#### SIMEON WARBRITTON *v.*RICHARD A. SAVAGE.

If one joint-owner of a crop sells to the other his share of it to pay a debt, and it is divided in the presence of both, for the purpose of ascertaining the amount to be credited on the debt, there is no trespass in the purchasing' partner’s removing the property, though forbidden by the other.

Actiow of tbesRass, *m et armis,*fried before Manly, J., at the Spring Term, 1857, of Edgecombe Superior Court.

Tlie declaration was, for forcibly taking away a quantity of cotton.

One *Kellibreifí,*a witness for the plaintiff, stated that, in the fall of the year, 1855, the defendant came to him, and requested him to go and divide a crop between him and the plaintiff. lie went, and one *Worsely*divided the corn, fodder and cotton, each into two equal parts, the plaintiff and defendant both being present.

One *Mannvng*swore that he was present when the division was made ; that, in the presence of the plaintiff, after the cotton was divided, the defendant gave instructions to the witness, who was in his employment, to carry all the cotton away, and he did so. The plaintiff made no. objection at first, but after some of the cotton had been put into a cart, he claimed the cotton, and forbid the taking away of the part allotted to him. He stated further that defendant leased the land on which the crop was made from John Ruffin, and agreed that the plaintiff should cultivate the land, the defendant furnishing a horse, and food for one horse during the year 1855, and that the crop should be divided equallju

Worsely proved that plaintiff forbad© the defendant from taking away the cotton, and threatened him with a law-suit if he did so.

The defendant produced several witnesses, who stated that, in the summer and fall of 1855, prior to the division of the crop, the plain tiff'in conversation with them, said that he was indebted to the defendant, and that the latter was to have the whole of the crop, until the debt he owed defendant was satisfied. The *383plaintiff, in conversation with one of the witnesses, stated, that he owed the defendant for seven barrels of corn, at $4 per barrel. Other witnesses proved that plaintiff owed defendant for provisions furnished that year, previously to the division, and that the amount of plaintiff’s indebtedness was greater than the value of the cotton. One witness testified that, while the division was going on, he ashed the plaintiff for the payment of a judgment which he held on him, to which he replied, he could not get his money then, for it would take all he had, to pay the defendant the debt which he owed him.

The plaintiff contended that, by the division, the title to the cotton vested in him, and that he was, by that division, put in possession of it.

The defendant insisted that it was not the intention of the parties, by the division, that plaintiff should be put in possession of the cotton, but merely to ascertain the amount of the plaintiff’s share, so that he might receive credit for the value of it on the defendant’s account, and that plaintiff had no such possession as would enable him to maintain the action.

The Court instructed the jury that a division and allotment of the cotton into two parcels, under thé circumstances stated by the witness Killebrew, imported a purpose, in the absence of proof to the contrary, of giving and vesting in each party, what belonged to him. "Whether there was proof to the contrary, was submitted to the jury as a question of fact. If it was divided with a view to give each party what belonged to him, this action might be sustained, unless there was, after the division, an agreement on the part of the plaintiff, that his share of the cotton should go in payment of the defendant’s debt, or stand as a pledge for it. Defendant excepted to the charge.

Yerdict for the plaintiff. Judgment and appeal.

JDortoh, for plaintiff.

Rodman, for defendant.

*384Battle, J.

In one part of bis Honor’s instructions to tbe jury, we do not concur. He told them that if the cotton *“*was divided with a view to give each party what belonged to him, this action might be sustained, unless there was, after the division, an agreement on the part of the plaintiff, that his share of the cotton should go in payment of the debt due the defendant, or stand as a pledge for that debt.” Now, it seems to us, that the law applicable to the contract was the same, whether the agreement was *before*or *after*the division, if it were the intention of the parties, as was contended by the 'defendant, that the division should be made merely to ascertain the amount of the plaintiff’s share, so that he might receive credit for the value of it on his account with the defendant. The testimony admitted of that construction, and if the jury should believe that such was the -intention of the parties, we are not aware of any principle of law to prevent its being effectuated. The plaintiff had an undoubted right to sell his undivided share of the cotton to the defendant, either for cash, or in payment of a former debt; and then it would belong to the defendant as soon as it was set apart and ascertained by a division. "We cannot distinguish this case, in principle, from that of a sale of a part only of a large quantity of goods, when such part cannot be ascertained without weighing, or measuring, or other act of separating, or distinguishing it from the rest. There, the purchaser cannot obtain a title to the goods until his portion has been set' apart; but it is clear that his title would accrue, in consequence of the previous agreement, the moment it was set apart; *Morgan*v. *Perkins,*1 Jones’ Rep. 171. The cases cited and relied upon by the plaintiff’s counsel, are not at all opposed to this view; *Ross*v. *Swearingen,*9 Ire. Rep. 481, proves only, that where a lease is made, the rent to be paid in a part of the crop, the contract is executory, and the title to the crop is in the lessee, until the lessor’s part is separated and allotted to him, and that, therefore, before that time, the lessor has no right to take possession of any part of the crop, without the consent of the lessee. But can it be doubted that the effect of the contract of lease *385will give tbe lessor a title to the part allotted to him, the moment the division is made ? There could be no necessity for a new agreement *after*the division. The case of *Brazier*v. *Ansley,*11 Ire. Rep, 12, instead of militating against, rather confirms, our position. The Court say, “ in a case like this, which, in principle, is similar to that of a sale of a lesser part out of a larger, the appropriation by the landlord was incomplete, until ratified by the cropper,' or his agent and vendee, the plaintiff. It would be manifestly unjust to suffer the landlord to be sole judge of the rights of the cropper. Not only was the assent of the plaintiff withheld, but he positively refused to receive the corn set apart from him, or his principal.” Would the result have been the same, had the cropper assisted in the division ? Would it have required a new agreement made between him and his landlord, to vest in him the title to his share? We certainly think that his assent to take, would have been implied, and that the moment his portion was separated from that of the landlord, it would have become, to all intents and purposes, his property. In *Hare v.*Pearson, 4 Ire. Rep. 76, a case not referred to by the counsel, it was decided that, where one crops,-or works with the owner of land for a share of the crop, and, after it is made, the crop is divided, the share of the cropper is liable to be sold, though it was levied on before the division, and though it still remains in the crib of the owner of the land. The Court said, “ admit that Powell was the servant and cropper of the defendant, at the time the growing corn was levied on by the officer, as his property, (which then, in fact, was not his, but belonged to the defendant,) still, at the day of sale, the title to the corn actually sold, was in Powell, by the division previously made with the defendant.” Now, if the division made it his, so as to render it liable to sale on a previous levy, we cannot see any reason why a contract of sale made previous to the division, should not make it his, so as to pass instantaneously to the purchaser. In neither case can there be any necessity for an agreement to be made *after*the division to vest the title in him, in order to render it liable to the prior *386levy of an'execution, or to the operation of an antecedent contract of sale. Eor the error in the particular mentioned, the judgment must be reversed, and a *venire de novo*awarded.

Pee Cueiam. Judgment reversed.