This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
It is a very usual custom in this country for the owner of land to make an arrangement with another person that the latter shall plant and cultivate the land, and that the crop or crops so procured shall be divided between the two in certain named proportions. Such an arrangement may or may not involve the making of a lease creating the relation of tenancy, and the question whether, in the particular case, such a relation was created, has frequently been the subject of discussion and decision. If the effect of the arrangement is to give to the cultivator the possession of the land, the exclusive possession, as it is frequently termed, a tenancy is created,15 while if the possession is retained by the former owner, there is no lease creating a tenancy, but merely a "cropping contract."16 The inten14. White v. Maynard, 111 Mass. 250, 15 Am. Rep. 28; Mathews v. Livingston, 86 Conn. 263, Am. Cas. 1914 A 195, 85 Atl. 529; Wilson v. Martin, Denio, (N. Y.) 602; Cochrane v. Tuttle, 75 111. 361; Linwood Park v. Van Dusen, 63 Ohio St. 183, 58 N. E. 576; Fox v. Windemere Hotel Apartment Co., 30 Cal. App. 162, 157 Pac. 820; Allen v. Overseers of Liverpool, L. R. 9 Q. B. 180, 192.
15. Neal v. Brandon, 70 Ark. 79, 66 S. W. 200; Dixon v. Nicolls. 39 111. 372, 89 Am. Dec. 312; Chicago & W. M. Ry. Co. v. Linard,
94 Ind. 319, 48 Am. Rep. 155; Warner v. Abbey, 112 Mass. 355; Johnson v. Hoffman, 53 Mo. 504; Wentworth v. Portsmouth & D. R. R., 55 N. H. 540; Taylor v. Bradley, 39 N. Y. 129, 1 Abb. Dec. 363. 100 Am. Dec. 415; Steel v. Frick, 56 Pa. St. 172; Rakeatraw v. Floyd, 54 S. C. 288, 32 S. E. 419; Rowlanders v. Voechting, 115 Wis. 352, 91 N. W. 990.
16. Gray v. Robinson, 4 Ariz. 24, 33 Pac. 712; Herskell v. Bush-nell, 37 Conn. 36, 9 Am. Rep. 299; Appling v. Odom, 46 Ga. 583; Creel V. Kirkham, 47 111. 344; Culley v. Taylor, 62 Neb. 651, 87 tion of the parties as to the possession of the land does not, however, ordinarily appear, except as it is to be deduced from the intention vel non to create a tenancy, and in endeavoring to ascertain this latter intention various considerations have been referred to by the courts.
The fact that the landowner retains the right to control and supervise the operations of the other party to the agreement in cultivating the land has been regarded as tending to show that no tenancy is created,17 and most properly so, it would seem, since such retention of control by the landlord is hardly compatible with the tenant's right of exclusive possession.18 Occasionally the courts have regarded the fact that the cultivator is himself to make the delivery of the landowner's share of the crop to the latter, as tending to show an intention to regard that share as rent, and to create the relation of landlord and tenant.19 The fact that the instrument contains the ordinary words of demise, such as lease, let, or demise, is not conclusive that it is to take effect as a lease creating a tenancy,20 but it has been regarded as tending to show that such is the intention,21 and, it would seem, the use of such language might well be given controling effect, in the absence of a clear showing of an intention, in the other parts of the instrument, that the cultivator shall not occupy as tenant. That the instrument, in reserving to the landowner a share of the crop, speaks of this share as rent, has also been regarded as tending to show that it is a lease.22
N. W. 334; State v. Page, Speers (S. C.) 408, 40 Am. Dec. 608; Warner v. Horsington, 42 Vt. 94.
17. Almand v. Scott, 80 Ga. 95, 12 Am. St. Rep. 241, 4 S. E. 892; Huff v. Watkins, 15 S. C. 82, 40 Am. Rep. 680; But see Brock v. J. J. Haley & Co., 88 S. C. 373,
70 S. E. 1011
18. Ante Sec. 46.
19. Steel v. Frick, 56 Pa. St. 172 (semble); Woodruff v. Adams, 5 Blackf. (Ind.) 317, 35 Am. Rep. 122 (semble); Harrison v. Ricks,
71 N. C. 7; McCutchen v. Crenshaw, 40 S. C. 511, 19 S. E. 140, Strain v. Gardner, 61 Wis. 174, 21 N. W. 35.
20. Ferris v. Hoglan, 121 Ala.
240, 25 So. 834; Bernal v. Hovious.. 17 Cal. 541, 542, 79 Am. Dec. 147; Griswold v. Cook, 46 Conn. 198; Vawter v. Frame, 48 Ind. App. 481, 96 N. E. 35; Putnam v. Wise, 1 Hill (N. Y.) 234, 37 Am. Dec. 309; Taylor v. Bradley, 39 N. Y. 129, 138, 1 Abb. Dec. 363, 100 Am. Dec. 415; State v. Page, Speers (S. C.) 408, 40 Am. Dec. 608; Aiken v. Smith, 21 Vt. 172.
21. Clarke v. Cobb, 121 Cal. 595, 54 Pac. 74; Johnson v. Hoffman, 53 Mo. 504; Reeves v. Han-nan, 65 N. J. L. 249, 48 Atl. 1018; Steel v. Frick, 56 Pa. St. 172; Strain v. Gardner, 61 Wis. 174, 21 N. W. 35; Rowland v. Vorchting, 115 Wis. 352, 91 N. W. 990.
Occasionally it has been said that an instrument providing for the sharing of crops will not be construed as a lease unless such clearly appears to be the intention of the parties,23 and this would seem to be a reasonable rule, calculated to remove to some extent the difficulties with which the subject has been invested. An instrument providing for the cultivation and division of crops should, no more than any other instrument, be extended in effect so as to operate likewise as a lease, unless such appears to have been the intention of the parties. This view, that an agreement for a division of the crops, is in itself no evidence that a lease is intended, is indicated though not clearly stated, in a number of cases in which the construction of the instrument was adverse to the existence of a tenancy.24
22. Neal v. Brandon, 70 Ark. 79, 66 S. W. 200; Dixon v. Nicolls, 39 111. 372, 89 Am. Dec. 312; Vaw-ter v. Frame, 48 Ind. App. 481, 96 N. E. 35 (semble); Reeves v. llannan, 65 N. J. Law, 249, 48 Atl. 1018; Durant v. Taylor, 89 N. C. 351 (semble).
In Hoskins v. Rhodes, 1 Gill & J. (Md.) 266, it is said that the reservation of a share of the grain as "rent" necessarily shows the instrument to he a lease. But the use of the word "rent" is not ordinarily regarded as conclusive. See Moser v. Lower, 48 Mo. App. 85; Ponder v. Rhea, 32 Ark. 435; Putnam v. Wise, 1 Hill (N. Y.) 234, 37 Am. Dec. 309; Haywood v. Rogers, 73 N. C. 320.
23. Walls v. Preston, 25 Cal. 59; Alwood v. Ruckman, 21 111. 200; Guest v. Opdyke, 31 N. J. L. 552; Vawter v. Frame, 48 Ind. App. 481, 96 N. E. 35.
24. Shields v. Kimbrough & Purnell, 64 Ala. 504; Bourland v. McKnight, 79 Ark. 427, 4 L. R. A. (N. S.) 698, 96 S. W. 179; Adams v. Thornton, 1 Cal. App. XVIII, 8" Pac. 215; Creel v. Kirkham, 47 111. 344; Wood v. Garrison, 23 Ky. L. Rep. 295, 62 S. W. 728; Richards v. Wardwell, 82 Me. 343, 19 Atl. 863; Delaney v. Root, 99 Mass. 546, 97 Am. Dec. 52; Cul-ley v. Taylor, 62 Neb. 651, 87 N. W. 334; Gray v. Reynolds, 67 N.