Malcolm Mercantile Co. v. Britt , 102 S.C. 499 ( 1915 )

November 24, 1915. The opinion of the Court was delivered by The principle laid down by the Circuit Judge is not applicable, either to the allegations of the complaint or proof in the case. There is no allegation or proof that the bales of cotton are of same weight or grade, and each bale would sell at the same price, or that they can be divided in kind between the parties according to their respective interest therein; and if these are not of the same weight, grade and kind, the sheriff cannot divide them and take only those that belong to the plaintiff. The action for claim and delivery should not have been brought, but the plaintiff's remedy was an action on the equity side of the Court. He had a plain and ample remedy there, he should have asked for an accounting, and if necessary, for an injunction and receiver. To hold otherwise would overrule Neal v. Suber, 56 S.C. 302,33 S.E. 463, and Mayfield v. Bessinger, 87 S.C. 370, 69 S.E. 673. Britt was the owner of the entire crop on the premises and he had released not his interest in them, but had released what interest he had in the shares of his croppers only, and the plaintiff had a lien on the part of the cotton which was due the laborers for their hire in making the crop, and Britt was entitled to exclusive possession of the same until division had been made. A mere laborer for a share of the crop has no title to any part of said crop until after division is made. The plaintiff is not entitled to the exclusive possession of property sued for and only in such cases can an action for claim and delivery be maintained. Clerks BenevolentUnion v. Knights of Columbus, 70 S.C. 547,50 S.E. 206. The plaintiff's lien is on the share of the cropper, and a share cropper is not the owner of any particular part of the crop. The landlord owns the whole of the crop and is entitled to the exclusive possession of the same until after a division is made. While it may prove a hardship in this case, it would be more damaging to affirm the judgment of the Circuit Court, as by so doing it would overrule several well considered cases and the judgment should be reversed.

Judgment reversed.

MESSRS. JUSTICES HYDRICK, FRASER and GAGE concur in the opinion announced by MR. JUSTICE WATTS.