
    Nathaniel Chandler versus John Thurston Junior.
    By a parol contract between B. and the plaintiff, B. was to cultivate the plaintiff’s land, find part of the seed, harvest the crop, and then take one half of it as a compensation for his labor, and deposit the other half in such place as the plaintiff should direct. Before the crop was harvested, B. absconded, being insolvent. It was held, that B. had not such an interest in the crop as rendered it liable to attachment for his debts.
    Trespass for breaking the plaintiff’s close, and for taking and carrying away therefrom a quantity of corn.
    The cause was fried before the late chief justice Parker. It appeared that the defendant, being a constable and having executions against John Bragg, entered upon the close in question, and cut the corn thereon standing and carried it away, and after keeping it four days and advertising it as the law requires, sold it by auction, and applied the proceeds to the satisfaction of the executions.
    The interest of Bragg in the corn depended upon a parol contract proved by the testimony of a witness, who was the agent of the plaintiff. The witness testified, that in April 1828, he contracted with Bragg to cultivate the plaintiff’s close. Bragg was to do the whole of the labor on the land, and to find one half of the seed, except the hay-seed ; and when the crop should be harvested, he was to take one half as a compensation for his labor, and deposit the other half in such place as the plaintiff should direct. He was to harvest the corn and thresh the oats, and then to make the division.
    It was determined by the jury, that the corn, at the time when it was cut by the defendant, was fit for harvesting, and that not more than Bragg’s proportion of it was taken, if it was lawful for the defendant to take any of it.
    Before the corn was so cut and carried away, Bragg had absconded, being insolvent, and the residue of the corn was harvested, and the oats were threshed, at the expense of the plaintiff.
    The judge being of opinion, that Bragg had not, at the time of the taking, such property in the corn as rendered it liable to attachment for his debts, the jury were so instructed, and they returned a verdict for the plaintiff for the sum which the corn brought at the auction. If the verdict was right, judgment was to be rendered thereon ; if otherwise, the verdict was to be set aside, and the plaintiff to become nonsuit.
    
      Oct. 8Ih.
    
    Merrick, for the defendant.
    The question is, had Bragg, at the time when the corn was taken, any property therein that could be attached by his creditors.
    The defendant contends that some portion of the crop was the property of Bragg, and was liable to the attachment. The judge proceeded on the ground of an entire contract for labor, as in Stark v. Parker, 2 Pick. 267 ; but the present case is more like that of Hayward v. Leonard, 7 Pick. 181. The plaintiff, having received a benefit from Bragg’s labor, the latter was entitled to a compensation. If more than his share was taken, the plaintiff’s remedy is not an action of trespass quare clausum.
    
    Bragg was tenant at will, and had a right to enter on the land for the purpose of cultivating it and gathering the crops, and the plaintiff had no right to interfere with him. The plaintiff therefore cannot maintain trespass. Taylor v. Townsend, 8 Mass. R. 411 ; Starr v. Jackson, 11 Mass. R. 519.
    Up to the time of the attachment Bragg had performed his contract, and though he absconded, non constat that the corn would not have been harvested by him. If he had carried the half now in question to his own barn, and afterwards had carried the other half to the plaintiff, the contract would have been performed without any breach.
    If there was not a tenancy at will, Bragg was at least a tenant in common or joint owner with the plaintiff, and if so, the action cannot be maintained by the plaintiff alone. Beaumont v. Crane, 14 Mass. R. 400.
    
      J. Willard, for the plaintiff.
    In order to come to a right understanding of the question, it is necessary to consider the nature of the interest which Bragg had in the corn, deduced from the original contract; and how far that interest was affected or destroyed by the circumstances appearing in the case. We contend that he had no such interest as would entitle him to an action of trespass quare clausum; none inconsistent with the plaintiff’s right of possession and actual possession. The weight of authority is, that only the owner of the land can maintain the action. Hare v. Celey, Cro. Eliz. 143 ; Hare v. Okelie, (S. C.) 1 Leon. 315 ; Bac. Abr. Trespass, C; Bradish v. Schenck, 8 Johns. R. 151 ; Co. Lit. 55 a, Hargr. note, 360 ; Bishop v. Doty, 1 Vermont Rep. 37. A different doctrine, in Bul. N. P. 85, is founded on a nisi prius case in Salk. MS., which is not an authority. In the cases where the grant of vesture or herbage gives the grantee an action of trespass, the owner of the soil is to have a certain compensation in money or other thing, and the property in the growing crop is exclusively in the tenant. Co. Lit. 4 b; Rehoboth v. Hunt, 1 Pick. 229 ; Worcester v. Green, 2 Pick. 429 ; Crosby v. Wardsworth, 6 East, 602. But in the case of a tenancy at halves, the owner’s rent, in amount, depends upon the crop itself, and an injury done to that lessens his rent, and is a direct and immediate injury to him. Jackson v. Brownell, 1 Johns. R. 272. But if the tenant could maintain this action, the owner of the land may also. Starr v. Jackson, 11 Mass. R. 519.
    If Bragg, however, had any estate in the land, it could be at most but a tenancy at will ; St. 1783, c. 37, § 1 ; Ellis v. Paige, 1 Pick. 43 ; and the whole law in regard to such a tenancy must apply. It must be at the will of both parties. Co. Lit. 55 a; Ellis v. Paige, 1 Pick. 43. If the lessee determines his estate by his own fault before harvest, as by being outlawed, absconding, waiving possession, or committing any act of desertion inconsistent with the estate at will, the lessor is entitled to the emblements. Oland's case, 5 Co. 116 ; Oland v. Burdwick, (S. C.) Cro. Eliz. 460 ; S. C. Gouldesb. 189 ; 1 Rol. Abr. 726 ; 4 Dane’s Abr. 747 ; 1 Cruise’s Dig. tit. 9, Estates at Will, c. 1, § 12, 19.
    If Bragg ever had an interest and a continuing interest, and ought to have joined, the non-joinder can be taken advantage of only by a plea in abatement. 1 Wms’s Saund. 291 g ; Bradish v. Schenck, 8 Johns. R. 151.
    The case of the creditor here resembles that of a parson in relation to tithes. The tithe is a debt due and payable upon a severance of the crop. The parson, who is in the nature of a creditor, cannot take, until the owner has set out every tenth sheaf, and he is liable to trespass if he severs and carries away the crop without leave. 3 Burns’s Eccles. Law, (7th ed.) 522.
    The contract with Bragg was entire, and he was not entitled to any compensation until he had performed all the labor required in harvesting the crops and making the division between himself and the plaintiff. Chitty on Contr. 272, 273; Stark v. Parker, 2 Pick. R. 267, [2d ed. 275, note 1 ;] Appleby v. Dods, 8 East, 300.
    If the property was liable to be taken by the defendant, the plaintiff would have been liable on a process of foreign attachment as the trustee of Bragg; but it is clear that if he had been summoned as trustee, he must have been discharged. Faxon v. Mansfield, 2 Mass. R. 147 ; Ellis v. Hamlen, 3 Taunt. 52.
    Bragg having abandoned the contract, the plaintiff had a right to rescind it; which he did, by bringing this action. Chitty on Contr. 275.
    
      July 1831
   Per Curiam.

The contract of Bragg in taking the land described, to cultivate, and to take one half of the produce as a compensation for his labor, may be regarded either as a contract to perform labor on the land of the plaintiff remaining in his own possession, and to receive his pay in produce ; or, as a hiring of the land for a term of time, rendering a rent payable in produce. In the former case, the contract being entire, to perform the whole labor of cultivating the land and harvesting'the crop, no right to a share in the property would vest in the laborer, until the labor stipulated for by the contract was completed. In the mean time, the possession being in the plaintiff, the property in the crop must necessarily follow the interest in the land, until by a sale or other contract, the property in the produce vests in another. Here by force of the contract, such property was not to vest, until the performance of the stipulated labor.

Regarding the contract as a letting of the land for the season, and the relation and interest of Bragg as those of a tenant, his interest was that of a tenant at will only. By force of our statute, (St. 1783, c. 37, § 1,) all leases or other interests in lands, created by parol, shall have the force and effect of leases or estates at will only. At common law, an estate at will is an estate at the will of both parties, and of course determinable at the will of either. Co. Lit. 55 a. As to what shall constitute a determination of the will of either party, and put an end to the tenancy, the acts and declarations of the parties amounting to evidence of such determination are various, and adapted to the various cases of tenances at will. But it is well settled that any act of desertion on the part the tenant, or any act of either party, clearly inconsistent with the continuance of an estate at will, amounts in point of law to evidence of such determination, and puts an end to the tenancy. Other rules are adopted to prevent such determination of the will, on the part of one party, from operating injuriously to the other, not material to the present question.

If Bragg was a tenant, having in that character the possession, this holding resulted by implication from the contract, and not by any actual letting to hire. The contract on his part was to cultivate the land and harvest the crop. He must necessarily for this purpose have access to the land, and whether such right of access was a license or a tenancy, in the view we have taken, is not material to the present question. Taking it to be a tenancy, it was so, by implication, for a particular object and purpose, and must therefore be deemed to be limited to the accomplishment of that purpose, and to extend only to such possession and for such time as might be necessary, pursuant to the terms of the contract, to raise and harvest the crop. But as Bragg, before the accomplishment of this purpose, before completing the labor stipulated for, absconded, without making any provision for its completion, we are all of opinion that this act amounted to conclusive evidence of a determination of his will, and put an end to his tenancy. From that time, the plaintiff was in as of his former estate, the property in the growing crop followed the interest in the soil, and was wholly vested in the plaintiff.

Nor had Bragg any interest in this crop, by way of enablements. We have already alluded to the rule, that neither party shall determine his will, to the prejudice of the other. Where therefore the will is determined on the part of the lessor, the lessee is entitled to tne growing crops, by way of emblements, and has a right of ingress or egress, for the purpose of taking them. But it is otherwise where the will is determined by the lessee himself. There the growing crops belong to the lessor. 1 Cruise’s Dig. tit. 9, Estate at Will, c. 1, § 12; Stewart v. Doughty, 9 Johns. R. 108.*

Whether therefore the contract of Bragg be regarded as a contract for services on the plaintiff’s land, payable in a certain share of the crop after harvest, or a letting to hire by the plaintiff to Bragg, we are of opinion, that upon the facts stated, Bragg had no interest in the property at the time of the attachment ; that in either view of the contract, the plaintiff was in the lawful possession of the premises, at the time the defendant entered to attach the property ; that the action of trespass quare clausum fregit is well maintained ; and therefore that there must be judgment on the verdict. 
      
       See Foot v. Colvin, 3 Johns. R. 216; Demott v. Hagerman, 8 Cowen, 220 ; Fort Ann v. Kingsbury, 14 Johns. R. 365.
     
      
       Chitty on Contr (4th Am. ed.) 458, note 1, and cases cited ; Hair v. Bell, 6 Vermont R. 35 ; Norris v Windsor, 3 Fairfield, 293 ; Hollingshead v. Martier, 13 Wendell, 276 ; Chitty on Contr. (4th Am. ed.) 451, note 3.
     
      
       See Hilliard’s Abr, 185.
     
      
       See Chitty on Contr. (4th Am. ed.) 292.
     
      
       See Lewis v. Lyman, 22 Pick. 437; 4 Kent’s Comm. (3d ed.) 118,119; Little v. Palister, 3 Greenleaf, 6.
     