Simmons, Justice.
J. J. Howell, in the year 1884, entered into a written *342contract with DeVaughn for the rent of a certain plantation and mules for that year, whereby he agreed to pay said DeVaughn 2,600 pounds of lint-cotton. He made other agreements in said contract, as to repairing fences and attending to stock, which need not be mentioned here. DeVaughn agreed to furnish a certain amount of supplies. It was also further agreed that Howell was to have said land and mules for the years 1885'and 1886, at the same terms, “ provided Howell paid said DeVaughn for rent and all advances for each year.” In order to secure DeVaughn in the payment of the rent and advances, the contract says, “ I hereby sell, assign and convey unto said DeVaughn all my interest in and to said crop of all sorts made by me and my tenants, and consent that the title of the same shall vest and remain in said DeVaughn or assigns until he shall have been fully paid for all articles I may be due him for.” Howell occupied the farm for the years 1884 and 1885, and up to June, 1886, when he died before the crop had matured. He left his widow upon the farm, who' undertook to carry it on but failed; whereupon DeVaughn took possession and cultivated and gathered the crop. The widow applied for a year’s support, and the crop was set aside to her by the ordinary. She brought trover against DeVaughn to recover possession of the crop. Upon the trial of the case, under the charge of the court, the jury returned a verdict in her favor. DeMaughn moved for a new trial, upon the several grounds stated therein, which was overruled by the court, and he excepted.
The ground relied upon here by counsel for the plaintiff in error for a reversal of the judgment of the court below is as follows: The court erred in charging the jury that it was his duty to construe the contract mentioned above under which DeVaughn claimed title to *343the crops in dispute, and in so far as this contract, made in 1884, undertook to pass title to DeVaughn to the crops of 1886, it was void and of no effect; that it was contrary to law to permit a title to be maintained to the crop made in 1886 by such contract made in 1884, and that DeVaughn could not maintain title to the crops under such contract.
We think the exception to this charge is well-founded. While it is true, as a general rule, that things not in esse cannot be sold, we do not think that that rule applies to a case of this character. Here was a landlord who made a rent contract with his tenant, and the tenant not only agreed to sell the crop, but' went further and agreed that the title to all the crops made on the farm should remain in the landlord until the landlord was fully paid for his rent and all advances. We see no reason why a landlord, when he rents his farm, cannot reserve in the rent contract the title to the crops grown thereon until his rent and advances are "paid. It is simply a reservation of the fruits of his own land. It is not like an owner of land selling his crop before it is planted, or a tenant mortgaging his crop before it is planted. This _ direct question has never been before this court before, but it seems to have arisen in other States. In the case of Smith vs. Atkins, 18 Vermont, 465, Redfield, J., in discussing this question, says : “ It is without doubt true that the sale of a thing not in existence is, upon general principles, inoperative, being merely executory, that is, it confers no title in the thing bargained. But when the thing thereafter to be produced is the produce of land or other thing, the owner of the principal thing may retain the general property of the thing produced, unless there be fraud in the contract, and it he entered into merely to defeat creditors. The leasing of land, or domestic animals, or delivering *344to another property to trade with — the lessee having still an interest in the thing, but the general property remaining in the lessor, — is not a sale of things not in esse, nor is it so to be esteemed, even where the lessor retains a lien for his rent upon the product of the land, or the animals.”
In the case of Bellows vs. Wells, 36 Vermont, 601, 602, Poland, C. J., says: “ It has been repeatedly decided in this State, that the lessor of land may stipulate in the lease that the crops grown on the premises by the lessee shall remain the property of the lessor until the rent shall be paid, and that such provision is valid, not only between the parties but as to third persons also. . . . The reasoning upon which our decisions go is, that the owner of the land being also the owner of the fruits or products of it, in parting with the use of it to another, may make such conditions and reservations in relation to the land itself or the products grown from it as he chooses, instead of parting with the full right. The principle is the same as that upon which conditional sales of personal property are upheld.”
In the case of Andrew vs. Newcomb et al., 32 N. Y Rep., Denio, C. J., says: “ The owner of land may lawfully contract for its cultivation, and may provide in whom the ownership of the product shall vest.” See also Heald vs. Builders’ Fire Insurance Company, 111 Mass. 38; Butt vs. Elliott, 19 Wall. 544; Wentworth and Osborn vs. Miller and Lux, 53 Cal. 9; Howell vs. Forster, 65 Cal. 169; Lewis vs. Lyman, 22 Pick. 437; Ponder vs. Rhea, 32 Ark. 435; Am. and Eng. Encycl. L., note on p. 896. These cases, we think, fully sustain our position in this case. We think the principle ruled is sound and fair, both to the landlord and the tenant. It follows, therefore, that the contract made between DeVaughn and Howell was a valid and binding contract, *345and that the title to the crop vested and remained in DeYaughn until he was paid his rent and the advances made by him for the year 1886.
2. It may be argued, however, that this principle would have applied to the year 1884, when the contract was made, but could not apply to the crops made in 1886, because the contract was made moie than two years before that time. We do not see any difficulty in that suggestion. The contract was absolute for the ' year 1884, and conditional for the years 1885 and 1886. It was stipulated in the contract that the same terms should apply to these years as to 1884, if the rent was paid. We presume the rent was paid for 1884 and 1885, as the evidence shows that Howell was still on the farm up to June, 1886, when he died. He recognized the contract as binding upon him for that year, as the evidence in the record shows. And in our opinion, if he had paid his rent for the two previous years, it was as binding in the year 1886 as it was in the year 1884. The case of Almand vs. Scott & Co., 80 Ga. 95, was different in its facts from this case. In this case, there is a written contract between the landlord and tenant in which the crops were sold to the landlord by the tenant, and the title thereto reserved by the landlord. In Almand’s case the contract was for a part of the crop, and was a verbal one between him and his tenant, and not in writing as required by the code, §2289. That section is as follows : “When the rent agreed to be paid is a part of the crop, such portion shall not be liable to be levied on by any process for debt against the tenant; provided, the contract is in Avriting and the rent does not exceed one-half of the drop.” This section should have been cited in Almand’s case.
3. When DeYaughn is fully paid for his rent and advances, and for the necessary expenses in cultivating *346and gathering the growing crop of that year, if there is a balance left, we think that Mrs. Howell would be entitled to it. It will be for the jury to say on the next trial what were the necessary expenses incurred by DeYaughn in the cultivation and gathering of that crop. She would also be entitled, under the evidence in this record, to recover the horse and its reasonable hire.
Judgment reversed.