We are disposed to place our decision of this case upon much narrower grounds than those upon which the case has been argued.
It has been repeatedly decided in this state, that the lessor of land may stipulate in the lease that the crops grown op the premises by the lessee shall remain the property of the lessor until the rent shall be paid, and that such provision is valid, not only between the parties, but as to third persons also, Smith v. Atkins, 18 Vt. 461; Briggs v. Oaks, 26 Vt. 138 ; Gray v. Stevers et al., 28 Vt. 1. The same principle is held in Lewis v. Lyman, 22 Pick, 437.
The lease from the plaintiff to Darwin contained no such reservation, but it did contain a clause giving the plaintiff a right to re-enter at the end of the year, if the lessee failed to pay the rent.
The year expired, the rent was not paid, and the plaintiff had the right to re-enter for non-payment.
In this state of things the lessee, by an instrument executed with all the solemnities and formalities of the lease itself, conveys to the plaintiff all the crops which may be grown upon the land during the lease, to be held by him as his property until the *602rents shall be paid. In our judgment, this instrument placed the parties in just the same condition as if the old lease had been surrendered, and a new one executed, containing just such a reservation of the crops. If this be not so, it must be on the ground that one may reserve something out of a conveyance, to himself, which if he omits to do, the other party cannot re-convey to him, which seems to us wholly absurd. It amounts to this, that a man may receive a conveyance of a thing which he cannot re-convey.
The reasoning upon which our decisions go is, that the owner of the land being also the owner of the fruits or products of it, in parting with the use of it to another, may make such conditions and reservations in relation to the land itself, or the products grown from it, as he chooses, instead of parting with the full right. The principle is the same as that upon which conditional sales of personal property are upheld.
As between the parties, it seems clear that what the lessor might have retained to himself by a reservation, the other party may re-convey to him, if the rights of third persons are not affected by it.
It is not claimed in this case that they were, except that as to the crops then growing, which require annual planting or sowing and cultivation, the defendant alleges that they come within the rule requiring a change of possession of personal property, in order to make a sale valid against creditors.
In other words, it is claimed that a growing crop of that character, in any stage of its growth, is a personal chattel, which may be sold by parol, and without writing, and that if a vendor of such crop remains in possession till the crop is grown and harvested, it is liable to be attached by his creditors. We have no occasion now to enter into the interminable discussions, and nice subtleties and refinements, that have arisen upon this subject, further-than to say, that to hold that a crop of that character, in its infancy, before it has acquired the form of property at all; which is yet to be produced by and from the earth itself, and which must remain in and connected with it for months, for sustenance and production, is an existing chattel, subject to present *603sale as such, seems quite unreasonable. But however legal scholiasts may have determined this, it is clear that it does not come within the rule as to requiring a change of possession of personal property, in order to render a sale valid as to creditors. That rule proceeds on the ground that permitting the former owner to remain in the use and apparent ownership of the property as before, gives him a false credit, and creditors may be embarrassed and injured by it.
But the reason of the rule cannot apply to property which at the time of the sale is not subject to attachment, and has no real existence as property at all.
.Let us test the principle. Suppose the owner of a farm,-after the crops are planted in the spring, conveys the farm to another for a full consideration, and the deed is recorded.
It will not be claimed but that the conveyance carries to the grantee the full title to the growing crops in the ground. Suppose further, that the grantor remains in possession of the farm, as the agent or servant of the grantee, and cultivates and harvests the crops; are they liable to attachment for want of a change of possession ?
It has uniformly been held that in such circumstances the crops were no more liable to attachment by the creditors of the grantor than the land itself.
Judgment affirmed.