The opinion of the court was delivered, November 18th 1867, by
Thompson, J.If the agreement between the plaintiff and defendant in this case, is to be regarded as a lease of the premises, it would pass the possession of the buildings on it to the lessee. It would necessarily be a covenant for quiet enjoyment. The instrument is very inartificial, but we think it contains all the elements of a lease.
It sets out by a stipulation, that “ Steel agrees to let Erick farm his part of the Warden farm, now in the possession of James D. Porter.” This is a letting to farm by equivalent words to these, “ To farm let,” which are operative terms in leases. The premises mentioned were well understood, at least no dispute exists on the ground of description. After this preliminary stipu *175lation, then follows “for the term of one year.” It-may as well he said here, that this and what follows is nothing like a contract for cropping. After stipulating about the mode in which the farming was to he done, and that the lessee should haul out all the manure to the fields, and keep the fences in good repair, then follows the reservation of rent, which was to be “ the one-half of all the oats, corn, wheat and rye, to be delivered to Steel at market when wanted, or ready for delivery, and the payment of all the taxes for the year 1862. Frick to have all the hay and the pasture of the land during the year.”
A cropper is one hired to work land and to be compensated by a share of the produce. Such a contract gives him no legal possession of the premises, further than as a hireling. The legal possession remains in the hirer or landlord, and hence the remedy by distress is not applicable to him: Fry v. Jones, 2 Rawle 11; Adams v. McKesson, 3 P. F. Smith 81. That the above contract is not a hiring to work land merely, is evident. The lessee was to farm the lessor’s share or portion of the Warden farm for the term of one year — to do it in a sufficient manner as farming should be done, and to pay all taxes. This left the mode of farming to the lessee, as it is not stipulated to be done in a particular way, and necessarily gave him the possession and control to do the farming in his own way, unlike the relation of a mere hireling — still more unlike cropping, as the stipulation that the lessee was to pay the taxes. One hired to crop would hardly be expected to pay taxes. But it is further apparent in this, that Frick was to have the possession of the premises for the specified term, on the stipulation that he was bound to haul out the manure, and keep the fences in repair. These stipulations clearly look to a possession of thp premises by the lessee; so, too, is the stipulation for all the pasturage during the year. If then the contract means, as we think it does, that the possession was to be in Frick, this evinces the intention to create a tenancy.
That the rent was reserved,’payable in kind by a share of the grain, does not militate against the idea of a lease. In Fry v. Jones, on the demise of a grist-mill, the lessee to render one-third of the toll as rent, it was held by this court that the lessor might distrain for rent. The principle to be applied.in that case was illustrated by the learned judge, by the case of farm-letting. “We have almost always,” says Rogers, J., “adopted the mode of renting for a share of the produce of the farm, which is preferred by tenant and landlord;” and he follows this remark by concluding that a distress was the remedy in such a letting. An implication of a doubt in Warren v. Forney, 13 S. & R. 52, whether the right of distress is incident to a lease, may possibly arise from the remark of Tilghman, C. J., in refusing to express any opinion on the point, although he said he did not consider it *176legitimately belonging to it; but Fry v. Jones was decided five years subsequently, and both by illustration and the announcement of the very principle settled the doctrine that it is. So in Jones v. Gundrim, 3 W. & S. 531, rent payable in hire was held to be liable to distress, and the case of Jones v. Fry was relied on as authority for it. The same doctrine is very distinctly announced in Rinehart v. Olwine, 5 W. & S. 157. We consider the doctrine settled, and that in this case there was a letting for a term, with a reservation of rent sufficiently certain to permit of a distress. This being so, the agreement for tenure was broken on the failure of the plaintiff to get possession, being kept out by a person in possession under the defendant. The declarations of the defendant, and his offer to give the plaintiff a house and land in another place, was some evidence of the understanding as to the possession. Upon the whole, we see no error on the part of the court in construing the instrument in question a lease, and in charging as it did on the subject-matter complained of.
Judgment affirmed.