
    Levi Jones v. Shadrack R. Timmons.
    The defendant sold to the plaintiff a tract of land, which he conveyed by deed' • containing a covenant of warranty and a covenant against incumbrances. After the delivery of the deed, the defendant refused to allow the plaintiff to enter into possession. On the subsequent voluntary abandonment of the premises by the defendant, the plaintiff went into possession, and brought suit to recover the damages sustained by the use of the land while he was kept out of possession. Held ;
    1. That the defendant was estopped, by his deed, from questioning the right of the plaintiff to the possession, and that the latter was entitled to recover.
    2. Parol evidence was neither admissible to show that at the time of the delivery of the deed the defendant reserved the right of possession, nor the right of cutting trees growing on the premises.
    Error to the district court of Ross county.
    The material facts of the case are as follows :
    On May 2d, 1865, Timmons and wife conveyed to Jones, in fee simple, by deed in due form, certain farm lands in-Ross county.
    
      It was provided in the deed that Timmons, the grantor, should have the right to harvest and remove as his own, and as personal property, about twenty acres of wheat then growing on the land; and likewise, Timmons having commenced plowing for and planting about forty-five acres of corn on the land, it was provided in the deed that he might put in the corn and cultivate the crop, and remove it when raised and gathered. The deed provides that Jones, his heirs and assigns, shall have and hold the premises, subject to the exceptions mentioned; and contains covenants on the part of Timmons that the premises, except as stated, were free and clear of all incumbrances; that he and his heirs would forever warrant and defend the premises, with the exceptions mentioned, unto Jones, his heirs and assigns, ■against all claim or claims of all persons whomsoever.
    The price of the lands was $8,000, one-half of which was paid down, and for the other half Jones gave his note to Timmons, payable in a year, without interest, and a 'mortgage on the lands to secure payment. The note and mortgage were executed and delivered the same day the deed was.
    Jones, claiming that, by the terms and operation of the ■deed, he became entitled to the land, and to its use and possession, with the exceptions mentioned in the deed, and that, by its covenants, Timmons was estopped to deny that title and right, about the 1st of July, 1865, went to the premises for the purpose of mowing the meadow, when Timmons forbid him doing so, and refused to give him possession of the land, or any part of it.
    On April 1st, 1866, Timmons left the premises, but in the meantime had the use of the same, mowed the grass and kept the hay, pastured a part of the land, and rented out pasture to others, and received the rents, &c.
    On August 28th, 1866, Jones brought an action in the common pleas to recover of Timmons for the use and occupation of the premises, and for damages alleged to have been done by the defendant to the lands by turnizig stock into the meadow, and otherwise, and asked judgment foi $500, and infcei’est from Ápx-il 1st, 1866.
    In his answer, Timmons avers, among other things, that previous to, axid at the time of, the execution of the deed, it was agreed between him and J ones that, on account of the deferred payment being withoixt ixiterest, he was to retaixi possession of the premises, and farm them as theretofore, until the time of payment matured; axid that he was to have the right to cut from growing trees on the premises thirty saw logs to make fencing lumber; and that, at the time the deed was executed, he expressed a desire to have these reservatioxis specified in writing, but was told by Jones- and the scrivener who drew the deed, that it was unnecessary, &c. Defendant insists that it would be a fraud upoxx him to give the deed the effect claimed by the plaintiff.. The defendant denies havixxg injured the premises, and coxitroverts the plaintiff’s right to recover for use and occupation, and damages, as claimed; and sets up a counter-claim for the value of the saw logs, alleging that the plaintiff prevented him from getting them, &c.
    ' The reply joins issue with these allegations of the answer.
    On the trial in the common pleas, the plaintiff, J ones, to-maintain the issues on his part, gave in evidence to the jury the deed executed by Timmoxis axxd wife, and also the mortgage axxd ixote for $4,000, given by him to the plaintiff, axid gave other testimony, and rested.
    The defendant offered himself as a witness to prove the allegations of his answer as to the agreement between the parties, that he should retain possession of the lands until the maturity of the deferred payment. The plaintiff objected to this evidence ; and the court sustaixied the objection ; and defendant excepted.
    The defendant also offered himself as a witness to prove the allegations of his answer in regard to his right to cut the thirty saw logs. The plaintiff objected; but the court admitted the testimony subject to objection, and to be ruled out on further consideration.
    Afterward, in the charge to the jury, the court ruled out all the evidence in regard to the reservation of the saw logs, and charged the jury to disregard it, as growing timber could not be reserved by parol in the sale of real estate. To this ruling the defendant excepted.
    The court further instructed the jury, that the execution and delivery of the deed superseded the contract between the parties, and that the defendant could not show anything by parol inconsistent with the deed; that it entitled the plaintiff to the immediate possession of the premises; that the defendant -was a mere tenant at will, and was liable, in the action, to the plaintiff for the fair value of all the premises, except the corn and wheat lands, during the time the same’were held by him after the date of the deed. The court, also, on motion of the plaintiff, ruled out all the statements of the witnesses showing or tending to show a right to the possession of the premises inconsistent with the deed, and instructed the jury to disregard the same. To all which the defendant excepted.
    The verdict being for the plaintiff, the defendant moved to set it aside and for a new trial, on the ground, among others, that the court erred in the rulings and charge above stated. This motion was overruled and judgment entered on the verdict, and exception taken.
    On a petition in error filed by the defendant, the district court reversed the judgment of the common pleas. To reverse the judgment of the district court and to affirm that of the common pleas, the present petition in error was filed.
    
      Alfred Yctfle for plaintiff in error :
    1. The defendant having wrongfully withheld the possession of the lands from the owner, and having used and ocpied them, was liable to account therefor, in the action in the common pleas. Nicholson v. Pine et al., 1 Ohio St. 25; Ex’rs of Livingston v. Livingston, 4 Johns. Ch. 287; Swan’s Pr. & Prec. 601, 602 and notes; 3 Ohio, 264; Mason v. Chambers, 3 Mon. 318, 323; Caldwell’s heirs v. White, &c. 4 Mon. 561, 570; Graham’s heirs v. Graham, 6 Mon. 561. ’2, ’3; Pugh’s heirs v. Bell’s heirs, 1 J. J. Marsh. 405; Bart 
      
      leit v. Blanton, &c. 4 J. J. Marsh. 439, 440; Ellis' Adm'r v. Graves, &c. 5 Dana, 122, 123; Talbott's Ex'rs v. Bell’s heirs, 5 B. Mon. 326; Lewin on Trusts, 198 (marg. 173), and cases there cited; Code, secs. 3, 80; Wintersmith v. Barrett, 4 B. Mon. 85; Butler v. Cowles, 4 Ohio, 205, 213; Sinnard v. McBride, 3 Ohio, 264; Richey v. Hinde, 6 Ohio, 371; Peters v. Elkins, 14 Ohio, 344; Cincinnati v.Walls, 1 Ohio St. 222; 3 Washburn on Real Prop. 513, 515, secs. 31, 34; 1 Swan’s Pr. & Prec. 23; Rowland v. Rowland, 8 Ohio, 41; 2 Johns. Cas. 27.
    2. The common pleas properly held that the contract of sale was superseded by the deed. The matters set up as a defence could not be allowed, Timmons having elected to abide by the sale and conveyance as valid. Swan’s PI. and Prec. (code) 257. The deed gave Jones the immediate right to possession. Timmons could not vary its terms by a parol antecedent or cotemporaneous agreement. He is estopped by the deed, and by the habendum and warranty clauses.
    3. The court was right in ruling that trees standing and growing in the ground could hot be reserved by parol, as between grantor and grantee, before the execution of the deed. 1 Washburn on Real Prop. 8, 9; 3 Id. 301, 338,’9, sec. 30; 1 Greenl. Ev. sec. 271, and notes 2, 3, 4, 5, 1; 1 Hilliard on Eeal Prop. 10, 11, 12, secs. 34-39; Ellison v. Brigham, 38 Verm. 64; Kingsley v. Holbrook, 45 N. H. 313.
    
      Milton L. Glarh for defendant in error :
    1. The common pleas erred in ruling from the jury and instructing them to disregard the evidence of the reservation of the trees or saw logs. Whether growing crops, growing trees, or grass, &c., pass by a deed of conveyance of the land or not, is a question that depends upon the intention of the parties to the instrument, and, if so, is necessarily a question for the jury, under the instructions of the court. 1 Hilliard on Real Prop. 56, ’7, secs. 30, 31, 33, 34 (note 3), 35; 1 Greenl. Ev. sec. 271, and notes 1 and 2; Long on Sales (Eand’s ed.), 76-80; 2 Parsons on Confer. 31, 32, 33; Bakes 
      v. Jordan, 3 Ohio St. 438; Webster et al. v. Zielly, 52 Barb. (Am. Law Reg. vol. 8, N. S. 441.)
    2. The court erred in ruling out the parol evidence offered to show that the defendant reserved the right to the possession of the premises as claimed by him. The reservations were left out of the deed under such circumstances as to be a gross fraud upon Timmons. Fraud vitiates everything. There was no need of a prayer to correct the deed. We had a right to meet the action brought to recover of Timmons in consequence of the omissions, whether the deed was reformed or not.
    3. The action was for use and occupation. Such action cannot be maintained upon the facts of the case. It lies only where there is an express contract, or one necessarily implied. The relation of landlord and tenant must subsist; there must be a tenancy; if the party occupies under a claim of title, adversely to the plaintiff, the action cannot be maintained. Richey v. Hinde, 6 Ohio, 371, 378; Peters v. Elkins, 14 Ohio, 344; Butler v. Coles, 4 Ohio, 205, 213.
    After a recovery in ejectment a plaintiff cannot sustain assumpsit for use and occupation to recover the rents and profits accruing after the date of the demise, as laid in the declaration in ejectment. Sinnard v. McBride's Adm'r, 3 Ohio, 264; Butler v. Coles, 4 Ohio, 205, 213.
    Jones’s suit was not brought until he was himself in possession of the premises. His possession was tantamount to a recovery in ejectment, and he could not, therefore, rightly sustain his suit for use and occupation. He could not sustain trespass, for trespass lies only for an injury to the possession; he was not in possession. His only action, therefore, was an ejectment, or, as the code has it, an action to recover real property, and for mesne profits. Both actions have to be joined under the code. His failure to resort to his appropriate and only action is a bar to a subsequent recovery for what was a mere incident to the first suit ox-action to recover specific real property. Nash’s P. and P. (code) 40.
    If Jones had aixy remedy or action it was legal, and not equitable. Equity does not interfere where the remedy is {or was) at law.
   White, J.

Three grounds are mainly relied on to justify the reversal of the judgment of the court of common pleas ; and these are the only grounds we deem it necessary here to notice '.

1. That the plaintiff upon his own hypothesis as to the facts is not entitled to recover.

2. That the court erred in excluding the parol evidence offered to show that the defendant reserved the right to .the possession of the premises for one year after the delivery of the deed.

3. That like error was committed in excluding the parol evidence offered to show that the defendant reserved the right to cut a sufficient number of trees to make the specified quantity of lumber.

Neither of these objections, in our opinion, is well taken.

In regard to the first, it is said the plaintiff cannot recover as in assumpsit for use and occupation, because the relation of landlord and tenant did not exist, the defendant’s possession being adverse; and, secondly, that he cannot recover as in trespass for mesne profits, because there has been no recovery in ejectment.

Assuming the right of possession to be determinable by the deed, the plaintiff, on its delivery, acquired a clear right to the possession, which the defendant, by his deed, was es-topped from questioning.

After the delivery of the deed the defendant refused to admit the plaintiff into possession. This gave the plaintiff the right to recover in ejectment; and, if he had doue so, he would, admitedly, have been entitled to recover the mesne profits. But as the plaintiff did not recover the premises by action, it is claimed there is no mode of recovering the rents and profits of which he was deprived. We do not so understand the law. The refusal of the defendant, against his own deed, to allow the plaintiff to take posses sion was equivalent to a disseizin. True, it was necessary, to enable the plaintiff to maintain an action for mesne profits, that he should have obtained possession ; but, as was said in Reid v. Stanley (6 Watts & Serg. 375), “it is a mistake tc say that it must necessarily be acquired by means of a recovery in ejectment: for if the plaintiff can show that he has the freehold, and is entitled to the possession, he may enter upon the lot without legal process of any description whatever ; and having thus acquired possession, may maintain the action in the same manner and to the same extent as he could have done had he been put in possession by reason of a recovery in ejectment.” See also Catting v. Cox, 19 Verm. 521; Adams on Eject. * pp. 388, ’9.

There is another decisive answer to this objection: The deed contained both a covenant against incumbrances, and a covenant of warranty. By these covenants the defendant assured the plaintiff that the premises (with certain specified exceptions) were free of incumbrances, and that he would warrant and defend them to the plaintiff “ against all claim or claims of all persons whomsoever.” The defendant, by refusing to allow the plaintiff to enter and enjoy the premises conveyed, and by maintaining an adverse interest in himself, committed a breach of his covenant, for which he thereby gave the plaintiff a right of action.

The covenants are set out in the petition, as well as the facts showing the breach. No objection was made to the form of the petition; and, under the code, it is immaterial what the form of action would have been at common law.

What has been said as to the effect of the deed and its covenants, answers the second objection in regard to excluding parol evidence offered to show the reservation of a term in the premises to the grantor. The fact sought to be proved was in plain contradiction of the deed. This was not a case in equity for the 'reformation of the deed, or for the enforcement of a trust. The rights of the parties were defined by the deed and mortgage. Under the deed, with the exceptions therein named, the plaintiff as against the defendant was invested with the whole estate, which included the right to immediate possession. If a term for a year could be carved out by parol, so, also, might a term for any number of years, or any greater interest less than the whole; and, thus, the estate conveyed would be determinable, net by the deed, but by parol evidence.

The third and last objection has reference to the exclusion of parol evidence offered to prove the reservation of a right by the grantor, notwithstanding the deed, to select and cut trees from the land to make a certain quantity of lumber. In considering this question, we do not deem it necessary to determine whether the agreement sought to be proved would come within the statute of frauds. On questions of this nature the authorities are quite conflicting. The principal cases are collected and analyzed in Ch. 12 of Brown’s Treatise on the Statute of Frauds. In § 254 the author says, “it is well settled that, if those crops which are fructus industriales growing on lands arc purchased with the land, and by one entire contract, they are considered as part of the land, and no recovery can be had upon a special valuation of the crops. It seems, therefore, that unless these crops are severed in law, when the contract is made, or to be severed in fact before the contract takes effect upon them, the contract must be bad without writing, by the fourth section. And the same is certainly true of the prima vestura.,J

In this State it was held, in Baker v. Jordan, (3 Ohio St. 438,) that growing corn may be severed and reserved by parol, to the grantor, from the operation of a deed conveying the land whereon it grows; and this case was approved and followed in Youmans v. Caldwell et al. 4 Ohio St. 71.

These cases, however, go no further than, to decide that crops may be reserved by parol, which are produced annually by labor and cultivation, such as wheat, corn, potatoes and the like.

The principle in these cases seems to be to consider things which go to the administrator as assets, or are subject to levy as personal property, as severed from the realty, and thus withdrawn from the operation of the deed, where the parties in dealing, in respect to such property, have treated it as personalty.

The trees now in question were the spontaneous growth of the land. They were not raised by labor for the purpose of trade, as in the case of trees grown in a" nursery. They would go to the heir, and not to the administrator; nor could they be levied on as personalty, even with the consent, of the owner of the land.

To allow them to be excepted by parol evidence from the-operation of the deed, would be, we think, to recognize a dangerous innovation on the salutary and well established rule of evidence, that treats all parol negotiations and understandings of the parties, in regard to the subject matter of a written instrument, which are not reduced to writing, as abandoned.

Judgment of the district court reversed, and that of the common pleas affirmed.

Welch, C. J., and Day, McIlvaine and West, JJ., concurred.  