While the amount involved in this litigation is comparatively small, it seems to me that a rule of law is about to be enunciated which is far-reaching in its effect and such as will tend to unsettle the law as to the transfer of real estate, and, as it seems to me, is incorrect.
The facts are hardly in dispute. On the 4th day of March, 1903, and prior thereto, the plaintiff was the owner of a farm, comprising about sixty acres, situate in the town of Alden, Erie county. On that day he executed a lease to one Charles L. Larkin for the term of three years from the 1st day of April, 1903, for the annual rental of $155. It was also provided in said lease that the tenant should have the privilege of leasing said premises for two years more, upon the same terms, provided he gave written notice to that effect to the owner of the premises on or before January first preceding the end of said term. In the lease the owner of the premises, the party of the first part, reserved the right to sell said premises during said term, and the tenant agreed to vacate and remove from the same on or before April first following said sale; but it was provided that in case the premises were sold during the first or second year of said term, the said party of the second part, the tenant, was to receive the sum of $77.50 for moving before the end of said term. The second party, the tenant, agreed that at the expiration of said term he would surrender up said premises to the party of the first part, the owner thereof, in as good condition as they were when leased, necessary wear and damages by the elements excepted. On the 16th day of March, 1906, the owner of said premises sold the same to the defendant, giving a warranty deed therefor, there being no mention in said deed of the tenancy of Larkin.
It appears that the tenant, Larkin, sowed upon said premises five or six acres of rye, and it is claimed that under a parol agreement *750between him and his landlord it was agreed that he should be permitted to harvest said rye, one-half of which should belong to him and the other half to his landlord. It is also claimed that the defendant in this action knew of the parol agreement thus made between the tenant Larkin and this plaintiff at the time or prior to the time when he purchased the premises in question. When the rye became ripe Larkin, the tenant, attempted to harvest and care for the same. The defendant, purchaser of the premises, who was then in possession, forbade him from harvesting the same or entering upon the premises for that purpose.
Larkin then brought an action against his landlord as for a breach of the oral contract entered into by them, by which, as it is alleged, the tenant was to have the right and privilege of harvesting the rye in question. That case was tried and a judgment recovered by the tenant, Larkin, against his landlord for thirty-live dollars damages and five dollars and thirteen cents costs. This action was brought by the plaintiff (the defendant in that action) to recover the amount of the judgment so obtained against him. In Justice’s Court it was decided that this plaintiff had no cause of action against this defendant, and judgment was entered accordingly, which was affirmed by the County Court.
As it seems to me, there was no privity of contract between the tenant, Larkin, and this defendant, the purchaser of the premises in question. The defendant obtained title to the premises by means of a warranty deed, and I think it was not competent for the plaintiff to prove by parol that the defendant took a less title to such premises. If, under the circumstances, the defendant, the purchaser of the premises, improperly took possession of the rye and prevented the tenant, Larkin, from exercising the right of possession over it, then his right of action was against the defendant for conversion and because of his wrongful act. It does not seem to me that under such circumstances he may bring an action against his landlord as for a breach of contract and recover a judgment, and that such judgment so recovered shall be the basis for measuring the amount of recovery against the defendant, the purchaser of the premises, and who holds under a warranty deed given to him by the plaintiff.
This is an action at law, and the question is, may a transferor of *751real property, who gives a warranty deed of the same, have judgment against a transferee of such property because the transferor has not kept faith with or performed his contract made with a tenant of- such property, entered into prior to the execution of such warranty deed, notwithstanding the purchaser may know of the terms of the contract existing between the tenant and the landlord % In other words, in an action at law and where no question is raised as to the insolvency of other parties concerned, has not a purchaser of real property the right to rely upon the terms of a warranty deed, or must he protect himself against a judgment which a former tenant of such premises may recover against the grantor because of an alleged breach of an oral contract relating to such tenancy ?
It seems to me that the judgment appealed from is right and should be affirmed, with costs.