
    
      L. M'Laurin, administrator, v. J. B. M'Coll.
    
    The com and fodder, the product of the intestate’s farm, a tract of land which he had, by deed, conveyed to his son, the defendant, in 1837, but of which he retained possession to liis death, in August, 1845 — were held to be unquestionably his goods and chattels, to which the plaintiff, as his administrator, was entitled.
    The emblements growing oil land, at the death of a tenant, do not appertain to the land, and go to the owner of the freehold. They belong to the executor or administrator of the tenant. Bouvier Law Die. Title Emblements.
    Where plaintiff’s intestate had, by deed, conveyed a tract of land to his son, the defendant, but had retained possession for life, and had worked it jointly with the defendant, each contributing a certain number of negroes, — the Court held that the crop could not be regarded as co-partnership property — that the most the defendant could claim was to have his share deducted from the aggregate-,, (if any he was to have by agreement;) that after deducting it the plaintiff should have a verdict for the balance, with interest on the value thereof from the time of the conversion — and that the hire of the negroes, (if used by the defendant in his own business,) from the death of the intestate to the last day of December, or until the intestate’s crop was actually gathered, (if that were sooner than the last day of December,) with interest on the same, the plaintiff was unquestionably entitled to recover. Vide Lenoir v. Sylvester-, Young v. Same, 1 Baxley, 645.
    
      Before Frost, J. at Marlborough, Extra Court, July, 1847.
    This was an action of trover for seven slaves, Rhody, Andrew, Aleck, Beck, and. her children Harriet. Charles, and an infant; also for two mules, five horses, 30 head of cattle, 3 cwt. bacon, a wagon and cart, and also for the corn and fodder.
    The intestate died possessed of the property in dispute.— The other children of the intestate having been provided for, the defendant remained and worked for his father till he was married. The intestate had, in 1837, by deed, given the tract on which he resided to the defendant; and defendant subsequently acquired four negroes by his marriage. The negroes of both worked jointly the intestate’s farm and the defendant’s in North Carolina, under their joint superintend- ' ence. The horses, mules and wagon, were also employed for both crops. The fodder, corn and bacon, were the produce of the farm on which the intestate resided. He died in August, 1845.
    The defendant claimed the chattels sued for, by the gift of his father, by a deed dated 18th August, 1843, attested by one witness. The intestate, “ in consideration of love and natural affection,” did “ give and deliver” to the defendant, Rhody, aged about 55 years, JBett, aged 18 years, and her child Harriet, aged two years, Andrew, Kate, and her children Minty and an infant; also all his stock of hogs, cattle, horses and mules, with this reservation, “ all of which shall be subject to my control during my natural life, and also my wife, Mary M’Coll, during her natural life — to have and to hold to the said John B. M’Coll, his heirs, assigns, executors and administrators, forever; discharged of any and all in-cumbrances whatsoever; and for the better securing of the title hereby conveyed, I, for myself, my heirs, executors and administrators, to and with the said John B. M’Coll, his heirs, executors, administrators and assigns, do forever warrant and defend the same from the lawful claims of any and all persons whatsoever.” The deed was recorded after the death of the donor, and its existence was not known to his friends and neighbors during his life. He. continued in possession of the land and negroes, apparently as owner, and had credit as owner. In April, 1845, he sold Minty. The defendant afterwards knew of the sale, and has never made any claim for the girl. In November, 1844, he also sold two slaves, Kate and Elizabeth; and told the purchaser, at the time, there was no incumbrance except a deed of gift to the defendant, or David M’Coll; the witness did not recollect which. The deed was destroyed in the presence of the purchaser, and he completed the contract. The witness thought the defendant was present and knew what was done. It was questioned whether either of these slaves was included, in the deed under which defendant claims.
    The wagon was proved to have been in defendant’s possession, and kept on his place during the intestate’s life, and defendant then said his father had given it to him. It was worth little until repaired by defendant. There was some evidence of the intestate’s acknowledgment that the wagon was defendant’s. It was not proved that the cart was in the defendant’s possession or demanded of him.
    Rhody was old and rheumatic, and Aleck a crippled child— most of the witnesses regarded them as incumbrances.
    The delivery of the deed of gift to the defendant, which was much contested, was submitted to the jfiry as a question of fact. The grounds of appeal do not require a report of the evidence and instructions on this subject.
    It was contended that the instrument of gift was testa-nrentary, and void, because attested by only one witness ; but the jury were instructed that it was not testamentary in form or legal eífect; and, if it had been delivered, operated as a deed ; that by deed, without the intervention of trustees, a remainder in chattels'may be limited after an estate for life; and that, even if the reservation by the donor of the “ control” during his “ natural life” should be construed to be the reservation of a life estate, the remainders granted to the intestate’s wife and to the defendant, vested in them valid legal estates; so that the interest of the intestate in the slaves- and other property included in the deed of gift, was determined by his death, and the plaintiff had no legal title to them.—
    These instructions comprehend the first four grounds of appeal.
    It was affirmed that the crops growing at the time of the intestate’s death were, in law, identified with the land, and .pertained to the defendant, as owner of the soil; and that the interest which, from the evidence, See. it might appear the intestate had in the crops, was of a co-partnership character, and not the subject of an action of trover. In explanation of this view of the case it was added, that if the plaintiff had any claim arising from the reservation of a tenancy for life by the intestate, it was for the hire of the negroes, which could not be recovered in this action — no claim for hire was made in the conduct or argument of the case.
    The chaim for the wagon was submitted to the jury on the evidence.
    The verdict was for the defendant, and the plaintiff appealed, on the grounds annexed.
    1st. That the paper under which the defendant claimed the property in dispute, was testamentary in its character, and having but one subscribing witness, was therefore void.
    2d. That the deed under which the defendant claimed, conveyed no title to him of the property in controversy.
    3d. That his Honor should have instructed the jury that the deed under which defendant claimed, was void as a conveyance to the defendant.
    4th. That the jury were charged, if the deed for the ne-groes was delivered, the plaintiff could not recover, as the rights of his intestate were divested by the deed so delivered.
    5th. That his Honor charged the jury the plaintiff could not recover the corn and fodder, because they were produced on the land conveyed to the defendant by the plaintiff’s intestate.
    6th. Because the Court charged that the hire of the negroes, from the death of the tenant for life, could not be recovered in this form of action.
    2 Strob. Eq.
    2 Bail. 581.
    Lenoir v. Syl-Bail. 645.
    
      Dudley, for the motion,
    
      David, contra.
   O’Neall, J.

delivered the opinion of.the Court.

The four first grounds of this appeal are concluded by the judgment of the Court of Errors, in the case of Jaggers V- Estes. Upon the other two grounds we think a new trial must be granted.

The com and fodder, the product of the intestate’s farm, a tract of land which he had, by deed, conveyed to his son, the defendant, in 1837, but of which he retained possession to his death, in August ’45, was unquestionably his goods and chattels, to which the plaintiff, as his administrator, was entitled. The emblements growing on land, at the death of a tenant, do not appertain to the land, and go to the owner of the freehold. They belong to the executor or administrator of the tenant. Bouvier’s Law Die. Tit. Emblements.

Nor can the crop be regarded as a co-partnership property. The intestate was in the possession of the land, and must at least be regarded as tenant from year to year ; most of the slaves employed in the crop, the mules and horses, belonged to him for life: the defendant worked his own slaves with those belonging to his father for life, on his (the defendant’s) land in North Carolina, and on his father’s farm in South Carolina. Both places were under their joint superintendence. The most the defendant can claim is to rank, as a cropper, on the South Carolina farm, with the intestate, and have his share deducted from the aggregate of the crop.— This is indeed, perhaps, allowing him more than he can le-gaily demand. For, according to Rogers v. Collier, the whole crop is the property of the intestate, and the defendant’s interest in it is a mere chose in action, constituting a personal demand on the intestate. But to end this litigation, it is better to ascertain the share of the defendant in the crop, (if any he was to have by agreement,) and after deducting it, let the plaintiff have a verdict for the balance, with interest on the value thereof from the conversion. The hire of the negroes, (if used by the defendant in his own business,) from the death of the intestate to the last day of December, or until the intestate’s crop was actually gathered, (if that sooner than the last day of December,) with interest on the same, the plaintiff is unquestionably entitled to recover.

The motion for a new trial is granted.

Richardson, J. and Evans, J. concurred.  