It was proved that the plaintiff worked turpentine trees on the locus inquo, under the following agreement between himself and one Bryant, viz: "This indenture, made and entered into on 1st day of January, 1853, by and between Andrew Bryant, of the one part, and Edwin Denton, of the other part, witnesseth: that the said Andrew Bryant has rented a certain *Page 62 piece, or parcel of land, lying and being in the county of Nash, State of North Carolina, adjoining the lands of Gideon Strickland, Hilliard Mitchell and others, containing about three hundred acres more or less, the present year, unto the said Edwin Denton, for the purpose of getting turpentine; and agrees to give said Denton one-half of all the turpentine he may procure and save from the pines standing on all the land in possession of said Bryant, and by him heretofore worked; and the said Edwin Denton, on his part, doth covenant and agree to and with the said Bryant, that he will alter, change, and re-box all the pines of said Bryant, and work the same to the best advantage, for the benefit of said Bryant, during the year, or until the crop is saved, and dip out and place in the barrels of the said Bryant, by him to be furnished at or near the different positions found convenient for filling barrels, c., the one-half of all the turpentine, scrape, c., by him saved."
During the year specified in the agreement, and while the plaintiff was carrying on the business of making turpentine, the defendants entered upon the locus in quo, dipped from the boxes, and carried off some of the turpentine; which is the trespass complained of. Bryant resided on the land in question, prior to the date of this agreement, and continued so to reside during this year.
On the part of defendants it was contended, that plaintiff could not maintain the action on either of the counts.
But the court held that the action was properly brought, and that he was entitled to recover. Defendant excepted.
Verdict for plaintiff. Judgment and appeal. There is no doubt that turpentine trees are the subject of lease; and it is equally clear the lessee may maintain trespass quare clausum fregit, if the trees are injured.
The distinction between a "lessee" and a "cropper" is fixed by a series of cases. The latter acquires no estate — has *Page 63 merely a right of action on the contract, and for that reason, cannot maintain either trespass or ejectment. See Rooks v. Moore, Busb. 1.
So, our question is one of construction merely, in regard to the legal effect of the deed set out in the record.
The words "Bryant has rented a certain piece of land, lying, c., the present year unto Denton, for the purpose of getting turpentine," might import a lease, and, indeed, such would seem to be the meaning, if they were not explained; but the words "and agrees to give said Denton one-half of all the turpentine he may procure and save," put the idea of a lease out of the question.
It is of the essence of a lease, that the tenant should pay rent (from the word redditus) to the landlord. Here no rent is to be paid by Denton, but Bryant is to give him one-half of the crop. This shows that the intention was to make an agreement, by which Denton was to work the trees on the land described, during the year, or until the crop was saved, and was to receive from Bryant, one-half of the crop, as a compensation for his services.
We put no stress on the fact that the parties term it "an agreement" and not a "lease:" nor is any importance to be attached to the fact that the instrument is called an "indenture;" as no more formality is necessary to make a lease for a year, than to make an agreement as to the cultivation of the land.
Our conclusion being, that the plaintiff was only a cultivator of the turpentine trees, that is, "a cropper," it follows, the action cannot be maintained upon either count of the declaration.
As there is so much difference between a lease, and a contract to work for a share of the crop, in the legal consequences and rights conferred, it is singular that the parties to contracts do not express their intention more clearly than is usually done in such instruments as that under consideration. A venire de novo must be awarded.
PER CURIAM. Judgment reversed. *Page 64