62 N.C. 303 | N.C. | 1868
The complainants were the children of Ellen Lewis, deceased, and the children of William M. Wilkins, deceased, by his second marriage, and the defendant was the executor of Edmund Wilkins, deceased, late of the county of NORTHAMPTON.
The testator died 20 January, 1867, and by his will, which was afterwards duly proved, among other things devised certain lands called"The Meadows, to be sold upon a credit, and the proceeds of the sale *204 (together with the slaves on said farm) to be equally divided, one-half to the children of my niece, Ellen Lewis, and the other half to (304) the children of my brother, Dr. W. W. Wilkins, by his second marriage." By a subsequent clause he gave as follows: "I will the crop, stock and farming utensils and all other perishable and personal property, except the negro slaves, on said farm in the Meadows and the Peele lands in District No. 10 aforesaid, and the proceeds of said sales of all said crops, stock and perishable and personal property in said District No. 10, except the negro slaves aforesaid in District No. 10, together with all debts due me and money deposited and all my railroad company bonds and stocks after paying all just debts, I give and bequeath to my said nephew, F. W. Wilkins, whom I hereby appoint my whole and sole executor of this my last will and testament. This 19th day of August, 1861."
On 1 January, 1866, the testator entered into the following contract with one Thomas C. Parker:
"These articles of agreement made, etc., witness that the said Wilkins is to furnish to the said Parker the farm known as the Meadows, for two years from this date. The stock of cattle and hogs are to remain on said farm, and said Parker is to have one-half of the milk and butter made on said farm, but no other interest or part of the proceeds of said cattle, and at the end of each year the fattened hogs are to be equally divided between the said Parker and said Wilkins, and the said Wilkins is to furnish thirteen good mules for the two years; and in case of the death of one or more, others are to be bought at joint expenses to supply their places and to belong to said Wilkins at the expiration of said lease; and for the present year 4,500 pounds of pork and 306 barrels of corn, and long forage sufficient to feed all the stock; and should there be a sufficiency made on the farm of corn, pork and long forage the present year, 1866, then out of the said Wilkins' share he shall furnish the same articles, and the same articles and the same amount for (305) the year 1867. The said Wilkins to furnish all the necessary farming implements for conducting said farm for the year aforesaid. And the said Parker does agree on his part to furnish twenty-two able bodied laborers to work on said farm and to give the farm his whole and entire personal attention and skill, and at the expiration of the two years specified to surrender the farm in good condition, except dams and river fences, and the entire stock of cattle, and stock-hogs, and should the farm not yield a sufficiency in corn, port and long forage to make the quantity aforementioned, either in the years 1866 or 1867, then the said Parker is to make up the deficiency. And the said Parker doth further agree to pay all taxes on the real estate of said farm and half of the taxes on the fat hogs killed, the said Wilkins paying *205 all the other taxes chargeable on the said farm. It is agreed between the parties that when the products are ready for market the said Wilkins and Parker shall equally divided share and share alike. It is further understood that said Parker shall have entire and absolute control and management of the farm, and should there be any difference or misunderstanding between said Wilkins and Parker, they are to refer it to three disinterested parties, each one selecting one and the two selecting a third, and their decision to be binding. And it is further agreed and stipulated between the said Wilkins and Parker that if either violates these articles of agreement, or any part thereof, the party so violating shall forfeit any pay over to the other party the sum of five thousand dollars. In witness," etc.
The bill alleged that, in the course of carrying out the contract between the testator and Parker, the crops for 1866 had been divided between them as agreed upon, but that the crops for 1867, consisting of corn, wheat and cotton, were still undivided, and that the defendant claimed that the share of the testator therein devolved (306) upon him in virtue of the second clause of the will above set out, whereas they were advised that the said productions are rent, and so go with the land as devised to them under the first clause (above).
The prayer was that it might be declared that the complainants are entitled to the proceeds of the sales of said lands, and for further relief, etc.
The answer submitted to any decree that might be made; but denied that the crops in questions are rent, inasmuch as they were made to a large extent by the teams, agricultural implements, supplies of provisions, etc., that by the will were given to the defendant, and thus are either his only, or belong to him and the complainants in the ratio of their respective contributions of the means used in producing them, etc. We agree with Mr. Moore that "rent service" passes with the reversion as incident thereto, and that a purchaser, devisee or heir, taking a reversion after a life estate or a term of years, becomes entitled to the rent which afterwards accrues.
We also concur in the position that when a reversion is by will directed to be sold, and the price divided among several, as in our case, the purchaser of the reversion would be entitled to the rent. This fact would increase the amount for which the reversion would sell, and add that amount to the fund for division; so, the devisees, to whom the fund is given, would get the rent, and the case does not differ from one *206 where there is a direct devise of the reversion; indeed the devisees, when an actual partition could be made without prejudice, would be allowed an election to take the land instead of the money.
We also agree that "rent service" need not be payable in money, but may be payable as well in grain, or beef cattle or the like. In (308) the one case it is called "black rent," in the other "white rent," that is, "silver rent."We agree also that "black rent" need not be a certain amount of grain, etc., but the amount may be left for the time uncertain, to be fixed by the crop which the tenant actually makes, as one-fourth or one-third, which the tenant is to render or deliver to the landlord as rent.
But we do not concur in the position that the legal effect of the contract entered into by Wilkins and Parker was to establish the relation of landlord and tenant, so as to make the part of the crop, to which Wilkins was entitled, "rent service," which would follow the reversion as an incident thereto.
On the contrary, it is merely an arrangement made by Mr. Wilkins to enable him the more conveniently to carry on his farm, after his slaves were set free. If he had besides furnishing the horses, mules and other things, also agreed to furnish the hands and let Parker have a part of the crop for his services as overseer, the idea of "rent service" would never have suggested itself, and we are unable to see how the circumstance that Parker agreed to furnish the hands can at all vary the case. In the latter case as in the former, the value of the things furnished by Wilkins, in addition to the use of the land, are so blended that the relative value of each can not be estimated by any data furnished by the articles of agreement, and there is no amount either certain or which can be made certain, to be rendered as a return for the use of the land, which is necessary in order to constitute "rent service"; nor is Wilkin's half of the fatted hogs, nor his half of the crops, to be rendered and delivered by Parker to Wilkins — but the hogs and the crops are to be equally divided by them, share and share alike, thus making a sort of agricultural partnership, which is to continue for two years, and which does not constitute the relation of landlord and tenant; although Parker, by furnishing the hands and agreeing to pay (309) a part of the expenses of the farm, placed himself upon somewhat higher ground than a mere "cropper," and was to have the exclusive direction and control of the farming operations.
We therefore declare our opinion to be that the crop raised on "the Meadows" in 1867 does not belong to the plaintiffs and devisees, but, that it passes to the defendant under the bequest, viz.: "I wish the crop, stock and farming utensils, and all other perishable property and personal property on said farm, etc., to belong to my nephew, E. W. *207 Wilkins." If the testator had furnished the hands, besides the other things, and paid the overseer himself, the defendant would have been entitled to the whole crop. As it is, he only gets the one-half of the crop, because the testator had adopted a different mode of carrying on his farm, whereby he was only to have half of the crop, and his partner, Parker, was to have the other half.
Although the articles of agreement between Wilkins and Parker presented no serious difficulty as to its construction, we have discussed it somewhat fully because we are aware that, in the present condition of the country, contracts to carry on farming operations in a way similar to this are very generally resorted to, and to prevent litigation, it is well to point out wherein they are plainly distinguishable from "leases and terms for years."
There will be a decree in conformity to this opinion.
PER CURIAM. Decree accordingly.
Cited: S. v. Burwell,
(310)