On Motion for Rehearing.
The appellee in the ease earnestly insists that we were in error in the original opinion. He says the trial court did not believe McCullough. The trial court was not selected to pass on the credibility of the witness. A jury was chosen for that purpose, and they found in accordance with McCullough’s testimony. The trial court disregarded their findings and, notwithstanding their verdict, rendered judgment according to his views. The only power he had was to set aside the verdict and grant a neW trial. We repeat *947that there is no contradiction of McCullough’s evidence that all the property of the corporation was turned over to the trustee. His letters to Ditto, if in fact admissible against the trustee, and his mortgage to Stamps of the crop, do not necessarily contradict him. The facts and the letters themselves show that he was making the claim on the advice of some attorney. We take it that this was given on the ground that he could not dispose of the corporation property. Stamps swears that he worked for Robinson, the trustee, from February 20, 1912, to September 3, 1913, and that he was not working for McCullough or the hardware company, except in working for the trustee. He swears that he rented the land for the years 1912 and 1913, and that he turned over the crop to McCullough for 1912 and to the trustee for the year 1913. He says he was working for the trustee during this time, who was paying him for his services. Whether McCullough took, claimed, or demanded the rent, it was not his to handle. He says that Robinson, as trustee, had possession of all this land and the personal property of the corporation. After he turned it over to the trustee, the agent for the trustee rented it, and the rent was a trust fund, and it makes no difference what McCullough did after-wards in regard to it. His acts will not defeat the beneficiaries.
Again, it makes no difference to Ezell whether the personal property was turned over to the trustee under a written instrument or verbal. The crops growing on the land purchased were the trustee’s for the benefit of the creditors. Our Supreme Court has expressly held, in the authority cited by appellee, that growing or standing crops produced by annual cultivation are no part of the realty and are liable to voluntary transfer as chattels and may be seized and sold under execution. Ezell, under his theory, would be as much entitled to Ditto’s (the tenant’s) portion of the crop growing on the place as he was to the interest belonging to the trustee. Whether the substitute trustee, at the time he made the sale, was acting properly, is a matter Ezell had nothing to do with. The creditors are not complaining; the trustee is not objecting; and McCullough is not protesting either for himself or his corporation. Everybody appears to be satisfied, except Ezell, who paid nothing for the crop, and, lest he might have to do so, he had the substitute trustee at the sale to announce that the crops would not be sold. He himself severed or agreed to the severance of the crop from the land at the time of the sale; but now, simply because he said if he bought the land he would claim the crop, he claims he purchased it. This did not make a purchase of the crop. He cannot blow both hot and cold. When he agreed to a severance at the sale of the land, he will not be heard to contend there was no severance made for the first time after he bought only the land.
The motion for rehearing will be overruled.