#### JAMES C. SKINNER *vs.*CHARLES W. SKINNER.

Where a father puts his sen in possession of a plantation and slaves, and permits him for three years to appropriate the crops to his own use, the crop the fourth year, as well as the preceding ones, are to be considered as gifts from the father to the son and liable to the claims of the son’s creditors.

A sale of a crop of corn in afield, by a sheriff under execution, iS' good, although the sheriff was not in nor immediately at the field, if he was near enough to be in plain view, so that bidders saw what they were bidding for ; for that is the purpose of requiring the thing to be present.

Appeal from the Superior Court of Law of Gates county, at Spring Term, 1843, his honor Judge PearsoN presiding.

The statement of this case, which was founded on the same transaction as the casé last reported, *H'ollomell*v *Skinner.*ante p. 165, was thus given by the presiding Judge ;

This was an action of trover for 700 barrels of corn. The plaintiff read in evidence six judgments, amounting in all to $1291 against William C. Skinner, taken* at August Term., 1840, of .Perquimans County Cou’rt, and executions thereon to November Term, and proved, that, at a sale by the sheriff under these several executions, in September, 1840, the plaintiff purchased the crop of corn at Old Neck, which the defendant afterwards converted to his own use. It appeared in evidence, that the defendant, who-was the father of William G. Skinner and a wealthy planter, was the owner of the Old Neck plantation, which was about twenty miles from his residence ; the plantation was supplied with horses, stock, and farming utensils, and the defendant kept there some twenty slaves. In February, 1837, William, his son, who .had just finished his education, went to reside on this plantation, and continued to live there until the tall of 184Q. The wheat crop of 1837, which had been put in by the de„ fendant, was equally divided between the defendant and William, The com crop of 1837 and the com and wheat crops of 1838 and 1839, and the wheat crop of 184Q, were disposed of by William and the proceeds used by him. *176Wheat and corn were the only products of the farm made for sale. In 1838 William married. In 1839 and 1840 William employed overseers. During his residence at Old [le bought several horses, some to work on the farm — . others for riding horses. He purchased, in his own name from the stores, Salt, iron' and all other articles'heeded on the farm, and acted in ever'y'respe'el' as if he wa's the owner of the establishment, but did not sell nor offer to sell the plantation or any of the negroes or any of the stock found there, when he went into*possession. *Bdgly.*the sheriff, swore that the Sale took place at Old Neck — th’a't the corn was growing in two large fields, lying near each other, separated by a- fence and a narrow slip of uncultivated *land.*The river field, containing about 150 acres, was first sold. The sheriff and others attending the sale were inside of the field, when it was sold and bought by the plaintiff. The new field, Containing about 50 acres, was theW pu-t np and sold, the sheriff and others- remaining in the river field__ The1 new field was in full view, the nearest part about two hundred and fifty yards off. This was also purchased by the plaintiff. The corn was sold as i't stood in- the' field.

One *¿Small*swore that he was,-in the spring of 1837, at a sale of the property of Thomas Long deed., the defendant and William1, his son, and many others attending the hiring and sale — that the defendant bid for many negroes when offered for hire but did not get one — ‘that,- when the purchasers and person's hiring were at the table giving their notes, the defendant observed,- as a reason for wishing to hire negroes, that he had given his son William property worth thirty thousand dollars.

One *Hollowell*swore, that he was Che overseer of the defendant at Old Neck in 1-836 — that in 1837 he and the defendant happened to be at Old Neck together and were talking about the value of the place-^-that the defendant said the place was worth twenty two thousand dollars — that he liad given it to William — that it was rather more than his share, but it could not be split — that he intended it for William and should direct in his will that William should refund to *177the other legatees. This witness also stated, that in 1S3S was at the Court-house, while negroes were being hired, when a certain negro man was put up — that the defendant enquired for William, saying William wanted to hire negro — that the defendant then bid off the negro and directed the clerk to put him down to William — that this negro worked that year on the Oid Neck plantation — that William managed and spoke of the said plantation, as one would of his own property.

One *Brothers*swore, that he was employed by William as an overseer in 1839 — that he looked only to William for his wages, though he had not yet beeu paid.

One *Whidby*swore, that he was employed by William C-Skinner as overseer for the year 1840; that William managed everything as his own, shipped the wheat crop and received the proceeds — that the witness in August informed the defendant, that, owing to the great indebtedness of William, he was afraid his wages would not be paid — whereupon the defendant employed him to oversee, as his agent, for the remainder of the year and agreed to see him paid for the time be had acted as overseer of William — that William was then on a visit up the country and did not return to Old Neck.

*Langley*swore he sold William a horse in 1839 for $250 and Willinm said he should be paid out of the next crop.

*Brewer*swore, that he kept a store near Old Neck and William purchased articles from him for his own use and that of the plantation, and that William said on one occasion he considered himself worth twenty thousand dollars, that his name urns at the service of the witness and was good for twenty thousand dollars.

*William G. Skinner,*called by the plaintiff,

swore that, at the time he requested the plaintiff to sign a note to Wood & *Go.*as his surety, he told the plaintiff the note should be paid out of the corn crop of 1840 — that Wood & Co. were merchants near the Old Neck — that the note was given to .settle their store account and wasone of the debts, \r hich had *178been'reduced'to a judgment and to satisfy which, the Sheriff the corn crop of 1-840 — that the debt was about six h'un-jrecj This witness further stated, that he had the so]e *use 0{ the crops alter*he went *to*Old Neck, except the wheat crop of 1837 — that he bought, horses, mules &c. and managed as if the property was his — that he anticipated the wheat crop of 1840 by a draft, which was endorsed by his father for him — that his father had no knowledge of the' debts or of any one of them, under which the crop was sold, so far as he knew, but his father on several occasions complained that he was doing badly and was going in debt— that he remonstrated with him, and when he saw a new horse would give him a lecture on economy — that he went to Old Neck in February 1837 and came of age in June of that year — that, when he left schooj, his father asked him, whether he would prefer living at home or going to Old Neck —that he left it to his father, who concluded that he should go to Old Neck,-and told him he would give him half of that-year’s crop and afterwards would be regulated according ashe thought his conduct merited — that no more definite arrangement was ever made.

The witness *Brothers*further stated, that in 1839 while he was William’s overseer, the defendant came to the plantation — that William was not at home--that the defendant said he had come to get two of William’s negroes to assist in clearing out a fishing ground, that William had better stay at home and attend to his business instead of haying an overseer, that he had been getting in debt g500 a year ever since he took possession of the place, and that, if he did not do better, he would be sold out in a few years. — that the defendant then said, “Well, the property will all be sold, and if he can’t live with property, he may get along without it” —that the defendant came to the plantation but seldom and exercised no control when there, except to give advice &c.

The defendant offiered no evidence.

, The plaintiff’s counsel insisted, *first,*That from the evidence'William Skinner was the owner of the corn-crop, being a tenant from year to year, or at any rate a tenant at *179will and so entitled to emblements; *secondly,*-that being permitted by his father to enjoy the property as his and having acquired credit on the faith of the crops, the defendant would not be permitted to set up his claim and defeat the creditors.

The defendant’s counsel contended, *first,*That William was the mere agent and manager of his father, having no ownership in the property or crops; secondly, That, supposing the principle of law contended for by the plaintiff’s counsel to be correct and applicable to creditors, it was necessary to shew that the defendant had knowledge that William was about to contract some one of the debts, under which the property was sold, and permitted him to get credit on the faith of the crops; so far from which, it was apparent that the defendant had no such knowledge, bat was unwilling and even remonstrated against his contracting debts.

The Court charged, that, if William was the agent or manager ef the defendant, the plaintiff could not recover on the first ground, as representing William the debtor, because an agent, has no property in the crop, and if injured must sue on his contract; but if the son took possession, not as a-gentbut on his own account, with the understanding that the possession was his, and, although the title remained in the father, yet he was to. have the privilege of using the plantation and negroes and be the owner of what he should make, subject to revocation "by the father,whenever heshonld think proper, the son’s talcing possession would create such a relation between him and his father, whether a tenancy from year to year or a tenancy at will, it was unnecessary to decide, as to entitle the son to a crop which he had planted and cultivated, although it was standing on the ground at the time the father terminated the relation. It was not necessary for rent to be reserved. A father might give his son a stated sum for his support, or he might give him the use of a plantation and negroes for that purpose. It he did so, and the son was at the expense of employing an overseer, hiring negroes, buying horses <tec., although the father might revoke the gift or loan at any time, still the son would be en*180titled *to*the crop, which he had been at the trouble and expense of making. Whether the son was the mere agent, or was put in possession on his own account, was left to the jljry_

The Court further charged, that, if the defendant by putting the son in possession enabled him to acquire credit; if tiie creditors or any of them, under whose executions, the crop was sold, gave credit to the son, under a belief that he was the owner of the crops and liad a right to dispose of them, and if the defendant knew that his son was enjoying credit and going in debt, upon the faith of his being entitled to the crops, and stood by, without taking any measures to correct the false impression, he would not beallowed to set up his title to the crop, against the plaintiff, who represented the creditors, although the jury should believe he was unwilling for *his son to go*in debt and remonstrated against his doing so, and althogh he did not know of his incurring any of the particular debts sued on — on the same principle, that one, who stands by and sees another buy and pay for his horse, is not allowed afterwards to claim him, and one, who is in the habit of sending his servant to a store is bound to pay the account, though the master did not send him for a particular article.

The defendant’s counsel also insisted, that,"as to the fifty-acre field, the sale was void, because the sheriff had no right to sell at the distance of two hundred and fifty yards.

The Court charged, that it was not necessary for an officer to go inside of a field, in order to sell a growing- crop ; it was sufficient that he was within view and within such a convenient distance, that the persons attending the sale could examine for themselves and know what was offered for sale.

There was a verdict for the plaintiff, and a new trial being refused and judgment rendered according *to the*verdict, the defendant appealed.

*Kinney*and *Iredell*for the plaintiff.

*Jl. Moore*for the defendant.

Ruffin, C. J.

This case arises out of the same trans*181action, which gave rise to that of *Hollowel*v *Skinner,*cided at the present term, *(ante*p. 165); and, if possible, is clearer for the plaintiff than that was.

If the son was not occupying the plantation as the overseer and servant of the defendant, it must follow that hedi&so on his own account and for his own benefit. We need not go minutely into the evidence for the purpose ofestablishing the nature of the occupation ; no one can doubt from what the defendant said, and from what he and his son did, and from what they did not do, that the father was setting Ills son up in the world by giving him the use of the large property, of which he put him in possession — accordingly the young gentleman sold the crops of three years, and appropriated them to his own use, without claim or complaint of the father. What overseer or steward would have been allowed to act in that way ? Could the father maintain actions against the purchasers of the crops of 183?, ’38 and 39, which the son sold? Why not? It is because the father never thought of claiming them, but intended that the son should so dispose of them and appropriate the proceeds ; in other words they were gifts. For the same reason the crop of 1840, produced during the son’s occupation and by his industry, is his, both for the benefit of himself and his creditors. The son’s possession began with an express gift of half the crop then growing, “and after that he, the father, would be regulated as he thought, the conduct of the son merited.” That is the son’s own account of the matter, and he adds, “ that no more definite arrangement was ever made.” This certainly imports, that the father might resume the land and negroes when he pleased. But it equally imports, that until he should resume them, he did not claim the crops that should be made, but that, as the first was the son’s by express gift, so the others should- be also. The son planted and cultivated the crop of 1840, to maturity, and therefore that belonged to him : and so, the jury, we think, were properly instructed. As the verdict, on this ground, was in point of law right, the judgment must be affirmed, notwithstanding, as wc said in *Hollowell*v Skinner, we do *182concur in the opinion as to the *quasi*estoppel on the cle-fendant.

We also think the sale of the corn in the small field valid. Although the sheriff was not in, or immediately at the field, yet he was near enough to be in plain view, so that bidders saw for what they were bidding: and that is the purpose of requiring .the thing to be present.

Per CuriaM, Judgment affirmed.