#### JOSEPH HARE *vs.*BARNEY PEARSON.

Where one crops or works with the owner of land for a share of the crop, after it is made, the crop is divided, the share of the person who has so worked is liable to be sold, tho’ it was levied on before the division, and tho’ it still remains in the crib of the owner of the land.

The wrongful dominion and assumption of property in personal chattels, by one who menaces the rightful owner if he attempt to take them, amount *in law*to a conversion, and are not merely evidence of a conversion to be left to a jury.

Appeal from the Superior Court of Law of Nash County, at the Fall Term, 1843, his Honor Judge Bailey presiding.

This was an action of trover for a quantity of corn. On the trial the plaintiff oifered evidence to shew, that the defendant rented a small tract of land to one Elijah Powell, a free man of colour, for the year 1841, and that the said Powell cultivated the land in corn, and agreed to give the defendant one half of the crop. He then oifered in evidence a judgment obtained before a justice of the peace, dated the 13th of March, 1841, and an execution which was levied upon the growing crop'of the said Powell on the 5th of June following. The sale was postponed at the instance of the said Powell, and was not made until after the corn was gathered and put in a barn on the land of the defendant then in the occupancy of the said Powell, It was further in evidence, that when the com was gathered and about to be housed, an equal division was made between Powell and the defendant, but that the whole of it was put in the barn aforesaid. The sale was made on the 8th of February, 1842, the plaintiff and defendant, the constable and others being present. The constable proceeded to the house and there offered the com for sale. The defendant forbade the sale and declared the corn to be his. There was evidence that more than half of the com had been taken out of the barn. The plaintiff purchased what was left and gave notice *77to the defendant that he should take it away. The defendant then told him that the corn was his, that he, plaintiff, should not have it, and that he would break every bone in his body before he should carry it away. fendant offered evidence tending to shew, that he did not rent the land to Powell, but that he, Powell, acted only as a laborer, and that he was his servant, and had no interest in the crop, which was subject to the plaintiff’s execution ; and, for the purpose of shewing the contract between Powell and himself, he further offered to prove the declarations of Powell made atone time and the declarations of himself made at another time, before the issuing of the warrant against Powell, which evidence was rejected by the court. The defendant further insisted that there was no conversion.

The Court left it to the jury to say, whether Powell was the tenant of the defendant for the year 1841, or whether he was merely his servant. If he acted as his servant, the plaintiff could not recover; but if he was his tenant, then the constable had a right to levy upon and sell that part of the corn, which belonged to him: and, if the defendant forbade the sale, and, after it was made, he had notice from the plaintiff, who was the purchaser, that he should come for the corn, and he then told the plaintiff, that the corn was his property and the plaintiff should not have it nor should he carry it away, this in law amounted to a conversion, and the plaintiff would be entitled to recover its value. •

Under these instructions the jury returned a verdict for ' the plaintiff. A new trial having been moved for and refused, the defendant appealed.

*Busbee,*for the plaintiff.

*B. F. Moore*for the defendant.

Daniel, J.

First; admit that Powell was the servant and cropper of the defendant at the time the growing com was levied on by the officer as his property, (which then in fact was not his, but belonged to the defendant), still, at the *78day of sale, the title to the corn actually sold was in Powell, by the division previously made with the defendant, And the plaintiff acquired a good title under the said sale. officer has a right to-sell personal property, levied on under an execution, alter the return day of the said execution. Powell was present at the sale, and raised no objection. If there had been any irregularity in the sale, he was the person to raise the objection, and not the defendant. The com had been placed by Powell in the defendant’s barn, upon a naked bailment for safe-keeping. The sale of it and the demand by the purchaser put an end to the bailment.

*Secondly;*The defendant on the day of sale, set up a claim to the corn as his property,-but he has shewn no title. The plaintiff gave notice to the defendant that he should take away the corn, which he had purchased at the officer’s sale. The defendant said, that he should not have it, that the corn was his, and that he would break every bone in his body before he should carry it away. The judge charged the jury, that this *in law*was a conversion. It is now insisted that it was only *evidence*to be left to a jury of a conversion. We think the charge of his Honor was correct; for a wrongful dominion and assumption of property in the chattels is a conversion ; and, if there be a deprivation of the property by a defendant, it is a conversion. *Keyworth*v *Hill,*3 Barn. & Ald. 687. 2 Leigh’s Nisi Prius, 1478. We think that the judgment must be affirmed.

Per CubjaM, Judgment affirmed.