The opinion of the court was delivered by
Collamer, J.The first question raised in this case is, was the property so taken as to amount to a trespass ? It appears, that the defendant, as an officer, sold the hay on execution. This is within the case, Hart vs. Hyde, 5 Vt. Rep. 328, and must follow that decision.
The principal question, however, is, was this hay the property of the plaintiff, or his father ? It seems that the plaintiff purchased a farm to furnish a home for an indigent father, and put on tools, stock, &c. and suffered the father there to labor and live. It is now insisted, that the father was a tenant to the son, and so became the owner of all the crops on the place, and that the same were subject to be taken on the father’s debts. The court will be slow to give to a bona fide support, furnished by a son to a father, such artificial names and' technical character as shall in effect discourage and frustrate such praiseworthy objects. To create a tenancy, there must be some parting with the possession, so as to give exclusive occupancy to the tenant, at least for the time being. Nothing of this kind was shown in this case. The father was suffered to reside there. Now to hold this a tenancy, and make the crops there the property of the father, would be forcing upon the *61affair a character never designed by the parties, and evidently at war with their legitimate design. The true object is obvious, and the legal character should be bolden by the courts to correspond; that is, the plaintiff is the owner of the farm, stock, tools and crops, and has never parted with possession. He is by his father in constructive possession, with the right of taking personal and actual possession at any time. This entitles him to maintain trespass. It appears the plaintiff had said, if more could be raised than was necessary for the father’s support, he was willing it should go on his debts. This did not vest the title in the father, or subject it to attachment as his. It does not appear that even enough for the support was raised.
Nor do the facts offered by the defendant seem to alter the case, had the proof been admitted. He offered to show the father had sold off the crops and had purchased stock on to the farm, for which the son gave his note. This only tended to prove him the agent of the plaintiff, not owner of the property ; and had it been shown that the father had purchased the horse and given his own note, it would but have made him the owner of that horse, not of the hay. Much stress is laid by the defendant’s counsel on the law of em-blements. That only arises where a tenancy is shown, and there does not extend to grass.
This case is not to be drawn in precedent to give protection to fraudulent transactions. Had any testimony been offered, tending to prove the purchase money had in whole or in part belonged to the father, or that he had been for a long time in exclusive possession, and by valuable labor added greatly to the farm and stock, and was secreting his property from his creditors, by his son’s assistance, it would have deserved a different consideration and course of proceeding; but the case is destitute of all circumstances of that character.
Judgment affirmed.