¶1The c^nion of the court was delivered by
¶2From an examination of this case, we think the judgment of the county court must be affirmed. The defendant under his contract with the plaintiff had no title to the crops grown upon the ground either in severalty or as tenant in common. The plaintiff was to give the defendant a certain price per acre for the use of the land .that season, and the stalks after the com was harvested. But until the com was harvested and the stocks delivered, the matter rested in contract, and for which, in case of non-delivery, an action would lie. Before- delivery the plaintiff was the only person who had that interest in the stalks th.at would enable one to sustain trover for their conversion. The defendant, therefore, in entering upon the land and taking possession of the corn was a wrong-doer, and still so remains in retaining the possession of the same from the plaintiff. The referees have found that the com was taken by the defendant under a supposed lien for the payment of his claim, and that he under the same idea still retains it, as he refused to deliver it to one Crampton who had negotiated for the purchase of this property of the plaintiff, as he did not know at that time the exact amount of his debt. Such a hen does not exist. unless such was the contract between the plaintiff and the defendant.
¶3*155The existence of this lien has not been contended for in argu- , ment. But it is urged that there should have been a demand before suit brought. As, however, the defendant was a wrong-doer in the original taking, no demand was necessary. The illegal taking of this property was a conversion, for which this action ■ will lie.