
    Atwood, Respondent, vs. Freund, Sheriff, Appellant.
    
      October 8
    
    November 5, 1935.
    
    
      For the appellant there was a brief by Duffy, Duffy & Hanson, attorneys, and Ervin A. Weinke of counsel, all of Fond du Lac, and oral argument by Mr. Weinke.
    
    For the respondent there was a brief by Hooker & Wagner of Waupun, and oral argument by W. A. Wagner.
    
   Fowler, J.

It is conceded that if the contract between Atwood and Clay was a cropper’s contract, as distinguished from a lease, the judgment must be affirmed.

In case of a lease the possession of the land is in the lessee, while in a cropper’s contract the possession is in the landowner. A cropper may live on the land, but such possession as he has is incident to the performance of his contract of service, and is deemed to be for the landowner and to be his possession. The cropper’s possession is not the legal possession. The legal possession is in the landowner, and as incident to this legal possession the title to the crop is in the landowner. The cropper has no title to the crop until it is divided and appropriated by him, and the division of the crop is made by the landowner. Kelly v. Rummerfield, 117 Wis. 620, 94 N. W. 649; Taylor v. Donahoe, 125 Wis. 513, 103 N. W. 1099; Herreid v. Broadhead, 211 Wis. 512, 248 N. W. 470.

Many of the provisions of the contract are appropriate for inclusion in either a lease or a cropper’s contract. It starts out with the statement that Clay desired to work the farm- of Atwood. It does not contain the words, “let, lease and demise,” commonly used in a lease, or any other words purporting to transfer any interest or estate in the land to Clay, although it uses the words “the lease” in a provision thereof relating to its termination. It calls for equal division between Atwood and Clay of all produce and stock when sold. On selling cattle, Atwood was to decide which cattle should be sold. Atwood had the right to enter on the land at all times, and to do or cause to be done any work thereon he deemed necessary, and to have any work done at Clay’s expense that Clay was obligated to do and failed to do. The contract provided that Atwood should furnish thirty-six head of cows, two two-year-old heifers, and two heifer calves, and that the same number of female cattle of like age should be left on the place on termination of the contract, which was to continue from year to year until terminated as in the contract provided. This and the provision for Atwood’s determining what cattle should be sold imply that accretion to the cattle was contemplated, and that the increase should be divided. The property on the place, both stock and produce, when Clay went on the land, was the property of the landowner, who by bill of sale purchased the interest of Clay’s predecessor therein prior to the execution of Clay’s contract. It was agreed that Clay should purchase from the landowner the interest in the property that Clay’s predecessor conveyed to the landowner, but Clay never carried out the agreement by payment. The grain levied on was grown the fourth year after the execution of the contract.

In view of the law and the contract provisions as above stated, we agree with the trial court that the contract is a cropper’s contract, that the property levied upon was the property of the plaintiff, that the sheriff’s seizure of it was wrongful, and that the plaintiff was entitled to its possession.

By the Court. — The judgment of the circuit court is affirmed.  