The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1866-02-01

| ment, it was matter of law-not of fact
whether the plaintiff had property
in the wheat or not. And again, II was
not material whether the wheat was
sowed for the defendant, who was mere
incoming tenant. If it did not belong
to the plaintiff, it was enough. In trover,
plaintiff must recover on his OpN title
If he does not olrR what he sues for, he
cannot recover q Starkie's Evi, p. s3l
title Trover. -
Fourthly: The Court erred in refus'
ing to give the instruction requested,
and which is mentioned in the second
bill of exceptions. See Leigh, 632 vs..
Carson. This case shows that the court
erred in every particular complained oi
1t was a case of written contract ana
lease, and much like the present enc,
but more in favor of the tenant than thus
one is. 1t decides that where land IS
leased for a fixed and determined period
the oft-going tenant is not entitled to
the way-going crop" and that usage or
other evidence is net proper to explain
a written contract OF lease for a certain
period" 1t shows that the court erred
in refusing to expoUnd the contract
and in refusing to give the instruction
the defendant requested, and also in
sending it to the jury to decide whether
the wheat belonged to plaintiff or defend
ant
ARGUMENT FOR PETITION.
i respectfully request TO be excused
for appending short argument IN sup
port Of the petition In Harris VS. Car
son, Judge Cabell, who delivered the
opinion of the court, says: There is
nothing in the lease purporting to give
to the tenant any interest in the land,
or in the crops upon it, after the termin.
alton of the lease" that the lease hav
ing fixed and certain period for its ter.
unination, it is clear bevond doubt that
the oF.goiNg tenant had no right at COM
mon law to any crops growing on the
land after the termination OF the lease,
although sown during his possession
page 637) In our case, it is clear that
the written lease restricted Todd as to
the manner of cultivation, and how or
what crop he was to leave on this partic-
ular parcel of ground at the END OF the
lease 1t was meadow when the lease
commenced. and he was TO leave 1t SOW
ed in ,cheat and timothy Why Simply
that it might be meadow again. And
this clause requiring him, the fAl before
the lease ended, to SOW 1t down IN
wheat and timothy" was nothing more
nor less than the method between the
landlord and tenant, prescribing h0iC IL
was to be again put down IN meadow
and this is common mode OF putting
plowed land down in meadow. The lease
SAYS that "this clause, and some others
of like kind !" was an restriction OF no"
Todd should cultivate the farm but 10
give it the effect here contendsd Tor by
plaintiff was, In fact, to enlarge ledds
terms
This lease does not say that Todd was
TO have the wheat, or the right to cut 1t.
If he might cut the wheat, why not also
the grass or timothy In Harris VS.:
Carson, there was written lease, ana
with apparently stronger clauses IN Ia
vor of the tenant as to the itay-gotHg
crop than this one has In this case
Judge Cabell says. on page 633 but
as to the question whether the tenant
should be entitled to the crop which
may be growing on the demised premls-
es at the expiration of the contract, the
lease uas trhOlly silent"
So here AS Todd's lease and right
expired, by his agreement, on the 3lst OF
March, 1864, to give him rights till July
afterwards, and to take the wheat, re-
uuired that the contract should say so.
He sowed this wheat because his con-
tract bound him TO do so, and his agree
ment to do so was part of the considera-
ton which led the landlord to give him
the lease Such a contract was natural
and proper, and to the benefit OF hus-
bandry; but to make it give the wheat,
and the use of the land, after the expi-
ration of the term, to Todd, is to rio'ate
the rules of law, and rrOng the lessor.
Asitis fixed and settled principle OF
law With us, that the tenant is not On.
titled TO the crop which may be grow
ing at the expiration OF the lease, he can
not, because ne sows, take it, unless his
contract say so See COmyn on Land
lord aud Tenant, p. 800, marginal page
This work is found in the 9th volume OF
the Law Library See top of page POI
4 JACOB
II->,F u I7uI