HENRY LEWIS and others v. E. W. WILKINS, Ex’r., &c.
Where an agreement was entered into between the owner of a farm and another person, by which the former was to furnish the farm to the latter for two years with the stock of hogs and cattle upon it, and mules, provisions and farming implements; and the latter was to give his personal attention to the farming operations, have the entire control of the farm and furnish the twenty-two laborers that were required; and thereupon the two were to share equally the produce of the farm, Held that the agreement constituted an agricultural partnership, that the share going to the owner of the farm was not rent; and that the relation between the parties was not that of landlord and tenant; and therefore,
Keld further that, upon the death of the owner of the farm before the expiration of the two years, his share which accrued thereafter did not go to the devisees of the farm, but was included under a bequest to another, of “the crop, stock and farming utensils, and all other perishable property on said farm.”
The doctrine that rent follows the reversion applies in favor of devisees of the reversion, as well where it is directed to be sold and the proceeds divided amongst them, as where it is given specifically.
Bill, filed to Fall Term 1867 of tbe Court of Equity for Northampton, and at that time set lor hearing upon bill and answer, and transmitted to this Court.
The complainants were the children of Ellen Lewis deceased, and the children of William M.' Wilkins deceased, by his second marriage, and the defendant was the executor of Edmund Wilkins deceased, late of the county of Northampton.
The testator died January 20th 1867, and by his will, which was afterwards duly proved, among other things devised certain lands called “ The Meadows, to be sold upon a credit, and the proceeds of the sale [together with the slaves on said farm] to be equally divided, one half to the children oí my niece Ellen Lewis, and the other half to the *304children of my brother Dr. W. W. Wilkins by his second marriage.” By a subsequent clause he gave as follows, “I will the crop, stock and farming utensils and all other perishable and personal property, except the negro slaves, on said farm in the Meadows and the Peele lands in District No. 10 aforesaid, and the proceeds of said sales of all said crop, stock and perishable and personal property in said District No 10, except the negro slaves as aforesaid in District No. 10, together with all debts due me and money deposited and all my Rail Road Co. bonds and stocks after paying all just debts, I give and bequeath to my said nephew F. W. Wilkins, whom I hereby appoint my whole and sole executor of this my last will and testament, this 19th clay of August 1861.”
On the 1st of January 1866 the testator entered into the following contract with one Thomas C. Parker:
“These articles of agreement made &c., witness that the said Wilkins is to furnish to the said Parker the farm known as the Meadows, for two years from this date. The stock of cattle and hogs are to remain on said farn, and said Parker is to have one-half of the milk and butter made on said farm, but no other interest or part of the proceeds of said cattle, and at the end of each year the fattened hogs are to be equally divided between the said Parker and said Wilkins, and the said Wilkins is to furnish thirteen good mules for the two years, and in case of the death of one or more, others are to be bought at joint expenses to supply their places and to belong to said Wilkins at the expiration of said lease; and for the present year 4500 pounds of pork and 306 barrels of corn, and long forage sufficient to feed all the stock and should there be a sufficiency made on the farm of corn, pork and long forage the present year 1866, then out of the said Wilkins'’ share he shall furnish the same articles, and the same articles and the same amount *305for the year 1867. The said Wilkins to furnish all the necessary farming implements for conducting said farm for the year aforesaid. And the said Parker does agree on his part to furnish twenty-two able-bodied laborers to work on said farm and to give the farm his whole and entire personal attention and skill, and at the expiration of the two years specified to surrender the farm in good condition, except dams and river fences, and the entire stock of cattle, and stock-hogs, and should the farm not yield a sufficiency in corn, pork and long forage to make the quantity aforementioned either in the years 1866 or 1867 then the said Parker is to make up the deficiency. And the said Parker doth further agree to pay all taxes on the real estate of said farm and half of the taxes on the fat hogs killed, the said Wilkins paying all the other taxes chargeable on the said farm. It is agreed between the parties that when the products are ready for market the said Wilkins and Parker shall equally divide share and share alike. It is further understood that said Parker shall have entire and absolute control and management of the farm, and should there be any difterence or misunderstanding between said Wilkins and Parker, they are to refer it to throe disinterested parties, each one selecting one and the two 'selecting a third, and their decision to be binding. And it is further agreed and stipulated between the said Wilkins and Parker that if either violates these articles of agreement or any part thereof’ the party so violating shall forfeit and pay over to the other party the sum of five thousand dollars. In witness,” &c.
The bill alleged that, in the course of carrying out the contract between the testator and Parker, the crd]ps for 1866 had been divided between them as agreed upon, but that the crops for 1867, consisting of corn, wheat and cotton, were still undivided, and that the defendant claimed that *306the share of the testator therein devolved upon him, in virtue of the second clause of the will above set out, -whereas they were advised that the said productions are rent, and so go with the land as devised to them under the first clause, (above.)
The prayer was that it might be declared that the com - plainants are entitled to the proceeds of the sales of said lands, and for further relief, &c.
The answer submitted to any decree that might be made; but denied that the crops in question are rent, inasmuch as they were made to a large extent by the teams, agricultural implements, supplies of provisions, &c., that by the will were given to the defendant, and thus are either his only, or belong to him and the complainants in the ratio of their respective contributions of the means used in producing them, &G.
Moore, for the complainants.
1. The contract between Wilkins and Parker constituted a lease of the Meadows to the latter. Hatchett v. Kimbrough, 4 Jon., 163; Morincg v. Warcl, 5 Jon., 272. The part for the landlord is in retribution for the land, and is executory. Moss v. Swaringen, 9 Ire., 481; Gilbert on Rents (20 L. L. 30.)
2. The rent follows the reversion. Marklcmd ■v. Grump, 1 D. & B., 94; Mixon v. Ooffield, 2 Ire., 301; Gilbert, 9.
3. That the landlord was to furnish more than the land makes no difference; no more than where he is to furnish manure, &c.
4. The crops spoken of in the bill were those in existence at his death. The mules, &c., at that time were under a lien by contract, the purpose being to produce rent (i. e. a crop.)
5. That the reversion was to be sold and divided, can make no difference as to the rights of those who are beneficially (entitled. The heir in such cases is a trustee for them.
*307
Bragg, contra.
1. The complainants are not devisees of the lands, to all purposes; ex gr. as between their real and personal representatives their interest here would be personalty. Newby v. Skinner, 1 D. & B. Eq., 488.
2. They take subject to the contract.
3. The effect of the contract was not to make a lease to Parker, nor was he a mere cropper. The parties became joint owners of the proceeds, or partners. Moore v. Spruill, 13 Ire., 55, is not so strong a case. Story Part., ss. 81, &c., 198 to 200.
4. The proceeds went to the Executor as personalty; and afterwards to the defendant as legatee; if not entirely, at least as regards a portion.
Pearsox C. J.
We agree with Mr. Moore that “rent service” passes with the reversion as incident thereto, and that a purchaser, devisee or heir, taking a reversion after a life estate or a term of years becomes entitled to the rent which afterwards accrues.
We also concur in the position that when a reversion is by will directed to be sold, and the price divided among several, as in our case, the purchaser of the,reversion would be entitled to the rent. This fact would increase the amount for which the revesion would sell, and add that amount to the fund for division; so, the devisees, to whom the fund is given, would get the rent, and the case does not differ from one where there is a.'direct devise of the reversion; indeed the devisees, when an actual partition could be made without prejudice, would be allowed an election to take the land instead of the money.
We also agree that “rent service” need not be payable in money, but may be payable as well in grain, or beef cattle or the like. In the one case it is called “black rent,” in *308the other “white rent,” that is “silver rent.” We agree also that “black rent” need not be a certain amount of grain, &c. but the amount may be left for the time uncertain, to be fixed by the crop which the tenant actually makes, as one-fourth, or one-third, which the tenant is to render or deliver to the landlord as rent.
But we do not concur in the position that the legal effect of the contract entered into by Wilkins and Parker was to establish the relation ot landlord and tenant, so as to make the part of the crop, to which -Wilkins was entitled, “rent service,” which would follow the reversion as an incident thereto.
On the contrary,.it is merely an arrangement made by Mr. Wilkins to enable him the more conveniently to carry on Ms farm, after his slaves were set free. If he had, besides furnishing the horses mules and other things, also agreed to furnish the hands and let Parker have a part of the crop for his services as overseer, the idea of “rent service” would never have suggested itself, and we are unable to see how the circumstance that Parker agreed to furnish the hands can at all vary the case. In the latter case as in the former, the value of the things furnished by Wilkins, in addition to the use of the land, are so blended that the relative value of each cannot be estimated by any data furnished by the articles of agreement, and there is no amount either certain or which can be made certain, to be rendered as a return for the use of the land, which is necessary in order to constitute “rent service”; nor is Wilkins’ half of the fatted hogs, nor his half of the crops, to be rendered and delivered by Parker to Wilkins, — but the hogs and the crops are to be equally divided by them, share and share alike, thus making a sort of agricultural partnership, which is to continue for two years, and-which does not constitute the relation of landlord and tenant; although Parker, by furnishing the hands and agree*309ing to pay a part of the expenses of the farm, placed himself upon somewhat higher ground than a mere “cropper,” and was to have the exclusive direction and control of the farming operations.
We therefore declare our opinion to be that the crop raised on “the Meadows” in 1867 does not belong to the plaintiffs as devisees, but, that it passes to the defendant under the bequest, viz : I wish the crop, stock and farming utensils, and all other perishable and personal property on said farm, &c\, to belong to my n.ephew E. W. Wilkins. If the testator had furnished the hands besides . the other things, and paid the overseer himself, the defendant would have been entitled to the whole crop. As it is, he only gets the onahalf of the crop, because’the testator had adopted a different-mode of carrying, on his farm, whereby he was only to have half of the crop, and his partner, Parker, was to have the other half.
Although the articles of agreement between Wilkins and Parker presented no serious difficulty as to its construction, we.have discussed it somewhat fully because we are aware that, in the present condition of the country, contracts to carry on farming operations in a way similar to this are very generally resorted to, and, to prevent litigation, it is Avell to point out wherein they are plainly distinguishable from “leases and terms for years.”
There will be a decree in conformity to this opinion.
Per Curiam.
Decree accordingly.