Jordan v. . Bryan

Davis, J. (after stating the case). The first exception is to the finding of fact when there was not sufficient evidence to support it. None of the evidence is sent up with the record, -and the question sought to be raised by the first exception is not before us, and if it were, it is not for us to pass upon the weight of evidence. By § 1754 of The Code, all crops raised on lands rented or leased “ shall be deemed and held to be vested in possession •of the lessor or his assigns at all times until the rents for said lands shall be paid,” &c., and the “ remedies in an action upon a claim for the delivery of personal property” are given to the leásor or his assigns, “against the lessee or cropper, or the assigns of either, who shall remove the crop or -any part thereof, from the lands, without the consent of the lessor,” &c. Section 1755 gives a like remedy to the lessee -or cropper for the recovery of such part of a crop as he in law, and according to the lease or agreement, may be entitled to,” whenever the lessor or his assigns “ shall get the actual possession of the crop or any part thereof, otherwise than by the mode prescribed” in section 1754. The case before us is clearly distinguishable from Livingston v . Farish, 89 N. C., 140, cited by counsel for plaintiff, and similar cases referred to. In that case the tenant was to pay 450 pounds of cotton as rent, and the rent and sums *64 advanced for supplies were to be due on the 1st day of October, 1881. The defendant cultivated and gathered the crop, and refused to “ pay the rent and sum due for supplies.” The Court below instructed the jury '• that the action of claim and delivery would not lie under the statute, unless some part of the crop had been removed from the premises by the defendant.” By the terms of the agreement, the rent and supplies were due the 1st day of October, the crop had been gathered, and the landlord was entitled to the remedy by claim and delivery, not simply by virtue of his constructive possession under the statute, but by his right to the actual possession, the rent and advances having become due, and the refusal to deliver the cotton was a denial of the landlord’s rights to possession, and by a fair construction of the statute this Court held, that he was entitled to claim and delivery, and the ruling of the Court below was reversed. Though the constructive possession of the crop is vested by statute in the landlord, for the very obvious purpose indicated by the statute, of protecting his lien, yet, during the cultivation, and for all purposes of making and gathering the crop, the actual possession is in the tenant, until such time as the rent and advances shall become due or a division can be had. In State v. Copeland, 86 N. C., 694, it is said, “ notwithstanding the provision of the first section (ch. 283, Acts of 1876-77, now § 1754 of The Code), the whole tenor of the-act contemplates the right of the lessee or cropper to hold the actual possession until such time as a division may be-made,” and this against the lessor himself. It was never contemplated that, while the crop remained on the land, with no attempt or purpose on the part of the tenant to remove or so dispose of it as to deprive the landlord of his-security, he should have the remedy of claim and delivery. The remedy was designated for his protection, and it cannot, either by the terms of the statute or by any fair con- *65 struetion, be resorted to before the time fixed for division, unless the tenant is about to remove or dispose of the crop, or 'abandon a growing crop ; otherwise, the tenant might be sued for parcel of the crop as it was gathered. Neither the language nor the spirit of the statute will permit this. If the tenant, at any time before satisfying the liens of the landlord, removes the crop, or any part of it, not only has the landlord the civil remedy given by the statute, but the tenant subjects himself to a criminal prosecution. The Code, § 1759. Nothing of this kind is alleged by the plaintiff against the defendant in this case, and the foregoing declarations as to the law applicable to them dispose of the fifth, sixth, seventh and eighth exceptions of the plaintiff adversely to them. We think the plaintiff's right to demand his rent and pay for advancements was when the crop was gathered and ready for division, and the second exception was properly overruled by his Honor. The question involved in the third and fourth exceptions must also be disposed of adversely to the plaintiff — the division of corn by the plaintiff and defendant, “ each taking his share thereof” to the appropriation, possession and removal of his “share thereof” by the defendant, and a recognition of his right thereto. Curtis v. Cash, 84 N. C., 41. No error. Affirmed.