WOOD v. ATKINSON

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.

BY THE 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.

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