On March 4, 1876, plaintiff and one Johnson entered into a mutual written agreement, by the terms of which the former agreed to sell and convey, and the latter to purchase, certain lands therein described, for a designated sum agreed on, to be paid in instalments as was therein specified. Under the contract, the vendee was entitled to the immediate possession of the lands, which he soon took and continued to hold. The provision of the contract which concerns the present controversy, is as follows: “It is further agreed by and between said parties hereto, that the said party of the second part (Johnson) shall plant all the cultivated land on the said premises, for the years 1876 and 1877, not less than fifty acres thereof to wheat, and five acres to sugar cane, and the balance in oats, corn,” etc.; “and the first party of the first part (Prentice) shall have and is hereby granted control for the said years of 1876 and 1877 of and over any fifty acres of wheat and five acres of sugar cane so planted that he may select, as security for the payment of the sums hereinbefore mentioned which become due on or before July 1, 1878.”

The plain purpose of this provision was to obligate the vendee to sow to wheat, during the season mentioned, not less than fifty acres of the cultivated land bought by him of the vendor; and it was contemplated that he might sow a greater area, as in fact he did. It was also its purpose to secure the vendor for the instalments of the purchase-money falling due on or before July 1, 1878, by giving him a lien in the way of security, upon a portion of the wheat crop so agreed to be put in by the vendee, and embraced within any fifty acres to be thereafter particularly designated by the *489vendor. The security intended was upon a specific portion of the crop which was thereafter to be produced by the vendee and selected by the vendor, and not upon the land upon which it might be grown, nor upon any estate or interest therein. The right of control which was “granted” over the land thus to be selected, was for the purpose of enabling the vendor to protect his security, and make it available as such, . and it was limited to that purpose. Whether this part of the agreement in reference to the security is to be regarded as in the nature of a chattel mortgage upon a crop thereafter to be produced by the one party, and to be designated by the other, •or as a simple executory contract, it is evident, that'plaintiff - could acquire no right, in the way of lien or otherwise, to any specific portion of the crop, until he should make some selection under the terms of the contract, and give some notice or information thereof to the vendee.

The evidence was sufficient to warrant the jury in finding ■that Johnson, during the season mentioned, sowed more than fifty acres of the cultivated land to wheat; that prior to the harvest and removal of the crop from the land, no selection of any portion of the crop was made by plaintiff under the agreement, but the whole crop was harvested and threshed by Johnson, and the grain mingled together in one •common mass as his own, without reference to any selection, or any particular place on the entire tract sown whence it came; and such, under the rulings of the trial court, must be taken to have been the findings of the jury by their verdict.

The instructions upon this subject were as favorable to the • plaintiff as he could rightfully ask, and no error was committed ■ of which he can complain. There was no evidence whatever ■tending to show that the order given upon Wainwright for the •delivery to plaintiff of the wheat which was being held in store for Johnson had any connection with any stipulation in the land contract between plaintiff and Johnson, and, therefore, •the court was right in refusing plaintiff’s request upon this point.

Order affirmed.