Kelly v. Rummerfield

Cassoday, O. J. It is sometimes difficult to determine whether a person who works the land of another on shares is a tenant in common of the crop with the owner of the land or a mere cropper. Much depends upon the wording of the contract between the parties. Lanyon v. Woodward, 55 Wis. 652, 13 N. W. 863; Carrier v. Atwood, 63 Wis. 301, 24 N. W. 82; Wood v. Noack, 84 Wis. 398, 54 N. W. 785; Row622 lands v. Voechting, 115 Wis. 352, 91 N. W. 990; Warner v. Abbey, 112 Mass. 355. In the case at bar there is practically no dispute as to the. facts. The plaintiff furnished the land and the seed. The defendant was to plow the ground, plant and care for and harvest the potatoes, and have one half of what should be raised. After plowing the ground and planting the potatoes, the defendant moved away. Finally, his son-in-law came and went over the potatoes with a cultivator one way and partly over them the other way. But the potatoes became badly damaged for want of care, and finally the plaintiff got another man to care for the potatoes, and agreed to give him a share of the crop for doing, so. The defendant testified to the effect that the plaintiff was to furnish the land and the seed, and that he was to cultivate the ground and have half of the crop, provided he stayed there; and if he did not stay, and no one else would buy, then the plaintiff would buy his share of the potatoes. The trial court manifestly held that the parties were tenants in common of the crop. If such was the relation of the parties, then the decision may be justified. See. 4257, Stats. 1898; Foley v. Southwestern L. Co. 94 Wis. 329, 68 N. W. 994; Sullivan v. Sherry, 111 Wis. 476, 87 N. W. 471; Orcutt v. Moore, 134 Mass. 48. If, on the other hand, the defendant was a mere cropper, then the decision was wrong. The general rule is that: “The legal possession to .the land, as well as the title to the entire crop, is in the owner of the soil. The possession of the cropper being merely that of a servant, and incident'to his right and duty of entering the close for the purpose of planting, cultivating, and gathering the crop, it is not the legal possession of premises which usually gives the possessor the title to the produce. He has no property in his share of the crop until the division, which is made by the owner of the land.” 8 Am. & Eng. Eney. of Law (2d ed.) 324, 325. It is there said that: “The term ‘cropper5 is applied to a person hired by the landowner to cultivate the land, receiving for his compensation a portion of the crop raised.” Id. [623] So it was said in an early case in Pennsylvania that: “If one hires a man to work his farm, and gives him a share of the prodnce, he is a cropper. He has no interest in the land, bnt receives his share as the price of his labor. The possession is still in the owner of the land, who alone can maintain trespass.” Fry v. Jones, 2 Rawle, 12. In a later case in the same state it was held that an “agreement to farm land on shares is a contract of service, and not of lease, and a person doing the farming is a mere cropper, and not a tenant, and has no interest in the land.” Adams v. McKesson's Ex’x, 53 Pa. St. 81, 91 Am. Dec. 183. To the same effect, Steel v. Frick, 56 Pa. St. 172. Thus it was held in North Carolina that: “Where a person agrees to work on the land of another for .a share of the crop, the cropper cannot convey a legal title to his share of the crop to a third person before an actual division and appropriation.” McNeeley v. Hart, 10 Ired. Law, 63. To the same effect, Brazier v. Ansley, 11 Ired. Law, 12; Harrison v. Ricks, 71 N. C. 11. In this last case it is said: “A cropper has no estate in the land. That remains in the landlord. Consequently, although he has, in some sense, the possession of the crop, it is only the possession of a servant, and is in law that of the landlord. The landlord must divide off to the cropper his share. In short, he is a laborer receiving pay in a share of the crop.” That is referred to approvingly in Strain v. Gardner, 61 Wis. 184, 21 N. W. 35. Perhaps it would have been more proper to have used the word “landowner” instead of “landlord.” We must hold that defendant was a mere cropper, and that plaintiff remained all the time the legal owner of the whole crop, and hence was entitled to recover in replevin. By the Oowrt. — The judgment of the circuit court is reversed, and the cause is remanded with direction to enter judgment in favor of the plaintiff in accordance with this 'opinion.