
    W. Warren Kingsley, Respondent, v. Jacob Sauer, Appellant.
    
      Replevin — an agreement by a lessee to leave as much hay upon the demised premises at the expiration of his term as he found there on taking possession constitutes a sale — the right to enforce it does not pass to a grantee of the land.
    
    In an action of replevin, brought to recover the possession of seven and one-half tons of hay, it appeared that Welcome J. Dixon leased a farm to Bernard Seifert for five years from April 1, 1890, and Seifert covenanted, among other things,- “ to leave as much hay on the place as (he) found when taking possession.” In February, 1894, Dixon conveyed the property to the defendant, to whom Seifert attorned, and in November, 1894, Dixon assigned his claim hgainst Seifert for the hay to one Kingsley, the plaintiff. At the expiration of the lease the seven and one-half tons of hay were measured off and left upon the premises by Seifert, the tenant, and an action was brought for its possession by Kingsley against Sauer.
    
      Held, that the plaintiff was entitled to recover the hay;
    That the effect of the original transaction between Dixon and Seifert was that Dixon sold Seifert the seven and one-half tons of hay, to be paid back in kind by Seifert at the end of his term;
    That when Dixon, in February, 1894, conveyed the farm to the defendant Dixon had no title to any portion of the hay in question, and had merely at. executory right of action against Seifert;
    That this right of action was not an incident of the lease, and did not pass to the defendant, the grantee of Dixon, but did pass under the bill of sale executed by Dixon to the plaintiff, who had a right to maintain the present action.
    Appeal by the defendant, Jacob Sauer, from a judgment of the County Court of the county of Oneida in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 13th day of November, 1895, upon the verdict of a jury rendered after a trial at the Oneida County Court, with notice of an in tention to bring up for review on such appeal an order entered in said clerk’s office on the 5th day of December, 1895, denying the defendant’s motion for a new trial made upon the minutes.
    The action was originally commenced in the court of a justice of the peace.
    
      E. O. Worden, for the appellant.
    
      P. H. Fitzgerald, for the respondent.
   Follett, J.:

Welcome J. Dixon being the owner of a farm leased it to Bernard Seifert for five years, from April 1, 1890, for $150 per year, pay-able on the first day of January of every year. The lessor left on the farm seven and one-half tons of hay, -and the lessee in his lease-covenanted “to leave as much hay on the place as found when taking possession.” The transaction in respect to the hay amounted to a sale by the lessor to the lessee of seven and one-half tons to be paid-for in kind by the lessee at the end of his term. ;

Ftebruary 6, 1894, Dixon, the lessor,, conveyed the farm to Jacob Sauer, the defendant, by a full covenant warranty deed. The lessee wasi notified of the transfer of title, attorned to the grantee, and paid to him the rent due January 1, 1895.

November 28, 1894, Dixon, the lessor, assigned his claim against the lessee for seven and one-half tons of hay, and to certain imple'-'m-ents left, upon the farm, to this plaintiff. ’

March 16, 1895, the lessee vacated the dwelling house on the farm' and the defendant moved in, the lessee having at that time a, quahtity of hay in the barn.

, March eighteenth the lessee and litigants met at the barn, measured off a quantity of hay which the lessee should leave to perform his contract, and afterwards the lessee drew aWay the remainder.

The question is, who then acquired title to the hay, the plaintiff j under his bill of sale from Dixon, or the defendant under his deed] from Dixon? When Dixon conveyed this farm to the defendant, the former had no title to any portion of the hay. ■ All of it could have.been taken, on execution against the lessee, or his vendee would. have acquired a perfect title. The right of Dixon to be paid in kind' for the.hay which he, in 1890, sold to, or left for,, the lessee! was not. an incident to the lease. This right did not arise out of the future occupation of the farm, nor was it to be returned as part of the rent for the premises. The covenant was merely an executory right of action, which was to be satisfied by the delivery of a like quantity of hay at the end of the term, which right did not pass to the grantee, the defendant, under the deed, but did pass under the bill of sale to the plaintiff; and when the hay left in payment was agreed upon and set apart, by consent of all parties, it became the property of the plaintiff, who thereupon acquired the legal title to and became entitled to the immediate possession .¡of the hay, just as Dixon would have acquired title by its being set apart had he not made the bill of sale or deed. This title and the right of possession were disputed by the defendant, and the plaintiff was entitled to maintain this action to recover the hay. There was no question of fact for the jury except as to the value of the ha and the learned court committed no error in its rulings on the admío sion or rejection of evidence, or in its instructions to the jury bearing upon this question.

The judgment and order should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  