Summary
In Hare v. Pearson, 4 Ire. Rep. 76, a case not referred to by the counsel, it was decided that, where one crops, or works with the owner of land for a share of the crop, and, after it is made, the crop is divided, the share of the cropper is liable to be sold, though it was levied on before the division, and though it still remains in the crib of the owner of the land.
Summary of this case from Warbritton v. SavageOpinion
(December Term, 1843.)
1. Where one crops or works with the owner of land for a share of the crop, and after it is made the crop is divided, the share of the person who has so worked is liable to be sold, though it was levied on before the division and though it still remains in the crib of the owner of the land.
2. The wrongful dominion and assumption of property in personal chattels by one who menaces the rightful owner, if he attempt to take them, amount in law to a conversion, and are not merely evidence of a conversion to be left to a jury.
APPEAL from Bailey, J., at Fall Term, 1843, of NASH.
Busbee for plaintiff.
B. F. Moore for defendant.
This was an action of trover for a quantity of corn. On the trial the plaintiff offered evidence to show that the defendant rented a small tract of land to one Elijah Powell, a free man of color, for the year 1841, and that the said Powell cultivated the land in corn and agreed to give the defendant one-half of the crop. He then offered in evidence a judgment obtained before a justice of the peace dated 13 March, 1841, and an execution which was levied upon the growing crop of the said Powell on 5 June following. The sale was postponed at the instance of the said Powell, and was not made until after the corn was gathered and put in a barn on the land of the defendant then in the occupancy of the said Powell. It was further in evidence that when the corn was gathered and about to be housed, an equal division was made between Powell and the defendant, but that the whole of it was put in the barn aforesaid. The sale was made 8 February, 1842, the plaintiff and defendant, the constable and others being present. The constable proceeded to the house and there offered the corn for sale. The defendant forbade the sale and declared the corn to be his. There was evidence that more than half of the corn had been taken out of the barn. The plaintiff purchased what was left and gave notice to the defendant that he (77) should take it away. The defendant then told him that the corn was his; that he (the plaintiff) should not have it, and that he would break every bone in his body before he should carry it away. The defendant offered evidence tending to show that he did not rent the land to Powell, but that he (Powell) acted only as a laborer, and that he was his servant and had no interest in the crop which was subject to the plaintiff's execution, and for the purpose of showing the contract between Powell and himself he further offered to prove the declarations of Powell made at one time and the declarations of himself made at another time before the issuing of the warrant against Powell, which evidence was rejected by the court. The defendant further insisted that there was no conversion.
The court left it to the jury to say whether Powell was the tenant of the defendant for 1841, or whether he was merely his servant. If he acted as his servant, the plaintiff could not recover; but if he was his tenant, then the constable had a right to levy upon and sell that part of the corn which belonged to him; and if the defendant forbade the sale, and after it was made he had notice from the plaintiff, who was the purchaser, that he should come for the corn, and he then told the plaintiff that the corn was his property and the plaintiff should not have it nor should he carry it away, this in law amounted to a conversion, and the plaintiff would be entitled to recover its value.
Under these instructions the jury returned a verdict for the plaintiff. A new trial having been moved for and refused, the defendant appealed.
1. Admit that Powell was the servant and cropper of the defendant at the time the growing corn was levied on by the officer as his property (which then in fact was not his, but belonged to the (78) defendant), still at the day of sale the title to the corn actually sold was in Powell by the division previously made with the defendant, and the plaintiff acquired a good title under the said sale. An officer has a right to sell personal property levied on under an execution after the return day of the said execution. Powell was present at the sale and raised no objection. If there had been any irregularity in the sale he was the person to raise the objection, and not the defendant. The corn had been placed by Powell in the defendant's barn upon a naked bailment for safe-keeping. The sale of it and the demand by the purchaser put an end to the bailment.
2. The defendant on the day of sale set up a claim to the corn as his property, but he has shown no title. The plaintiff gave notice to the defendant that he should take away the corn which he had purchased at the officer's sale. The defendant said that he should not have it; that the corn was his, and that he would break every bone in his body before he should carry it away. The judge charged the jury that this, in law, was a conversion. It is now insisted that it was only evidence to be left to a jury of a conversion. We think the charge of his Honor was correct, for a wrongful dominion and assumption of property in the chattels is a conversion; and if there be a deprivation of the property by a defendant, it is a conversion. Keyworth v. Hill; 3 Barn. Ald., 687; 2 Leigh Nisi Prius, 1478. We think that the judgment must be
PER CURIAM. Affirmed.
Cited: Brazier v. Ansley, 33 N.C. 14; Warbritton v. Savage, 49 N.C. 385; Rhea v. Deaver, 85 N.C. 340; University v. Bank, 96 N.C. 285.
(79)