Opinion
August Term, 1849.
1. Where a person agrees to work on the land of another for a share of the crop, the cropper cannot convey a legal title to his share of the crop to a third person before an actual division and appropriation.
2. And the owner of the land who made the contract is not estopped to deny the right of such assignee to recover at law.
APPEAL from the Superior Court of Law of IREDELL, at Spring Term, 1849, Ellis, J., presiding.
This was an action of trover brought to recover damages for the conversion of a parcel of oats and corn, alleged to be the property of the plaintiff.
To prove property the plaintiff offered a bill of sale, from one Irwin, of all his interest in the crop of corn and oats then growing on the land of Samuel Hart, the defendant, executed 1 June, 1844. The said Irwin was introduced by the plaintiff and swore that he had agreed with the defendant to work in the crop with him in 1844, on the defendant's land, and that the defendant agreed to give him one-fifth part of all the corn and oats that should be raised on the plantation during that year, and the witness had transferred the said interest to the plaintiff by the said bill of sale, at the time therein specified and before any part of the said crop was gathered. The witness testified further, that he kept a hand in the crop during the year, and he, himself, left the country. He swore further, that the oats were cut, and his share, 70 dozen of sheaves, were stacked to themselves in the field, and afterwards put by the defendant into his (the defendant's) barn, and that the corn was put into the defendant's crib without a division. The court expressed the (64) opinion that the bill of sale did not vest such a title in the plaintiff as to enable him to sustain this action; that Irwin's interest in the crop was an executory contract and not any specific property, and that, being a mere chose in action, it could not be transferred to the plaintiff.
In submission to this opinion the plaintiff submitted to a nonsuit and appealed to the Supreme Court.
H. C. Jones for plaintiff.
Osborne was on the same side. (65)
Clarke and Boyden for defendant.
We concur in the opinion of the judge below, for the reasons given by him. Irwin, the cropper, had a mere executory contract, a chose in action, which could not be assigned. S. v. Jones, 19 N.C. 544.
It was very ingeniously argued for the plaintiff that, yielding the question as to the corn, he was entitled to recover for the oats, upon the doctrine of estoppel; for although the bill of sale was executed before the oats were cut, yet as Irwin's share was afterwards allotted and stacked to itself, it thereby became vested in Irwin. This act of appropriation fed the estoppel, and thus the right of property vested in the plaintiff.
When one sells property which does not belong to him, he and his privies are estopped from alleging that the vendee (66) did not acquire the title; but the estoppel does not extend to third persons. If the vendor afterwards acquires the title, it feeds the estoppel and vests in the vendee a right of property, not only against the vendor and his privies, but against third persons. Thus the sale has a double operation: first, to conclude the parties and privies until the title is acquired; and then to pass the right of property. Fortescue v. Satterwhite, 23 N.C. 566; Christmas v. Oliver, 2 Smith Leading Cases, 417, 458. Unfortunately for the plaintiff, there is no estoppel in this case. So the learning about feeding an estoppel is not applicable.
Unless the party professes to have such an interest as could be passed by the conveyance, if he had it, there is no estoppel, for the plain reason that a matter of law can always be insisted on, as, that a chose in action is not assignable, and estoppels are restricted to matters of fact. In Right v. Bucknell, 2 Barn. and Ald., 278, it is said, "There is no estoppel when it is apparent, from the face of the deed or the averment of the party who relies upon it in interest, that, according to the fundamental doctrine of common assurances, the deed could not have sufficed to pass the estate which he claims to hold under its operation." Lord Coke says, in Co. Lit., 352, b, "One shall not be estopped where the truth appears by the same instrument, as that the grantor has nothing to grant, or only a possibility," and he might have added, "or only a chose in action."
PER CURIAM. Judgment affirmed.
Cited: Barwick v. Wood, 48 N.C. 310; Wellborn v. Finley, 52 N.C. 236; Harrison v. Ricks, 71 N.C. 11; Rouse v. Wooten, 104 N.C. 231; S. v. Austin, 123 N.C. 750.
(67)