
    Richmond
    Booth v. Kesler.
    1849. October Term.
    
    (Absent Cabell, P.)
    
      B contracts with If to sell him a tract of land with the crops growing thereon, for $ 700 ; the crops being valued at $ 100 ; and he contracts to put If in possession of the crops. In reducing the contract to writing, though it is stated that the crops are sold with the land, by mistake of the scrivener, the undertaking of B to put If in possession of the crops is omitted. B does not put If in possession of the crops; but they are claimed by S, who is living on the land at the time ; and he appropriates them to his own use. Afterwards B sues If for a balance of the purchase money, and recovers judgment; and If pays all but $ 100, the estimated value of the crops, and applies for an injunction to so much of the judgment. Held : If is entitled to have the judgment perpetually enjoined to that amount.
    
      Peter Kesler obtained from the Judge of the Circuit court of Franklin county, an injunction to a judgment recovered against him in that Court, by Moses G. Booth. The bill, after stating the recovery of the judgment for 300 dollars, subject to a credit of 200 dollars, charged that the plaintiff had purchased of Booth, a tract of land with the crops growing thereon, for 700 dollars. That in their contract, the crops were estimated at 100 dollars. That a certain Moses G. Carper had been requested to reduce the contract to writing. That after Carper had written the paper, stating the sale of the land and the terms and time of payment, he read it to the parties, and he was then informed the crops were sold with the land, when he said he could still introduce that into the agreement, and proceeded to complete it; and the plaintiff executed the agreement, believing that it had been so written. That by the contract between them, Booth bound himself to put the plaintiff in possession of the crops; but that he had failed to do it. That a certain Henry Shoemaker was living on the land, and when Booth went with the plaintiff to the place to put the plaintiff in possession of the crops, Shoemaker claimed that they belonged to him; and Booth left the premises, and made no further effort to deliver them, and the plaintiff never received them. That the plaintiff had paid 600 dollars of the purchase money; which was all that Booth was entitled to.
    
      Booth answered the bill. He admitted that the crops were sold with the land. But he said that Shoemaker only occupied the house and garden by his permission, and he offered to the plaintiff to turn him out of possession if the plaintiff required it; and it was by plaintiff’s consent that Shoemaker was allowed to keep possession of the house and garden until the end of the year. And he alleged that according to the agreement, he did authorize the complainant to go upon the land, and cultivate and gather the crops; and that complainant did enter upon the land, and held exclusive possession of it, from the date of the agreement. He denies that Shoemaker was entitled to the crops; or that the defendant bound himself to deliver them to the plaintiff.
    It appeared from the evidence, that the crops were sold with the land, and were a part of the consideration of the 700 dollars which was to be paid by Kesler ; and that Booth undertook to put Kesler in possession of the crops. It further appeared that Shoemaker claimed the crops as belonging to him, and disposed of them; and that Booth did not put Kesler in possession of them. 
      Shoemaker was himself examined as a witness, and said that he was entitled to the crops. Carpet' states what passed when he wrote the agreement substantially as it is stated in the bill. The agreement, though it states that the crops are sold to Kesler, does not bind Booth to put Kesler into possession of them.
    When the cause came on to be heard, the Circuit court perpetuated the injunction; and thereupon Booth applied to this Court for an appeal, which was allowed.
    
      August & Watkins, for the appellant.
    
      Patton, for the appellee.
   By the Court.

The decree is affirmed.  