Gerndt and the defendant, in equal shares, albeit they acquired only an equitable title by reason of the reservation of the legal title to the seller as security for the purchase *17price. Up to the time when defendant sold this machine, Albert Gerndt, or the plaintiff, as his grantee, could have recovered possession thereof from the defendant only by reimbursing to him one half of what he had been compelled to pay in preservation of title to the common property. Allen v. Allen, 114 Wis. 615, 91 N. W. 218. His payment of the third $50 note was for that purpose. It is spoken of by counsel for appellant as a purchase of an independent title, to which a cotenant might assent or not, in his election. It was not that, but was the payment of a charge which he could not escape, and merely the discharge of what constituted, as between him and his. co-owner, an incumbrance upon their common property. Obviously, after he had sold the property, and had its full value in money in his possession, the rights of his cotenant could be no greater. The value of-the property stood in lieu thereof. The plaintiff, as an owner of an undivided one-half, was entitled to recover that half of the value of the property under the same circumstances only as he could have recovered possession of the property if it still remained with the defendant; that is, by discharging one half of the expense incurred by defendant in exonerating it from incumbrance. At the utmost, therefore, plaintiff could have been entitled to a recovery of only $12.50, and the direction of a verdict in the sum of $37.50 was erroneous.

Were there nothing else, we might feel inclined to permit plaintiff to remit the error thus embodied in his judgment, but we are confronted by a question, not argued in this court, and apparently not dwelt on in the court below, and which upon another trial may be presented differently; that is, the question whether plaintiff proved any title in himself. The evidence is simply to the effect that he purchased from his brother, by verbal contract, the latter’s interest in the stump puller. He testified, “I bought the undivided interest to the amount he said he paid, about $63.” This, while somewhat ambiguous, would apparently declare a price of about $63; *18at least exceeding $50. By sec. 2308, Stats. 1898, every verbal contract for tbe sale of any chattels for tbe price of $50 or more is declared void -unless tbe buyer shall accept and receive part of tbe goods or pay some part of tbe purchase money. There is absolutely no evidence that be did either; hence we conclude that we cannot, upon this record, permit the judgment to stand at all, but must reverse it and remand the action for a new trial.

By the Court. — Judgment reversed, and cause remanded for new trial.