Curtis v. . Cash

Smith, C. J. The points insisted on in the argument, for the appellants here, are : 1. The want of jurisdiction in the superior court to entertain the action ; and 2. The alleged error in refusing to give the instructions asked. We are clearly of opinion with his Plonor, that upon the undisputed facts disclosed in the testimony, the plaintiff was entitled to a verdict. The parties were under their agreement constituted partners in the making the crop, the one contributing the land and the horse and his feed ; the other his labor and attention and whatever else might be required in making and gathering the crop; and then an *43 equal division of the gross products to be made between them. Lewis v. Wilkins, Phil. Eq., 303. When the separate shares of each were allotted to him, their joint ownership ceased, and their respective portions became the sole individual property of each. If the arrangement did not amount to a. copartnership, but created other and different relations, such as would be affected bj>- the statute referred to, the same consequences would follow the division and assignment to each of his share in the whole. The statute ceases-to operate when the lessor has received his rent, whether in kind or in money, and there are no breaches of contract for which the crop is madeliable; and its sole object is to secure the performance of all the stipulations of the contract oath e part of the lessee. The action is in tort for the unlawful taking and carry.-ing away plaintiff’s goods, and is properly brought in the superior court. The objection made in this court that an issue ought to have been submitted as to an indebtedness of the plaintiff, cannot be entertained for the following reasons: 1. There were no formal issues submitted, the case presenting the single question of the legality of the defence-under the statute. 2. It was the appellants’ duty to ask for such issue, if they desired it, and they cannot complain of the consequences off their own neglect. Kidder v. McIlhenny, 81 N. C., 123. 3. The debt is not alleged to be such as the statute gives a lien for its security upon the crop. There is no error, and the judgment must be affirmed. No- error. Affirmed.