#### GROVES M. BRAZIER vs. JAMES ANSLEY.

To sustain the action of trover, the right of property in the thing claimed and of possession, at the time of the alleged conversion, must be vested in the plaintiff.

A cropper has no such interest in the crop, as can be subjected to the payment of his debts; while it remains in mass, until a division, the whole is the property of the landlord.

The doctrine of appropriation, as constituting a delivery and thereby passing the title to the purchaser, arises in cases of a sale of goods generally, os distinguished from the sale of a specific chattel. And when a less quantity, out of a larger, is the Bubject of the contract, then no property passes to the purchaser until a delivery; for until then the goods sold are not ascertained.

The vendor may appropriate the quantity purchased by separating it from the bulk: but the appropriation is not complete until the vendee assents to take the separated portion.

The eases of the State v. Jones, 2 Dev. and Bat. 544 — liare v. Pearson, 4 Ired. 77, and Lewis v. Moody, 4 Dev. and Bat.323, cited and approved.

Appeal from the Superior Court of Law of Chatham County, at the Spring Term 1850, His Honor, Judge Bat-tlb, presiding.

The following is the case sent up from the Court below:

This was an action of trover for a parcel of corn. — - Plea, not guilty.

On the trial the plaintiff introduced a witness named Brown, who testified, that, during the year 1845, he worked with the defendant on a farm of the latter and was to have a fourth part of the corn made upon it for his services ; that, before the corn was gathered, he sold his interest in it to the plan tiff for $40 ; that wishing to leave the farm, the plaintiff sent some hands to assist in gath-*13cring the crop, but the defendant objected to the arrangement, whereupon it was agreed between the plaintiff and defendant, that the latter should gather the crop, for doing which he was to have five barrels of corn, and that he would notify the plaintiff at each division. Upon cross examination the witness stated, that he became indebted to the defendant for some articles furnished him during the year, and that he agreed to pay the defendant when he sold his corn. Another witness, Mr. Marks, was then called and stated, that, some time in the Fall of 1845, he was called upon to see the corn measured, that both the plaintiff and the defendant were present, when the latter measured the corn by putting three fourths of it in one heap and the remaining fourth in another, and that he then claimed to take five barrels and a sufficiency to pay Brown’s account from the smaller heap, to which the plaintiff objected, saying, that the five barrels ought to be taken from the whole quantity before division, and that there was no claim upon it for Brown’s account.— The parties disputed for some time about this matter, when the plaintiff went off, saying, he would have nothing more to do with it. The witness stated further, that, if all the defendant claimed had been allowed, there would have remained only a few bushels of corn for the plaintiff, and that there was no final delivery of any part of it to the plaintiff.

The plaintiff having closed his case, the defendant moved that he should be non-suited upon the ground that the action of trover could not be maintained, because no part of the corn had ever vested in the plaintiff, and that there was no demand before suit brought.

The motion was resisted upon the ground, that the defendant was estopped to deny that the plaintiff had acquired Brown’s share of the corn, for the reason that he had ratified the contract made by the plaintiff and Brown.

*14The Court being of opinion that the action could not be maintained, the plaintiil'submitted to a judgment of non suit and appealed.

Haughton, for the plaintiil’.

W. 1L Haywood, for the defendant.

Nash J.

To sustain the action of trover, the right of property in the thing claimed, and of possesion at the time of the alleged conversion, must be united in the plaintiff, and lie must prove that, while the property was his, the defendant converted it. Gordon v. Harper, 7th Term 9. Harwood v. Smith, 2nd Term 750. Lewis v. Moody, 4 Dev. and Bat. 323. In this case it is denied by the defen. danl, that the plaintiff had any title to the corn sued for or that he has converted it. As to the title, the plaintiff urges that the facts proved show that an appropriation was made by the defendant, the landlord, of one fourth of the crop, to Brown, the cropper, which was a delivery in law, or at any rate the evidence ought to have been left to the jury, under the instruction of the Court, A. full and complete answer is furnished by the case to each position of the plaintiff. It is a well settled principle of law, in this State, that a cropper has no such interest in the crop, as can be subjected to the payment of his debts, while it remains on masse. Until a division the whole is the property of the landlord. State v. Jones, 2 Dev. aud Bat. 544. Hare v. Pearson 4 Ired. 77. The defendant was the owner of the land, on whoh the corn was raised,' and a man by the name of Brown cropped with him. The latter transferred his interest to the plaintiff for a valuable consideration. After the corn was matured, it was agreed between the plaintiff and the defendant, that the latter should gather the corn, and for so doing, should have five barrels. The corn was ‘gathered by the defendant, and placed by him in two separate heaps or piles ; one containing three fourths and the other one fourth. From *15this pile the defendant claimed to take his five barrels for gathering’. To this the plaintiff objected, alleging they ought to come out oí the whole crop. With this dispute we have nothing to do, as it regards the proper construction of the previous agreement. It is sufficient for oar present enquiry, that a controversy did arise, and that the plaintiff would not agree to the construction pul upon if, by the defendant. The case states that the plaintiff “'went off, saying he would have nothing more to do with it.” Brown, the cropper, was present, but in no way interfered, and what afterwards became of the corn we are not informed, except that it is stated in the case, that no part of the corn was finally delivered to the plaintiff. There certainly was here no appropriation by the landlord of any specific portion of the crop to the use of Brown or the plaintiff, and therefore there was no delivery to the latter. The doctrine of appropriation, as constituting a delivery and thereby passing the title to the purchaser, arises in cases of a sale of goods generally, as distinguished from the sale of a specific chattel. And where a,less quantity, out of a larger, is the subject of the contract there no property passes to the purchaser until a delivery, for until then the goods sold are not ascertained. To constitute a delivery in such cases, the vendor may appropriate the quantity purchased, by separating it from the bulk. But the appropriation is not complete, until the vendee assents to take the separated portion j his assent is equivalent to accepting possession under the.contract. 1st Chap, on Cont. 375. In a case like this, which in principle is similar to that of a sale of a.lesser part out of a larger,'the appropriation by the landlord was incomplete, until ratified by the cropper or his agent and vendee, the plaintiff. It would be manifestly unjust to suffer the landlord to be the sole judge of the rights of his cropper. Not only was the assent of the plaintiff withheld, but he positively refused to receive the corn set apart for him ay *16his principal. The title to the corn never vested in him, and he cannot, under this evidence, support the action of trover. The cases cited in the argument for the plaintiff abundantly prove that a delivery may be proved, by an appropriation by the vendor, but in none of them is it said, that it is complete without the assent of the vendee.

We agree with his Honor that the action cannot be sustained.

Per Curiam. Judgment affirmed.