
    [No. 5668.]
    WENTWORTH & OSBORN v. MILLER & LUX.
    Sam of Grain by Lessee of E arming Land. — Where a lessee of farming land agrees to-pay the lessor a part of the crop as rent, and to give the lessor possession of the whole crop until the rent is paid, a sale of the crop hy the lessee does not pass the title as against the lessor.
    Appeal from the District Court of the Twentieth Judicial District, San Benito County.
    The action was trover for the value of eighty-eight thousand two hundred pounds of wheat and thirty thousand pounds of barley. The answer denied the conversion. The Court found that the defendants had leased certain farming lands of which they owned the fee to one Pool, under an agreement that Pool should pay one-fourth of the crop as rent, and that the possession of the crop should remain in the lessors (the defendants here) until the rent had been paid; and that before paying the rent Pool executed to the plaintiffs a bill of sale for the grain in controversy, and delivered the grain' without removing it to the plaintiffs, who marked it and put an agent in charge of it in the field. Subsequently, upon learning of the transaction between Pool and the plaintiffs, the defendants took the grain from the agent and removed it to their warehouse. Judgment was rendered for the plaintiffs, and the defendants appealed. .
    
      W. S. McPheeters, for Appellants.
    N. C. Briggs and J. J. May, for Respondents.
   By the Court :

Whatever may be the character of the instrument recited in the findings and denominated a lease, it is clear that by the terms of the contract the grain, after it was cut, was under the control of defendants, and in so far as it was in possession of the lessees, so called, was in their possession simply as servants of defendants.

The purchasers from the lessees acquired no other or greater interest in the grain than that of the parties named as lessees, and could assert no right to the possession as against the defendants.

Judgment and order reversed and cause remanded. Remittitur forthwith.  