
    JESSE ELTING, Respondent, v. CALVIN PALEN, Appellant.
    
      is apart of the freehold — an outgoing tenant who has not time, within the rules of good husbandry, to restore it to the land cannot dispose of it.
    
    Palen, under a lease expiring in April, 1887, occupied a farm wliicli had been sold in partition, in parcels, during the previous October, subject to the rights of Palen and to his possession until the expiration of his lease. One Biting purchased at such partition sale that portion of the farm containing the dwelling-house and a barn. At this time the barn contained very little manure. This had been largely increased by Palen, when he, in February, 1888, at the request of another purchaser at said sale, began to cart the manure away to the portion of the lands which had been acquired at the partition sale by said purchaser.
    an action brought by Elting
    
      Meld, that the manure belonged to sale of that portion of the land upon which it was accumulated.
    Palen as outgoing tenant no entitled to restore it to any of the land leased by him had his lease been for a sufficiently long term to have enabled him to do so within the rules of good husbandry.
    Appeal by tbe defendant Galvin Palen from a judgment, entered in the office of tbe clerk of tbe county of Ulster on tbe 2d day of May, 1890, in favor of plaintiff, adjudging that tbe defendant be perpetually restrained from removing certain manure mentioned in tbe complaint in tbis action; and also from an order denying a motion to set aside tbe verdict and for a new trial, after a trial before tbe court without a jury, at tbe Ulster Circuit.
    
      A. T. Clearwater, for tbe appellant.
    
      Bernard <& Fiero, for tbe respondent.
   LEARNED, P. J.:

Tbe defendant occupied, as tenant, a acres, and bis lease expired April 1, 1887. A partition sale of tbe premises was had October 14, 1886, at which tbe plaintiff bought forty-five acres, which contained tbe barn and dwelling-house. Other persons bought other parcels; among them, Mrs. Yarick bought about forty-seven acres. Tbe terms of sale as to all the land stated that it was sold “subject to tbe rights of Galvin Palen, as tenant, and tbe possession of said premises will be reserved until April 1,1887, and also the winter grain sown thereon will be reserved and the right to the tenant of coming upon the said premises after April 1, 1887, an<j gathering same.” On the farm, not on the part bought by the plaintiff, was also another barn used for storing hay. At the time of the purchase by plaintiff there were two or three loads of manure in the yard of the barn bought by him. On the seventeenth of February following the time of the commencement of this action there were 130. Just prior to the commencement of this action the defendant began carting away this manure from the plaintiff’s barnyard and depositing it on that part of the farm purchased by Mrs. Yarick. This he did at her request. He had carted away about thirteen loads. Thereupon the plaintiff commenced this action and obtained an injunction jpendente lite, forbidding the defendant from ■ carting away any more manure. On the trial this injunction was made final. And from the judgment the defendant appeals.

It does not distinctly appear whose tenant the defendant had 3_>een; probably the tenant of the deceased owner. Nor does it distinctly appear whether the heirs reserved to themselves the rent to become due from defendant up to April fi rst. This may be possible, although contrary to the general rule. (Washburn on Real Property, 337; Van Rensselaer v. Gallup, 5 Denio, 454, 461.) The terms of sale reserve only the possession. It would seem, then, that the title passed to the several purchasers at the time they received their deeds; but that, owing to the defendant’s existing lease, they could not take actual possession. The terms of the sale seem to have been intended simply to protect the rights of defendant as tenant, and to prevent any claim by the several purchasers that the contract of sale was broken by their inability to turn the defendant oxxt of possession. The several purchasers, therefore, becoming owners of their several parcels, must have acquired severally the rights towards the defendant which a land-owner would have in respect to a tenant in such circumstances. And these ■several purchasers were not co-tenants or joint-tenants. They held their respective purchases in severalty.

If the defendant’s lease had continued for another year, then it is very probable that, in the ordinary course of good husbandry, he could have spread tliis manure upon any proper part of tbe farm, because tlie annual spreading of tlie manure is tbe ordinary mode, lie would have been entitled to have, by this mode of use, the benefit of thfe accumulated manure. But his lease -was to expire April first. His carting this manure to a part of the farm bought, not by the plaintiff, but by some other person, was tlie same as if he had carted it to some land which had never been part of the farm. The previous owners of the farm had, by the partition sale, divided it, and each purchaser held his purchase separately.

In Middlebrook v. Corwin (15 Wend., 169), the landlord sued the tenant for manure taken away from the farm shortly before the expiration of the term, and it was held that he could recover. The court said the manure belonged to the farm, and the tenant had no more right to remove it than lie had to remove a fixture. Such is the rule in 2 Kent’s Commentaries, 347.

In Goodrich v. Jones (2 Hill, 142), the court held that manure made a part of the freehold, though laid up in heaps in the barnyard. This was said to be the doctrine between landlord and tenant, and to be stronger as between vendor and vendee.

The same is held in Daniels v. Pond (21 Pick., 367) and Kittredge v. Woods (3 N. H., 503), which last case is approved in Goodrich v. Jones (supra); see, also, Lassell v. Reed (6 Greenleaf [6 Me.], 222).

It is worth noting also that this is a rule not of our law only. By the Boman law manure went to the purchaser of the farm, whether the manure was in a heap or in a stable. Fundo vendÁio vel legato sterculinum et stramenta emtoris et legatarii sunt * * * nee interest in stdbulo jaceat an acervus sit. (Dig. XIX, 1,17, 2; see, also, Dig. XLIII, 24, 7, 6.)

It is urged by the defendant that this manure was not in existence when the plaintiff purchased, but was made subsequently. Then, as we have above seen, the defendant was, after the purchase, in the position of tenant to the plaintiff. And the rule is equally applicable in that relation.

In regard to the case cited by defendant of Ruckman v. Oatwater (28 N. J. L., 581), holding that manure in a barnyard does not pass to the grantee, we can only say that it is contrary to the decisions of our State above cited, and, however well considered, we cannot follow it.

The defendant urges the rights of co-tenants or joint-tenants as to personal property. But we think that those rights are not here involved. Of course, there is a certain difficulty in treating such an article as manure in a farm barnyard as real estate. But the difficulty is no greater than in the case of hop-poles. (Bishop v. Bishop, 11 N. Y., 123.) And the rights of all parties seem to be best settled when the manure is said to belong to the farm, and not to the tenant.

Nor do we think that any difficulty arises from the fact that the tenant’s lease extended over the whole 300 acres. He had no right to the manure as owner, though he might, as above stated, have restored it to the land. And when the owners of the land divided it by their sale, we see no injustice in saying that the manure belonged to that separate portion of the farm on which it was accumulated. Bor, as above pointed out, it could not, in good husbandry, during what remained of defendant’s term, have been applied for his benefit over the farm generally.

Judgment affirmed, with costs.

LaNdoN, J., concurred ; Mayuam, J., not acting.

Judgment affirmed, with costs.  