#### JEFFERSON McGAHEY *vs.*JOHN C. MOORE.

Where two persons cultivated a crop of com in a field, to which each claimed,but neither had a title, and of which neither had the actual possession, and one of them afterwards gathered the corn, piled it in heaps, and left it for a week, he did not thereby acquire such an exclusive possession of the com as enabled him to maintain an action against the other for removing it.

December 1842.

Appeal from the Superior Court of Law of Cherokee, at Spring Term, 1842, his Honor Judge Bailey presiding.

The action was trespass for taking and carrying off a quantity of corn. By consent of the counsel, the jury found a verdict for the plaintiff, subject to the opinion of the court, upon the following facts agreed. Johnson Murratt, who was a Cherokee Indian, lived in a hut, and planted and cultivated a field of corn around his hut, situated in the Indian Territory ceded by the treaty, in the Spring of 1838. In May, 1838, the United Slates’ troops took possession of the ceded territory, and notified the Indians to surrender themselves for the purpose of being removed. On the 11th of June, 1838, Murratt, on his way to the station to surrender himself, came to the house of one Matlock, and executed the following writing:

“ llth June, 1S38. This day, Johnson Murratt has sold to Benj. A. Matlock his farm and plantation, provided the said Johnson'is removed to the Arkansas this year. If he is not removed, he is to have and retain it himself.

(Signed) JOHNSON MURRATT,

B. A. MATLOCK.”

Attested by two witnesses.

The property purporting to be conveyed, was of a greater value than ten dollars. Matlock transferred his interest to *36the plaintiff, who, on the next day after the sale, went to the and worked about one hour in the field. Some short time thereafter, one McReynolds, alleging himself authorize<^ ^y the officers to sell the property of the Indians, put up jo public sale, a,t the station, some ten miles from Murratt’s, the standing corn of Murratt, and it was bid off by the defendant at f 6, and the defendant, some weeks afterwards, went to the field and ploughed the corn. Soon afterwards, the plaintiff also went and worked it over. Neither the plaintiff nor the defendant lived near the premises, and the corn remained standing in the field until October, when the plaintiff pulled the corn, throwing it in small piles in the field, as corn is usually gathered. It remained in the piles for about one week, when both the plaintiff and the defendant entered the field with waggons, and, at the same time, commenced hauling it off in different parts of the field, the defendant taking off about fifty bushels, for which this action is brought. Murratt was removed with the other Indians. It was further agreed, provided the evidence was admissible, that, at the time the writing was executed by Mur-ratt, the bargain was for his farm and standing crop at the price of $6, which Matlock then paid Murratt. The defendant’s counsel insisted, 1st, that Murratt had no title to the standing crop of .corn, and could not pass the right of property to Matlock; for, by the treaty, the Indians were to give possession in May, 1838, and Murratt was not entitled to emblements: 2d, that, if Murratt was entitled to the crop, he had no right to sell the farm and plantation, and, these being the words used in the writing, the standing crop as incidental to the farm and plantation did not pass : 3d, that the writing was not in compliance with the act of Assembly, as the consideration, which formed a part of the contract or agreement, was not in writing: 4th, that the writing could not be explained or added to by parol evidence : 5tb, that defendant’s purchase from McReynolds gave him the title, as the officers had possession of all the territory. The plaintiff’s counsel denied all these positions, and insisted, 1st, that the right of property was vested in Matlock, under whom he claimed, by his purchase from Murratt: 2d, that, if he had *37not thus acquired the right of property, the defendant had acquired no right from McReynolds, whose authority to was not shewn, and who sold ten miles from the field; and, if neither the plaintiff nor the defendant had the right of property, then the possession of the plaintiff would enable him to sustain the action. The court was of opinion, that the plaintiff had not proved a right of property; and, secondly, that *the acts*done by the plaintiff in working the corn and gathering it, afterwards suffering it to remain in the field a week, did not give him such a possession, supposing him not to have the right of property, as would enable him to maintain trespass against the defendant for hauling off the com in one part of the field, while he was hauling from another part of the same field. The court, *therefore,*set aside the verdict, and directed a nonsuit to he entered. From this judgment the plaintiff appealed.

*Clingmcin*and *Francis*for the plaintiff.

No counsel for the defendant.

Dahiel, J.

This is an action of trespass, *de bonis as-portatis. Plea, not guilty.*The Cherokee Indians, by the treaty made in the year 1838, agreed to remove from the ceded territory in the month of May, in that year. On the 11th day of June, 1838, Murratt, (an Indian,) when on his way to the place of rendezvous, for the purpose of removal, made a contract in writing, with one Matlock, for the sale of his “farm and plantation.” There was then a growing crop of corn in a field around the hut, that he had left on the ceded territory in this State. Matlock sold and transferred all the interest he had in the said purchase, to the plaintiff.

The defendant, a short time thereafter, purchased the aforesaid growing crop of corn, (thus left by the Indian Murratt,) of one McReynolds, who pretended to have authority to sell the same ; but no authority to make the said sale by him, was shewn on the trial. The plaintiff and defendant alternately worked and cultivated the said field of corn-, until it came to maturity. In the month of October, the plaintiff gathered the corn, and threw it in small piles in the same field, where *38it lay for a week, when each party simultaneously commenced hauling it away from the field. The defendant carried away about fifty bushels. It seems to us, that immediately Murratt left his hut and field to remove, the land and crop growing on it, belonged to the State. Murratt, after that time, had no interest in the growing crop of corn, which he could sell to Matlock. If the plaintiff and defendant were tenants in common of the corn, this action certainly could not be maintained. The case, thereiore, seems to be narrowed down to the single question, whether the plaintiff, by the bare act of pulling the corn from the stalks, and throwing it in small piles in the field, and there leaving it for a week, had acquired such an exclusive possession of the corn, as to enable him to maintain this action, for that portion of it which the defendant took away. The Judgethought it did not, and we concur with him in that opinion. Each of the parties resided some distance from the field of corn ; each had set up tifie to it; each had worked and cultivated it, after the Indian had left the place. Can it then be said, after all these facts, that the bare severance by the plaintiff, of the ears of corn from the stalks, and throwing them in small heaps on the ground in the same field, gave him an exclusive possession of the whole of the corn thus severed? We think it did not. On the question as to the admissibility of the testimony, offered by the plaintiff to prove a parol sale by Murratt of the growing crop, we hold that the same was inadmissible, as being repugnant *to*the provisions of the act of 1836, ch. 8, relative to contracts with Cherokee Indians.

We are of opinion, that the judgment was right, and that it must be affirmed.

Per Curiam. Judgment affirmed.