
    12336.
    Welch v. Lindsey.
    Decided June 14, 1921.
    Trover; from city court of Tifton — Judge Price. March 7, 1921.
    
      Fulwood & Hargrett, for plaintiff in error.
    
      Smith & Christian, contra.
   Broyles, C. J.

1. An action in trover will lie where the relation of landlord and cropper exists, the title to all the crops on the rented land being in the landlord until there has been an actual division and settlement. Harley v. Davis, 7 Ga. App. 386 (66 S. E. 1102); DeLoach v. Delk, 119 Ga. 884 (47 S. E. 204); Civil Code (1910), §§ 3705, 3706.

2. Where a person who has actual control of land but does not own it contracts as landlord in her individual name with a cropper who, although knowing she has no title to the land, deals with and recognizes her as his landlord, a suit in trover can be maintained by her to recover crops grown on the land and converted by the cropper before actual division and settlement between them. See, in this connection, Clark v. Long, 25 Ga. App. 807 (105 S. E. 654), and authorities cited.

3. The evidence in the instant case authorized a finding that the plaintiff, although not the owner of the land and known by the defendant not to be the owner, had the entire control and management of the land, and that she contracted in her individual name with the defendant, and that the relation of landlord and cropper existed between them during the year 1918, and that the cropper had converted to 'his own use the corn grown upon the land (the property sued for) that year, before there had been an actual division and settlement between him and his landlord.

4. The special grounds of the motion for a new trial, based upon alleged newly discovered evidence, cannot be considered, since section 6086 of the Civil Code (1910) provides that “it must appear by affidavit of the movant and each of his counsel that they did not know of the existence of such evidence before the trial, and that the same eould not have been discovered by the exercise of ordinary diligence [italics ours]; and no such affidavit of the movant is attached to the motion in this case. Smiley v. Smiley, 144 Ga. 546 (3) (87 S. E. 668).

5. The verdict was authorized by the evidence, and, the finding of the jury having been approved by the trial judge, this court is without authority to interfere. Judgment affirmed.

Luke and Bloodworth, J.J., concur.  