Smyth v. Tankersley , 20 Ala. 212 ( 1852 )

GOLDTHWAITE, J.

The position taken by the counsel for the defendant in error, in this court, renders it necessary to determine the legal effect of the contract between the plaintiff in error and Childers. The terms of this contract are thus stated in the bill of exceptions: “ that Smyth rented to the said Childers certain lands, on the following terms, to wit; that said Smyth was to have one-fourth of all the products of said lands, rented as aforesaid, after deducting all expenses for bagging, rope, and hauling the cotton, which was to be in payment and satisfaction of the rent.” If this contract was a lease, then the whole product of the land rented belonged to the lessee, until the share of the lessor had been separated and delivered. Stewart v. Doughty, 9 John. 108; Thompson v. Mawhinny and Smith, 17 Ala. Rep. 362; while, on the contrary, if it was only a letting of the land on shares,. then the parties to the agreement were tenants in common of the products to be grown and divided between them. Hare v. Celey, Cro. Eliz. 143; Foote v. Colvin, 3 John. 216; Bradish v. Schenck, 8 ib. 117; De Mott v. Hagarman, 8 Cow. 220; Caswell v. Districk, 15 Wend. 379; Putnam v. Wise, 1 Hill, (N. Y.) 234; Bishop v. Doty, 1 Verm. 37; Chandler v. Thurston, 10 Pick. 205; Walker v. Fitts, 24 Pick. 191; Maverick v. Lewis and Gibbs, 3 McCall, 211.

In the case of Thompson v. Mawhinney and Smith, supra, it was decided by this court, that a contract made with the owner of land, which the other party agreed to cultivate, and to divide the products equally with him, was not, technically speaking, a lease, but that a tenancy in common was created in the products. In the contract under consideration, the mode of compensation adopted repels the conclusion, that it could have been the intention of the parties, that the land should not be cultivated, and thus assimilates its terms more closely to the contract in the case last cited. It is true, the phraseology adopted is that which is usual in leases, but the substanee of the agreement is to be regarded, rather than the words, Putnam v. Wise, supra; and in contracts of this description, tbe true test seems to be, that wherever provision is made for dividing the specific products of the land, a tenancy in common results. Putnam v. Wise, supra, and authorities there cited.

The case of Dulany v. Dickerson, 12 Ala. Rep. 601, to which we have been referred by the counsel for the defendant in error, is not in opposition to these views. The relation of landlord and tenant may exist, notwithstanding the former is, by the terms of the contract, to receive a portion of the crop in payment. If the tenant take an interest in the soil, it is a lease, by whatever words made, and the ¡aayment of a specific portion of the crop is then simply a payment of the rent in kind. In the case referred to, the contract is not set out, and the landlord had sued and obtained a judgment against the tenant for the rent. It was treated by all the parties as a lease, and no question was raised upon that point. The judge, the terms of the contract not being before the court, treated it, as the parties had done, as a question involving the relation of landlord and tenant only. It results from these views, that the plaintiff in error, with the other parties to the contract, were owners in common of the cotton.

The charge of the court, that the plaintiff below could not recover, without joining the other owners as plaintiffs, was erroneous. The case of Parminter v. Kelly, 18 Ala. Rep. 716, decides, that if a tenant in common of a chattel sell the entire property, it is a conversion, for which trover may be maintained by his co-tenant; and the law is now well settled, that the sale by an officer, of the entire property, in goods owned by two jointly, on an execution against one of them, is an abuse of his legal authority, which renders him liable as a trespasser ah initio, Waddell v. Cook, 2 Hill, 49, note (a), and cases there cited; and if the wrong doer has sold it, and received the money, the owner may waive the tort, and bring assumpsit for the money. Upchurch v. Nosworthy, 15 Ala. Rep. 705; Crow v. Boyd’s Adm’r, 17 Ala. Rep. 51.

The judgment is reversed, and the cause remanded.