If the agreement between the plaintiff and Command was simply in ordinary phrase, that the latter should work the plaintiff’s farm on shares, and they should divide the crops, or the proceeds of the same, this would, doubtless, have constituted them tenants in common in such crops (Chawnen agt. Lusk, 2 Lansing, 212; Armstrong agt. Bicknell, idem, 219 ; Tobie agt. Shat-tuck, 22 Barb., 568; Tanner agt. Hill, 44 Barb., 428; Pulman agt. Wise, 1 Hill, 234).
But the agreement which the plaintiff proved, and which the referee found to have been made between the parties, in respect to working in common of said farm, does not, I think, involve any such consequences, or create any such relative rights. Parties can make an agreement for the cultivation, by one of them, of the land of another, which does not, in legal effect, make them tenants in common, as between themselves, in respect to the crops, and such an agreement, I think, the plaintiff made in this case with said Command.
These parties, as the referee finds, had some agreement some time in March, 1870, that said Command should work a part of plaintiff’s farm on shares.
*486The terms of this agreement do not distinctly appear in the report of the referee, or in the evidence. But the referee does find that on the 14th day of April, 1870, the plaintiff sighed a note with said Command to secure the purchase-price of a horse, to wit, $170, and which was paid by said plaintiff under the verbal agreement aforesaid, and which, in his testimony, the plaintiff states as follows: “ I was to have the right to and possession of all his (Command’s) crops until this and other advances were paid. I furnished seed and feed for the team during the spring and autumn, until I sold the farm, and Command agreed I should have my pay out of the crops, and they should be in my possession until all myádvanees were paid, and he should take none off without my knowledge and consent.”
This agreement was made on the fourteenth day of April, a few days after the arrangement spoken of in March and before the spring work on the farm commenced, as I understand the facts, and was at least a modification of the original contract, or a more specific and full agreement, and must be deemed, I think, to be a substitute for and stand in the place of any other agreement or understanding previously had between the parties, ifo rights then existed except such as rested on mere verbal understanding or contract, more or less explicit, that Command should work the farm upon shares.
This agreement should be considered, I think, as the final and definite arrangement between the parties in respect to the terms upon which such farm should be worked.
By this arrangement I think it was understood by both parties, and was the contract, in fact, that the crops should belong to the plaintiff till his advances made to the said Command should be paid, and such advances were made on the faith and security of such agreement. There were then no crops in existence. There was nothing upon which a chattel mortgage could operate. An agreement to give a lien on the crops thereafter to grow on said farm, as between the parties, would, doubtless, be valid in equity, and take effect when the *487crops came into actual existence (Seymour agt. Canandaigua Falls R. R. Co., 25 Barb., 305).
The only way in which the plaintiff could effectually secure himself for the advances made and to be made upon such crops not then sown or planted, as they were sowed or planted on his own land, was to reserve and retain the title to such crops till such advances were paid. This the parties must have understood, and their agreement should be construed so as to carry out their actual intent in this particular.
This intent is more clearly expressed in the testimony of the plaintiff, in giving the terms of the contract. Plaintiff testified as follows: “ he, defendant, stipulated that I should have my pay out of the crops, and they should remain in my possession and be mine until my advances were paid.”
The referee finds this contract, but overlooked in stating it, the fact above stated, that “ the crops should remain in my possession and be mine.”
There is no reason in the evidence that I can see why these terms of the contract stated by the plaintiff were or should be omitted in the finding of the referee, and I presume it is a mere mistake or casual omission in the statement of the contract in his report.
In accordance with these views the plaintiff had the title to the crops, and the whole title thereto, as between him and the said cropper, Command, and they were not tenants in common in such crops; said Command had to do the work of pulling and harvesting said crops, and had the rights of a cropper to one-half of such crops, as between him and said George, and was to receive from the proceeds thereof, as between him and the plaintiff, one-half of the amount that should remain in the plaintiff’s hands after his advances were paid. The parties clearly acted upon this assumption, for it appears that after the agreement aforesaid was made on the eighteenth of April, the plaintiff furnished seed and feed for the team during the spring and summer, and made other advances *488to said Command, in the aggregate, as the referee finds, amounting to the sum of $270.
If these views are correct the referee erred in dismissing the plaintiff’s complaint. The said Command had no title to the tobacco, and of course could give none to the defendant.
Assuming that the defendant was the bona fide purchaser of said tobacco from said Command, he could acquire no higher title thereto than Command himself possessed ( Ballard agt. Burgett, 40 N. Y., 314; Heming agt. Hoppock, 15 N. Y., 409; Austen agt. Dye, 46 N. Y., 500).
The plaintiff, I think, was entitled to recover for one-lialf of the tobacco purchased by the defendant of Command, stipulated at the' trial to amount to $280.95, with interest from January 31, 1871.
The judgment should, therefore, be reversed, and a new trial granted, with costs to abide event.
■Judgment affirmed.