
    JAMES T. McCOMBS, Respondent, v. WILLIAM C. BECKER, Appellant.
    
      La/ndlord and tenant—what agreement between, transfers title to wops — Sale on execution—presumption as to levy.
    
    An agreement made by a tenant “to take good care of the cows,” and in case the hay raised upon the demised farm should fail to be sufficient to winter them, his landlord should supply the deficiency at the rate of three dollars per ton, and if there should be a surplus the landlord should have it and pay the tenant three dollars per ton for it, does not place the title to the hay in the landlord.
    The presumption is, that a sheriff who sells property on execution has previously made a levy.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee. The action was brought for the alleged conversion by the defendant of about seventeen tons of hay, the property of the plaintiff.
    The defendant rented to one Burnham a farm under an agreement, by the provisions of which, among other things, the defendant was to furnish certain cows, etc., and “ said Becker is to have all the butter and cheese manufactured on said farm; also, to hold all of the grain raised on said farm, or enough sufficient to pay all rent; said Burnham is to work all the milk of said forty cows on the farm into butter and cheese; to take possession of said farm on the 1st day of March, 1872, and have it one year, or to the 1st day of March, 1873; is to take good care of said cows, and to deliver up said cows and farm to said Becker, on the 1st day of March, 1873; said cows are to be in good condition and in good flesh; said Becker is to furnish, on the first day of March, twenty-eight of said- cows, and on or before the 1st day of April, 1872, twelve more good cows; Burnham is to pay to Becker three dollars per ton for all hay that is required to winter, of 1872 and 1873, and to feed through the spring of 1873 to the fifteenth day of May, the said forty cows and one tea/m of horses, after the 1st of March, 1873, till 1st of June, 1873, and also one more team through the month of May, 1873, provided there is a deficiency of hay on sand farm, and Becker is to pay, in case more tha/ri hay enough to 
      
      keep the afore-mentioned horses and cows through the winter of 1872 and 1873, and spring of 1873, the amownt of three dollars per ton for all surplusP
    
    The plaintiff purchased the hay in question, which was raised and sold upon the demised premises, at a sale had under an execution upon a judgment recovered against the tenant Burn-ham. Afterward the defendant converted the hay to his own use. The referee found that the plaintiff was entitled to recover the value of the hay so converted, and from the judgment entered on his report an appeal was taken to this court.
    
      John G. MoOartin, for the appellant.
    
      V. P. Abbott, for the respondent.
   Landou, J.:

The plaintiff is the purchaser of a quantity of hay, sold by the sheriff upon an execution against the property of the tenant of the defendant. The defendant, who, after the sale, converted the hay to his own use, claims that, by virtue of the agreement and lease between him and his tenant, he, and not his tenant, was the owner of the hay. If his claim can be sustained, then the judgment against him should be reversed.

It was entirely competent for the defendant and his tenant to agree that the hay to be raised upon the demised premises, should be and remain the property of the defendant until the rent should be paid, and the conditions of the lease satisfied by the tenant. Instead of the tenant mortgaging the crop to be grown, as security for the rent, he may agree that the crop shall be the landlord’s until the rent be paid. In the one case the agreement is, that the crop shall be the landlord’s if the tenant does not pay the rent; in the other, that it shall not be the tenant’s property until he does pay it. The case of Johnson v. Grofoot, does not hold otherwise, but does hold that the terms of the contract in that case gave the land lord only a chattel mortgage interest which was defeated for want of due filing.

The difficulty with this defendant’s case is, that he did not, by his agreement with bis tenant, provide that the title to the hay should remain in him. He made such au agreement as to the butter and cheese and grain, and this agreement as to them, -discloses more strikingly the lack of it as to the hay. The tenant simply agreed “ to take good care of the cows,” and in case the hay raised upon the demised farm should fail to be sufficient to winter them, his landlord should supply the deficiency, at the rate of three dollars per ton, and if there should be a surplus the landlord should have it and pay the tenant three dollars per ton for it. So long as the tenant “ took good care of the cows,” the landlord could not complain of the disposition he made of the hay. If he sold it, and starved the cows, the landlord’s remedy would not be against the purchaser of the hay, but against the tenant for condition broken, in not taking good care of them. True, the landlord was to have the surplus hay and pay three dollars per ton for it, but this was an executory contract for its purchase, the breach of which would be compensated in damages. It follows that the hay was the tenant’s, and subject to sale upon execution against him.

We see no force in the objection that the levy was not sufficiently proved. The indorsement by the deputy sheriff upon the execution, shows that he levied upon the hay within the lifetime of the execution. The presumption is that a sheriff who sells property on execution has previously made a levy. The judgment should be affirmed, with costs.

Present-—Bookes, P. J., 1 andón and Countjryman, JJ.

Judgment affirmed, with costs. 
      
       Andrew v. Newcomb, 32 N. Y., 417; Van Hoozer v. Cory, 34 Barb., 9.
     
      
       37 How., 59
     
      
       Hartwell v. Root, 19 Johns., 845; Smith v. Hill, 22 Barb., 656.
     