Tanner v. Hills

By the Court, Miller, J. I am inclined to think that Tanner and Houghtaling were tenants in common of the crops of corn in question, within the principle of the case of Putnam v. Wise, (1 Hill, 234.) By the terms of the contract Houghtaling was to work the farm on shares, for the term of one year, and Tanner, in consideration of the premises, was to pay him the value of one half of the grain and net proceeds which might be produced upon the farm. The case cited was similar in many respects to the one at bar, and the only distinguishable features which I can discover are that these grantees agreed to yield and pay and give one [430] half to the owners; whereas here, the owner agrees to pay to the occupant “the value of one half,” which I think makes no difference. The doctrine is laid down, that in respect to the letting of a single crop on shares, when the shares of the owners in the farm product are uncertain in amount, this make the parties tenants in common, at least in the productions thus to he grown and shared between them. Such is the case here. The compensation lies entirely in the shares from the farm. The occupier is to be paid from these, for his labor, and the owner for the use of the land. This is the substance of the agreement which is to be looked at, and which is controlling. Cowen, J. says, in the case cited: “ The true test seems to lie in the question whether there be any provision, in whatever form, for dividing the specific products of the premises. If there be, a tenancy in common arises, at least in such products &s are to be divided.” (See also Dinehart v. Wilson, 15 Barb. 595.) Certainly there was an express provision in the contract, for a division of the products of the farm; the value of one half of which was to be paid to Houghtaling. The circumstance that the contract provided that Tanner was to pay the value, instead of dividing the crops, does not alter the case. The principle is the same, whether Houghtaling furnished or delivered one half of the products, or Tanner took them and sold them and paid one half of their value. The point is, that there was to be a division, and that the occupier or cultivator was not to pay a certain number of bushels of grain or a certain number of tons of hay, as a rent of the premises, so as to make him a tenant. (15 Barb. 597.) This provision as to a division was but a mode of ascertaining the value and dividing the proceeds. It was for exactly one half, without limiting it to any specific quantity or weight. If the views I have expressed are correct, then the county judge erred in charging the jury that Houghtaling and Tanner were not tenants in common of the grain raised on [431] the farm; and as this was a material and important question in the case, a new trial must be granted on that account. [Albany General Term, March 6, 1865. The conclusion at which I have arrived upon this point renders it unnecessary to examine the other questions presented. Judgment reversed, and a new trial granted, with costs to abide the event. Peckhatn, Miller and Ingalls, Justices.]