Dinehart vs. Wilson, 15 Barb. 595

By the Court, Marvin, J. Putnam v. Wise, (1 Hill, 234,) is an authority in point, to show that the plaintiff and Hooker Were tenants in common of the wheat. This case cannot, upon that question, be distinguished, in principle, from the case re- ' ferred to, which overrules Stewart v. Doughty, (9 John. 108,) and Overseers of the Poor of Fort Ann v. Overseers of the Poor of Kingsbury, (14 John. 365,) and Jackson v. Brownell, (1 Id. 267,) so far as those cases bear upon the question» Justice Oowen, in Putnam v. Wise, was of the opinion that Caswell v. Districh, (15 Wend. 379,) overruled Stewart v. Doughty.

When the contract is simply for the cropping or cultivating the land on shares, all the cases agree that the parties become tenants in common of the crop, and that the relation of landlord and tenant does not exist. (See 8 John. 151; 3 Id. 221; 2 Id. 421, n.; 8 Cowen, 220.) But when as in the present case, the form of the contract is a lease, or demise, reserving a portion of the crops as rent, or with a covenant to deliver a certain share of the crops raised, as rent, then Stewart v. Doughty, and Overseers of the Poor of Fort Ann v. Overseers of the Poor of Kingsbury, and Jackson v.

Brownell, are authorities in favor of the position of a lease between the parties, and that the occupant or cropper is a tenant, and, that the title of the crops is in him solely until he has paid to the lessor his proportion as rent. And these are the positions that are overruled in Putnam v. Wise. In the latter case it is laid down as the true test, that if there is any provision in the contract for dividing the specific products of the premises, then the parties become tenants in common of the crops.

If the occupier or cultivator is to pay a certain quantity of grain or other article, as a certain number of bushels of grain, or tons of hay, &c. &c. then he is a tenant, and the grain or hay is rent, and the landlord has no interest or title until they are delivered to him as rent. The present case cannot be distinguished in principle from Putnam v. Wise. Here certain lots or fields were let to Binehart, which he was to plant or sow in a certain manner, and he was to pay or deliver to Hooker a certain portion of each crop. Special provisions were inserted in the contract as to the manner of culture, &c. &e.

We must hold in ac - cordance with Putnam v. Wise, that Hooker and the plaintiff were tenants in common of the wheat in question; and if so, then Hooker had an interest in the wheat, which the defendant, as collector, had a right to seize and sell. The defendant sold the entire crop, not simply Hooker’s interest, and it is now insisted that this made him a trespasser ab initio, and Waddell v. Cook, (2 Hill, 47,) and Walsh v. Adams, (3 Denio, 125,) are cited.

These cases are authorities to show that the sheriff makes himself a trespasser if he assumes to sell the entire property upon an execution against one of the joint owners, or one of the partners ; and that the other joint owner or partner may maintain an action against him. The latter case was trover, and it shows that the measure of damages in' the case of the two partners, was the value of the plaintiff’s undivided share of the property, &c. <fcc. [Allegany General Term, September 6, 1853.

Marvin, Bowen and Mnlkli, Justices.] In the present case, the justice held that the plaintiff and Hooker were not tenants in common, and that the plaintiff was the sole owner of the wheat; and he gave judgment for its entire value. In this he erred, and his judgment was therefore properly reversed, assuming that the plaintiff could maintain the action for his share of the wheat. It is not necessary in this view to give a construction to the provision of the statute referred to. (1 R. 8. 397-8, § 2.) The judgment of the county court should be affirmed. Judgment affirmed.