
    Isaac Youmans v. Thomas Caldwell and Alexander Caldwell.
    "Where a lease for years is made of land, without any reservation in the lease itself of a growing crop, parol evidence may be introduced to show that the crop was growing on the land, at the time when the lease was made, and was treated and considered as personalty, and not intended to be convejred by the lease. In the sale of real estate in fee or for years, the growing crops may be considered by the parties as personal property, and so separated in contemplation of law as not to pass by the deed or lease. Baker v. Jordan, 3 Ohio St. 438, followed and approved.
    'Where a special plea of a former trial between the same parties, upon the same point sought to be litigated, is pleaded, and where it becomes necessary to introduce parol evidence, to show that the two causes of action were the same, the identity of the causes of action in the two cases, is a matter of fact for a jury, to be determined upon the evidence.
    When a motion to the court, to set aside the finding of a jury, or the court, upon such issue, because the finding was against the evidence, is overruled, the bill of exceptions must show what was the evidence upon which said finding was founded; otherwise, a court of error can not determine whether the court below erred or not. It is not sufficient to say that evidence was . given of such and such facts on the trial of the issue.
    ^Petition in error, to reverse a judgment of the district court ..in Licking county.
    The case is fully stated in the opinion of the court.
    
      Chas. Follett, for plaintiff in error.
    I. The parol testimony of reservation sbould not have been received. Nothing but a clear, subsequent, independent agreement could change the written lease; and parol testimony can not be .given to' change or vary a written contract, nor even to explain the ^understanding of the parties at the time of making it. Case v. Winship, 4 Blackf. 425; Zwillinger v. Webb, 9 West. Law Journal 310 (No. 7); Edwards v. Richards, Wright, 597; State v. Perry, Ib. 662; Morris v. Edwards, 1 Ohio, 189; Stone v. Vance, 6 Ib. 246 ; 1 Greenl. on Ev. 398, 275, 276.
    II. The court not only erred in admitting parol testimony to be given to prove title to the wheat, by reservation, as against the lease,. but the rule of res adjudicada forbade its introduction. Whether it sufficiently appears in the pleadings or not, that the former suit in. trespass was determined upon the merits, can make no difference, as it distinctly appears by the testimony set out in the bill of exceptions, that the question of title by reservation, and no other, was given to the jury and insisted upon, to entitle the plaintiffs to a recovery therein, and a verdict and judgment against the plaintiff, as the record shows. Gardner v. Buckbee, 3 Cow. 120; Burt v. Sternburgh, 4 Cow. 559; Bouchand, Ex. of Brunel v. Lewis, 3 Denio, 238; 1 Greenl. on Ev., sec. 533; Doty v. Brown, 4 Comst. 71.
    III. It can not be said, that the title to the wheat was not, or • could not be, called in question in the action of trespass, or that trespass was not the proper action. Either the wheat belonged to the ■ plaintiff, or did not; if the former, then the defendant’s *possession was forcible, and he a trespasser in entering and cutting' down the same, and the first taking wrongful; and trespass was the proper remedy. 7 Ohio (part 2), 133; 10 Johns. 369; 7 Ib. 140; 17 Ib. 116; 5 Mass. 283; 284; 3 Hill, 282. And, indeed, if the defendant had entered and ousted the owner of said field of wheat, and continued in possession of the premises, trespass quare clausum faegit is the only remedy. But if the entry was lawful, the property of the wheat was in the defendant. De Mott and Billson v. Hagerman, 8 Cow. 220; 2 Wheat. Selw. 1195, notes B and C; Brown v. Caldwell, 10 Serg. & R. 114; Mather v. Trinity Church, 3 Ib. 509.
    
      Smythe & Sprague, for defendants in error.
    I. The court will look in vain for any order in this case, making the bill of exceptions, or what purports to be a bill of exceptions, part of the record. The bill of exceptions can not, therefore, be considered. Baldwin v. State, 6 Ohio, 15; Acheson et al. v. Western Reserve Bank, 8 Ohio, 117.
    II. As to the admission of parol evidence to explain or vary the written contract, counsel for defendants in error do not deem it necessary to controvert any of the principles or authorities referred -to in the argument of plaintiff’s counsel; they simply deny that ;any such thing was done. The writing produced by plaintiff in -error, and called a contract, was .disregarded by the court below, .for two reasons—
    1. It fully appeared, and is stated in the bill of exceptions, that -the plaintiffs below were minors at the time of signing the writing, . and therefore were not bound by it. As to them it was no contract, ;and, so far as the matter in controversy was concerned, they had ■repudiated it by bringing their action.
    2. The writing did not purport upon its face to be a contract inter partes, but simply the contract of Youmans. True, it was signed by the others; but its stipulations are all in the singular number, and point wholly and exclusively to Youmans. There *is in the •writing no stipulation, engagement, or undertaking on the part of ■defendants in error; the mere act of signing, in such circumstances, ■would not make it the whole contract of all the parties, so as to ■ exclude reservations made on behalf of the defendants in error.
    III. Whether the former judgment would be a bar or not, de'pended entirely upon the identity of the subject decided in the former action, with the controversy in this; a question of fact, ■ depending not on the record of the former judgment alone, but upon that with the other testimony in the case. The finding of the -court of common pleas on this subject is that of a fact, and no error of law is or can be predicated upon it. The court of error can not review and reverse this finding of the fact, especially when the bill ■of exceptions does not pretend to set out all the evidence. It seems to be well settled, that such a thing can not be done. 14 Ohio, 586.
    
      Mr. Follett, in reply:
    I. The bill of exceptions is part of the record. The case in 6 -Ohio has no application; that in 8 Ohio does not go to the extent ■claimed by defendants in error; it only decides what is usual or ,-good practice. The case last named has not the slightest intimation that where a bill of exception has been made a part of the record, it .is to be disregarded for want of an express order making it such. But, even if that decision has the supposed extent, the-language of the statute of 1845,2 Curw. 1140, under which the bill of exceptions in this case was made, is imperative, upon the request of the party, ¿and no order is necessary for that purpose. If not made a part of the record, the consequences follow which are shown in 6 and 8 ■Ohio ; but once of record, the court can not disregard it.
    II. Upon the question of infancy the defendants are estopped ’This lease was not void, but voidable only; and although they might have re-entered and ousted the plaintiff, until they did that ■*or put an end to the term in some other way, they could not take the crops. Their tenant was permitted to enter and occupy under the lease, and he paid rent; the crops were his own, with which his landlord had nothing to do. Infancy is not allowed to protect fraudulent acts. 3 Kent, 239; Kitchen v. Lee, 11 Paige, 107; Badger v. Phinney, 15 Mass. 179; Roberts v. Wiggin, 1 N. H. 73; Roof v. Stafford, 7 Cow. 179; Hamblett v. Hamblett, 6 N. H. 339 ; Smith v. Evans, 5 Humph. 70; Kitchen v. Lee, N. Y. Ch. 3; N. Y. Legal Obs. 160; Zouch v. Parsons, 3 Bur. 1794; 2 Kent, 236 ; 1 Johns. Cas. 127; 5 Yerg. 41; Tucker et al. v. Moreland, 10 Pet. (U. S.) 66; Baylis v. Lumley, 3 Maule & Sel. 477 ; Lesse of Drake and wife v. Ramsey et al., 5 Ohio, 251; 14 Johns. 124; 4 Day, 51.
    III. Any statement in writing containing the agreement between the parties, and accepted and adopted by them, is the best and only evidence of the contract, even although not signed by the parties at ;all. But where, as in this case, the statement is signed and sealed by all the parties to the contract, in duplicate, there can be no more binding agreement. Patchin v. Swift, 6 Washb. 292.
    IY. All the testimony given on the trial is set out in the bill of •exceptions, and counsel for plaintiff in error think the language of the bill sufficiently shows that fact, to wit :■ “ The plaintiffs offered no further evidence in chief, but rested their case,” etc. “And the •defendant offered no other or further evidence in this ease,” etc. But this is not material. The bill sets out the testimony with suffi•cient clearness to enable the court to decide all that is necessary in •determining the cause.
    
      
      This case was argued before the decision of Baker v. Jordan.
    
   Kennon J.

The Caldwells had brought an action of replevin to recover some wheat which had been cut down and put in shock by Youmans, upon a tract of land leased to Youmans by the Caldwells, at the yearly rent of two hundred dollars and taxqs. The wheat in ■controversy had been sown, and was growing on the land, at the time the lease was made to Youmans. There was *about fifteen or sixteen acres of the wheat, making about 225 or 230 ■bushels. Youmans claimed the wheat by virtue of his lease, and the Caldwells claimed that it belonged to them, and was reserved'; when the lease was executed. The lease contained no express reservation of the wheat.

The question of title to the wheat was, therefore, the matter in controversy. The Caldwells recovered in the court of common pleas, and upon writ of error, the district court affirmed the judgment of the common pleas.

This petition was filed to reverse the judgment of the district-court.

Upon the trial of the case in the court of common pleas, the Caldwells gave in evidence their title to the land upon which the wheat grow, and rested. Youmans gave in evidence his lease to the land, bearing date prior to the time of cutting the wheat, and that he-had gone into possession of the farm on the first of April preceding-the harvest at which the wheat was cut. The Caldwells then gave evidence that the wheat was growing on the ground when the lease was made, and offered to prove that the wheat was reserved when they made the lease. To this evidence Youmans objected, but the court overruled the objection and admitted the evidence. To this-ruling of the court Youmans excepted, and procured his bill of exceptions to be signed by the court. Youmans had filed a special plea, setting forth that before the suit was brought, the Caldwellshad brought an action of trespass for the identical cause of action for which the action of replevin had been prosecuted; that, upon the trial of the trespass, judgment had been rendered against the-said Caldwells, and that the judgment so rendered was still in full force.' The trial of the trespass was before a justice of the peace.

On the trial of the action of replevin in the common pleas, the issues were submitted to the court; one of which issues was, whether-the cause of action was the same in the trespass and replevin suits.

*To support the issue on the part of Youmans, he gave in. evidence the transcript of the judgment before the justice, which of itself did not show that the same points wore in issue in both, cases; but Youmans offered to the court parol evidence to show that the identical same matter tried before the justice and then determined, was thqt in issue in the action of replevin. The court, however, found that the said supposed action of trespass in said plea mentioned, was not for the same identical cause of action as in said declaration mentioned. The finding is in these words: “And the court do further find, that the said supposed action of trespass in said defendant’s plea mentioned, was not for the same identical cause of action as in said declaration mentioned, and the judgment in said action of trespass mentioned, was not- upon, or for the same cause of action as in said declaration mentioned.”

Judgment was rendered for the plaintiffs, and the defendant moved for a new trial for the reasons: 1. That the court erred in overruling the objection made by the defendant to the evidence offered by the plaintiffs to vary or explain the written agreement; 2, In finding that the plaintiffs were not barred by said action of trespass so decided against them; and, 3. The court erred in not non-suiting the plaintiffs.

This motion was overruled by the court of common pleas. To-this opinion of the court of common pleas the defendant also excepted.

The bill of exceptions, among other things, states that the defendant gave evidence ” of certain facts (named in the bill of exceptions) which, if satisfactorily proved to the court, might have been a bar to the plaintiffs’ right of recovery.

The questions, therefore, presented on this record are : 1. Should the court have nonsuited the plaintiffs ? 2. Did the court err in not finding that the facts proved showed that the action of trespass- and replevin, were for the same identical cause of action ? 3. Did the court err in admitting the plaintiffs to prove that the-*wheat was sown before the lease was made, and that the plaintiffs, by parol, reserved the wheat to themselves?

As to the first question, it can not be seriously claimed that the plaintiffs, after proving title in themselves to the land, and that the-wheat grew upon that land, ought to have been nonsuited. The plaintiffs made a prima facie case for recovery, and therefore, the court did not err in refusing to nonsuit them.

As to the second question, we are, from the bill of exceptions, unable to say whether the court ought to have found the facts differently or not. Had the finding been by a jury, negativing the facts-in the special plea, and a motion had been made to the coui’t to set aside the verdict because it was against the evidence, and the court, had overruled that motion, a court of error could not have said that the court erred, unless all the evidence which the jury had before them, had been fully set out, that we might judge whether the-verdict was decidedly against the weight of the evidence. It would not do to that evidence was given to the jury of such, facts. The jury may or may not have believed the evidence, and in this respect it makes no difference whether the issue was found by the jury or by the court. If all the testimony had been set out, or if it appeared that the facts outside of the justice’s record had been proved, showing that it was for the identical same cause of action as that on trial, a different case would have been presented; but when the hill of exceptions only shows that evidence was given to the court of these facts, and the court expressly find that the facts stated in the plea of estoppel are not true, there is no ground for this court to say that the parol evidence proved that the two causes of action were the same. We are therefore of opinion that in this particular, the district court did not err in refusing to reverse the judgment of the common pleas.

The remaining is a very important question, and one which this court, at its present term, fully considered in the case of Baker v. Jordan. In that case, Jordan purchased of Baker a *farm; Baker, a few days after the parol contract for the sale of the farm, executed a deed to Baker for the land, without any reservation of the crops. There was, at the time of the execution of the deed, about seventy acres of corn growing on the land, which, by express agreement, was to belong to the grantor, and not the grantee in the deed ; it was by parol reserved, and the question was whether that fact could be proved in an action by the grantor for the corn; or whether such proof would not vary or contradict the deed itself. In that case the court held that such evidence was admissible. A growing crop may or may not be a part of the realty. It may be sold without writing, and the title pass; it may be levied upon by execution as personal property, and in certain cases passes to the administrator.

By the deed the realty passed, and prima facie the corn was realty; if so, it passed; but if, before the execution of the deed, the parties themselves so separated the land from the corn as to constitute it personalty, it would not pass by the deed; and therefore full effect was given to the deed without including the corn. 3 Ohio St. 438.

In the case now before this court we regard the paper given in evidence by Youmans, as a lease creating in him a lien for years, an •interest or estate in the land itself, which could not be created or pass without writing. The wheat would pass by a mere parol contract, and the lessee by the lease acquired, such an interest in the •land by the lease as would prima facie have passed to him this growing wheat; but it passed only because it might be and generally is considered as a part of the realty. But if the parties, by agreement before or at the time of making the lease, reserved the wheat, that agreement had the effect, as between the- lessors and the lessee, to convert the wheat into personalty; and therefore the wheat did not, in fact, pass by the lease, so that the lease may have its full effect in passing the realty without passing the wheat. We hold the effect of reserving the growing crop to be, that the parties themselves have, without writing, agreed to convert it *into personalty, and it so remains, and does not therefore pass by the deed creating an interest in the land. We are, therefore, of opinion that the district court did not err in refusing to reverse the judgment of the common pleas.

The judgment of the district court affirmed.  