charging the jury:
Gentlemen of the jury: — This is an action of replevin brought by John E. McLain against Harry S. Willey to recover certain personal property which was seized and taken by Willey as bailiff, under a distress warrant, to satisfy the claim of McLain’s landlord for rent in arrear.
While the action is one of replevin, in which the tenant is plaintiff, and the bailiff defendant, it will be less confusing to you, perhaps, if you will regard the suit as an action by the landlord Jennie E. Cornelius against John E. McLain her tenant, for the recovery of rent which she claims was due from McLain at the time of the distress. In effect such is the present action, and the case you are to decide.
It is not disputed that in the early part of the year 1907 Jennie E. Cornelius (then Jennie E. Bell), rented to John E. McLain a certain farm which McLain occupied as tenant for two years. And it is not disputed that under the terms of the demise the tenant was to pay his landlord one-half of all the grain and fruit crops raised on the farm. The landlord claims that the tenant was to pay her also one-half of the pelts or skins of all muskrats caught or taken on the marsh lands which constituted a part of the farm demised, as well as one-half of the meat if she furnished traps, which she claims to have done. The tenant denies that there *190was any such agreement, and insists that it was agreed between him and his landlord that he should have for himself all the muskrats he could get from the marsh.
Under the facts in this case, and the law applicable thereto, you cannot allow the landlord anything for the pelts or meat of muskrats that the tenant may have caught or taken during his tenancy. You may, therefore, eliminate and dismiss from this case any claim of the landlord based thereon. We do not say that a landlord, or landowner, might not make such a contract or agreement with a tenant or other person as the landlord in this case claims was made, and by a proper action enforce such agreement, but we do not think that muskrats are property, within the meaning of the law, out of which rent can be recovered, or for which a distress will lie.
In regard to the crop of oats in dispute, the tenant contends that a part of them were damaged by rain falling upon them from a window, the glass in which had been broken out, and that such oats were consequently of inferior quality, and of little if any value. We say to you upon this point that it is the duty of a tenant on shares to deliver the landlord’s share of the crops in a reasonable time after their maturity, no matter whether they are in good or inferior condition. And it is also his duty to properly harvest his crops, and until the delivery of the landlord’s share to keep such share in a safe place, and in good condition, so far as he can do so by the exercise of due and reasonable diligence and care.
The important question in this case for you to determine, gentlemen, is: Did the tenant pay or deliver to his landlord the one-half part of all the grain and fruit raised and grown on the demised farm during the years 1907 and 1908 ?
We may say to you that in determining whether there is anything due and owing from the tenant to the landlord in this case, there are two things to be considered: (1) What did the tenant in fact raise or grow on the farm? (2) Did he pay or deliver to his landlord one-half of all that he did raise or grow, according to the terms of his agreement? There can be no recovery in this action for any failure on the part of the tenant to cultivate and manage the farm in a good and proper manner. If *191you believe from the evidence that' there was, at the time of the distress, any rent in arrear, from any crop, due and owing to the landlord from her tenant, your verdict should be in favor of the defendant in the replevin for such amount as you are satisfied was the fair value in money of the share of any crop or crops not paid or delivered.
If you believe the tenant had paid his landlord all the rent to which she was entitled, your verdict should be in favor of the plaintiff in the replevin.
Verdict for plaintiff for six cents.