dissenting. On the twelfth of J une, 1868, F. S. Goode sold a certain tract of land, cultivated as a plantation, to Mrs. Emma Bodin. The sale was made by public act, and was duly recorded. The terms of sale were notes, to secure which, special mortgage and vendor’s privilege was reserved. The act of sale contained the pact ele non alienando. Burguieres, holder of one of the mortgage notes, past due, caused the property mortgaged to be seized and sold under a judgment obtained by him against Mrs. Bodin.' Bonvillain and Leupey Burguieres bought the property at the sheriff’s sale.
Mrs. Bodin leased a portion of the property to A. T. Porche. The lease was by private act, and was passed on the first of March, 1873. Porche cultivated the land leased, and when the plantation was sold (sixth of September, 1873,) had on it a crop of corn standing in the field. The purchasers attempted to gather the crop, when they were stopped by this injunction.
The act of’sale was notice to all persons having dealings with regard to the property conveyed by it, who were charged with notice of the terms upon which it was sold and the incumbrances which existed upon it. When, therefore, the plaintiff leased a portion of the land, he knew what responsibilities he was incurring and what risk he ran. I consider him to be in the same position that his lessor was. The lease was, in my opinion, a violation of the pact, and could not, therefore, affect the conditions of the sale or the condition of the property, and when the defendants purchased it they did so without any regard to the lease or the rights of the lessee as between the lessor and the lessee. When they acquired the land they became the owners of every thing which was growing thereon.
“ Standing crops, and the fruit of trees not gathered, and trees before they are cut down, are likewise immovables, and are considered as part of the land to which they are attached.” R. O. 0.465.
I do not understand how plaintiff can escape this positive provision of the Code. Certainly, if the standing crops are to be considered as part of the land, when the land is sold the purchaser can no more be deprived of what is growing upon the land than he can be deprived of the land itself.
In the case of Bludworth et al. vs. Hunter, 9 R. 206, the court said: “ The standing crops at the time of the sale to Jacobs were attached to the land, and are considered a part thereof, and were included in the price given for it. If the plaintiff, in any further proceeding, should claim a share of that price, in the hands of the purchaser, and succeed, he will then get his share of the ungathered crop. In the fifth N. S. 52, this court said, the fruits of mortgaged property are subject to the mort*765gage only while in the hands of the mortgageor; they cease to be so when they accrue after the transfer of the original property to a bona ficLe purchaser and possessor.”
In my opinion, therefore, the injunction was improperly issued; the judgment of the district court should be affirmed.