
    Christopher J. Banta, Respondent, v. Thomas B. Merchant, Appellant.
    
      Judicial sale in partition—oral notice of the reservation of a wop planted after the filing of the lis pendens — it hinds the purchaser although not mentioned in the interlocutory judgment, the terms of sale or the referee’s deed.
    
    A reservation of a crop planted upon shares upon a farm, owned by tenants in common, under a contract made by a third person with the cotenant in possession, after the filing of the lis pendens in an action to partition the farm, is binding upon a purchaser at the partition sale when, before the sale, the referee, at the suggestion of the attorney for the cotenant who made the contract and with the authority and consent of all the other parties to the action, states that the third party’s interest in the crop was reserved, although the reservation was not mentioned in the interlocutory judgment, or in the terms of sale, or in the deed executed by the referee to the purchaser.
    Appeal by the defendant, Thomas B. Merchant, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the ,3d day of March, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of March, 1899, denying the defendant’s motion for a new trial made upon a case and exceptions.
    
      T. B. Merchant, for the appellant.
    
      Israel T. Deyo, for the respondent.
   Merwin, J.:

This action is brought by plaintiff to recover, the value of his interest in a crop of rye put in by him in the fall of 1895, upon a farm then owned by Louise Ricks and Frank E. Burdick, under an arrangement made by plaintiff with Mrs. Ricks to put in the crop upon shares Mrs.- Ricks was then in possession and had been for about two years. A partition suit was pending, commenced by Bur-dick in the spring of 1895, the defendant here being one of the attorneys for the plaintiff in that suit. That case was brought to trial in February, 1896, and on the 13th of February, 1896, an interlocutory judgment was. entered for. the sale of the premises by a referee. The sale took place on March 31,1896, the defendant here became the purchaser, and on the thirteenth of April following he received a deed from the referee.

Upon the trial now under review, evidence was given on the part of the plaintiff tending to show that at- the time of the sale and before it occurred and in the presence of all the parties, including this defendant, the referee gave notice that the interest of the plaintiff in the rye crop was reserved/ The court charged the jury that if they found that such reservation was made by the referee, the plaintiff had. a right to recover, otherwise not. To this the defendant excepted, and asked the court to charge as matter of law that the interest of the plaintiff in the rye crop could not have been reserved at the sale. This request the court refused and the defendant excepted.

The jury, in finding a verdict for plaintiff, in effect found that the reservation claimed by plaintiff was made. This finding the defendant claims to be against the weight of evidence. It was conceded by the defendant that the attorney for Mrs. Ricks announced before the sale that the interest of plaintiff here was reserved. The evidence was conflicting as to whether or not the referee also-announced such reservation. The plaintiff testified that after the-sale the defendant said to him that hé bought the farm with the understanding that he, the plaintiff, owned half the rye. This, however, the defendant denied. It is not improbable that the reserva,, tio.n was made as claimed by plaintiff, 0and the verdict of the jury on the subject should not, we think, be disturbed.

But it is argued that the referee at the sale had no right to make the reservation, as it was not mentioned in the interlocutory judgment or in the written conditions of sale. Still the owners of the property were present in person or by attorney. Burdick was there and also his attorney. The husband of Mrs. Ricks was there and also her attorney, and no objection was made to the announcement. It was made at the suggestion of the attorney for Mrs. Ricks, and evidently for the 'benefit of the plaintiff who had dealt with her. Whether the announcement was authorized by the parties was at least a question of fact. We must, I think, assume that the parties in interest recognized the right of the plaintiff, and that notice thereof was given at the sale by their authority and that the sale as in fact made was subject to plaintiff’s rights.

The deed subsequently given did not contain any reservation of plaintiff’s rights, and, therefore, the defendant claims that the reservation at the sale, if made, was not operative in favor of the plaintiff. In other words, the deed carried to the defendant more than he purchased. The theory seems to be that the deed as matter of law operated to convey the growing crop and cannot be contradicted or lessened in its force by anything that occurred at the sale.

The growing crop was personal property. The interest of the plaintiff therein was that of a tenant in common. (Harris v. Frink, 49 N. Y. 24, 27.) Growing crops put in by the owner of the soil pass by a conveyance of the land, as an appurtenant to the realty, unless excepted or reserved. It has been held that a parol reservation of a crop to the grantor is void as contradicting the conveyance. (Austin v. Sawyer, 9 Cow. 39.) In that case, however, it was also held that if one sells his crop by parol and afterwards conveys the land, the conveyance will not carry the title to the crop. •So one who takes a deed of a lot with notice that a barn thereon belongs as personal property to another party, does not by his deed take title to the barn, though no exception or reservation in the deed. (Leonard v. Clough, 133 N. Y. 292, 297.): The agreement by plaintiff with Mrs. Ricks was after the filing of the notice of pendency in the partition action, and it may be that Burdick, the plaintiff, in that action had a right to have the property sold free from any claim, of the plaintiff here. Burdick, however, was at the sale and assented to the reservation, thus recognizing the right of the plaintiff. The latter was not a party to the partition action. Had his. agreement with Mrs. Ricks been made and the crop put in prior to the commencement of that action, his rights would not have been affected by the action. The reservation at the sale should place him in the same position as if his right had accrued before the action was commenced.

In Backenstoss v. Stahler (33 Penn. St. 251) it was held that a party may show by parol that the growing crops were reserved on a sale of land by order of court in proceedings for partition, although there be no exception in the deed; that a parol reservation is a severance of the growing crops and will prevent them fi’om passing as realty. In that case it ivas claimed as here that such a reservation contradicted not only the order of the court but the conditions of the sale. Still the reservation was held to be effective.

In Congden v. Sanford (Hill & Den. Supp. 196), it seems to have been held that the fact that á deed, upon "a foreclosure sale .under a decree, did not except a growing crop of rye put in upon' shares after the commencement of the foreclosure suit in pursuance-of an arrangement with the mortgagor before the commencement of the suit and assented to by the mortgagee after the commencement of the suit, did not prevent the party putting in the rye from obtaining his share, the master at the sale having sold the premises subject to his rights.

We are of the opinion that the deed to the defendant .does not •prevent the plaintiff from asserting his rights, and that, as the defendant did not in fact purchase the plaintiff’s interest in the crop, he cannot defend successfully the plaintiff’s action for its-conversion. ' .

There is no dispute as to the amount of the verdict, provided the plaintiff in other respects is entitled to recover.

All concurred, except Parker, P.' J., dissenting.

J udgment and order affirmed, with costs.  