The opinion of the court was delivered by
Rowell, J.The determinative question in this case is, whether Grant had an interest in the land on which these potatoes grew.
It was early held in England that “exposing to halves” for a single crop is no lease. Hare v. Celey, Cro. Eliz. 143. And such has always been'the general rule in this State. And the same form of contract for a longer term is undoubtedly the same.
But it will be found that the cases on this subject turn on the construction given to the particular contract of letting involved; and they may conveniently be divided into three classes, namely (1), those in which the contract is held to make the owner and the occupant tenants in common of the crop, but to give the occupant no interest in the land itself; (2) , those in which the contract is held to be a lease, and so to vest the entire interest in the crop in the occupant; and (3) and intermediate, those in which the contract is held to make the parties tenants in common of the crop and to give the occupant an interest in the land itself.
When the. contract is the ordinary one of letting upon shares, the case falls under the first class, as shown by Bishop v. Doty, 1 Vt. 37, and Warner v. Hoisington, 42 Vt. 94.
Such a contract is regarded as rather in- the nature of a contract to perform labor upon land, and not as giving the occupant any interest in the land, nor even the possession of it in law, but only a right to enter upon it for the purpose of carrying out his contract.
When the contract contains apt words to constitute a lease, and they are not overcome by a contrary intent appearing on its face, or when the instrument otherwise *674evinces an intent of the parties to make a lease, the case falls under the second class, as shown by Hurd v. Darling, 16 Vt. 377. See the contract as set out in the report of the case in 14 Vt. 214.
When the contract falls short of a real lease, but yet is something more than the ordinary letting on shares in that it betrays an intent to confer on the occupant an interest in the land itself, the case falls under the third and intermediate class, as shown by Aiken v. Smith, 21 Vt. 172.
In that case the owner of a farm agreed by a contract, not under seal, to let it to another at the halves from year to year for the space of five years from a time certain, or as long as the parties could agree and were satisfied, either ^having the right to terminate the contract on a month’s notice. This contract was construed not to be a lease, so as to vest the entire interest in the crops in the occupant, but to constitute the parties thereto tenants in common of the crops, and to give the occupant an interest in the land itself; for it was said that he was not to occupy as the mere servant of the owner, nor upon hire, to receive a portion of the crop as compensation, but had something more than a mere license to enter and cultivate the soil, namely, a right to occupy, so that the owner could not exclude him while in tifie performance of his contract; but the precise nature and character of that interest it was said to be difficult to define.
Though this would seem not to have been the real ground of that decision, yet we adopt as sound what the court said about the legal effect of that contract in this behalf, and think it entirely applicable here.
By the first contract, Grant was to clear and carry on at the halves until a date including two seasons after the last piecé was cleared, a certain lot of land; and by the second contract, supplemental to the first, dated March 26, 1875, he had the right-to “occupy, cultivate, and carry on” the land on the terms and conditions of the contracts until January *6751, 1879. These contracts were both executed with all the formalities of a deed, and recorded in the land records of the town; and at the time in question, Grant was in occupancy under them, clearing and carrying on the land in fulfillment thereof, and — as was said of the contract in Aiken v. Smith — they made him more than the mere servant of the owner, more than an occupant upon hire, to receive a portion of the crop as compensation, they gave him more than a mere license to enter and clear and cultivate the soil, they gave him a right to occupy as long as he fulfilled on his part and until the end of the term, and the owner could not lawfully exclude him from such occupancy; and this gave him an interest in the land itself, the exact nature and character of which it is not necessary to define.
Having then an interest in the land itself, he could convey to plaintiff as he did by an instrument executed with all the formalities of a deed and duly recorded, his share of the crops and products to be raised thereon though then unplanted; “ for land is the mother and root of all fruits, and he who hath it may grant all fruits that may arise upon it after, and the property shall pass as soon as the fruits are extant.” Lord Hobart in Grantham v. Hawley, Hob. 132; Bellows v. Wells, 36 Vt. 599; and cases passim. And in such case there need be no change of possession in order to protect the fruits from the grantor’s creditors, for they were never his property. Bellows v. Wells, 36 Vt. 599; Fitch v. Buck, 38 Vt. 683.
Judgment affirmed.