
    Daniel Currey v. Thomas J. Davis et al.
    A verbal agreement between the owner of premises and another, that the latter should till and cultivate a crop of wheat, corn and fodder on the premises, upon the following terms and conditions,—the owner to furnish all the necessary teams, horses, mules, and oxen, and the food therefor, all the seed-wheat and corn for sowing and planting the crop, and all carts, wagons, ploughs, harrows and agricultural implements for the proper cultivation and securing the same, and a certain quantity of guano for manuring the crop, the other to do all the labor and well and faithfully cultivate the crop and save it in due season; the owner to have two-thirds of the wheat and corn, and one-half of the fodder, and the latter to have all the rest and residue of the crop,—does not constitute a demise of the premises, in contemplation of law, or the legal relation of landlord and tenant between them ; but they are owners or tenants, in common of the crop to be raised on shares, and the interest or property of the owner of the premises in it is liable to levy and sale on a writ of fieri facias issued against him.
    Action sine breve and case stated. The following were the facts of the case submitted to the Court. Samuel Brown, one of the defendants, was the owner and possessor of certain lands and premises in Cedar Creek Hundred, and in the fall of 1857, entered into a verbal agreement with James Pettyjohn, another of the defendants, that the latter should till and cultivate a crop of wheat, corn and fodder upon the premises on the following terms and conditions: Brown was to furnish all the necessary teams, horses, mules, and oxen, and food therefor, and all the seed-wheat and corn for sowing and planting the crop, and all the carts, ploughs, harrows and other agricultural implements for the proper cultivation and securing of the same, and also a certain quantity of guano, to be delivered by him on the premises, for manuring the crop; Pettyjohn to do all the labor, and to well and faithfully cultivate and tend the crops and save them in due season with the teams and implements so furnished, and Brown to have two-thirds of the crop of wheat and com, and one-half of the fodder; which contract was in all respects performed by the said Brown as agreed upon between them, and who also assisted Pettyjohn in sowing the wheat and ploughing the land for it, and furnished a machine for threshing it, and assisted in "threshing it; all of which Pettyjohn was bound by the agreement on his part to do without such assistance. The wheat crop had been saved and disposed of, when Currey, the plaintiff, who had a judgment in this Court against Brown, sued out a writ of fieri facias thereon, early in the month of September, in the present year, which the sheriff by his direction had levied upon the said crop of corn and fodder, then growing on the said premises, and all the right, title, property and share of Brown to and in the same; and that after the levy of the said execution as aforesaid, each of the said defendants, with the exception of Brown and Pettyjohn, had sued out writs of attachment on judgments which they severally had against Brown, with clause to summon the garnishees of the latter to answer, &c., and on which Pettyjohn was duly summoned as a garnishee, and to which he afterwards appeared and answered that he paid a’ yearly rent for the premises to Brown of two-thirds of a crop of corn and one-half of a crop of fodder, which he then had in his posession on the land. Previous to this, however, the sheriff had proceeded to sell the right and interest of Brown in the crop of corn and fodder under the fi. fa. and levy, of which the plaintiff became the purchaser. It was also stated and admitted that Brown gave notice in writing to Pettyjohn, on the 30th day of September, 1858, to leave and deliver up the premises at the close of the'year.
    The question was, whether Brown, on this statement of facts, had such an interest, right, title, or property in the crop of corn and fodder, as was subject to be seized in execution, levied upon and sold, under a writ offieri facias; or, on the contrary, was only liable as rent on the attachments ?
    
      E. D. Cullen, for the plaintiffs:
    There is nothing in this case, or in this agreement, to constitute the legal relation of landlord and tenant between Brown, and Pettyjohn as to these premises, or the crop of corn and fodder grown upon them. It was not in contemplation of law a case of demise, or lease, or paroi letting of the premises by the former to the latter, on a render or payment of rent as' rent; but it was nothing more than an engagement for Pettyjohn to till and cultivate a single crop of wheat, corn, and fodder, on shares for Brown, on premises belonging to him; Brown to supply the seed grain, and all the teams, and carts, and ploughs, and other implements required for the purpose, and the guano to manure the land; and Petty-john to perform all the labor in cultivating and saving the crop, but to furnish nothing more on his part; for which Brown was to have for his share, but not as rent, two-thirds of the wheat and corn, and one-half of the fodder, as an equivalent for what he contributed in stock, implements, seed and manure, as well as land, in raising the crop; and the tiller, Pettyjohn, to have the residue as a compensation for his work and labor in tilling and saving it. The latter was not a tenant'of Brown’s in the legal sense of the word, but was a mere cropper on shares for the season upon the land. This, therefore, constituted them nothing more than tenants, or' owners in common, of the crop, while growing and when matured, until it was severed and divided between them; and which, of course, gave Brown such a property in common in the crop with Pettyjohn, as was subject in its undivided state to seizure in execution, and levy and sale on a writ of fieri facias against Brown, like any other goods and chattels of his held in common with others. State v. Frame, 4 Harr. 569; 3 Johns, 215; 8 Johns, 151; 8 Cow. 220; 15 Wend. 379; 10 Pick. 205; 1 Hill, 234; 3 Hill, 90.
    
      Lofland, for the defendants :
    The act of Assembly, Rev. Code, 421, provides that any contract or consent, pursuant to which a tenant shall enter, or continue in possession of land or tenements, under an agreement to pay rent, shall be a demise. In this case, the answer of Pettyjohn on the attachments, states expressly that he was to pay Brown a yearly rent for the premises, payable in kind, that is to say, a portion of the crop, the usual mode of reserving rent for sxich premises when formally demised, or leased in this, if not in all other sections of the State; and this statement of Pettyjohn cannot now be controverted, for it is admitted in the case stated. It was, therefore, nothing more nor less than a paroi demise, or letting of the premises by Brown to him for a single year, two-thirds of the wheat and corn and one-half of the fodder to he paid as rent to Brown for the premises as his landlord, in consideration of the liberal terms on which the land, was leased to him. There are many such demises in the lower sections of the State, and it was never before supposed that any other relation than that of landlord and tenant, in its legal as well as popular acceptation, subsisted between such parties, with all the rights and incidents, exemptions and liabilities, which attach in law to that relation. ¡
   Gilpin, Ch. J.,

delivered the opinion of the Court.

"We do not think that the facts in this case constitute, in contemplation of law, a demise of the premises in question by Brown to Pettyjohn on a render of rent, so as to establish the technical or legal relation of landlord and tenant between them; .but that it must be regarded and considered as nothing more than an agreement for raising, at their mutual expense and labor, a crop of wheat, corn and fodder, on shares between them; Brown, in consideration of "his ownership of the premises, and the abundant means which he was to furnish under the agreement towards making the crop, which was all, and more than all, that a tenant usually furnishes, except the mere labor in planting and tilling the crop, to have two-thirds of the grain and one-half of the fodder, whilst Pettyjohn was'to have the residue of each; which were the shares in which the crop, when thus raised, was to be divided between them. In the agreement itself, as stated, nothing is said about leasing, or letting the premises to Pettyjohn as the tenant of Brown; and nothing is said about rent, as rent, to be paid by him to Brown for them. But the agreement appears to have simply been, “ that he should till a crop of wheat, corn and fodder,” on certain premises belonging to Brown, on the terms and conditions stated; the latter to have two-thirds of the wheat and corn, and one-half of the fodder, and Pettyjohn to have all the rest and residue when the crop should be raised. There is nothing said in all this about paying anything as rent, or as a yearly rent, for the possession and enjoyment of the premises for that length of time; on the contrary, it is rather the language of an agreement merely to till a crop on shares, and to divide it between them, when raised, in the proportions mentioned. And this would constitute them owners, or tenants in common of the crop whilst growing and when matured, until it was severed and so apportioned between them; and which, of course, would give Brown such an undivided interest or property, in common with Pettyjohn, in the crop, as would be liable to levy and sale on a Ji.fa. against him. The case cited from 4 Harr. 569, State v. Frame, though on an indictment for larceny, proceeds on this ground; and all the cases cited by the counsel for the plaintiff recognize and establish this distinction. In the language of one of those cases, Pettyjohn must be regarded rather in the light of a mere cropper than as a tenant, under the facts stated. Had this agreement, however, constituted, in the opinion of the Court, a demise in law of the premises to him, on a reservation, or payment of rent as such, though by paroi, the only process by which Brown’s interest or claim of rent could have been reached by his creditors, would have been by writs of attachment laid in the hands of the tenant, under the provision of the statute. Rev. Code, 430, sec. 67; and in that case judgment would have been rendered for the defendants. There is nothing stated in the case inconsistent in the slightest degree with the view which we have taken of it, except the answer of Pettyjohn on the attachments, and the written notice from Brown to him to leave the premises at the close of the year. But these were declarations and acts of the parties themselves respectively, after the contract had been entered into, aná had for the most part been performed by them; and neither is sufficient or admissible to control the legal construction of the agreement, as it was concluded between them, and has been submitted to us for our consideration and decision, by other parties who have rights and interests depending upon it. Judgment must, therefore, be entered for the plaintiff. V  