#### Taylor, Appellant, vs. Donahoe, imp., Respondent.

*May 2*

October *3, 1905.*

*Crops: Ownership: Landlord and tenant: Cropper: Garnishment: Liar bility of garnishee of cropper: Chattel mortgages.*

1. The distinction between a tenant and a cropper is that a tenant has an estate in land for a given time and a right of property in the crops, and hence makes the division thereof between himself and the landlord in case of an agreement upon shares, while a cropper has no estate in the land nor ownership of the crops, but is merely a servant, and receives his share of the crops from the landlord, in whom the title is.

2. Whether a party occupies the position of tenant or cropper is always a question of construction of the agreement under which he is acting.

*5143. An agreement under which crops were raised nowhere referred to F., who put in the crops, as a tenant, hut specifically referred to his work as “service,” and expressly provided that D., the owner of the soil, should pay him' for his service by certain shares of the crops; that the possession of the land and ownership of the crops were to remain in D,, and' that F. was merely to he an employee in tilling the land and caring for stock. *Held,*that F. was a cropper.

4. In such case the fact that F. was to put some stock on the place and furnish certain seed and tools, and was given the right to use certain rooms in the house, did not change the relation between the parties, in the face of the definite and certain clauses of the agreement, and such agreement is not necessarily inconsistent with the fact that F. was a cropper.

5. In such case the garnishee of F., to whom he had delivered a portion of the crops, cannot be held liable, since he neither had . possession of any property belonging to F. nor was he indebted to him.

6. In such case a chattel mortgage, given by the cropper before division of the crops, would not make the cropper owner of any part of the crops.

JCebwih, J., dissents.

Appeal from a judgment of tbe municipal court of Rock county: Chables L. Fipield, Judge.

*Affirmed.*

This is a garnishee action. Tbe plaintiff, Taylor, sued Thomas Finnegan in justice court, and garnished one E. M. Calkins,. *Taylor*recovered judgment in the main action for '$138, damages and costs. The garnishee, Calkins, answered ■to the effect that in March, 1903, he purchased from *Donahoe ■■a*crop of tobacco for the agreed price of $753.74;, which was 'delivered to him by the defendant Finnegan; that he had paid 'one half thereof to *Donahoe,*and had in his hands the remaining half, $376.87, and that one Patrick Cullen claimed to own a part of said fund and *Donahoe*the residue; and he brought the $376.8.7 into court and demanded that Cullen and *Donar hoe*be interpleaded. Thereupon Cullen and *Donahoe*were interpleaded in the garnishee action, and trial was had in justice court and judgment rendered finding that Cullen was entitled to $157.96 of the fund, the plaintiff was entitled to *515$138, and *Donahoe*tbe balance, $80.91. *Donahoe*appealed to tbe municipal court of Eoek county from that part of tbe judgment awarding any part of tbe fund to tbe plaintiff. Upon tbe trial in tbe municipal court, without a jury, it appeared that about tbe 1st day of April, 1900, tbe respondent, *Donahoe,*and tbe said Thomas Finnegan made a written agreement for tbe cultivation of certain lands owned or controlled by *Donahoe*in Eock county, which agreement provided, among other things, that Finnegan was to cultivate tbe lands and do all tbe work of raising crops and caring for stock and marketing products, bis “term of service” to begin on April 5, 1900; also to furnish, besides’bis services, certain specified stock to be kept upon tbe farm, and seeds to be used, to repair fences and buildings, feed and care for all stock, and do all work in a good and busbandlike manner, to tbe satisfaction of *Donahoe.*Tbe agreement further contained numerous stipulations with regard to tbe sharing of expenses between *Donahoe*and Finnegan, and also provided that *Dona-hoe*should pay to Finnegan, “in full ’compensation for bis services” under tbe agreement, one third of all com, oats, bay, and apples, one half of all potatoes and tobacco, one third of tbe increase in live stock by breeding, and tbe produce of tbe dairy, which Finnegan agreed to accept in full payment for tbe raising of tbe crop, caring for tbe stock, and for all things furnished by him under tbe agreement. It was also provided that if Finnegan failed to perform the-services fully, required of him by tbe agreement, in tbe judgment of Donahoe, be (Donahoe) might hire tbe work necessary to be done and deduct tbe expense thereof from Finnegan’s share of tbe crops. It was further provided:

“Tbe possession of tbe said premises and tbe title to said crops until the same are divided shall be and remain in said first party [Donahoe] ; tbe said second parties shall be merely employed as bis employees in cultivating said land and caring for said stock.”

*516*Donahoe*was also to have tbe right to select tbe ground upon wbicb tbe various crops were to be raised. Tbe agreement was expressly characterized as a personal agreement,, and it was provided that Finnegan was to have tbe use of tbe dwelling-house upon tbe lands, except certain parts wbicb *Donahoe*reserved for bis own use. It further appeared that Finnegan entered and occupied tbe farm under this agreement and raised a crop of tobacco thereon; that *Donahoe*did' not reside on tbe farm during tbe term, and that tbe agreement was never recorded; that, after tbe crop of tobacco was-raised, Finnegan gave to Oullen, with *Donahoe’s*consent, a chattel mortgage upon an undivided one half of tbe crop of' tobacco, wbicb was duly recorded; that tbe plaintiff, *Taylor,*afterwards received from Finnegan a chattel mortgage upon the crop of tobacco to secure an antecedent debt, and that before taking bis mortgage be saw Oullen’s mortgage on file; that afterwards *Donahoe*sold tbe whole crop to tbe garnishee,, Oalkins, as bis own, and that be bad not at that time divided tbe crop; and that tbe tobacco was hauled to Calkins’s warehouse by Thomas Finnegan. Upon these facts tbe municipal court concluded that tbe entire sum paid into court was the-money of Donahoe, and that Oalkins was not indebted to Finnegan in any sum. Tbe court thereupon rendered judgment dismissing tbe garnishee proceeding, with costs, and *Taylor*appeals.

For tbe appellant tbe cause was submitted on tbe brief of' *Huger <& Huger.*

*Edward H. Hyan,*for tbe respondent.

Tbe following opinion was filed June 23,’ 1905:

WiNsnow, J.

Really tbe only question in tbe case is-whether *Donahoe*or Finnegan owned tbe crop of tobacco sold to Oalkins, and this question is answered when it is determined whether Finnegan was a tenant or a cropper. If a. tenant, be owned tbe crop; if a cropper, *Donahoe*owned it *517and was entitled to dispose of it. Tbe distinction between a tenant and a cropper is that a tenant has an estate in the land for a given time, and a right of property in the crops, and hence makes the division thereof between himself and the landlord in case of an agreement npon shares, while a •cropper has no estate in the land, nor ownership of the crops, bnt is merely a servant, and receives his share of the crops from the landlord, in whom the title is. *Strain v.*Gardner, 61 Wis. 174, 21 N. W. *35; Kelly v.*Rummerfield, 117 Wis. 620, 94 N. W. 649, 8 Am. & Eng. Ency. of Law (2d ed.) 324, 325. It is always a question of construction of the agreement under which the parties are acting. The agreement in question here seems to us to be very clear and definite upon the subject. It nowhere refers to Einnegan as a tenant, but specifically refers to his work as “service,” and expressly provides that *Donahoe*shall pay him for his services by certain shares.of the crops, and that the possession of the land and ownership of the crops are to remain in Donahoe, and that Finnegan is merely to be an employee in the tilling the land and caring for the stock. Language could hardly be plainer or more appropriate for the purpose of creating a cropper arrangement. The fact that Finnegan was to put some stock on the place and furnish certain seed and tools, and was given the right to use certain rooms in the house, cannot reasonably be considered as changing the relation between the parties, in the face of the definite and certain clauses of the agreement. These agreements are not necessarily inconsistent with the fact that he was an employee or cropper. It follows that, when the garnishee summons was served, Calkins neither had possession of any property belonging to Einnegan nor .was he indebted to him, and hence could not be held liable as garnishee. Even if the mortgage given by Einnegan to *Taylor*were to be held valid, the result would not be different, for this fact would not make Calkins indebted to Einnegan, or make Einnegan the owner of any *518part of the crop before division thereof by *Donahoe,*and there is no evidence that any division of either the crop or the proceeds was ever made.

*By the Qourt.*— Judgment affirmed.

Kerwot, J., dissents.

A motion for a rehearing was denied October 3, 1905.