
    G. G. Broyles vs. V. C. Lowrey.
    
      /I. Contract. Personal property; when the contract is complete. In a contract for personal property — the property is at the risk of the buyer, whenever he agrees at the proper time to give the price that the seller proposes to take, if no conditions are annexed in the contract, even without delivery or tender of the price. If one party says “I will take” and the other, “I will give,” or vice versa, and nothing more, the trade is complete. In such case, however, the consideration is due instantly, ■ and the vendor is not bound to deliver the property until the money is paid or tendered, nor can the price be recovered without a delivery or offer to deliver the property: each party is thus secured in the benefit of his contract. Vid. Potter vs. Cowan, Meigs' R.,’ 26.
    
      2. Same. Same. Same. Where the vendor desires to retain the right to the property,’ until the payment of the price, or to affix any other conditions, he must do so at the time of the contract. If he fail to do this, the right passes as soon as the trade is struck, and all claim to the property has gone from him. Yet if the vendor has the possession, he is not bound to part with it, where the price is due instantly,' as it is where no time is given} but this right does not affect the- question of the title either in the vendee or a purchaser under him.
    FROM WHITE.
    This was an action of trover, brought by Lowry ■ against Broyles for the seizure and conversion of certain corn claimed by Lowry under purchase from Graham. Broyles had rented a field to Graham to be cultivated in corn, one third of the crop to be paid to Broyles as rent. "While the corn was standing in the field, Broyles proposed to Graham that he would give him $100 for his interest or sell his own for $50; Graham asked time to consider of the proposition, when Broyles demanded an immediate answer. Graham hesitated, and Broyles rode off. During the afternoon of the same day, Graham sent his son to Broyles with a reply, that he would give him the price he asked for his interest: Broyles replied, “well.” No money was paid, but Graham soon after sold some of the corn to Low-ry, who tipon proceeding to gather it, found that Broyles had gathered most of the portion he claimed, whereupon this suit was instituted before a magistrate of White county, to recover the value thereof. Pending the suit, Graham tendered to Broyles the money agreed to be paid, which he declined. There was judgment before the justice for the plaintiff, Lowry, and an appeal by defendant to the circuit court of White, where the matter was submitted to a jury before judge Goodall, at the May term, 1854; resulting in a verdict and judgment for the plaintiff, from wfiich the defendant appealed in error to this court.
    TukNby, for the plaintiff in error,
    cited 2 Blac. Com. 362.
    GaedeNhebe, for the defendant in error,
    cited 2 Kent, 450, 492. Story on Sales, §§ 236, 240, 311. 3 Hump. 542. Meigs’ K., 26. 9 Hump., 231. 1 Greenl. §§ 22, 207, 271.
   Caruthees J:,

delivered the opinion of the court.

Broyles rented land to John H. Graham for one-third of the corn produced. 'Before the crop was gathered, he proposed to give his tenant $100 00 for his share, or take $50 for his own, and gave him that day to decide which he would do, and on his return from Smithville, the same evening, Graham, through his son, agreed to give the $50 for' his one-third, to which he said “well.” Nothing more was said — no time of payment was designated, or any money tendered or demanded. Graham thereupon sold the corn as it stood, in the field, except a small portion, which he had gathered, to the plaintiff, and received a part of the consideration. Not long after this sale, Broyles went to the field with his wagons and hands and gathered and hauled off one-third, of the rows of corn,, and for that this action of trover was brought..

The only question presented is, whether the title to the corn passed to Graham by this contract? It is insisted that it did not, because no time of credit was agreed upon, and no tender of the money made, which it is argued, is necessary to pass the right to property, where no actual delivery is made.

We do not so understand the law. Personal property belongs to, and is at the risk of the buyer, whenever he agrees, at the proper time, to give the price that the seller proposes to take, if no conditions are annexed in the contract, even without delivery or tender of the price.

If one party says “I will take” and the other,” I will give” or vice versa, and nothing more, the trade is complete. Potter vs. Conrad, Meigs 26. True, the consideration is due instantly in such a case, and the vendor is not bound to deliver the property, until the money is paid, or tendered. Nor, on the other hand, can the price be recovered, without a delivery, or offer to deliver the property: Each party is thus secured, in the benefit of his contract. Story on Sales, 276. 7 East, 571. 2 Kent, 1&2. Chitty on Con., 374-5. If the seller desires to retain the right to the property, until the payment of the price, or to affix any other conditions, he must do so at the time of the contract. If he fails to do this, the right passed as soon as the trade is struck, and all claim to the property has gone from him. Yet, if the seller has the possession, as we have seen he is not bound to part with it, where the price is due instantly, as it is where no time is given, but this right does not affect the question of title either in the vendee, or a purchaser from him. These principles do not apply to sales, which are regarded as imperfect, because, something still remains to be done by the vendor, in relation to the property. Story on S., 274.

But in the case before us, Broyles never had any title to the specific property sold, but only a lien upon it for his rent, which could be only enforced after judgment, against his tenant, nor was he ever in the possession, that was in Graham, the vendee.

The rules then in the books, which are referred to, and relied upon by the counsel for defendant, on the subject of delivery of property sold, have no application to this case.

Any right Broyles had to the growing and ungath-ered crop, was extinguished by the contract of sale, and Graham could and did pass a good and perfect title to the corn, unlawfully taken, and converted by the defendant. .

The plaintiff could well, therefore, sustain this action, for a wrongful conversion of his corn.

Let the judgment be affirmed.

The case of Graham vs. Broyles submitted to us with this, is an action of trespass for unlawfully entering upon the rented premises, taking the corn and other injuries, on which there was a recovery of damages below. It is correctly admitted in the argument to depend upon the same question, that is, the validity of the sale. So that will also be affirmed.  