
    ELBERT DEVORE VS. HENRY J. KEMP.
    The reservation of a part Of the crop for rent, does not make the lesáor a tenant in common with the iesseé ; nor has he any interest or property in the specific produce, until severance and delivery. It is an interest which may be assigned, but it is not the subject of levy and sale under execution, until the crop is gathered and divided.
    
      Before Mr. justice O’Neall, at Edgefield, Spring Term, 1837.
    The presiding Judge made the following report:
    “ This was an action of trespass, to recover the value oí some corn, fieized and sold by the defendant under execution.
    “ In the year 1835, one Washington C. Hall sold the tract of land on which he lived to the plaintiff, stipulating that he should retain possession during the year. At the time he sold there was a mortgage on the land, of which he did not inform the plaintiff, and which he (Hall,) intended to pay, but did not, and the plaintiff was compelled to. pay it. Hall agreed with one Berry, that he should tend one of the fields upon the plantation. Berry was, for the use of the land, to give him one half of the crop. In May, shortly after the corn was planted, Hall sold to the plaintiff his interest in Berry’s corn crop, in consideration of the amount previously paid by the plaintiff on account of the mortgage. In March and April, 1835, the executions of Sprowll and Langley against Hall, under which the com was seized, were lodged in the sheriff’s office. When the corn was made and ready to be gathered, it was divided as it stood, by Robert Bell, at the request of Hall and Berry, and the plaintiff having also bought Berry’s 'part, gathered the whole field ; the part to which he was entitled under his purchase from Hall, he put up in the barn at the place where Hall lived, and locked it up ; the defendant levied on and sold it.
    “ The only question made on the trial by the defendant, was, whether the executions had a lien on the corn as the property of Hall. I thought and ruled, that they had not. The case of Rogers vs. Collier, 2 Bail. 531, is full to the point. The jury found for the plaintiff.
    “ The defendant appealed, and now moves for a new trial, on the ground of error in the charge of the presiding judge.”
    
      Bauslcett, for the motion. Griffvn, contra.
   Curia, per

Earle, J.

When Hall conveyed the premises to the plaintiff, he reserved the use of them one year, and thereby became the tenant of the plaintiff. He underlet a field to Berry, reserving one half of the produce for rent. The question is, whether the growing crop within the field planted by Berry, was subject to the specific lien of the executions against Hall, which were lodged in March and April, 1835, so as to entitle a levy of them afterwards, when the crop was gathered, to a preference over the assignment by Hall to the plaintiff in May, under which he had possession, after the crop was severed and before the levy.

That growing crops of wheat, corn, cotton, and the like, are personal chattels, and may be taken in execution, and sold, seems to be well enough settled, and the purchaser would of necessity be entitled to enter upon the premises and remove the pioduce. 1 Salk. 368 ; Owen, 70, 71; Poole’s case; Dolton; Watson; 1 B. & P. 397 ; 6 East. 604; 2 Johns. Rep. 421.

The question we have to determine is, to whom the growing crop belonged- — to-Berry or to Hall, or to both, as tenants in common. Hall, who was the tenant of plaintiff, had demised the field in question to Berry, reserving one half the crop for rent. Berry, therefore, who planted the’ corn, was the tenant in possession. A temporary interest in the soil passed to him, and he might have maintained trespass for any unlawful entry upon it. The crop belonged to him, therefore, and to him alone. For the reservation of rent by Hall did not make him tenant in common' with Berry ; nor had he any interest or property in the specific produce, until his moiety was severed and delivered to him. Stewart vs. Doughty, 9 Johns. 108; Kandal et al. vs. Ramer, in notes. 2 Johns. 420; State vs. Gay, 1 Hill, 364. The claim or right of Hall vested in contract merely ;■ a chose in action which might be assigned, but could not be seized and sold under execution until the crop was gathered, divided and delivered, by which Hall would acquire at once property and possession. Before that period Hall had assigned his claim or right to the plaintiff, and to him -Berry delivered the moiety, after severance, and before the levy. If the' Sheriff, under an execution vs. Hall, could not before that time levy and' sell, I think the lien did not attach. I apprehend there can be no lien on meré rights which cannot be seized and sold. In Rogers vs. Colder, 2 Bail. 58, it was held that where an overseer is by contract to have a portion of the crop in place of wages, he has no such interest as can'be levied, until his portion be set apart, and be delivered to him. Holcombe vs. Townsend, 1 Hill, 399, is to the same effect.

The motion is dismissed.

Gantt, Richardson, Evans, and Bütlek, JJ. concurred.  