¶1The opinion of the court was delivered by
¶2In this action the only questions raised are whether the plaintiff had any such property as will enable him to maintain this action, and, if he had, whether the defendants have done any act which will amount to a conversion.
¶31. The interest of the plaintiff in the property sued for is, ‘at most, that of a tenant in common. It is true it was hay and grain, grown upon the land of the plaintiff, but land which he had leased to the defendant, Darling, for two years, the rent to be paid in one half of all the crop, except what was consumed in keeping the cattle which were let with the farm and were to be kept upon it. It is true, also, that the contract is not a technical lease; but it was in writing and fully executed, and sufficiently binding upon the parties themselves, both at law and in equity, at least as to what was done under it. It is, in terms, a letting of the land. The terms are ‘ do covenant and agree to farm let.’ And the defendant on his part agrees, to ‘cafry on the farm, in a ‘ good husbandlike manner, and to deliver said Truman, on ‘said farm, one half of all the crops.’ The defendant occupied the land the full term. In the month of December, the defendant refused to take further care of the stock, leased with the farm, and the plaintiff procured some one to fodder them. Soon after this the defendants removed the hay and grain from the farm. It is obvious, we think, that here was a letting of the land, and the defendant could not be said to have performed his part of the contract until he had ‘ delivered,’ i. e. set apart, plaintiff’s portion of the crops. So that at the time of the alleged conversion, most clearly, no portion of the property sued for had vested in the plaintiff, in severalty. And it is questionable how far he could be said to be seized of the property, as tenant in common, Bishop v. Doty, 1 Vt. R. 37.
¶4*2212. But if the plaintiff were tenant in common, the defendant had the same right to possession which he had, and nothing which defendant should do with the property, short of destroying plaintiff’s interest therein, would amount to a conversion of it, as against him. This is not pretended, for he did not even sell it, which, as it would seem, does not amount to a conversion. Tubbs v. Richardson, 6 Vt. R. 442, and cases there cited.
¶5Judgment affirmed..