
    Elting v. Palen.
    
      (Supreme Court, General Term, Third Department.
    
    May 21, 1891.)
    Vendor and Vendee—Right to Manure.
    Defendant occupied a farm under a lease which expired on April 1,1887. In 1886 the farm was sold in parcels, in order to make partition, to plaintiff and others, subject to defendant’s right of possession until the expiration of the lease. After the sale manure accumulated in the barn on the parcel purchased at the partition sale by plaintiff. Held, that the manure belonged"to plaintiff, and defendant would be restrained from removing it to a parcel purchased at such partition sale by a third person.
    Appeal from special term, Ulster county.
    Action by Jesse Elting against Calvin Palen. There was a judgment for-plaintiff, and defendant appeals.
    Argued before Learned, P. J., and Landon, J.
    
      A. T. Clearwater, for appellant. Bernard & Fiero, (J. Newton Fiero, of counsel,) for respondent.
   Learned, P. J.

The defendant occupied , as tenant a farm of some BOO acres, and his lease expired April 1, 1887. A partition sale of the premises was had October 14, 1886, at which the plaintiff bought 45 acres, which contained the barn and dwelling-house. Other persons bought other parcels; among them Mrs. Varick bought about 47 acres. The terms of sale as to all the land stated that it was sold “subject to the rights of Calvin Palen as tenant, and the possession of said premises will be reserved until April 1, 1887, and also the winter grain sown thereon will be reserved, and the right of the tenant of coming upon said premises after April 1, 1887,' and gathering the same.” On the farm—not on the part bought by the plaintiff—was also another barn, used for storing hay. At the time of the purchase by plaintiff there were two or three loads of manure in the yard of the barn, bought by him. On the 17th of February following the time of the commencement of this action there were 130. Just prior to the commencement of this action the defendant began carting away this manure from the plaintiff’s barn-yard, and depositing it on that part of the farm purchased by Mrs. Yarick. This he did at her request. He had carted away about 13 loads. Thereupon the plaintiff commenced this action, and obtained an injunction pendete lite, forbidding the defendant from carting away any more manure. On the trial this injunction was made final, and from the judgment the defendant appeals.

It does not distinctly appear whose tenant the defendant bad been,—probably the tenant of the deceased owner. Nor does it distinctly appear whether the heirs reserved to themselves the rent to become due from defendant up to April 1st. This may be possible, although contrary to the general rule. 1 Washb. Real Prop. 337; Van Rensselaer v. Gallup, 5 Denio, 454, 461. .The terms of sale reserve only the possession. It would seem, then, that the title passed to the several purchasers at the time they received their deeds; but that, owing to the defendant’s existing lease, they could not take actual'possession. The terms of the sale seem to have been intended simply to protect the rights of defendant as tenant, and to prevent any claim by the several purchasers that the contract of sale was broken by their inability to turn the defendant out of possession. The several purchasers, therefore, becoming owners of their several parcels, must have acquired'severally the rights towards the defendant which a land-owner'would have in respect to a tenant under such circumstances, and- these several purchasers were not co-tenants or joint tenants. They held their respective purchases in severalty. If the defendant’s lease had continued for another year, then it is very probable that in the ordinary course of good husbandry he could have spread this manure upon any proper part of the farm, because the annual spreading of the manure is the ordinary mode. He would have been entitled to have, by this mode of use, the benefit of the accumulated manure. But his lease was to expire April 1st. His carting this manure to a part of the farm bought, not by the plaintiff, but by some other person, was the same as if he had carted it to some land which had never been part of the farm. The previous owners of the farm had by the partition sale divided it, and each purchaser held his purchase separately. In Middlebrook v. Corwin, 15 Wend. 169, the landlord sued the tenant for manure taken away from the farm shortly before the expiration of the term, and it was held that he could recover. The court said the manure belonged to the farm, and the tenant had no more right to remove it than he had to remove a fixture. Such is the rule in 2 Kent, Comm. 347. In Goodrich v. Jones, 2 Hill, 142, the court held that manure made a part of the freehold, though laid up in heaps in the barn-yard. This was said to be the doctrine between landlord and tenant, and to be stronger as between véndor and vendee. The same is held in Daniels v. Pond, 21 Pick. 367; and Kittredge v. Woods, 3 N. H. 503, which last case is approved in Goodrich v. Jones, supra. See, also, Lassell v. Reed, 6 Greenl. 222, It is worth noting, also, that this is a rule not of law only. By the Roman law manure went to the purchaser of the farm, whether the manure was in a heap or in a stable. Fundo vendito vel legato sterculinum et stramenta emtoris et legatoris sunt et ne interest in stabulo jaceat an acemns sit. Dig. XIX., 117, 2. See, also, Dig. XLIII., 24, 7, 6. It is urged by the defendant that this manure was not in existence when the plaintiff purchased, but was made subsequently. Then, as we have above seen, the defendant was after the purchase in the position of tenant to the plaintiff; and the rule is equally applicable in that relation. In regard to the case cited by defendant of Ruckman v. Outwater, 28 N. J. Law, 581, holding that manure in a barn-yard does not pass to the grantee, we can only say that it is contrary to the decisions of our state above cited, and, however well considered, we cannot follow it. The defendant urges the fights of co-tenants or joint tenants as to personal property; but we think that those rights are not here involved. Of course there is a certain difficulty in treating such an article as manure in a farm barn-yard as real estate; but the difficulty is no greater than in the case of hop-poles, (Bishop v. Bishop, 11 N. Y. 123;) and the rights of all parties seen! to be best settled when the manure is said to Belong to the farm, and not to the tenant. Kor do we think that any difficulty arises from the fact that the tenant’s lease extended over the whole 300 acres. He had no right to the manure as owner, though he might, as above stated, have restored it to the land; and when the owners of the land divided it by their sale, we see no injustice in saying that the manure belonged to that separate portion of the farm on which it was accumulated; for, as above pointed out, it could not, in good husbandry, during what remained of the defendant’s term, have been applied for his benefit over the farm generally. Judgment affirmed, with costs.  