The appellant pleaded that the ungathered corn and cotton attached were exempt as raised on a homestead, and sought to have "the cotton and corn restored to his possession," or, in the alternative, to recover their value. Appellant also sought to recover special damages occasioned to the crop as resulting from wrongfully taking possession thereof. The propositions present, in effect, the two points in view: That (1) the special damages allowed by the court were inadequate; and (2) the crops being exempt from forced sale, the attachment should have been vacated and the possession of the corn and cotton restored to appellant, or judgment for their value allowed. As there is evidence to support the court's finding of the amount of special damages allowable, this court would not be authorized, in view of the conflicting evidence, to set that finding aside. Such damages, being the value of exempt property, was not a subject of offset, and in this respect there was error in the Judgment.
The next proposition, that the crops levied on were exempt, as raised upon homestead premises, should be sustained, we think, in view of the evidence. The attachment should have been vacated and a judgment entered for appellant for the specific property or its value. It is the settled law that a tenant, as appellant was, may claim a homestead right in premises let for a certain term under an agreement evidencing the intention to lease the land. Moore v. Graham, 29 Tex. Civ. App. 235,69 S.W. 200; Phillips v. Warner, 4 Willson. Civ.Cas.Ct.App. § 147, 16 S.W. 423; Brewing Ass'n v. Smith (Tex.Civ.App.) 26 S.W. 94. And generally, without exception, the crops raised upon a homestead and not gathered or severed from the ground, although matured, are exempt from execution or attachment. Coats v. Caldwell, 71 Tex. 19, 8 S.W. 922, 10 Am. St. Rep. 725; Allen v. Ashburn, 27 Tex. Civ. App. 239, 65 S.W. 45; Speer on Marital Rights, § 402.
By the terms of agreement, as found by the court, between the owner of the land and the appellant, the owner of the land was to furnish the land, teams, and tools, and feed for the teams, and the appellant was to farm the land in cotton and corn. When matured and gathered, "the crop was to be equally divided" between the parties. The "one-half of the crops" was to be paid "as rents" to the owner of the land. It was further agreed that the appellant was to have "full charge of the farm" and be free to determine "how many acres should be planted in cotton and how many should be planted in corn." The appellant was "to have the farm for the year 1923," beginning January 3, 1923. It appears that the particular farm consisted of "79 9/10 acres of the N. G. Crittenden survey," and was inclosed with a fence. Fifteen acres was set off as a pasture, and the balance was all tillable land. There was a house on the land, and the appellant was to "live there with his family." Appellant and his wife and one child occupied the house. Appellant planted 15 acres in corn, and about 60 acres in cotton, and cultivated it without direction or supervision of any one. Appellant, it appears, had exclusive possession of the farm, and the landowner was "not on this farm more than two or three times during the time, and before the levy was made." In the light of the agreement and the facts, all the elements appear necessary to constitute a lease or letting of the land itself for the entire period of the year 1923, and to create the relationship of landlord and tenant between the parties. The share of the crops, coming to the landowner, was to be delivered to him "as rents," and the appellant was to have "full charge" or exclusive possession of the farm, free of control of the owner, for the period of a year. The appellant's use of the land was not restricted, except to the extent that it should be planted in "corn and cotton" in such proportions and acreage as the appellant himself might determine. According to settled rules of law the relation of landlord and tenant may exist, although the rent is payable in a share of the crop, even to the extent of one-half, in case the cultivator of the land was to have and to hold the exclusive possession of the premises, with the assent of the owner, for some fixed time. 38 Cyc. 123; 24 Cyc. 1464; 36 C.J. p. 634; 16 R.C.L. § 58, p. 583.
It seems to appear that the court was of the opinion that since the appellant was to have the farm on "halves," with teams and tools furnished him, the case came within and was ruled by the following cases: Webb v. Garrett, 30 Tex. Civ. App. 240, 70 S.W. 992; Ellis v. Bingham (Tex.Civ.App.) 150 S.W. 602; Watson v. Schultz (Tex.Civ.App.) 208 S.W. 958. There is a substantial difference between the situation in those cases and the situation in the present case. In those cases the parties were each, as *Page 350 determined, in the relation "merely of a cropper" with no estate in the land, and not a tenant having a substantial interest in the land. In the Ellis Case, supra, Ellis was to work the land "under a boss," who "controlled me all the way through in working and gathering and disposing of the crop," and he was to "have the house for the purpose of using while he worked the land, the same as the woodcutters." Such contract, as determined, was "merely a personal engagement" of Ellis warranting the conclusion reached by the court that Ellis was a mere cropper, as it is termed, and had no estate in the land, sufficient to form a homestead right. In the Webb Case it was determined that under the agreement Webb "did not have in the premises a possessory interest sufficient to base a homestead right upon," because the land was the owner's "homestead," and she, by intention of the parties, expressly reserved the right of possession and granted to Webb only the privilege or license of ingress upon the land to cultivate it. Those cases do not hold, and it was not intended to so hold, that a person renting land for a share of the crop, or "on halves," could in no event be legally classed as a tenant. The distinction between those cases and the present one is found in the legal distinction made between a tenant and a mere cropper.
The distinction between a mere cropper and a tenant, entitling the tenant to a homestead right in the premises, is clear. One has a possession of the premises for a fixed time exclusive of the landlord, the other has not. The possession of the land is with the owner as against the mere cropper, because a mere cropper is in the status of an employee, one hired to work the land and to he compensated by a share of the crop raised, with the right only to ingress and egress on the property. This is not so as to the tenant, who has a substantial right in the land itself for a fixed time. Quoting from 12 Cyc. 979:
"The intention of the parties as expressed in the language they have used, interpreted in the light of the surrounding circumstances, controls in determining whether or not a given contract constitutes the cultivator a cropper. If the language used imports a present demise of any character by which any interest in the land passes to the occupier, or by which he obtains the right of exclusive possession, the contract becomes one of lease, and the relation of landlord and tenant is created. If, on the other hand, there be no language in the contract importing a conveyance of any interest in the land, but by the express terms of the contract the general possession of the land is reserved by the owner, the occupant becomes a mere cropper."
See, also, 17 C.J. p. 3S2; 8 R.C.L. § 19, p. 373.
If the contract becomes, as here, one of lease or renting for a year, with exclusive possession in the tenant, it is immaterial whether the landlord is to receive as rent one-half of a third and fourth of the crops raised. The factor is "the right of exclusive possession ;" as the legal effect of the contract, and not "the shares of the crop" only. In other words, when the contract evidences the intention, as here, of "renting the land," and not merely a hiring "to work the land," the relation of landlord and tenant legally exists, for the statute expressly authorizes a landowner to "rent" his land and receive his rents in shares of the crop, and gives him a statutory landlord's lien therefor. Article 5475, Rev. Stat.
It does not affirmatively appear that the 1,381 pounds of gathered cotton was levied upon; but, if it had been, the attachment lien thereon would have been valid, since, being severed from the ground, it was not exempt.
The judgment, we conclude, should be reversed and here rendered as follows: The appellee to recover his debt sued for, with foreclosure of the chattel mortgage lien on the cow, and the costs of the trial court, except the costs of the attachment proceeding, which are taxed against him, the writ of attachment is vacated, and the appellant to recover the specific crops levied on, if available for delivery, together with the $200 as damages; but, if such property be not available for delivery, then, in the alternative, the value of his interest in the ungathered corn and cotton levied on, which, as found by the court, would be one-half of 8 bales of seed cotton of the value of $608, and one-half of 300 bushels of corn of the value of $150, aggregating the sum of $758, which amount includes and is not additional to the $200 allowed as the value of the part destroyed and injured by overflow, the appellee to pay costs of the appeal.