§ 334. Possession of growing crop under husbandry contract. The parties being tenants in common of the crop while growing, each appears to be in possession of it, upon the principle that the possession of each is that of himself and of his cotenant; how far this common possession of the parties characterizes the right of control in relation to the manner in which the business is to be conducted, how the land is to be cultivated, crops treated, and amount of labor requisite determined, does not appear to have been judicially determined;1 but from the nature of the agreement, and the relation of the

to crop with plaintiff; he, Charles, not the laborers, to get one-third, and the plaintiff two-thirds, of the crop. This did not make Charles and the hands he furnished the servants of the plaintiff. As the contract is set forth, Charles is a cropper-the control of the labor is with him. It is the ordinary case of a man agreeing, on his part, to furnish the labor, and another the land and stock. The laborers are the servants of Charles, and not of the owner of the land. Charles is a contractor, not a servant."

1 Some of the older authorities were to the effect that one tenant in common should not maintain trover against his cotenant, unless the other absolutely destroy the chattel held in common, but that doctrine has been long and very sensibly exploded, and the law appears to be settled, that if the chattel be sold or otherwise disposed of by one cotenant, the other may maintain trover. (1 Chit. Pl. 90, 91, 178, 179; Hyde v. Storer, 9 Cow. 230–233; Panninter v. Kelly, 18 Ala. 718.) "One

Smyth v. Tankersley, 20 Ala. 212; Williams v. Nolen, 34 Ibid, 167. tenant in common cannot maintain an action of trover against his cotenant, without proof that the common property has been destroyed, sold, or otherwise disposed of by the defendant." (Lowe v. Miller, 3 Gratt. 205.)

In Appling v. Odom, 46 Ga. 585, it was decided that, on a cropping contract, the possession of the land was in the owner, as against the cropper; that the latter was a laborer, working for hire, to be paid in part of the crop when it should become matured, and that "the title to the crop, subject to wages, is in the owner of the land." 'That, therefore, no person can purchase or take a lien on the cropper, to wit, his share of the crop, until the bargain be completed, to wit, until the advances of the planter to the cropper, for the supplies, have been paid for. A different rule might obtain as to a tenant, the right of the landlord for supplies being only a lien. But the cropper's share of the crop is not his until he has complied with his bargain."

But the converse of this proposition was held in Aiken v. Smith, 21 Vt. 172, in which the cropper's interest in the crop, and his right to dispose of it, was elaborately discussed, and the ruling was that the cropper's interest was as definable as that of any other person in a growing crop; that at all times he was, with the owner, a tenant in common in it, and in no sense a laborer for hire who was to be paid a share of the crop, and that, therefore, he could sell his interest at any time to a third party, who would then become substituted in his place, and become a tenant in common with the owner of the soil; and this proposition appears to be conceded by the great mass of cases. (Lowe v. Miller, 3 Gratt. 206-208; Ferrall v. Kent, 4 Gill. 209.)

Bernal v. Hovious, 17 Cal. 542, in which a doctrine diametrically opposite to that of Brazier v. Ansley, 11 Ired. 14, is laid down, viz: That the cropper's inter

parties to the subject-matter, it appears to result that, while neither party may exercise his ownership to the injury of the other, or to the detriment of the growing crop, the possession is practically, for the legitimate purposes of the farming operations, in the cropper, and he must exercise over the growing crop such control as is incident to its care and culture; he is bound to the exercise of requisite labor, care, and skill to bring the crop to maturity; and to do so, the possession of it while growing must be in him.

§ 335. The cropper must farm in a husbandlike manner. The general principle controlling all contracts is applicable work under a contract which omits to specify the manner of its being done, is, by implication of law, to be done in a workmanlike manner; and where, as may often occur in this class of agreements, no specific mode of culture or of division of the crops is designated, the law will supply the defect, and, by implication, establish a covenant on the part of the cropper to do the work and treat the land in a workmanlike manner.1

§ 336. As to what is proper husbandry may, of course, like any other covenant, appear in the contract, but in the absence of such provision, local usage and custom in the vicinity will control.1

The prevailing theory in such matters is that parties, in the use of language in making contracts, give to it such signifi

est in a growing crop can not only be sold by him, but also may be sold by the sheriff on execution against him, and the purchaser will become tenant in common with the owner of the land.

1 Smith v. Nelson, 33 Iowa, 24. "Where a contract fails to specify the manner in which the work is to be done, it will be held, as a matter of law, that it was to be done in a workmanlike manner."

1 Clemm v. Martin, 34 Ind. 341. "A stipulation in a lease for farming that the crop, when harvested, shall be divided according to the custom prevailing among the farmers in the neighborhood in which the land is situated, is valid.” Scruggs v. Gibson, 40 Ga. 511, in which it was held that where there was an agreement made to cultivate A's land by B, and raise a crop on it, but nothing was said about rent or price to be paid for use of the land, and it was proven that there was a custom in the neighborhood to rent land for one-third of the crop, it was held that there was an implied agreement to conform to this custom, and that the parties would be deemed to have made the usual cropping contract, and a distress proceeding was authorized to give the owner of the land his share of the crop.

cance as it generally has in the vicinity, and is by common custom given to it by persons in the neighborhood under similar circumstances. Technical terms, words, and phrases may convey to the mind different impressions, and may have, in effect, different meanings in different places.

The whole theory of contract is based on the idea of the minds of the parties having met and agreed; to show what they agreed upon may not always be done by reducing the language of their contract to any precise, abstract standard of definition, but the true way is to give to their language such significance as the parties intended, and no way more just to ascertain their understanding has been found, than to apply local rules of construction established at the place by persons engaged in making similar arrangements. The same rule of construction applies to contracts or covenants which legal presumptions establish; the law only makes use of language for the parties, by assuming that they made covenants which they ought to have made.

§ 337. When cropping contract becomes an ordinary tenancy. The relation of landlord and tenant is created when the contract is that the cropper shall have the exclusive possession and pay for it by a portion of the crop; the distinction is a nice one, and upon it depends the relation of the parties each to the other, and to the subject-matter.1

The distinction must, however, not be lost sight of, between possession of the growing crop for the purposes of cultivating the land, caring for the crop, and the performance of such labor as the contract calls for, an absolute, uncontrolled possession of the land for the purpose of raising the crop.

14 Kent's Com. 95-6. "But if the contract be that the lessee possess the land with the usual privileges of exclusive enjoyment, it is the creation of a tenancy for a year, though the land be taken to cultivate on shares." (Jackson v. Brownell, 1 Johns. 267; 1 Bell's Comm. 75-7; Hart . Hatch, 40 N. H. 97.)

The permission to go upon the land to raise a crop is more of a license than a lease; "it is an authority to do a particular act, or series of acts, upon another's land, without possessing any estate therein. It is founded in personal confidence, and is not assignable, nor within the Statute of Frauds." (3 Kent's Com. 452-3; Alwood v. Ruckman, 21 Ill. 202.) "When the facts are doubtful as to whether the possession and control are absolute and exclusive in the tenant, or jointly in the owner of the land and the cultivator of the crop, and whether the right of entry continues for the year, or only till the crop is removed; the inclination will be, and should always be, in favor of the latter conclusion."

The possession of a tenant in common is the possession of his cotenant, and, so long as the contract is that of raising the crop on shares, the parties are tenants in common of the crop; hence, in the possession of the cropper there is nothing exclusive, and his possession is that of his cotenant, the owner of the land.

An important covenant of a lease is that the tenant shall have the quiet, peaceable, and uninterrupted possession of the demised premises; it is the manifest intention of the parties that the landlord shall be excluded, and the tenant may have his action against him if he interferes with the possession during the term of the lease; and the existence of a tenancy in common, whereby each has the right of entry and possession, would destroy the covenant for exclusive possession by the tenant.

The law is too well settled to admit of dispute, or to require authorities for its support, that where one lets to another a piece of land for the simple purpose of raising a single crop upon it, of which the owner of the land is to have a part, and the one who cultivates it is to have a part to pay him for the cultivation, that in that case the relation of landlord and tenant need not necessarily exist, but that the parties may be tenants in common in the crop which is raised.1

§ 338. Agreement to pay rent with part of crop makes a tenancy. The letting of land for a part of the crop, to be delivered at harvest time, is not a cropping contract. In this case a contract is made for the use of the land for the term, which may be determined in the agreement by specifying the length of its duration, or by limiting it to such time as may be required to plant, raise, and harvest the crop; the term is either definite, or by the agreement may be made so by the circumstances and occurrences indicated; the rent, instead of money, is to be paid in part of the produce, and is none the less rent because the precise amount is not determined at the time when the lease is made. Such a contract is a lease; the owner of the

1 Hare v. Celey, Cro. Eliz. 143; Foote v. Colvin, 3 Johns. 216; Bradesh v. Schenck, 8 Ibid, 117; DeMott v. Hagarman, 8 Cow. 220; Caswell v. Districh, 15 Wend. 379; Putnam v. Wise, 1 Hill, 234; Bishop v. Doty, 1 Vt. 37; Chandler v. Thurston, 10 Pick. 205; Walker v. Fitts, 24 Pick. 191: Maverick v. Lewis et al. 3 McCall, 211; Bernal v. Hovious, 17 Cal. 544.

land has no right of possession and no ownership of the crop until it is harvested and delivered to him, and the law is well settled that there may be a leasing of land from year to year, or for a single year, where the relation of landlord and tenant may exist, although the rent is to be paid by a portion of the crop, in which case the parties are not tenants in common of the crop raised, but the title to the whole is in the tenant until the rent stipulated is paid.1

§ 339. The intention of the parties characterizes the contract. Whether the parties are landlord and tenant, or tenants in common, under cropping contract, as in other contracts, depends on the intention of the parties; and this intention must, in most cases, be inferred from the circumstances which attend the case. In general, the question of possession will determine the matter. Where the tenant moves on to the farm, and, with the consent or acquiescence of the owner, occupies and controls it exclusively, as if it were his for the time being, and is, by the agreement, so to occupy it for the year, it would be deemed to be in his exclusive possession; and the contract would amount to a lease of the premises, although the rent was to be paid in a part of the crops, the amount of which was to be determined by the amount of the crop raised.2

"An agree

1 Dulaney v. Dickerson, 12 Ala. 601; Wells v. Preston, 25 Cal. 59. ment in writing between two parties, by which the party of the first part demises and leases to the party of the second part land, (describing the same) for a term specified; and the party of the second part agrees to cultivate and plant the land at his own expense, and deliver on the premises, to the party of the first part, one-sixth of all the crops raised as soon as harvested, and not to underlet the premises or yield the possession to any person other than the lessor, without the lessor's consent in writing, is a lease, and not a contract for the services of the party of the second part, for which he is to receive as compensation a portion of the crops he may produce."

"If the agreement contain terms which by themselves would import a lease, and other terms which provide for a division of the crops, and it is doubtful which it is a lease or a cropping contract-it will be deemed a cropping contract, by reason of the division of the crops." (Ibid, 64.)

So in Brozier v. Ansley, 11 Ired. 14, it was held that it was, in that State, (N. C.) a well settled law that "a cropper has no such interest in the crop as can be subjected to the payment of his debts, while it remains en masse; until a division is made, the whole is the property of the landlord." Citing State v. Jones, 2 Dev. & Bat. 544; Hare v. Pearson, 4 Ired. 77, which sustain the proposition, but only incidentally, and not with direct effect to the point.

2 Taylor's Landlord and Tenant, Sec. 24; Tuttle v. Bebee, 8 Johns. 152; Bailey v. Fillebrown, 9 Me. 12; Butterfield v. Baker, 5 Pick. 552.