One Martin B. Scott, on the 21st of April, 1866, leased to the plaintiff certain premises in Erie county for one year, with the - privilege of five years from the 8th April, 1868, which term was at an end at the end of each year, if the same was sold during said term without notice.
The plaintiff entered under this lease and during the summer of 1868, summer fallowed the soil and put in a quantity of wheat and rye.
On the 80th of January, 1869, the lessor sold and con*407veyed the premises so leased to the defendant, with covenants of warranty, sufficient in form to carry to the purchaser the growing crops. On the 1st April, 1869, defendant entered into possession and harvested the crops and applied them to his own use.
When defendant purchased the premises, plaintiff was in possession of them.
The court ordered judgment for plaintiff for the value of wheat and rye, after deducting the expense of harvesting and. the value of the use of the land from the end of the year, until the removal of the crop. The defendant was charged with the value of the straw in addition to the grain.
To authorize the judgment in this case, the court must have held that the duration of the tenancy was so uncertain as to entitle the plaintiff to emblements.
In Taylor on Landlord and Tenant 534), it is said this privilege (that of emblements) is allowed to tenants for life at will, or from year to year, because of the uncertain nature of their estates, and lest they should be deterred from the proper cultivation of their lands, and the general rule upon this subject is, that if the term is so uncertain that the tenant at the time he sows his crop, cannot know that his continuance will last until he shall have reaped it, he will be entitled to the crop as emblements. But if his term is certain and does not depend on a contingency, so that at the time he sows the crop he may know that his term will not continue until he shall have reaped it, he will not be entitled to it as emblements. (Woodfall’s Landlord and Tenant, 9th Eng. ed., 585; Stewart agt. Doughty, 9 Johns., 108.)
The lease in this case, is practically a lease at will, the only distinction between it and a lease at will is, that when terminated it shall be at the end of a year. But whether it shall continue in force for one or seven years, depends on the will of the lessor.
Under such a lease the tenant could not know when he *408might be required to surrender possession. If he was bound to so cultivate the land 'as that the crop must be removed, in all cases, within the year ending on the 8th of April, he could not safely sow winter grain at all on the land, for if he did, he would lose the crop, should the lessor sell during the year, and thus the value of the lease be materially lessened.
The court was right in its construction of the lease, and in allowing the plaintiff for the value of the grain$
The action being replevin, and wheat and rye the only property for which a recovery is sought by the complaint, the straw could not be recovered for under it. The court has not directly given judgment for the straw, but it has done what is equivalent to it—it has deducted the value of the straw from the cost of harvesting the crop. This, it seems to me, cannot be done.
The judgment should be reversed, unless the plaintiff will stipulate to deduct from the judgment the $50 allowed him for the. straw. If deducted, then the judgment to be affirmed.