I cannot concur. The testimony on the part ol the plaintiff tended to show that, after the date of the mortgage under which the defendants acquired title to the premises, the plaintiff entered into possession under an agreement with his father, the mortgagor, that the plaintiff might have the premises, provided he could pay off the mortgage; that meantime he could place his improvements thereon, witli the right to remove them, provided he should find himself unable to pay the mortgage. Under such an agreement, it was competent for the plaintiff to place the machinery and trade erections upon the premises with the intention to remove them in case he should not pay the mortgage, or it was competent for him, notwithstanding the agreement with his father, to place them upon the premises without any such intention, and thus make them a part of the realty. One or the other of these inferences was deducible from the evidence, and which one should be drawn it was for the jury to decide. Our laws do not give the mortgagee as great rights in respect to trade erections and machinery, put upon the premises after the date of the mortgage, as the laws of England and Massachusetts do. Tifft v. Horton, 53 N. Y. 377, 385. Clearly, it does the prior mortgagee no wrong to remove such improvements, if the premises are left in as good condition as they were when the mortgage was given. If the mortgagor or his grantee puts such improvements upon the premises, they presumably become a part of the realty; but if a tenant puts them there, or a vendee or donee of the land under an executory or conditional contract, the presumption of absolute merger in the realty is less, because his title to the realty is less, and it is consonant with justice that, so long as he does the mortgagee no wrong, effect should be given to his contract with the mortgagor that he shall not lose title to his improvements, if because of the mortgage or otherwise he fail to acquire title to the land. The plaintiff was not conventionally a tenant, but his tenure was precarious, and he dealt, if his testimony is credible, with reference to his right of salvage from the impending wreck. True, a tenant upon foreclosure sale loses his growing crops. Lane v. King, 8 Wend. 584. The rule is a harsh one, but growing crops consume the season, and perhaps exhaust the soil. Erections and machinery do not, and in our state, in this respect, the rigor of the old laws is relaxed in favor of justice. Tyson v. Post, 108 N. Y. 217, 15 N. E. Rep. 316. The judgment in foreclosure did not bar the plaintiff in this respect. The complaint was in the usual form in foreclosure, and no issue respecting the extent to which the improvements upon the realty had become merged in the realty was tendered by the complaint, and hence none was settled by the judgment. Ho unmortgaged interest was sold, and unmerged improvements were not mortgaged. If these erections passed under the mortgage judgment, it' was because of the intent of the plaintiff to make them part of the realty itself; if under the agreement with his father he had no such intent, they remained personal property; if, as between plaintiff and his father, they were personal property, they remained so against the title acquired under the mortgage, for the foreclosure only passed such title as the father had when he gave the mortgage, and such as was acquired or added under him subsequent to the date of the mortgage. Whether the fixtures were added to the realty, or were kept by agreement and intention separate from it, was for the jury. The declarations of the plaintiff that he owned the premises did not estop him, since nobody acted upon them. They are evidence against him, but are to be weighed in the light of the fact that, in order *359to borrow the money he solicited, he must have made his declarations true, and he could probably have done so with the co-operation of his father and of the lender. The plaintiff probably hoped to have the lender pay off the old mortgage, then to have his father give plaintiff the promised deed, and then plaintiff could give the lender a new mortgage. This seems to have been practicable, and, if accomplished, no one would have been deceived or injured by the declaration of the plaintiff that he was the owner. The law punishes deceit causing damage, not the harmless fiction which too confidently anticipates the things hoped for.