
    Addison County,
    January Term. 1827.
    
      Jared Bishop vs. Marshal S. Doty.
    
    An agreement between A and that the latter shall raise a single crop or Shares upon the land of A, does not amount to a lease of the land.
    
      If by-the tctins of such contra'ct the.-érop (e. g; of grain) when harvested is is be secured in the barn of A, and there threshed by B-and divided betweeis them, an attachment of any part as tho share of B, before the crop is thus set cured, threshed and divided, does not work a severance of the shares.
    If after such attachment A takes the part attached and deposit* the same in hi* barn, such taking is not, of course, a tresspa§s to the officer making the attachment.
    ErkoR -brought to reverse) the .judgment of Addison Comity Court recovered by Doty against Bishop, Jun'e Term 1825. — • The original action was tresspass for taking and Carrying away seventy eight shocks of -wheat in the straw, brought by Doty against Bishop and alleging the tresspass to have been committed at Addison, Aug. 20,1824. The cause béing'tried upon the general issue pleaded and judgment rendered for the plaintiff, the defendant tendered the following exceptions which were duly allowed-
    “In this cause after issue joined the plaintiff gave in evidence, in support of the issue on his part, the following facts, to witThat in the summer of the year 1828, one Isaac Farmer agreed with the defendant to sow and raise upon the defendant’s land a crop of wheat upon the following terms to wit. That the defendant should find team and one half of the seed, Fanner was to do the labor, and when the wheat was harvested it was to be secured in the defendant’s bam and to be threshed out by Farmer and divided equally between them. That when "the wheat , was cut and standing in the field, that part of it for which this actioli was brought, viz, one half of the wheat reaped, was attached by the-pláintiíf, as constable of Addison, as the property of Farmer at the suit of one Southard. The plaintiff did not take actual possession of the wheat, but left it -in the field, leaving a copy in the town clerk’s office and also one with Farmer.Th.vX afterwards the defendant took the wheat and deposited the same in his barn j and for this taking the action is brought. Wherefore the defendant objects that upon these facts the plaintiff’s action could not he sustained. But the court overruled the Objection, and decided ■that upon these facts the defendant was liable to the plaintiff ire" this action. To which decision the defendant excepts” &c. — - The common error was assigned.
    
      Phelps and Solace, for the plaintiff in error, made three points-
    
      1. That,under dip contract between Bishop- and Farmer, as stated in the bill of exceptions, Bishop was the sole owner of. the wheat until it was threshed and divided.
    2. If Farmer had any interest in the wheat at the time of the attachment he was at -most but a tenant in common- with Bishop,according to the case of Foote and Litchfield vs. Colvin, 3 Johns. Rep. 2X6. . And Bishop being tenant, in common with the officer cannot be.liable to him intresspassforany thing short of a destruction of the property.
    3. The attachment was void, the law,under which Doty acted, pot extending to this case. The statement of the case is sufficient to show the absurdity of extending the statute to it.
    
      Hawley for the defendant in error.- Previous to tire final division of the grain, Farmer had the sole interest therein, or at least the exclusive possession, and this was die subject of attachment. The officer by his attachment, succeeded to all the rights of Farmer, and acquired fire exclusive possession-as against Bishop. Bishop's half of the grain,on a final division, is to be regarded as rent, and implies no interest in him before the division. This case is like tire chartering a vessel upon Lake Champlain for a moiety of the earnings, in which case it is well understood, that until a division of the earnings, the right to collect them resides ^wholly with the hirer of the vessel. Admitting that FarmJ\ er had not tire entire interest, yet he was at least a tenant in com- \ nron of the grain, and when the interest of one tenant in common .' of a chattel is attached, the entire chattel may be taken away by ? the officer who acquires, for the time being, an exclusive right of possession against the other owners.. He cited — Esp. N. P. 402. — Bul. JY.-P. 85.-9 Johns. 108 — 113.—Salic. 393.— Doug. 650. — Shower, 169. — -15 Johns. 179. — 1 East, 367.— 3 Johns. 175.
   Royce, J.

delivered the opinion of the court.

We are satisfied, as well from the authorities consulted, as from ■ the reason and justice of the case, that Farmer was not to have and did not acquire, a sole and entire interest in the crop of wheat at any period. He could not derive such an interest from any estate in the soil, for he had none beyond the naked right of rais-jng this crop of wheat ; and it cannot be admit. ted, that a contract,like the present,for raising a single crop, operates as a lease of the land. Bishop and Farmer must be taken to have had a joint interest in the crop at the time of the attachment. — Cro. Eliz. 143. Hore and others vs. Celey. 3 Johns. 216. Foote and Litchfield, vs. Colvin.

Phelps and Solace, for the plaintiff in error.

Hawley, for the defendant in error.

Admitting that the share of Farmer was subject to attachment before a final division, which there is no occasion now to controvert, and waiving the question whether the attachment was sufficiently consummated to hold the property j it remains to be considered whether the subsequent act of Bishop in removing the wheat to his barn, rendered him liable to an action of trespass. By the contract between Bishop and Farmer, no severance of their shares was to take place till the wheat was threshed in Bishop’s bam. Each party, and especially Bishop, had a manifest interest in the due observance of this stipulation; for it would be extremely prejudicial to farmers, if crops which they allow to be raised on shares, could be transported from their premises before a regular and ultimate division. The attachment did not effect a legal severance, though the officer took one half of the wheat which was reaped ; because many things might happen to render this premature and partial division, as unjust to Bishop as it was repugnant to the terms of the contract. The interest of Bishop then continued, as well in the portion attached as in the rest of the crop, and what has he done to subject himself to an action ? The officer left the wheat in the field, and the attachment may well be supposed to have suspended the further progress of Farmer in harvesting this part of the crop. Under such circumstances Bishoppemoves the wheat to his barn, the place of its proper destination under the terms of the agreement. Nothing appears in this case, to show that this act was not necessary for the preservation of the property, or that it was done in hostility to the rights of the officer, whatever they were. It was therefore an act of which the officer has shown no reason to complain.

Judgment of the County Court reversed.  