Opinion
July Term, 1811.
From Wayne.
A employed B as an overseer, and agreed to give him a certain part of the corn and hogs which should be raised on the plantation during the year. Before the corn was gathered, or hogs divided, B conveyed his interest in them to C, who, in the month of November of that year, the corn being then gathered, demanded of A the share to which he claimed title under his conveyance from B. A refused to deliver it, and C brought an action of trover: Held, that the action would not lie, for the contract between A and B continued executory until B's share of the corn and hogs was set apart by A.
THIS was an action of trover, in which the plaintiff claimed to recover the value of certain corn and pork, which he alleged belonged to him, and which defendant had converted to his own use. The facts of the case were as follows: Atkinson, the defendant, employed one John Lindsay as an overseer for 1806, and agreed to give him a certain portion of the corn and hogs which should be raised on the plantation in that year. In September of that year Lindsay sold and conveyed to Wood, the plaintiff, all his undivided share of the corn and hogs. When Lindsay gathered the corn, in October, he deposited a part for himself in one place and a part for Atkinson in another; but no consent of Atkinson to such division appeared, except an inference which might be drawn from his calling the corn which Lindsay had deposited in a place for himself, "Lindsay's corn." No division of the hogs was made, but Atkinson (88) stated, in December, that Lindsay's share was a certain number. In November, 1806, Wood demanded of Atkinson the corn and hogs to which Lindsay was entitled; Atkinson refused to deliver them, and thereupon Wood brought this suit. Upon the trial the presiding judge was of opinion that the plaintiff could not maintain the action, and a nonsuit was suffered. A rule for a new trial being obtained, was sent to this Court.
In this case there was no evidence that Lindsay's share of the corn and pork had been set apart for him by Atkinson, and, while so set apart, that the conveyance to the plaintiff was made. Before the plaintiff can recover he must show that the share of Lindsay had been set apart, otherwise the case would rest upon the mere contract of the parties. He must show, in the next place, that after Lindsay's share had been so set apart it was conveyed to him, and before any conversion thereof was made by Atkinson. The evidence does not support either part of the case, and the nonsuit was proper. Let the rule for a new trial be discharged.
(89)