Taylor v. Donahoe

Tbe following opinion was filed June 23,’ 1905: WiNsnow, J. Really tbe only question in tbe case is-whether Donahoe or Finnegan owned tbe crop of tobacco sold to Oalkins, and this question is answered when it is determined whether Finnegan was a tenant or a cropper. If a. tenant, be owned tbe crop; if a cropper, Donahoe owned it [517] and was entitled to dispose of it. Tbe distinction between a tenant and a cropper is that a tenant has an estate in the land for a given time, and a right of property in the crops, and hence makes the division thereof between himself and the landlord in case of an agreement npon shares, while a •cropper has no estate in the land, nor ownership of the crops, bnt is merely a servant, and receives his share of the crops from the landlord, in whom the title is. Strain v. Gardner, 61 Wis. 174, 21 N. W. 35; Kelly v. Rummerfield, 117 Wis. 620, 94 N. W. 649, 8 Am. & Eng. Ency. of Law (2d ed.) 324, 325. It is always a question of construction of the agreement under which the parties are acting. The agreement in question here seems to us to be very clear and definite upon the subject. It nowhere refers to Einnegan as a tenant, but specifically refers to his work as “service,” and expressly provides that Donahoe shall pay him for his services by certain shares.of the crops, and that the possession of the land and ownership of the crops are to remain in Donahoe, and that Finnegan is merely to be an employee in the tilling the land and caring for the stock. Language could hardly be plainer or more appropriate for the purpose of creating a cropper arrangement. The fact that Finnegan was to put some stock on the place and furnish certain seed and tools, and was given the right to use certain rooms in the house, cannot reasonably be considered as changing the relation between the parties, in the face of the definite and certain clauses of the agreement. These agreements are not necessarily inconsistent with the fact that he was an employee or cropper. It follows that, when the garnishee summons was served, Calkins neither had possession of any property belonging to Einnegan nor .was he indebted to him, and hence could not be held liable as garnishee. Even if the mortgage given by Einnegan to Taylor were to be held valid, the result would not be different, for this fact would not make Calkins indebted to Einnegan, or make Einnegan the owner of any [518] part of the crop before division thereof by Donahoe, and there is no evidence that any division of either the crop or the proceeds was ever made. By the Qourt. — Judgment affirmed. Kerwot, J., dissents. A motion for a rehearing was denied October 3, 1905.