31 N.C. 481 | N.C. | 1849
Lead Opinion
In the fall of 1845 the intestate of the plaintiff and the defendant agreed as follows: The defendant leased to the intestate a tract of land for the year 1846, and was to find two horses and food for them. He was also to supply the intestate with provisions for himself and family during crop time. The intestate agreed that the whole crop should be the property of the defendant — one-half he was to keep for the rent of the land and the use of the horses; the other half he was to keep until he was paid for the provisions and an old judgment, and (482) deliver to the intestate what was left.
The intestate entered and made a crop of corn, but died in the fall before it was gathered. The plaintiff, who was the widow of the intestate, gathered the crop. The defendant, although forbid by the plaintiff, took off most of the corn. The plaintiff then administered, and brought this action.
The court charged "that the crop belonged to the intestate, as incident to his lease, and although, at the time of the lease, in consideration of the lease and the horses and provisions which were to be furnished, and the old judgment, the intestate agreed *336 that the whole crop should be the property of the defendant, still the title to the crop did not pass. The crop was a thing not in esse, and the contract was not executed and could not be, from the nature of the subject-matter. It was executory — gave a right of action for a breach, but did not confer a right to take the corn against the will of the owner."
There was a verdict for the plaintiff, and from the judgment thereon the defendant appealed. It is not necessary to decide the broad question upon which the case is put in the court below, about which there is some diversity of opinion; for the case is clearly with the plaintiff, and the conclusion to which the court below arrived, that the contract was executory, and not executed, is sustained upon special grounds, which do not involve the general question.
First. The contract on the part of the defendant was executory as to furnishing the two horses and food and the provisions during crop time.
(483) Second. The contract on the part of the intestate, as to the payment of the rent, was executory from the very nature of rent. For, in speaking of rents, Lord Coke says: "The lessor cannot reserve parcel of the annual profits, as the vesture of herbage of the land, or the like; for that would be repugnant to the grant. Co. Lit., 142." It would be an exception
of a part of the thing already granted and inconsistent with the grant. Therefore, such contracts as the present are necessarily construed neither as exceptions nor reservations, but as covenants or agreements of the lessee to give, as rent, as many bushels of corn as the half of the crop may amount to, or deliver,as rent, the one-half of the corn that may be made on the land. It is simply a payment of rent, agreed to be made in corn, instead of money; but it does not change the property in the crop, while growing or when gathered, until it is delivered to the lessor. Deaver v. Rice,
It is clear, for these reasons, that the contract, as to the rent, is executory, and being entire, and executory as to a part, it is necessarily so as to the whole.
I think the judgment below should be affirmed. *337
Addendum
This is an action of trover to recover damages for the conversion of a quantity of corn. The case is: The defendant by parol leased to the plaintiff for one year a parcel of land. It was agreed the defendant should furnish two horses to work in the crop, and their necessary food; and the defendant, for the rent, was to let him have one-half of the corn raised and to pay him, out of the residue, claims which he (the defendant) had against him. After the crop was raised and housed the defendant, against the will of the plaintiff, hauled it (484) away, or the largest portion of it.
His Honor instructed the jury "that if the intestate had leased the land for a year the crop belonged to him as an incident of his lease." We do not deem it necessary to notice the subsequent part of the charge in connection with this part; because we believe that, whether the reason given was or was not correct, the judgment must be affirmed. Deaver v. Rice,
In the course of the investigation of the case in this Court it was urged that the contract between the parties, as it respected the corn, was for an interest in the land, and, therefore, void under the statute of frauds. Rev. St., ch. 50, sec. 8. We do not think so. The agreement on the part of the defendant to receive his rent in a part of the crop did not constitute an agreement on his part for any interest in the land during the lease, and if, by any casualty, no crop was raised, he could have derived no benefit from his contract. This principle is decided in Evans v. Roberts, 5 Bar. and Cr., 829. There the question was whether the verbal sale of a then growing crop of potatoes was a contract or sale of land, or any interest in or concerning them, within section 4 of the statute 29 Charles (485) II. The court says it is not, but that it is a contract for the sale and delivery of things which at the time of delivery would be goods and chattels. That was a much stronger case *338 than this. The lease in this case was for one year, and although by parol, was good and valid. The rent being reserved in kind, that is, a part of the crop, the title to the whole crop, when made, was in the intestate Ross. It was contended by the defendant that under the contract he was entitled to one-half of the crop raised to pay his claims, as it was mortgaged to him for that purpose. The answer is that the property, the corn, was not in such a situation that it could be mortgaged. The plaintiff was entitled to maintain her action.
PER CURIAM. Judgment affirmed.
Cited: Hatchell v. Kimbrough,