This was an action to recover a specific article of personal property, to-wit, certain wheat.
The answer is, first, a general denial; secondly, that the defendant, on the 27th of January, 1854, purchased of the plaintiff certain lands upon which said wheat was growing, and took a deed of full covenants of warranty, and therefore, &c. Eeply, that at the time of the sale, the wheat was by parol expressly reserved by the plaintiff, &c. Demurrer to the reply sustained.
The question is, whether under these circumstances, a parol agreement, by which the growing crop was reserved, is binding.
Whatever may be the law, as between landlord and ten*466ant, or in reference to mortgaged premises, &c., we think jn case at bar the law is, that if the sale was some time before the execution of the deed, any verbal reservations or stipulations in reference to anything that would legally pass by the deed without such reservations, &c., would be presumed to be merged in the deed; and if made at the time the deed was executed, it would be considered in the light of an exception or defeasance, and being repugnant to the legal effect of the deed, would be void— the legal effect of the deed being, that it passed all the incidents to the land, among others the emblements, as well as the land itself. Noble v. Bosworth, 19 Pick. 314.—Austin v. Sawyer, 9 Cow. 39.—Pattison v. Hull, id. 747.—Mott v. Palmer, 1 Comst. 564.
J. S. Frazer, for the appellant. C. W. Frasier and J. B. Howe, for the appellee (1).Without doubt, a growing crop on land, the fruits of industry, passes to the executor and not to the .heir. It is subject to execution as personal property, and may be sold by the owner as such. But nevertheless, if the owner of the soil does not dispose of it as personal property, but conveys the freehold, it passes as an incident thereto, where nothing is said upon the subject; and, therefore, no mere verbal agreement can be received to contradict either the express terms, or the legal effect of the deed.
The demurrer was properly sustained to the second paragraph of the answer.
Per Curiam. — The judgment is affirmed with costs.
Worden, J., having been of counsel in the cause, was absent.