It is not necessary to decide the broad question, upon which the case is put, in the Court below, about which there is some diversity of opinion ; for the case is clearly with the plaintiff, and the conclusion, to which the Court below arrived, that the contract was executory, and not executed, is sustained upon special grounds, which do not involve the general question.
First: The contract on the part of the defendant was executory, as to furnishing the two horses and food and the provisions during crop time.
*483Second : The contract on the part of the intestate, as to the payment of the rent, was executory from the very nature of rent. For, in speaking of rents, Lord Coke says : “the lessor cannot reserve parcel of the annual profits, as the vesture or herbage of the land, or the like; for that would be repugnant to the grant. Co. Lit. 142.” It would be an exception of a part of the thing already granted and inconsistent with the grant. Therefore, such contracts,, as the present, are. necessarily construed, neither as exceptions or reservations, but as covenants or agreements of the lessee to give, as rent, as many bushels of corn, as the half of the crop may amount to, or deliver, as re?it, the one half of the corn that may be made on the land. It is simply a payment of rent, agreed to be made in corn, instead of money ; but it does not change the property in the crop, while growing or when gathered, until it is delivered to the lessor-. Deaver v. Rice, 4 Dev,& Bat. 431. It is like the case of an overseer, whose wages are to be paid in a share of the crop. He has no right to the thing itself. The property is in the employer, until a division and delivery.
It is clear for these reasons, that the contract, as to the rent, is executory, and being entire, and executory as to a part, it is necessarily so, as to the whole.
I think the judgment below should be affirmed.
This is an action of trover to recover damages for the conversion of a quantity of corn. The case is : the defendant by parol leased to the plaintiff for one year a parcel of land. It was agreed, the defendant should furnish two horses to work in the crop, and their necessary food ; and the defendant, for the rent, was to let him have one half of the corn raised, and to paj' him out of the residue, claims, which he (the defendant) had against lum. After the crop was raised and housed, the defen*484dant, against the will of the plaintiff, hauled it away, or the largest portion of it.
His Honor instructed the jury, “that, if the intestate had leased the land for a year, the crop belonged to him as an incident of his lease.” We do not deem it necessary to notice the subsequent part of the charge in connection with this part; because we believe, that, whether the reason given was or was not correct, the judgment must be affirmed. The case of Deaver v. Rice, Adm'r, &c., 4 Dev. & Batt. 431, is decisive of the question. It was there decided, that where, in a lease, either by parol or in writing, the rent is reserved to be paid in kind or in a part of the crop, the lessor has no lien on the crop, when raised, and, until a portion be set aside and apart to the lessor, the whole belongs to the lessee. In this case, the title to the crop of corn was in the intestate, and “the defendant” (in the .language of the Court) “had no right to take the corn, against the will of the owner.” His so taking it was a conversion, and gave the plaintiff a right to maintain the action. If, after the cro$was made, the lessee had refused to allot to the defendant his share, the latter could have maintained an action on the case for the violation of the contract.
In the course of the investigation of the case in this Court, it was urged, that the contract between the parties, as it respected the corn, was for an interest in the land, and, therefore, void under the Statute of frauds. Rev. St. ch 50, sec. 8. We do not think so. The agreement on the part of the defendant to receive his rent in a part of the crop, did not constitute an agreement on his part for any interest in the land during the lease, and, if, by any casualty, no crop was raised, he could have derived no benefit from his contract. This principle is decided in Evans v. Roberts, 5 Bar & Cr. 829. There the question was, whether the verbal sale of a then growing crop of potatoes was a contract or sale of land, or any interest in *485or concerning them, within the 4th section of the Statute 29th, of Chaeles 2nd. The Court say it is not, but that it is a contract for the sale and delivery of things, which at the time of delivery would be goods and chattels. That was a much stronger case than this. The lease in this case was for one year, and although by parol, was good and valid. The rent being reserved in kind, that is, a part of the crop, the title to the whole crop when made was in the intestate Ross. It was contended by the defendant, that under the contract he was entitled to one half of the crop raised to pay his claims, as it was mortgaged to him for that purpose. The answer is, that the property, the corn, was not in such a situation, that it could be mortgaged. The plaintiff was entitled to maintain her action.
Per Curiam. Judgment affirmed.