
    CONVERSION OF PART OF CROP BY TENANT.
    Common Pleas Court of Montgomery County.
    Frank J. Liggett v. The American Cigar Company, Samuel Casson and Lucy Casson.
    
    Decided, July 23, 1918.
    Landlord and Tenant — Lease of Tobacco Land on Shares — Constitutes a Tenancy in Common — Custom of Locality as to Provision of Barns and Sheds — -Interest in Crop Transferred by Tenant to His Wife — Sale by Her of Part of the Landlord's Share — Purchaser without Title. ,
    
    A tenant of farm land on the basis of a division of the crops is a tenant in common with the landlord, and the sale by him -or his assignee of any part of the crop belonging to the landlord constitutes a conversion for which judgment will lie against both the -vendor and the vendee for the value of the crop so illegally sold.
    
      
       Affirmed by tbe Court of Appeals, April 5, 1919.
    
   Snediker, J.

In tbis' -case the plaintiff sues for the conversion of his interest in a certain crop of tobacco. Plaintiff is the owner of a farm in Miami township, this county. The defendant, Samuel Casson, since the first day of March, 1912, and until and during the year 1915, was the plaintiff’s tenant. . Prior to the entering into the possession of the farm by the defendant, Samuel Casson, a written farm contract was made by and between the plaintiff and Casson. By this contract, which, by the way, was drawn not by a lawyer but by a layman, it is provided: ‘ ‘ There must be fifteen acres of tobacco raised, half shared. The tenant gives half of tobacco and trash tobacco and also half of everything. Rails and lath in the tobacco shed left'in the building; tenant has no right to use for anything but tobacco. In selling of tobacco I must be consulted about price. We never want to divide the crop.”

This contract, with the provisions heretofore cited, was in existence and binding upon the parties during the year 1915. In that year the defendant, Casson, planted and harvested a field of tobacco of about fourteen and a fraction acres. A part of this tobacco was cured and prepared for market. Ten acres, as we remember, were cut, seven acres of which were housed in what Casson designated as a good shed, and three acres in a pole shed. The remaining four acres were uncut and left standing in the field. The excuse given by Casson for his failure to cut the remaining four acres was that there had not been provided by the plaintiff sufficient sheds for the purpose of housing the tobacco, and Casson’s claim is that there was a custom and usage in the vicinity of the farm and elsewhere to the effect that the landlord is required to build or supply proper shed or barn space for all crops raised by the tenant, including tobacco, to furnish rails and lath to the tenant to hang tobacco in the shed. It is on account of the alleged failure of the plaintiff to comply with this custom or usage that the controversy arises as between the plaintiff and the defendant with respect, not only to the four acres not harvested, but also with regard to the three acres that were put in the pole shed and to the balance which was stored in the good shed.

Subsequent to the cutting of the ten acres, and on November 8, 1915, Samuel Casson, for an alleged consideration of $500, sold and conveyed to Lucy Casson, his wife, personal property, included in which was his undivided one-half of sixteen acres of tobacco, and by siich conveyance he intended to include the tobacco here in question.

After the conveyance of this undivided half to her Lucy Casson sold to the agent of the American Cigar Company, and thereafter delivered to that company twenty-five boxes full of tobacco for a consideration of $827.36. All of the tobacco so sold to the American Cigar Company was of the best of the crop, and there was left upon the farm only three boxes full of tobacco, trash tobacco, and the uncut and depreciated tobacco in the field.

The division as made by Lucy Casson, who by the conveyance of her husband became the owner of the undivided one-half of the crop, carried out the idea of Samuel Casson to the effect that on account of the failure of the landlord to furnish proper sheds, and on account of his inability because'thereof to harvest and safely house the entire crop, the blame should fall upon the landlord, and for his interest he ought to be only entitled to take what was in the field, what was trash and so much of good tobacco as was necessary to make up one-half of the entire crop.

After the sale made to the American Cigar Company, the plaintiff sold the three boxes left upon the farm by these defendants and received therefor from his purchaser the sum of $96.99, which, as we understand, included the value of the cases in which the tobacco was contained.

This being a short statement of the facts, what were the rights of the parties in question with respect to the tobacco

The contract between the plaintiff and Casson, in our opinion, constituted á lease, the force of which was to make Casson a tenant of the plaintiff, with an agreement that there should be, among other things, a division of all the crops. “A contract by which the owner of land lets it to another for cultivation and agrees to receive as compensation a portion of the specific products, creates a tenancy in common between .them in such products.” 34 Ala., p. 167. The effect of such tenancy in common as was created by this contract is that “the ownership of the crop is in both landlord and tenant.” 21 W. L. B., page 249.

Being the owner of an undivided half of the crop, it was the privilege of Casson, if he saw fit so to do, to convey such undivided half to his wife, and whether or not the consideration for such conveyance was sufficient in amount for the property transferred, we need not now consider. When the tobacco was transferred to Lucy Casson she thereupon became, as her husband was before her, a tenant in common with the landlord, her interest being the undivided one-half of the crop. To this time the defendants, Samuel Casson and Lucy Casson, acted strictly within their rights. But after acquiring the title to the undivided half of the tobacco, Lucy Casson sold and conveyed the number of boxes heretofore mentioned to the American Cigar Company, and as and for her half did, as we have said, select entirely out of what was the best of the tobacco- for the purposes of such sale, leaving but three boxes, the uncut tobacco and the trash for the landlord, and this division was so made because of her husband’s complaint with respect to sheds. In so selecting the best part of the tobacco and appropriating it to herself for the purpose of sale, in our opinion, Lucy Casson was guilty of conversion in so far as she made an unequal division of the good tobacco.

While we think it is true that proof of the usage in the neighborhood with respect to the building of sheds by the landlord is competent for the reason that it does not vary but adds a term to the contract made between the parties, which is not contrary to any known statutory or common law provision effective with respect to the contract as it is written, still what was conveyed to Lucy Casson was an undivided one-half of the tobacco as it stood, and it was not her privilege to make a division except on equal terms with the landlord.

If there was a controversy as between her husband and the landlord in regard to shedding, Casson, contending that the usage was a covenant upon which he had a right to rely, was not entitled to do more than to resort to the courts to have' an ascertainment of his damage on account of the breach of the custom by the plaintiff. When Lucy Casson divided, or undertook to divide the tobacco in the manner in which she did she invaded the rights of the plaintiff. She committed conversion with respect to the plaintiff’s interest in the tobacco which she sold to the American Cigar Company. If the defendant, Lucy Casson, committed conversion when she sold the tobacco to the American Cigar Company, then to so much tobacco as she converted the American Cigar Company acquired no title as against this plaintiff. 11 O. Rep., page 364. And the American Cigar Company, so far as this transfer is concerned, can make no greater claim to innocence as a purchaser than the plaintiff may make to innocence as an owner.

The same principle of conversion where a purchaser buys personal property from one who is not the owner thereof, is carried into the cases of Brockhaus & Bro. v. Kline, 8 W. L. B., page 205, and the case of Hamet v. Lecher, 37 O. S., 356.

If the American Tobacco Company did commit conversion when it took from Lucy Casson property of which she was not the sole owner, then it is bound to account to the plaintiff for the value thereof, and our finding is in favor of the plaintiff as against the defendants Lucy Casson and the American Cigar Company, in the sum of $399.29. The trash tobacco which was left on the farm, being practically valueless, we do not take that into account in making our finding.  