On the 16th of March, 1906, the plaintiff conveyed his farm to the defendant, the deed containing covenants of warranty. At the time of the delivery of the conveyance the farm was in possession of a tenant whose term was to expire on April first following. In the fall preceding the tenant had sowed five acres of rye on the farm upon an oral agreement with the plaintiff, his landlord, that one-half of the rye was to belong to him and that he was to have the right to harvest the same in the fall after the expiration of his tenancy.
The defendant owned a farm adjoining that of the plaintiff. He knew of the possession of Larkin, the tenant; knew that he had sowed the rye; was informed specifically of the title of Larkin to one-half of this crop and of his right to harvest the same, and at the time of the execution of the deed expressly agreed to respect the agreement with Larkin, and the defendant understood that the deed was delivered on condition that he would take care of Larkin as to the rye for the ben ¿fit of the plaintiff.
*747In the fall Larkin attempted to harvest the crop. The defendant, who was in possession of the farm, prevented this, asserting title in himself and harvested it. Larkin sued the plaintiff in Justice’s Court on his agreement and recovered the value of the rye. The defendant had notice of this suit and did not defend, although present at the trial. The plaintiff has now sued the defendant setting out the facts above recited and the judgment recovered by Larkin against him.
The rye was personal property and the tenant became the owner by virtue of the oral agreement with his landlord. (Green v. Armstrong, 1 Den. 550, 554; Austin v. Sawyer, 9 Cow. 39, 41; Harris v. Frink, 49 N. Y. 24; Sexton v. Breese, 135 id. 387.)
While growing crops ordinarily pass by a conveyance, yet slight proof is sufficient to retain their character as personal property and exempt them from the transfer. The agreement of the parties to this action was equivalent to a constructive severance of the rye, and its reservation or exception was effective, although not contained in the deed. (Sherman v. Willett, 42 N. Y. 146; Banta v. Merchant, 45 App. Div. 141; Leonard v. Clough, 133 N. Y. 292, 297.)
In the last case cited," Robie Clough, the defendant, conveyed a tract of laud to her daughter, Mary Gilbert, reserving a small strip of the land. A barn was located on the premises, one-third of which extended on the strip reserved. The grantee stated at the time of the conveyance that the barn belonged to the grantor. Subsequent conveyances by warranty deed were made without reservation in any of the conveyances, although each grantee was informed that the original grantor owned the barn and she all the time was in possession of it. The defendant, the grantor, moved off the barn in spite of the protest of the plaintiff who had become vested with the title to the land and he sued in trespass. Parol proof was received of the oral reservation of the barn and the Court of Appeals held this was error. The court in its opinion say that the barn was real estate like growing trees or a mine, and that as the reservation was in favor of the grantor it could not be established by parol. The distinction between assertion of title based on such a reservation by a grantor and one in favor of a stranger to the conveyance is well recognized, the court saying (at p. 297) : “ If at the time of the conveyance of Mrs. Clough the barn had been *748personal property in the ownership of some other person, and the grantees had been notified of that fact, the title to it would not have passed by the successive conveyances. If this barn had been placed upon the lot by some third person with the consent of the owner and with the understanding that such third person could at any time remove it, it would have remained personal property and would not have passed to a purchaser under any form of conveyance providing such purchaser had notice of the fact. But where the land and the buildings thereon belong to the same person then the buildings are a part of the real estate and pass with it upon any conveyance thereof.”
The distinction noted obtains in the present case. The title to the rye was in Larkin, the tenant, not plaintiff, the grantor. It was personal property and Larkin could hold it against the defendant who purchased with notice of the title and also agreed to recognize it.
In Banta v. Merchant (45 App. Div. 141, supra) the plaintiff had sowed a crop of rye on shares. The land was sold on a judgment in an action of partition before the rye was harvested, and it was claimed that the referee on the sale reserved the rye. The court held the growing crop was personal property and that the reservation by parol was effective. The trial court in that case submitted to the jury the proposition whether the referee did in fact make such a reservation, advising the jury that if so a recovery could be had, otherwise not. The Court of Appeals granted a new trial (173 N. Y. 292) upon the ground that the statement of the referee was too indefinite to establish a reservation or to advise the purchaser of the precise nature of the claim. The general principles above adverted to were recognized. (P. 296.)
Larkin, the tenant, might have maintained his action against the defendant for conversion. He elected to sue on the contract made with his landlord. Upon the recovery and payment of the judgment the latter became subrogated to all the rights of his tenant.
Beyond that, the defendant agreed to take care of Larkin either by payment or by permitting him to harvest the rye. It was in effect an agreement to indemnify the plaintiff against Larkin’s claim, which the defendant failed to do. The only purpose of the plaintiff in insisting upon the promise as a condition of the delivery of the deed was to save himself harmless. He knew his *749liability to Larkin and the defendant was willing to protect him against it. At least the plaintiff was entitled to the verdict of the jury upon the facts.
The judgment should be reversed.
All concurred, except McLennan, P. J., who dissented in an opinion, and Kruse, J, who dissented in a memorandum.