Opinion
(June Term, 1845.)
Where land is rented for a share of the crop an execution cannot be levied on the lessor's share until it has been allotted to him by the lessee.
APPEAL from SURRY, Spring Term, 1845; Bailey, J.
Morehead for the plaintiff.
Boyden for the defendant.
Trover for a parcel of corn, in which a verdict was found for the plaintiff, subject to the opinion of the court on the following facts: On 1 January, 1840, Iredell Armstrong was seized in fee of a tract of land, which he then leased to one Levi Fisher for one year, at a rent of one-third of the corn and oats that should be made on the land during the year. At that time one Peter Simmons had a judgment in the county court of Surry against Iredell Armstrong, and in February, 1840, he sued out a fieri facias, under which the land was sold by the sheriff in May, 1840, to Peter Simmons, who took a deed in May, 1842. In July, 1840, a constable levied a fieri facias, issued on a justice's judgment against Iredell Armstrong, on his share of or interest in the crop of corn then growing, and in August following sold it to the plaintiff. When the crop was gathered Fisher, the tenant, allotted one-third for the landlord, and the defendant took it under the authority of said Simmons, and the plaintiff then brought this action in April, 1841. If the court should be of opinion for the plaintiff, then the verdict was to stand and judgment to be entered accordingly; if for the defendant, then the verdict was to be set aside and a verdict and judgment entered for the defendant. His Honor was of opinion for the defendant, and from the judgment the plaintiff appealed.
Without considering what interest a purchaser of the lessor's reversion at sheriff's sale could acquire in this (410) rent, or whether, if he got any, he could act on it before he took a deed from the sheriff, the Court is of opinion that this action must fail, for the want of property in the plaintiff. Deaver v. Rice, 20 N.C. 567, is decisive upon the question. The estate in the land during the term was in the lessee, and the property of the crop growing on it was therefore exclusively in him. The contract on his part to pay the landlord one-third of the crop as the rent was merely an executory contract; and, notwithstanding such contract, the whole crop might be disposed of to another person by the lessee, or be sold on execution against the lessee. Consequently it could not be sold as the property of the lessor; and the present plaintiff acquired, under his purchase, no interest in the thing and cannot maintain the action of trover. If the act of 1840, ch. 37, which exempts the share of the crop to be given for rent from execution against the lessee until the end of the year, could affect this question, it is to be remarked that, in this case, it cannot, inasmuch as this transaction occurred the year preceding the enactment of the statute.
PER CURIAM. Affirmed.
Cited: Kesler v. Cornelison, 98 N.C. 385; Howland v. Forlaw, 108 N.C. 569.
(411)