#### SILAS McNEELEY vs. SAMUEL HART.

Wheva 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.

And the owner of the land, who made the contract, is not estopped to deny the right of such assignee to recover at law.

The cases of the Stale v. Jones, 2 Dev. Sr Bat. 544, and Fortescue v. Satteriohite, 1 Ire. 586, cited and approved.

Appeal from the Superior Court of Law of Iredell County', at the Spring Term 1849, his Honor Judge Ellis presiding.

This was an action of trover, brought to recover damages for the conversion of a parcel of oats and corn, alleged to be the property of the plaintiff.

To prove property, the plaintiff offered a bill of sale, from one Irwin, of all his interest in the crop of corn and oats, then growing on the land of Samuel Hart, the defendant, executed June 1st, 1844. The said Irwin was introduced by the plaintiff and swore, that he had agreed with the defendant to work in the crop with him in 1844, on the defendant’s land, and that the defendant agreed to give him one fifth part of all the corn and oats, that should be raised on the plantation during that year, and the witness had transferred the said interest to the plaintiff by the said bill of sale, at the time therein specified and before any part of the said crop was gathered. The witness testified further, that he kept a hand in the crop during the year, and he, himself, left the country. He swore, farther, that the oats were cut, and his share, 70 dozén of sheaves, were stacked to themselves in the field, and afterwards put by the defendant into his, the. defen*64dant’s, barn ; and that the corn was put into the defendant’s crib without a division. The Court expressed the opinion, that the bill of sale did.not vest such a title in the plaintiff, as to enable him to sustain this action ; that Irwin’s interest in the crop was an executory contract and not any specific property, and that, being a mere chose in action, it could not be transferred to the plaintiff.

In submission to this opinion, the plaintiff submitted to a non-suit and appealed to the Supreme Court.

H. C. Jones, for the plaintiff.

A contingent interest in slaves, dependant upon one person’s surviving another, may pass by deed; and the bargainee of such an interest having got possession of the slaves, after the contingency’s being resolved in favor of his bargainor by his survivorship, is not liable to answer in an action of trover to the wife of the bargainor. Fortes-cue v. Sallerwhite, 1 Ire. 566.

A deed of land and slaves, upon trust, to apply annually the rents and profit to the use and benefit of a cestui que trust, so that they can not be sold or disposed of or anticipated by him, is assignable, and equity will decree an account against the trustee. Dick v. Pitchford, 1 Dev. & Bat. Eq. 48 K

A. lessee agrees to pay rent out of the crop; while thus resting in contract or agreement, before any partition or separation is made, it is levied on and sold, and ihe Court say this sale would be good, but the inference is left from the language used that, had the separation or partition once been made, the landlord’s title would have been perfected. Deaver v. Rice, D. &. B. 431.

Where one crops with another for a share of the crop and after it is made, the crop is divided, the share of the cropper is liable to be sold by execution, though it was levied before the division, and though it remains in the crib of the owner. Hare v. Pearson, 4 Ire, 76,

*65A. assigned all his interest in wheat growing on the land of C., which he had sown on shares. Held, that this interest is assignable, and that an action for taking it away must be brought by the assignees, and not by the assignor to the use of the assignees. Carter v. James, 9 Johns, 143.

So many cords of wood out of a certain forest to be specified by the grantor; Held, that this interest is assignable, for the interest vested immediately. Refit 5 Co. 25, Cro. El. SI9.

From these cases, and the principles recognized in them, it was argued that an agreement to have one half of a certain growing crop passed an interest in the crop itself; that by the contract, it passed from the cropper to McNeely, and that when the seventy dozen of oats was stacked and set aside as the share of the cropper, the right of the cropper then became perfect and this interest would feed the estoppel, which was created by the contract.

Osborne, was on the same side. - •

Clarke and Boyden, for the defendant.

Peausox, J.

We concur in the opinion of the Judge below, for the reasons given by him. Irwin, the cropper, had a mere executory contract, a chose in action, which could not be assigned. State v. Jones, 2 Dev. & Bat. 544.

It was very ingeniously argued for the plaintiff, that, yielding the question as to the corn, he. was entitled to recover for the oats, upon the doctrine of estoppel; for although the bill of sale was executed before the oats were cut, yet as Irwin’s share was afterwards allotted and stacked to itself, it thereby became vested in Irwin. This act of appropriation fed the estoppel, and thus the right of property vested in the plaintiff

When one sells property, which does not belong to him, he and hia privies are estopped from ..alleging, that the_ *66vendee did not acquire the title; but the estoppel does not extend to third persons. If the vendor afterwards acquires the title, it feeds the estoppel, and vests in the vendee a right of property, not only against the vendor and •his privies, but against third persons. - Thus the sale has a double operation; first, to conclude the parties and privies, until the title is acquired ; and then to pass the right of property. Fortescue v. Satterwhite, 1 Ire. 566. Christmas v. Oliver, 2 Smith’s leading cases 417, 458. Unfortunately for the plaintiff, there is no estoppel in this case- So the learning about feeding an estoppel is net applicable.

Unless the party professes to have such an interest, as could be passed by the conveyance, if he had it, there is no estoppel; for the plain reason, that a matter of law can always be insisted on, as, that a chose in action is not assignable, and estoppels are restricted to matters of fact. In Right v. Bucknell, 2 Barn. and Ald. 278, it is said, “There is no estoppel, when it is apparent, from the face of the deed or the averment of the party, who 2’elies upon it in interest, that, according to the fundamental doctrine of common assurances, the deed could not have sufficed to pass the estate, W'bich he claims to hold under its operation.” Lord Coke says, in Co. Lit. 352, b, “one shall not be estopped, where the truth appears by the same instrument, as that the grantor has nothing to grant, or only a possibility,” and he might have added “or only a chose in action.”

Pep. Cor tam.

Judgment affirmed.