This action is trover for some corn, peas, and beans, and on not guilty pleaded, the case was this: Keel and Spruill made a bargain for the cultivation of a plantation belonging to Spruill, in 1849, as follows: *Page 53 Keel was to cultivate the land and furnish the means and materials to make the crop as far as he was able; and such as were not furnished by him were to be furnished by the defendant, and at the end of the year defendant was to sell the crop, and he was to have one-third, and then deduct all the expenses and pay the residue to Keel. Under the agreement the defendant put in several plough horses and furnished provisions and other things; and about 400 barrels of corn and some peas and beans were made and gathered. In January, 1850, Spruill made a contract for the sale of the corn at $2.15 a barrel, which was approved by Keel, but he died in February, before the delivery of the corn, and the crops remained on the land in possession of defendant, and he refused to deliver them to him, but delivered them to the purchasers in March following. The court held that the action would not lie, (56) and nonsuited the plaintiff, and he appealed. This is not a case of leasing land by the one party to the other, nor of hiring a laborer by the owner of the land, as it seemed to the court. There was nothing said as to the payment of rent or wages, as such, either in money or parts of the crop. But, on the contrary, the terms of the bargain show it was intended that there might be, as in fact there was, a joint cultivation on joint account of the parties, with a particular provision for disposing of the crop in convenient time and manner, in order to close the transaction by paying the expenses out of the proceeds, and dividing the residue in the proportions agreed on. The value of the labor and provisions supplied by the defendant was thus a charge on the crop, and was not a personal debt of Keel, in the first instance, and would not become so except for his proportion of the loss in case the crop should not be sufficient to defray the expenses. The parties were thus joint owners of the crop, and the defendant, as survivor, had the right to the property in order to dispose of it according to the contract; and, therefore, the plaintiff ought not to recover.
PER CURIAM. Affirmed. *Page 54
(57)