
    Nelson P. Nye and another v. James Patterson.
    
      Growing crops: Sale: Landlord and tenant: Surrender. Where-a tenant, at a time when no rent was due from Mm and there had been no breach or forfeiture of his lease, has sold to a third person a growing crop of wheat, the fact that, afterwards, upon the rent becoming due, the tenant failed to pay and abandoned the premises and surrendered possession thereof by agreement to his landlord, cannot impair the title of such purchaser in the crop.
    
    
      Heard January 4.
    
    
      Decided January 10.
    
    Error to Hillsdale Circuit.
    This is an action of trover brought by plaintiffs in error to recover the value of twenty acres of growing wheat. They purchased the growing crop of one Alfred Hyland, who was a tenant of the defendant. The crop was growing upon the premises leased by Hyland of defendant. The*lease was a written one and covered a term of fivet years from April 1, 1869, at an annual rent of five hundred dollars, payable at the end of each year. The wheat was sowed in the fall of 1872 and was sold to plaintiffs at public vendue March 14, 1873. No rent was then due and there had been no breach or forfeiture of the lease. On April 2, 1873, Hyland abandoned the premises and the next day delivered up possession to defendant, refusing to pay the rent due. The court directed the jury to render a verdict for defendant. Verdict and judgment having passed for defendant, the plaintiffs brought error.
    
      M. L. & M. JB. Goon, for plaintiffs in error.
    
      L. JJ. Salsbury and G. A. JShiclcerboc/cer, for defendant in error.
    
      
       tenant’s right to sell growing crops on abandoning the land, during the life of his lease, is not shown to be lost by failure to perform the conditions of the lease, unless it also appears that there was a clause of forfeiture for non-performance: Dayton v. Van Doozer, 39 Mich., 749. Distinguished in Welsh v. Richards, 41 Id., 593. Growing crops pass with the soil under foreclosure deed, and on proper application the court may, perhaps, provide for their preservation until possession is given to the purchaser: Ruggles v. First Nat. Bank of Cenlreville, 43 Id., 192. Parol transfer of crop and land void: Jackson v. Ffoans, 44 Mich., 510. Judgment creditor entitled to interest of debtor, when land is conveyed in fraud of creditor’s rights: Fury v. Strohecker, Id., 337. Growing crops, though part of the realty, are treated as personalty for the purposes of levy and sale on execution: Preston v. Ryan, 45 Id., 174. Principal case cited and doctrine affirmed in Miller v. Havens, 51 Id., 482.
    
   Mabston, J.:

In this case it is not necessary to determine what plaintiffs’ rights would have been as purchasers of the wheat at the sale made in March, in case the lease had been forfeited for nonpayment of rent. The evidence in this case is clear, that at the time the wheat was sold to plaintiffs there had been no breach or forfeiture of the lease, and there was no certainty that there would be.. Afterwards, upon the rent becoming due and being unpaid, the tenant abandoned the premises and agreed to surrender possession thereof to his landlord, the defendant, and the defendant entered' into possession, not because of a forfeiture, but under this agreement. The tenant had a clear right to sell this wheat in March before the rent became due, and he could not, by any subsequent agreement with others, impair the title acquired at such sale. To so hold would but enable him to sell his growing crops, and afterwards, by collusion with his landlord, defeat the purchaser’s title. We do not wish to be understood as even intimating that there was any such collusion in this case.. The landlord seems to have acted *in perfect good faith in making the agreement and taking possession, although he had full knowledge of the sale at the time it was made.

The judgment must be reversed, with costs, and a new trial ordered.

The other justices concurred.  