#### SARAH ROSS *vs.*ALPHA SWARINGER & AL.

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 made is in the lessee, until the lessor’s part is separated and allotted to him, and, therefore, before that time, the lessor has no right to take possession of any part of the crop, without the consent of the lessee.

The case of *Deaver*v. Rice, 4 Dev. *4"*Bat. 431, cited and approved.

Appeal from the Superior Court of Law of Stanly County, at the September Term 1848, his Honor Judge Pearson presiding.

In the Fall of 1845, the intestate of the plaintiff, and the defendant agreed, as follows : The defendant leased to the intestate a tract of land for the year 1846, and was to find two horses, and food for them. He was also to. supply the intestate with provisions for himself and family during crop time. The intestate agreed, that the whole crop should be the property of the defendant — one half, he was to keep for the rent of the land and the use of frhe *482horses — the other half he was to keep, until he was paid for the provisions and an old judgment, and deliver to the intestate what was left.

The intestate entered and made a crop of corn, but died in the Fall before it was gathered. The plaintiff, who was the widow of the intestate, gathered the crop. The defendant, although forbid by the plaintiff, took off most of the corn. The plaintiff then administered, and brought this action.

The Court charged, “that the crop belonged to the intestate, as incident to his lease, and although, at the time-of the lease, in consideration of the lease and the horses and provisions, which were to be furnished, and the old judgment, the intestate agreed, that the whole crop should be the property of the defendant, still the title to the crop did not pass. The crop was a thing not in *esse,*and the contract was not executed and could not be, from the nature of the subject matter. It was *executory*— gave a right of action for a breach, but did not confer a right to take the corn against the will of the owner.”

There was a verdict for the plaintiff, and from the judgment thereon, the defendant appealed.

*Iredell,*for the plaintiff.

*Strange,*for the defendant.

Pearson, J.

It is not necessary to decide the broad question, upon which the case is put, in the Court below, about which there is some diversity of opinion ; for the case is clearly with the plaintiff, and the conclusion, to which the Court below arrived, that the contract was *executory,*and not *executed,*is sustained upon special grounds, which do not involve the general question.

First: The contract on the part of the defendant was executory, as to furnishing the two horses and food and the provisions during crop time.

*483Second : The contract on the part of the intestate, as to the payment of the rent, was executory from the very nature of rent. For, in speaking of rents, Lord Coke says : “the lessor cannot reserve parcel of the annual profits, as the vesture or herbage of the land, or the *like;*for that would be repugnant to the grant. *Co. Lit.*142.” It would be an *exception*of a part of the thing already granted and inconsistent with the grant. Therefore, such contracts,, as the present, are. necessarily construed, neither as exceptions or reservations, but as covenants or agreements of the lessee to give, *as rent,*as many bushels of corn, as the half of the crop may amount to, or deliver, *as re?it,*the one half of the corn that may be made on the land. It is simply a payment of rent, agreed to be made in corn, instead of money ; but it does not change the property in the crop, while growing or when gathered, until it is delivered to the lessor-. *Deaver*v. *Rice,*4 Dev,& Bat. 431. It is like the case of an overseer, whose wages are to be paid in a share of the crop. He has no right to the thing itself. The property is in the employer, until a division and delivery.

It is clear for these reasons, that the contract, as to the rent, is executory, and being entire, and executory as to a part, it is necessarily so, as to the whole.

I think the judgment below should be affirmed.

Nash, J.

This is an action of trover to recover damages for the conversion of a quantity of corn. The case is : the defendant by parol leased to the plaintiff for one year a parcel of land. It was agreed, the defendant should furnish two horses to work in the crop, and their necessary food ; and the defendant, for the rent, was to let him have one half of the corn raised, and to paj' him out of the residue, claims, which he (the defendant) had against lum. After the crop was raised and housed, the defen*484dant, against the will of the plaintiff, hauled it away, or the largest portion of it.

His Honor instructed the jury, “that, if the intestate had leased the land for a year, the crop belonged to him as an incident of his lease.” We do not deem it necessary to notice the subsequent part of the charge in connection with this part; because we believe, that, whether the reason given was or was not correct, the judgment must be affirmed. The case of *Deaver*v. *Rice, Adm'r,*&c., 4 Dev. & Batt. 431, is decisive of the question. It was there decided, that where, in a lease, either by parol or in writing, the rent is reserved to be paid in kind or in a part of the crop, the lessor has no lien on the crop, when raised, and, until a portion be set aside and apart to the lessor, the whole belongs to the lessee. In this case, the title to the crop of corn was in the intestate, and “the defendant” (in the .language of the Court) “had no right to take the corn, against the will of the owner.” His so taking it was a conversion, and gave the plaintiff a right to maintain the action. If, after the cro$was made, the lessee had refused to allot to the defendant his share, the latter could have maintained an action on the case for the violation of the contract.

In the course of the investigation of the case in this Court, it was urged, that the contract between the parties, as it respected the corn, was for an interest in the land, and, therefore, void under the Statute of frauds. *Rev. St. ch*50, *sec.*8. We do not think so. The agreement on the part of the defendant to receive his rent in a part of the crop, did not constitute an agreement on his part for any interest in the land during the lease, and, if, by any casualty, no crop was raised, he could have derived no benefit from his contract. This principle is decided in *Evans*v. *Roberts,*5 Bar & Cr. 829. There the question was, whether the verbal sale of a then growing crop of potatoes was a contract or sale of land, or any interest in *485or concerning them, within the 4th section of the Statute 29th, of Chaeles 2nd. The Court say it is not, but that it is a contract for the sale and delivery of things, which at the time *of*delivery would be goods and chattels. That was a much stronger case than this. The lease in this case was for one year, and although by parol, was good and valid. The rent being reserved in kind, that is, a part of the crop, the title to the whole crop when made was in the intestate Ross. It was contended by the defendant, that under the contract he was entitled to one half of the crop raised to pay his claims, as it was mortgaged to him for that purpose. The answer is, that the property, the corn, was not in such a situation, that it could be mortgaged. The plaintiff was entitled to maintain her action.

Per Curiam. Judgment affirmed.