
    Lowe v. Miller.
    July Term, 1846,
    Lewisburg.
    (Absent Brooke, J.)
    146 Am. Dec. 188.]
    1. Trover — Tenants in Common . — Trover lies by one tenant in common of a personal chattel, against his cotenant, for the appropriation of the chattel to his exclusive use, where the chattel is of such a nature as to be necessarily destroyed by the use thereof.
    2. Leases — Construction of — Case at Bar. — L. being in possession of land to which he has no title, but which he is authorized to rent out for his own benefit, makes a written contract with A. to let to him the land for a year upon the terms, that L. shall find the tools to work the land and the seed to sow it, and A. shall board himself and family, work the crop, and when it is gathered give one half of it to A. Held: This is not *10 be considered a lease rendering rent in kind, as the reservation of the one hall' of the crop was not incident to the reversion, and consequently gave no right of distress. Bnt the contract constitutes the parties joint tenants of the crop raised.
    This was an action by Joshua Lowe against Brice Miller, in the Superior Court of Monroe county, to recover the value of a quantity of corn, which the plaintiff alleged belonged to him, and had been taken, and converted to his own use, by the defendant. The declaration contained three counts. The first and second were special, setting out the facts, the third was in trover.
    On the trial of the cause, it appeared: That in March 1838, the plaintiff Joshua Lowe lived upon a tract of land which belonged to his father Zadoc Lowe; and by the authority of his father, and for his own benefit, he by written agreement under seal, let the land to a certain William S. Athy for one year, who was to have the privilege of keeping it for another year, upon the terms that Joshua Lowe should find the tools for working the place, and the seed sown upon it, and the feed of the horse worked upon it; and that Athy should board himself and family at his own expense; do all the work in the crop, and when the same was gathered, should give to said Lowe the one half of all that was made on the farm.
    After Athy had entered upon the premises, he assigned his lease to Baldwin Lowe, who bound himself under seal to execute the agreement on Athy’s part. Afterwards Baldwin Lowe transferred the lease to Wilson Lowe, who made a contract with the plaintiff to occupy the premises under said lease, and to perform the stipulations therein contained, as they were to have been performed by Athy. Wilson Lowe accordingly, occupied the premises, and raised a crop of oats and corn. On the 22d of April 1839, Zadoc Lowe, the father, conveyed. the rented premises to Wilson and Sarah Lowe, *by deed in fee: and on the 29th of August of the same year, they conveyed the said premises to the defendant Miller, who had notice of the lease. He took possession of the premises, and gathered the crop of corn growing thereon at the time of the conveyance to him, and appropriated it to his own use. Whilst the defendant was gathering the corn, the plaintiff demanded of him the share to which the plaintiff was entitled under the contract with Wilson Lowe, but he having purchased the whole crop from Wilson and Sarah Lowe, refused to deliver it. Upon this state of facts, the defendant moved the Court to instruct the jury: “That if they should believe from the evidence in the cause that the defendant purchased the crop of corn in the declaration referred to, from the said Wilson and Sarah Lowe, for a bona fide consideration, that then, the plaintiff cannot recover in this action.” Which instruction, the Court gave. Thereupon, the plaintiff moved the Court to instruct the jury: “That if they believed from the evidence, that at the time the defendant bought said corn from Wilson and Sarah Lowe, he had notice of said lease, he could not be regarded as a bona fide purchaser thereof; and his purchase would be no obstacle in the way of the plaintiff’s recovery.” This instruction the Court refused to give, but instructed the jury: “That it was immaterial whether the defendant had such notice or not if he paid a bona fide price for the corn.” To the opinions of the Court giving the instructions asked for by the defendant, and refusing that asked for by the plaintiff, the plaintiff excepted; and the jury having found a verdict for the defendant, and the Court having-given judgment thereon, the plaintiff applied to this Court for a supersedeas, which was allowed.
    The cause was argued in this Court in writing, by Price, for the appellant, and Caperton, for the appellee.
    *Price, for the appellant.
    I do not deem it material to discuss the question whether the plaintiff could have distrained for the rent or not. The appellee’s counsel apprehends that he has proved that a distress could not have been maintained; and for the sake of the argument, I will concede for the present that he is right. This, however, is not a proceeding of that sort.
    He has also endeavoured to prove that trover cannot be maintained for the corn due the plaintiff. If he be right in this also, I ask, then, what form of action must be adopted? The answer must be, case. Here is clearly a wrong, and there must be a remedy.
    Is the appellee right in assuming that trover cannot be maintained? The plaintiff was the landlord of Wilson Lowe; Wilson could not question his title; and if he had been in a situation to question his title, such an enquiry would have availed him nothing; for he had full authority to rent for his own benefit: and that was title enough. The agreement was, that Wilson was to occupy the premises, and the plaintiff was to have one half of the corn, &c. He raised the crop of corn, amounting to several hundred bushels. He and Sarah Lowe then sold the crop to the defendant; who bought with full knowledge of the lease, and the rights of the plaintiff under the lease. When the corn was gathered, the plaintiff demanded his moiety, and it was refused to him. Here, then, was clearly a conversion ; and the only question remaining is, had the plaintiff such title to the corn as would sustain his action7 The corn was as much the property of the plaintiff as it was of Wilson Lowe; and the defendant, being a purchaser with notice, took no other interest than that which Wilson held. This, indeed, would have been the case whether the defendant had notice or not. The plaintiff was to have one half of all that was raised. He was therefore the joint legal owner of the whole crop. He had as*good a title as Wilson had; and this title continued in him until the property was converted. He had a general property, and the right to immediate possession; which is enough. 1 Chitty’s P. 157, and authorities referred to in note (3) 2 Greenl. Rv. ? 636, note 4.
    I do not conceive it to be necessary to labour the question whether trover can be maintained or not; for I think case can: and case is the form of the action. It must be conceded that the plaintiff had some sort of right to one half the crop of corn. Call it perfect or imperfect, or by whatever other term you may, it was the contract that he should have half the crop. He did not get that which he was clearly entitled to. He did not get it because of the improper act of the defendant. The defendant converted the property, with knowledge at the time he bought it, of the rights of the plaintiff.
    A different question from the true one is raised and argued by the counsel for the appellee. He says that it was not improper in the defendant to purchase corn of Wilson Lowe, with a knowledge that Wilson was to pajr his rent in corn. But I ask if it was not improper in the defendant to buy the whole corn, and convert it to his own use, when he knew that one half of it belonged to the plaintiff? This certainly was a direct invasion of the plaintiff’s rights. 1 Chitty’s PI. 139-40; Hall v. Pickard, 3 Camp. R. 187; 1 Bac. Abr. 87; which refers to Carth. 3, 4, Smith v. Tunstall; Meredith v. Johns & Benning, 1 Hen. & Munf. 584.
    The Court, in the instruction which it gave, seemed to think that a purchase of the crop for a bona fide consideration, was sufficient to defeat the action. Now, I submit to the Court, whether it was material what the consideration was, if the purchase itself was mala fide. No price would make a fraudulent purchase valid. It is the fairness of the purchase, and not the price, which makes the contract binding.
    *'The Court must have relied upon the 2d section of the Act of Assembly, Sup. R. C. 254, in support of the instructions which it gave. But as this is a common law action, it is humbly submitted to the Court whether that law can have any influence upon the case.
    The appellee’s counsel relies on the Acts of Assembly, 1 Rev. Code 449, $ 12; and Sup. Rev. Code 256; to shew that rent reserved in a part of the crop can as well be distrained for as rent to be paid in money. But if he is right in another part of his argument, that the plaintiff could not have distrained at all, because he had not the reversion in the premises, this argument and this law can have but little application. And whether he was right or wrong, as this is not a proceeding by distress, it is submitted whether it can have any influence.
    A distress is not levied necessarily on the crop. It may be levied on any property of the tenant; and thus to compel him to pay the rent.
    Caperton, for the appellee.
    To maintain trover, it is necessary that it should appear that the plaintiff had either an absolute or special property in the goods which are the subject of the suit. Pyne v. Dor, 1 T. R. 55. Had the plaintiff in this cause a property in the corn either general or special? The contract between him and Wilson Howe was a contract of renting. The design of it was not to acquire a property in the corn; and if such had been the design, he could not have acquired either a general or special property in it, until it had been delivered. Mucklaw v. Mangles, 1 Taunt. 318.
    The appellant’s counsel, however, draws a distinction between the case of rent reserved in money and rent reserved in a portion of the crop; and insists that while in the case of a money rent, the lessor could only resort to the usual modes for the recovery of rent, there are other remedies to which the lessor may resort, in the *case of rent reserved in a portion of the crop; because by the terms of the contract, a portion of the crop belongs to him when gathered. The Legislature has recognized no such distinction. Both classes of contracts are placed upon the same footing. Whether pa3Table in money or property, it is equally rent, for which the remedy by distress has been provided. 1 Rev. Code 449, 'i 12. Supp. Rev. Code, p. 256. Sessions Acts of 1834, p. 76.
    If the effect of a contract for rent to be paid in a portion of the crop, were to invest the lessor with a property in that portion, for which he could maintain detinue or trover, it would seem to have been unnecessary, and almost idle in the Legislature, to have provided for its recovery by distress.
    Taking the facts proved, do they shew any right of action by the plaintiff against the defendant? Before one person can be held liable to another in any form of action, it must be shewn that he has done some improper act, or been guilty of some improper omission, which has worked injury to the person, property or rights of the person complaining. Now what is the injury complained of here? It is not shewn that the corn which the defendant is charged to have converted to his own use was the property of the plaintiff. Such a claim is not positively asserted, and certainly not proved. The defendant could not then be complained of for not complying with a demand which the plaintiff had no right to make.
    But the defendant purchased corn of the plaintiff’s tenant with knowledge of the fact that the tenant had undertaken to pay his rent in corn. There was surely nothing improper in that act of the defendant. It is not alleged that he obtained it fraudulently. Where then is the injury to the plaintiff? He had no right of property which was invaded by it. Had he any other right which was obstructed or impaired by the act of the defendant? ^Suppose he had the right to distrain this corn, as well as the other property on the premises, for his rent? The corn was not taken from the premises; and this remedy might still have been resorted to. If there was any impediment to it, that impediment was not the consequence of the defendant’s purchase of the corn from Wilson Lowe; but of the conveyance of thé fee to Wilson, in the preceding April, by Zadoc Lowe.
    But the right to the distress did not exist at the time of defendant’s purchase of the corn; and so far as the plaintiff was concerned, never did exist. The plaintiff was not the owner of the reversion; and, (without looking to the fact that the relation of landlord and tenant had been destroyed by the execution of the deed by Zadoc to Wilson Lowe,) the doctrine, (as settled by the old law writers, and sanctioned by recent decisions,) is, that he who has not the reversion cannot distrain unless the power to do so is expressly provided in the contract. See Co. Lit. 143; Bradby on Distress 24; and Prescott v. De Forest, 16 John. R. 159. If then there was right of distress, the plaintiff could not have sustained injury in that respect; and there being no injury to his person, property or rights, there can be no ground for his action.
    
      
      Trover. — See monographic note on “Trover and Conversion” appended to Eastern Lunatic Asylum v. Garrett, 27 Gratt. 163.
    
    
      
      Tenants — Division of Specific Crops Produced. — The occupant of the land, where the specific crops produced are to be divided, has no interest in the soil (which is necessary in order to make him a tenant) and notwithstanding the landowner’s part may be in the contract denominated rent, it is not to be so regarded ; the lands are in the sole possession of the landowner, and the parties are tenants in common of the crops produced. The arrangement is only a mode of paying for labor or services of the occupant. 8 Min. Inst. (4th Ed.) 186, citing 1 Washb. R. Prop 365 ; Lowe v. Miller 3 Gratt. 205; Hanks v. Price, 32 Gratt. 110; Parrish’s Case, 81 Va. 7.
      It was held in Parrish v. Com., 81 Va. 1, that where a landowner contracts with one to crop his land and to give him a part of the crop after paying all advances, and the crop has not been divided, such cropper is not a tenant, hut a mere employee, and the ownership of the entire crop is in the landowner. The principal case is cited in this connection in Campbell v. Rust. 85 Va. 665, 8 S. E. Rep. 664.
      In Hanks v. Price, 38 Gratt. 110, it is said: “Difficulties often occur in deciding whether the agreement constitutes the tenant a lessee of the land, or a mere joint tenant of the crops. Lowe v. Stiller, 3 Gratt. 205, is one of that class of cases in which this court, after much deliberation, held that, under the contract, there was no lease but a mere joint tenancy in the crops raised on the land. 1 Washburn on Real Prop. 367.” See 2 Min. Inst. (4th Ed.) 751.
    
   BALDWIN, J.,

delivered the opinion of the Court.

It seems to the Court that the agreement between Joshua Lowe and Wilson Lowe in the bill of exceptions mentioned, is not to be treated as a lease from the former to the latter, rendering rent in kind, inasmuch as the reservation of the one half of the crop was not incident to the reversion, and consequently gave no right of distress. But that it is to be regarded as a contract between the parties thereto, by which, with the license of Zadoc Lowe, the owner of the land, given for both a good and a valuable consideration, they became, for the period of a year, associated in the tillage thereof, *and the effect of which was to constitute them joint tenants of the crop of corn thereby raised. It was not competent for Zadoc Ijowe, during the j'ear, to revoke the license thus given by him, nor for Wilson Lowe to defeat the interest so acquired by Joshua Lowe, by obtaining a conveyance of the fee to himself and Sarah Lowe from Zadoc Lowe. The subsequent conveyance of the premises from Wilson and Sarah Lowe to Miller had the effect, in regard to the crop, by placing the latter in the shoes of Wilson Lowe, of making him tenant in common with Joshua Lowe.

It seems further to the Court, that the appropriation by Miller of the whole of the crop of corn to his own use, against the consent of Joshua Lowe, was a violation of the rights of the latter, for which he was entitled to redress ; and, without deciding whether, under these circumstances, a special action on the case is a proper remedy, it seems clear to the Court that he may maintain trover; which action lies for one tenant in 'common of a personal chattel against his cotenant for a destruction or sale thereof by the latter, and consequently, for the appropriation thereof to his exclusive use, where, as in the present case, the property is of such a nature as to be necessarily destroyed by the use thereof by himself or others claiming under him.

It seems, therefore, to the Court, that the Circuit Court erred in instructing the jury, that if they should believe from the evidence that the defendant in the action purchased the crop of corn from Wilson and Sarah Lowe for a bona fide consideration, the plaintiff in the action could not recover therein.

It is therefore considered by the Court, that the judgment of the Circuit Court is erroneous, and that the same be reversed and annulled, and that the plaintiff in error recover against the defendant in error his costs expended in the prosecution of his writ of error and supersedeas here. Arid it is further considered, that the *verdict of the jurors be set aside, and the cause remanded to the Circuit Court for a new trial of the issue between the parties, on which new trial the instructions given to the jury on the former trial are not to be repeated.  