We have in another place considered the question of the difference between a lease, with a provision that a share of the crops shall go to the lessor, and a contract for the division of crops between the landowner and the cultivator, without the creation of the relation of landlord and tenant between them.48a We shall here consider the nature of the relation created by a contract of the latter sort, and then discuss the rights of the parties as to the crops, before their division, in the case both of a lease for a share of the crops and of a mere "cropping contract."

The view is quite frequently asserted, expressly or by implication, that if the cultivator cannot, in the particular case, be regarded as the tenant of the landowner, he must necessarily sustain to him the relation of a servant or employee, hired to do work for a share of the crops.48b Occasionally, however, it is asserted that their relation is, if not that of landlord and tenant, that of parties to a joint adventure,48c and this view seems more in accordance with the probable intention of the

48. Lyman v. Hale, 11 Conn. 177, 27 Am. Dec. 728; Skinner v. Wilder, 38 Vt. 115, 88 Am. Dec. 645; Hoffman v. Armstrong, 48 N. Y. 201, 8 Am. Rep. 537.

48a. Ante, Sec. 48.

48b. See e. g.; Gray v. Robinson, 4 Ariz. 24, 33 Pac. 712; Tin-sley v. Craige, 54 Ark. 346, 15 S. W. 897, 16 S. W. 570; Williams v. Cleaver, 4 Houst. (Del.) 453; Chase v. McDonnell, 24 111. 236; Richards v. Wardwell, 82 Me. 343, 19 Atl. 863; McKenzie v. Sykes. 47 Mich. 291, 11 N. W. 164; Reeves v. Hannan, 65 N. J. L. 249, 48 Atl. 1018; Graham v. Houston, 15 N. C. (4 Dev. Law) 232; Steel v. Frick, 56 Pa. 172, 94 Am. Dec. 51; Rakestraw v. Floyd, 54 S. C. 288, 23 S. E. 419; Mann v. Taylor, 5 Heish. (Tenn.) 267.

48c. Herskell v. Bushnell, 37 Conn. 36, 9 Am. Rep. 299 (sem-ble); Taylor v. Bradley, 39 N. Y. 129, 100 Am. Dec. 415; Graves v. Vinton Co., 8 S. D. 385, 59 Am. St. Rep. '166, 66 N. W. 931; Lanyon v. Woodward, 55 Wis. 652. 13 N. W. 863.

R P -57 parties in the ordinary case, since if the "cropper" is to be regarded as a servant merely, he would, it seems, be subject to the absolute control of the landowner as regards the manner of sowing and cultivating the land, and his failure to comply with the latter's instructions would be ground for the termination of the contract by the latter, that is, for the servant's discharge. It may, however, clearly appear from the contract that the work is to be done under the supervision and control of the landowner, in which case it is most properly to be regarded as one of employment.48d An agreement of this character by which the landowner and the cultivator are to divide the crops between them does not make them partners.48e It contemplates a sharing of the gross returns and not of the profits of the undertaking.48f

The question most frequently discussed in connection with agreements for the division of crops between the landowner and the cultivator has been with regard to the rights of the parties in the crop before division. If one party has title to the whole crop to the exclusion of the other, he may, it is evident, by a transfer or mortgage thereof to an innocent purchaser, deprive the other party of his share, or the former's creditors may levy thereon, and so put it out of his power to deliver to the other party the latter's agreed share. Furthermore, the character of the rights of the respective parties to the crop before division will affect the character of the remedies which may be adopted by one in case the other undertakes to deprive him of his share. A number, perhaps the majority, of the courts, recognizing the possibility of the loss by one party of the share to which his agreement entitles him, if the whole title is regarded as being vested in the other, have asserted the doctrine that before division the two parties are tenants in common of the crop, that is, that each has an undivided interest therein which is subject to his control, this view being perhaps more frequently based in terms upon grounds of expediency than upon the construction of the particular agreement. This view, that the parties are tenants in common of the crops, has been most frequently taken in cases in which the agreement was not regarded as involving a demise, creating the relation of landlord and tenant,48g but in some cases, even though the cultivator is expressly stated to be a tenant, a tenancy in common in the crops is recognized as existing.48h Occasionally such tenancy in common is stated to exist, without any reference being made to the question whether the cultivator is to

48d. See e. g. Huff v. Watkins, 15 S. C. 82, 40 Am. Rep. 680.

48e. Romeo v. Dalton, 2 Ariz. 210, 11 Pac. 863; Gardenhire v. Smith, 39 Ark. 280; Smith v. Schultz, 89 Cal. 526, 26 Pac. 1087; parker v. Fergus, 43 111. 437; Jeter v. Penn, 28 La. Ann. 230, 26 Am. Rep. 98; Rose v. Buscher, 80 Md. 225, 30 Atl. 637; Donnell v. Har-she, 67 Mo. 170; Williams v. Rogers, 110 Mich. 418, 68 N. W.

240; Putnam v. Wise, 1 Hill (N. Y.) 234, 37 Am. Dec 309; Perrine v. Hankinson, 11 N. J. L. (6 Halst.) 181; Day v. Stevens, 88 N. C. 83, 43 Am. Rep. 732; Brown v. Jaquette, 94 Pa. 113, 39 Am.

Rep. 770; Mann v. Taylor, 52 Tenn. (5 Heisk.) 267.

48f. See Parsons, Partnership (4th Ed.) Sec. 61, note; 22 Eng. & Am. Enc. Law (2d Ed.) 45; Bur-dick, Partnership, 23.

Sec.265] be regarded as a tenant of the landowner as regards the land.48i

Rights of Enjoyment.

48g. Hare v. Celey Cro. Eliz. 143; Smith v. Rice, 56 Ala. 417; Romero v. Dalton, 2 Ariz. 210, 11 Pac. 863; Adams v. Thornton, 1 Cal. App. XVIII, 82 Pac. 215; Herskell v. Bushnell, 37 Conn. 36, 9 Am. Rep. 299; Alwood v. Ruck-man, 21 111. 200; Delaney v. Root,

99 Mass. 546, 97 Am. Dec. 52; Loomis v. O'Neal, 73 Mich. 582, 41 N. W. 701; Betts v. Ratliff, 50 Miss. 561; Reed v. McRill, 41 Neb. 206, 59 N. W. 775; Reeves v. Han-nan, 65 N. J. L. 249, 48 Atl. 1018; Taylor v. Bradley, 39 N. Y. 129,