
    Wheeling.
    Absent, Harrison, J.
    
    Isaac Kelley vs. William Todd.
    January Term, 1866.
    1. At the common law where land is leased for a certain number of years, and the period of its termination is fixed and certain, and the lease is silent as to who is entitled to the way-growing crop on the land at the end of the term, the off-going tenant is not entitled to such crop; but where the lease recognizes the right to sow in the last year of the term, and the tenant is restricted to the cultivation of certain portions of the land and pays an equal annual rental sum for its use, he has a right to reap the way-growing crop — where the lease is silent as to who is entitled thereto.
    2. A. W. K. leased a farm to T. for three years, beginning April 1st, 1861, and ending April 1st, 1864, for an equal annual rent of 500 dollars. The lease provided that in the fall of the last year the tenant >vas to sow a certain field in wheat and timothy. T. vacated the land on the 1st day of April, 1864, and I. K. entered as tenant under A. W. K. I. K. reaped and gathered the field of wheat sowed by T. in the fall of 1863, in the following July. Held : ThatT. is entitled to recover the value of the wheat from I. K.
    3. A case distinguished from Harris vs. Carson, H. Leigh, 632.
    On the 25th day of July, William Todd instituted an action of trover and conversion in the circuit court of Ohio county, against Isaac Kelley, Aaron Kelley and A. Wilson Kelley; and filed Ms declaration at the rules on the last Tuesday of the same month, claiming that he was, on the 15th day of July, 1864, lawfully possessed of 2,000 dozen sheaves of wheat and casually lost the same; and that the same came to the defendant’s possession on that day £y finding, &c.
    The defendant, Isaac Kelley, pleaded not guilty, and the case came on for trial at the May term, 1865. The jury found a verdict of 274 dollars and 50 cents damages against Isaac Kelley, and not guilty as to the others.
    On the trial of the cause the plaintiff offered in evidence a lease from A. Wilson Kelley, to himself, for a certain farm in the county of Ohio, “for a term of three years, commencing on the 1st day of April, 1861, and ending on the last day of March, 1864, yielding rent therefor during said term, 500 dollars per annum, payable semi-annually, in equal installments on the first days of October and April. Said Todd shall be restricted in the cultivation of said farm as follows, that is to say: the first year he is to sow in small grain the stack field, which was formerly in blue-grass sod, and to sow the same field in wheat and timothy in the fall. He is to put the meadow south of the house and the young orchard in corn, the first year, taking proper care to preserve the trees in the orchard. The second year he is to cultivate the meadow north of the wood’s pasture, in corn, and the following spring to sow the same field in barley, and in the fall of that year to sow the same field in wheat and timothy. The third year he is to raise corn in the field north of the field last before described, and in the field south of and adjoining the field to be put in corn.”
    There were other covenants in the lease in relation to timber for repairing fences, and entering in default of payment of rent, &c.
    The defendant admitted the sowing of the wheat provided for by the lease, in the third year; and the plaintiff proved that he, (defendant,) as in-coming tenant, had cut, reaped and gathered the wheat so sowed by the plaintiff1. The defendant then moved the court to construe the lease, and to decide whether the wheat in question belonged to the plaintiff: but the court declined to do so and decided that it was a question of fact for the jury to decide whether the wheat was sowed for the plaintiff or defendant. To this refusal and decision the defendant excepted, which constituted his first bill of exceptions.
    The defendant then moved the court to instruct that, though it was proven that the plaintiff sowed the wheat during the fall of the year 1868, and the fall next preceding the expiration of the lease, and in the field mentioned in the clause of the lease making provisions for the same, and that the defendant, as in-coming tenant, reaped and took the same, yet the lease did not give the wheat to the plaintiff, or the right to reap it, or to recover it in the pending suit. The court refused the instructions, and the defendant again excepted. Judgment was given oh the verdict. The defendant applied to this court for a supersedeas, which was granted.
    
      Z. Jacob, for the plaintiff in error.
    He argued the following points, which were assigned in his petition for a supersedeas as error.
    First, That the court erred in refusing to construe the agreement.
    
      Second, That the court erred in deciding that it was a question of fact for the jury.
    
      Third, That it was error to leave it to the jury to decide whether the wheat was sowed for the plaintiff or defendant.
    
      Fourth, That the court erred in refusing to give the instructions requested.
    On this latter point he held the action of the court below clearly wrong. In Harris vs. Carson, 7 Leigh, 632, judge Cabell, who delivered the opinion of the court, said:
    “ There is nothing in the lease purporting to give to the tenant any interest in the land, or in the crops upon it, after the termination of the lease;” that “the lease having a fixed and certain period for its termination, it is clear beyond doubt that the off-going tenant had no right at common law to any crops growing on the land after the termination of the lease, although sown during his possession.” (Page 637.) In this case, it is clear that the written lease restricted Todd as to the manner of cultivation, and how or what crop he was to leave on this particular parcel of ground at the end of the lease. It was meadow when the lease commenced, and he was to leave it sowed in wheat and timothy. Why? Simply that it might be meadow again. And this clause requiring him, the fall before the lease ended, to sow it down “in wheat and timothy,” was nothing more nor less than the agreed method betiVeen the landlord and tenant, prescribing how it was to be again put down in meadow; and this is a common mode of putting plowed land down in meadow. The lease says that “this clause, and some others of like kind,’7 was in restriction of bow Todcl should cultivate the farm; but to give it the effect here contended for by defendant in error was, in fact, to enlarge Todd’s terms.
    This lease does not say that Todd was to have the wheat, or the right to cut it. If he might cut the wheat, why not also the grass or timothy ? In Harris vs. Carson, there was a written lease, and with apparently stronger clauses in favor of the tenant as to the way-growing crop than this one has. In this case judge Cabell says, on page 633: “But as to the question whether the tenant should be entitled to the crop which may be growing on the. demised premises at the expiration of the contract, the lease was wholly silent.”
    
    So here. As Todd’s lease and right expired, by his agreement, on the 31st of March, 1864, to give him rights till July afterwards, and to take the wheat, required that the contract should say so. He sowed this wheat because his contract bound him to do so, and his agreement to do so was part of the consideration which led the landlord to give him the lease. Such a contract was natural and proper, and to the benefit of husbandry; but to make it give the wheat,, and the use of the land, after the expiration of the term, to Todd, is to violate the rules of law, and wrong the lessor. As it is a fixed and settled principle of law with us, that the tenant is not entitled to the crop which may be growing at the expiration of the lease, he cannot, because he sows, take it, unless his contract says so. Comyn on Landlord and Tenant, p. 359, marginal page.
    
      H. Tech, for the defendant in error.
    The terms of the lease clearly entitle the defendant in error to the wheat sued for in the court below. "Without any special agreement to that effect, however, the out-going tenant is entitled to the crop sowed by him whilst a tenant, by the law and custom of the country. Foster vs. Robinson, 6 Ohio State Rep., 90; Stidté vs. Dickeg, 5 Binney, 285; 
      Dorsey vs. Eagle, 7 Q-. & J., 331; Templeman vs. Biddle, 1 Har’n Rep., 522; Van Ness vs. Packard, 2 Pet. Rep., 148; Wigglesworth vs. Dallison, Doug. Rep., 190; Hutton vs. Warner, 1 Meeson & "Welsby, Rep., 466.
    
      
      He was absent on account of sickness, and N. Harrison, judge of the IX circuit was called to the bench.
    
   Berkshire, President.

This was an action of trover and conversion by the defendant in error, against Isaac Kelley, the plaintiff in error, Aaron Kelley and A. Wilson Kelley, in the circuit court of Ohio county, for 2,000 dozen sheaves of wheat. There was a verdict and judgment against the plaintiff in error for 247 dollars and 50 cents, and a verdict of not guilty as to the other defendants. The defendant in error on the 5th day of April, 1861, leased of the said A. Wilson Kelley, a certain tract of land in Ohio county, containing about two hundred acres, for the term of three years, commencing on the 1st of April, 1861, and ending on the 31st of March, 1864; for which he was to pay as rent 500 dollars per annum. Under this lease the defendant in error sowed the wheat in controversy, in the fall antecedent to the expiration of the lease, and the same was cut and gathered by the plaintiff in error, as the in-coming tenant in the summer following. On the trial of the cause, the plaintiff in error filed two bills of exceptions taken to the opinion of the court. First, For refusing to construe the lease and leaving it to the jury to determine whether or not he was liable under the same. Second, For refusing to instruct the jury that the plaintiff in error was not liable under the lease, and that the same did not give the wheat to the defendant in error, nor the right to reap and recover, the same.

As the question whether or not, the defendant in error was entitled to the way-growing crop in controversy, under the provisions of the lease, was a question of law, and not of fact to be left to the jury, it was the duty of the court, when called on in the proper manner, to have construed it accordingly : but without expressing any opinion as to whether the court was bound to proceed to construction in the form the question was presented, I am of opinion that if there was any error in so refusing, it was cured or rendered immaterial by tbe second instruction asked and refused, which involved, substantially, the same proposition, as by overruling and refusing the last instruction the court did thereby give its construction of the lease, and the whole controversy turns on the correctness of this ruling.

Had the defendant in error, under the provisions of the lease, the right to the way-growing crop at the expiration of the same ?

At the common law where land is leased for a certain number of years, and consequently the period of its termination is fixed and certain, and the lease is silent as to who shall be entitled to the growing crop on the land at the end of the term, the off-going tenant is not entitled to such way-growing crop. Harris vs. Carson, 7 Leigh, 632.

In Mason, &c. vs. Moyers, 2 Robinson, 606, this doctrine is re-affirmed; but the court distinguishes that case from the former, and held that the tenant under the provisions of the lease in the latter case was entitled to the way-growing crop. The claim in the lease in this case, under which the court sustained the tenant’s right to the way-growing crop, is in substance, that the tenant was restricted to the cultivation of only one-half of the land in any one year of the term, and was to leave one-half of the same clear at the termination of the lease. The lease was for the term of three years, unless the land should be sooner sold under a decree of the court at the suit of the creditors of the lessor; and in such event the tenant was to surrender the possession at the end of the term next after such sale, and the tenant was to pay 300 dollars per annum.

Judge Baldwin, in his opinion in the case says: “By the true construction of this lease the tenant was entitled to the way-growing crop, whether it expired by the eflux of time or at the end of a previous year, by reason of the event contemplated and provided for by the parties.” And in the same case, judge Allen, after stating that the premises were leased by the tenant for the purpose of cultivation, and arguing to show that it was fairly implied from this stipulation or clause in the lease, that it was the intention of the parties that the tenant should have the privilege of seeding in the fall previous to the termination of his lease, says, “unless the tenant was entitled to the way-growing crop, he would have bound himself to pay a rent of 300 dollars, annually, for three years, and have been entitled to cut but two crops of small grain from which to make it. Such a contract would have been unequal; and though it was competent for the parties to enter into it, the circumstances are entitled to some consideration in ascertaining the meaning of the terms actually contained in the written agreement.” And again, “the lease restricts the tenant from cultivating more than one-half of the cleared land in any one year:” and yet again, after adverting to the fact that the only crop, that could be growing on the land at the end of the lease on the first of April, was the wheat crop sowed by the outgoing tenant of the fall previous, he concludes: “If the contract recognized the right to sow, the right to reap would follow. And in this mode the tenant would be entitled to take the three crops for which he was to pay the three years rent.”

Now the provisions of the lease under consideration, as it seems to. me, are very similar to those of the lease in the case just cited: and applying the principles of construction therein declared, it would seem difficult to distinguish them, and to withdraw this case from the reasoning of the court in the case last above cited. In our case, as in the other, the lease was for three years, for the purpose of cultivation. The tenant was to pay a certain cash rent for each and every year: he was also restricted to the cultivation of a part of the cleared land, and the fields to be cultivated indicated and described in the lease, as well as the mode and manner of their cultivation: and it was expressly stipulated in the lease that, the defendant in error should sow the wheat in controversy (together with timothy,) in the fall antecedent to the expiration of his lease.

It was very earnestly insisted by the attorney for the plaintiff in error that, it was a part of the contract that the defendant in error should sow this wheat as well as the timothy, for tbe benefit of tbe lessor, and tbat tbe defendant in error was no more entitled to tbe wheat than tbe timothy sowed with it. In tbis view I am nnable to concur. Sucb a construction, it appears to me, would be too barsb and unreasonable, and would defeat tbe obvious intention of tbe parties as fairly implied from tbe provisions of the contract. Tbe defendant in error’s right to sow tbe particular field in tbe fall previous to tbe end of bis term does not, as in tbe case of Mason, e. vs. Moyers, result from implication, but is expressly reserved to him: and though peremptory in form, it was evidently intended as a privilege for bis own benefit. Otherwise we must conclude that tbe defendant in error bound himself to furnish seed, cultivate and sow tbe wheat crop for tbe last year for tbe exclusive benefit of bis landlord, and yet pay him tbe full rent for tbat year. I cannot suppose be intended to do so. Tbe clause in tbe case which requires it, as tbe plaintiff in error insists, it will be perceived is in tbe precise language of tbe previous clause which designates tbe fields to be seeded in tbe fall of tbe first year of tbe lease, and must, of course, import tbe same thing — namely, a right or privilege secured to tbe tenant to seed in tbe fall of each year for bis own benefit.

Tbis view, I think, also derives some force from tbe fact that, by tbe restrictions in tbe lease, tbe defendant in error was not allowed to sow any wheat in tbe fall of tbe second year of tbe lease, so tbat, non constat be would be entitled to but one crop of wheat during tbe three years of bis lease, if we held tbat be is not entitled to tbe one in controversy. Tbe fact tbat tbe timothy was to be sown with tbe wheat, does not, in my opinion, alter tbe case. It is tbe usual mode of cultivation and required by good husbandry, and the tenant therefore, was required to sow tbe timothy, as an incident to tbe wheat, tbe last as well as tbe previous years of tbe tenancy. I am of' opinion tbat tbe judgment should be affirmed.

Tbe other judges concurred with tbe President.

Judgment Affirmed.  