In Harrison v. Ricks, 71 N.C. 7, it is said: "A cropper has no estate in the land; that remains in the landlord. Consequently, although he has in some sense the possession of the crop, it is only the possession of a servant and is in the law that of the landlord. The landlord must divide off to the cropper his share. In short, he is a laborer receiving pay in a share of the crop. McNeely v. Hart, 32 N.C. 63; Brazier v. Ansley, 33 N.C. 12. " As against a cropper, the landlord always has a right to have possession of the crop. S. v. Burwell, 63 N.C. 661. But it has now become immaterial whether the producer of the crop is a cropper or a tenant under The Code, sec. 1754, which provides that "any and all crops raised on land," whether by a tenant or cropper (in the absence of an agreement to the contrary), "shall be deemed and held to be vested in possession of the landlord or his assigns at all times (751) until the rent for said land shall be paid to the lessor or his assigns, and until said party or his assigns shall be paid for all advances made and expenses incurred in making and saving said crop." There is no evidence here that such payments had been made. The defendant was the landlord, and in taking charge of the basket of cotton to carry it to his house, he was in the exercise of his legal right. "Even *515
if Henry Keziah had been the cropper or tenant himself when he seized the basket of cotton and attempted by force to take it from the defendant, the latter used no more force than was necessary to protect his possession when he shook his stick at him with a threat to strike, and was not guilty." S. v. Yancey, 74 N.C. 244. Here, the condition of the defendant was still stronger, for the cropper or tenant was dead and Henry Keziah was not his administrator. In entering upon the premises of the defendant, an old man of 82, with a multitude, after being forbidden to do so, and picking out and carrying off the crop, Henry Keziah and his companions were guilty of forcible entry as to the land and of forcible trespass in removing the cotton after being picked out. He was a wrongdoer ab initio, and the defendant was only using sufficient force to protect the possession guaranteed him by the law. It is true that if the cotton had already been carried off, the landlord could recover it by claim and deliver, but this is only an additional remedy (which in many cases would be futile), and does not take away the landlord's right to retain possession till he is paid for his share and his advancements. If the landlord unjustly detains the crop, the cropper or tenant has his remedy to obtain a division upon claim and delivery, after five days notice. The Code, sec. 1755. He had no right to go on the premises after being forbidden, and pick out and carry off the crop. (752)
Error.
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