The law as to what will pass by a deed of land is stated by Chancellor Kent in his Commentaries, ■'vol. 4, p. 549, 9tfi ed.) to be, that, “Upon a conveyance of .-.and and delivery of possession, it has been adjudged that the growing grain does not pass to the vendee, for it is deemed to be personal estate. (Smith v. Johnson, 1 Penrose, 471.) A contrary rule was, however, previously declared ih Foote v. Calvin, (3 John. 216,) and likewise in Kittredge v. Woods, (3 N. H. Rep. 503.) If the land be sold without any reservation of the crops in the ground, the law is strict, as between vendor and vendée ; and I apprehend the weight of authority tó be in favor of the existence of the rule that the conveyance of the fee carries with it whatever is attached to the soil, be it grain growing, or any thing else; and that it leaves exceptions to the rule to rest upon reservations to be made by the vendor. The rule was so understood and declared ill Crews v. Pendleton, (1 Leigh’s Virg. R. 297.”)
The case of Smith V. Johnson, first above cited, was decided by the Supreme Court of Pennsylvania, in 1830; but it was overruled by. the same court in 1838, in Wilkins v. Vashbinder, (7 Watt's R. 378,) where it was adjudged that a conveyance of land conveys the grain growing upon it to the purchaser; and that the fact that the vendor took care of the grain growing, and the fences around it, after the conveyance, without objection from the vendee, does not alter the rights of the parties. The Supreme Court of Arkansas decided, in 1849, that where a party executes an absolute deed in fee of the soil, without reservation of the growing crop, his interest in. such crop also passes by such conveyance, and that a reservation of the crop can not be established by parol evidence. (Gibbons v. Dillinghamton, 5 Eng. R. 9.) But the latter proposition has been repudiated in Ohio and Pennsylvania. (See Baker v. Jordan, 3 Ohio Rep. N. S. 438 ; Lauchner v. Rex, 20 Penn. R. 464.)
The Supreme Court of this state decided, in Austin v. Sawyer, (9 Cowen, 39,) where A. quit-claimed land to W. on *284which a crop of wheat was growing, reserving the wheat by parol, both at the time the quit-claim was executed and in a previous conversation, when it was agreed by the parties that it should he reserved, that such reservation was inadmissible to contradict the conveyance in writing, which carried the title of the wheat with the land. (See Hilliard on Real Property, vol. 1, 3d ed. 11, 12.) The correctness of this rule has never been questioned by any court in this state, and we must adhere to it so far as it is applicable to this case. It settles the question that the wine plants in dispute could not be reserved, by parol, by Staring, from the effect of his deed of the'land to the defendant.
But another question is whether the facts we shall pres- ■ ently state do not prevent that deed from vesting the title to the plants in the defendant. Staring was in possession of the land as tenant of Westlake, in September,. 1863,, under a lease that would not expire until April, 1865.-' He set out the Wine plants in June, 1863. He purchased the land of Westlake and took a warranty deed of it from, him, in September of that year. He made the purchase at the request of the defendant and for his benefit, and upon the understanding that he was to occupy the farm as tenant until April, 1864. .He paid Westlake $1000 towards the farm, which money he received of the defendant for that purpose, He gave a mortgage on the farm to Westlake to. .secure the payment of the residue of the purchase money, which was $3500. It is true that the defendant testified and insisted that he did not authorize Staring to take á deed of the farm to himself, or to give the mortgage. But when he was informed what Staring had. done, he took a warranty deed of the farm from him subject to the payment of the mortgage Staring had given thereon, in which deed he covenanted to pay such mortgage. The effect of the business was the same that it would have been if Staring had taken a contract of Westlake for the farm to the defendant and had paid the $1000, thereon, and the defendant had then *285taken a deed of the farm from Westlake and given him a mortgage thereon for the remainder of the purchase money.
The defendant agreed to pay Staring fifty dollars for buying the farm, and to allow him to occupy it, as his tenant, until April, 1864, without paying any rent therefor. The defendant .paid the $50 to Staring and permitted him to occupy the farm until April, 1864, without exacting any rent of him. These facts and circumstances did not justify a variation of the legal effect of the deed from Staring to the defendant by evidence that the former made a parol reservation of the wine plants when he- executed the deed or delivered it to the latter. But as soon as Staring delivered his deed to the defendant he became the tenant of the latter, of the farm, until the following April, by virtue of the agreement between them that he should be such tenant; and he was in possession of the farm as such tenant from the delivery of that deed. The effect of that agreement and of Staring purchasing the farm of Westlake and conveying it to the defendant, was to make Staring the tenant of the defendant instead of Westlake, from the date of such conveyance until April, 1864. That was all. He had set out the wine plants as tenant, and his change of landlords did not divest him of his title to the same. The fact that the legal title to the farm passed through him, in changing his landlords, did not alter his rights as tenant; for the agreement by which it was done, and which stipulated that he should remain a tenant, was executed. His mortgage of the wine plants to the plaintiff', on the 26th day of September, 1863, was therefore valid, and the plaintiff acquired the legal title to the same when he purchased them by virtue of the sale under his mortgage in February, 1864.
The mortgage was good as between the parties to it, and as- the .defendant had no title to the wine plants, he was never in a position to question its validity, though it had not been filed in the office of the town clerk.
*286[Broome General Term, May 8, 1866.The wine plants were personal property, as between Staring, the tenant of the farm, and the defendant, who was his landlord. Staring had the right to remove them from the farm, and his mortgage to the plaintiff enabled the latter to acquire the same right.. (Smith v. Jenks, 1 Denio 580. S. C. 3 id. 592. S. C. 1 Comst. 90. Smith v. Benson, 1 Hill, 176. Ford v. Cobb, 20 N. Y, Rep. 344. Warren v. Leland, 2 Barb, 613. 1 id. 542, Whipple v. Foot, 2 John. 418. Stewart v. Doughty, 9 id. 108.)
The plaintiff had a perfect titl.e to the wine plants, and the only questions for the jury were whether the defendant converted the plants, and the amount of damages the plaintiff' was entitled to recover; and no, error1 was committed on either of those questions.
No error was committed by the judge by the rejection of any evidence offered by the defendant, and whatever errors he committed by the admission of evidence offered by the plaintiff, were wholly immaterial and did not affect any legal right of the defendant, in the least. The defendant was no more' prejudiced by the erroneous admission of evidence of a parol reservation of the plants by Staring, when he conveyed the farm to him, than he would have been by proof of the health of the parties at that time.
As the plaintiff" was clearly entitled to recover, upon the undisputed legal evidence in the case, the defendant’s motion for a new trial should be denied, with costs, (See Austin v. Sawyer, 9 Cowen, 39.)
Parked and Mason, JJ. concurred.
Boasbman, J. dissented.
Motion for new trial denied.
Barker, Mason, Balcom and Bcardman, J ustices.j