Hall, by an agreement with one Carney Crenshaw, leased tillable land to the latter, in October, 1872, for and during the year 1873; for which Crenshaw was to pay, as rent, ten bales of cotton, unless he should put up a gin-house and screw on the premises, during that year; which if he should do, he was to pay for rent only eight bales of cotton for said year 1873. He was likewise to have the land for the like rent of eight bales a year, for three years more, if punctual in paying the rent. This agreement was reduced to writing, which set forth, in the beginning of it, the contract for the year 1873; to which vras signed the name of Carney Crenshaw, and a cross mark between the words “his mark,” and also the name of plaintiff, Hall, as subscribing witness thereto. The writing was then continued on the same half-sheet of paper, and set forth the contract on the part of Hall to furnish nails and plank for the flooring and weatherboarding of the gin-house, and to renew the lease of the *217land, for three years more, on the terms above mentioned; and this part was signed by Hall, and attested by S. A. Hall.
Carney Crenshaw had the land cultivated during the year 1873, by four squads of hands; for three of which appellant, Lavender, made advances during the same time, for which he was entitled to be paid. Of one of these squads of laborers, Frank Crenshaw, son of Carney, was the foreman; and from him Lavender got some of the cotton made by his squad, to be appropriated to payment for the advances he had made. Hall, the landlord, to whom three bales of cotton were still due for the rent of 1873, demanded them of Lavender, who refused to surrender any of the. cotton he had received, but sold and disposed of it for his own use. Carney Crenshaw being insolvent, this action on the case was brought by Hall, the landlord, against Lavender, for damages.
1. A landlord, being by statute entitled to a lien on the crops made by his tenant, for the payment of the rent due from the latter, may have an action against a third person, who carries away such crops from the leased premises, and appropriates them to his own use, whereby the landlord is deprived of his rent.-Hussey, adm’r v. Peebles, 53 Ala. 432.
2. Hall having demised the land to Crenshaw, and he having had the occupation and use of it in making crops thereon, during the year 1873, the contract was executed for that period;— and the question whether it was in writing, signed by the parties, according to the statute of frauds, does not .arise. Conceding that the attestation of Hall to Crenshaw’s signature, to a contract with Hall himself, is not sufficient to make that signature by mark valid ; yet, the statute of frauds avoids executory, not executed contracts. Browne on Stat. Frauds, §§ 116,117, and cases there cited. And in a case like the present, “it is not for a mere stranger to a contract, as is the defendant to the contract between plaintiff and his tenants, to question its validity, because it is offensive to the statute of frauds. The parties may elect to treat it as valid, and to perform it. If they should, others can not avail themselves of an objection to the contract which they have waived.” —Gafford v. Stearns, 51 Ala. 444; Waters v. Powers, 20 Eng. L. & Eq. 410. Hence, there was no error in permitting the writing, to which the landlord and tenant assented, as expressing the terms of their executed agreement, whether signed or nob, to be read to the jury, to show what those terms were, in a suit between one of them and a third person.—Rainey v. Capps, 22 Ala. 288.
3. What Frank Crenshaw said to appellant, when the lat*218ter got the cotton in controversy, about tbe place on wbicb it was raised, was not admissible as evidence to tbe jury. It can not be suffered that tbe rights of parties shall depend on such declarations of third persons. And the question designed to elicit such declarations was properly ruled out.
Nor was there any error in refusing to give the written charges asked on behalf of the defendant. The liability of one sued, for tbe damage produced by his wrongful act to the plaintiff, is not precluded by tbe circumstance that be did not intend to do the plaintiff an injury. There is no pretense of a claim in this cause to smart money for malicious couduct on the part of defendant.
The charge given to the jury, on their return for further instructions, is free from error. There was evidence tending • to show that it was n ot Hall’s fault that the nails and lumber mentioned in tbe contract were not furnished, but Carney Crenshaw’s in not applying for them, and in willfully declining to complete the buildings be was to erect.
Let tbe judgment of tbe Circuit Court be affirmed.