| S.C. | Jul 1, 1876
The opinion of the Court was delivered by
This action is for the recovery of personal property, consisting of oats growing on a tract of land purchased by the defendants at the time of such purchase, and subsequently harvested and claimed By the defendants. Plaintiff, to establish his right of recovery, presents the following state of facts: The land on which the oats were grown was sold under an order of sale for partition in January, 1874, and purchased by Thomas H. Clyburn, who sold it to the defendants. No reservation of the growing crops was made in the sale for partition. The plaintiff, B. R. Hancock, was a party to the proceedings for partition as guardian of his infant children, who appear to have been treated as either having the fee of the land, or, as cestuis que trust, entitled to its beneficial use as tenants in common with Thomas H. Clyburn, who became the purchaser at partition sale. Their exact title is not disclosed, but as the case is made before us we must assume that it was only as standing in that right that he can be regarded as affected by the proceedings for partition. The present action appears to be brought by the plaintiff in his individual right, and not as guardian for his children. The first exception to the charge of the Judge is based upon the refusal of the Judge to charge “that the oats in question growing on the land, if there was no reservation of the same in the order of sale or in the deed to the purchaser, did pass to the purchaser, Thomas H. Clyburn, with the land conveyed under the order of sale aforesaid.” The second exception is to a charge that the crops in question were the property of B. R. Hancock, who produced them as tenant at will. There was no evidence to warrant the statement of facts thus charged. There was no direct proof of the fact, and if it was an inference competent to be drawn from all the facts and circumstances disclosed, then it was the province of the jury and not of the Judge to draw such inference. But whatever may have been the relation of B. R. Hancock to the growing crop, it is enough to know that he was bound by the partition proceedings as a party, and had he held the title to the land he could not-have interposed a claim to the growing crop after assenting to the sale of-
Both exceptions appear to be well taken, and there should be a new trial.