Jarrell v. . Daniel

Glare, J.: The plaintiff, having sublet to the defendant, became lessor to his sublessee and entitled to the same lien on his crop which the statute gives to a lessor. Moore v. Faison, 97 N. C., 322. Had there been an absolute division of the crop as in Jordan v. Bryan, 103 N. C., 59, the plaintiff would have lost his lien. Such was not the case here. The plaintiff, it is true, took the part of the crop to which *215 be was unquestionably entitled; but as to the balance be did not relinquish his lien. He and the defendant, by means of a common agent, designated and set apart the share the defendant was to have whenever the advancements were paid on it. This was done that the defendant might strip that share of the tobacco by himself and family so as to save expense. The true nature of the transaction was that it was not an absolute division by which a release of the landlord’s lien was intended, but it was merely a designation and setting apart of so much of the crop for the preparation of it for market, with the executory agreement that it should belong to the defendant whenever the landlord’s lien for advancements was' paid. The uncontra-dicted evidence is that the defendant was told not to remove such share till the lien was paid off. If so, it was error to instruct tiie jury that such designation and setting apart with the express retention of the lien destroyed the lien. A release of the lien could only arise upon an absolute and unqualified division to the tenant of his share. The rights of the parties were not affected by the fact that the year having expired such part of the crop remained in the barn of the original lessor, the land-owner. New Trial.