Wing v. Gray

Aldis, J. 1. The plaintiff claimed to recover in trover for the sap-tubs, cedar posts, potash kettles and hoards, upon the ground that he owned them by purchase from John Gray, and that John Gray had never sold them or his interest in them to the defendant; but he conceded that John Gray sold the crops and cattle to the defendant. — 265 — Johnson originally owned the farm, the crops, the cattle and the above named personal property. He deeded the farm to Gray; bat there was no written transfer of the crops, cattle and personal property to any one, and the sale as to them rested in parol. To whom did-Johnson sell them? John Gray testified that the note for them ($390.) was given by him and the defendant jointly to Johnson. The defendant claimed that each gave a note for one-half of $390 to Johnson. Although it is said that John Gray and the defendant estimated the value of all this property at $390, and that the defendant agreed to take it at that price, still we think from the whole case it is quite plain that they understood that they were joint owners of all this property, and whether they signed a joint note for the $390, or each a separate note for half that sum is immaterial. For a week after the purchase of Johnson they jointly owned all this property, and there was no writing of any kind between them in regard to it. After the lapse of a week, as both parties agreed and testified, the defendant bought of John “ the other half of the personal property which the parties had estimated at $390.” No written transfer was made on this occasion, but the defendant gave his note to John for one-half of the $390. with a memorandum signed by him that it was given for the produce of the farm and the cattle, and saying nothing of the other personal property; and John gave the defendant an agreement that he might have the use of the farm for one year with the right to sell it for $1200. or over, and it proceeds, — “the saidBenj. Gray is to have all the personal property with the farm and by another paper signed at the same time John Gray agreed that Benjamin should have half of what the farm sold for over $1000. The plaintiff now claims that the note for the one-half of the $390. and the memorandum should be regarded as the written evidence made by the parties to show, their agreement' as to the fAe of the personal property, and that the parol evidence was not admissible to show that “ the personal property which they had estimated at $390.” included the articles which the plaintiff seeks to recover for in this suit. J. It is obvious that all the papers executed at the same time — 266 — in regard to tlie trade must be construed together. The written proviso that “ defendant should have all the personal property* with the farm ” may mean, that he should have it absolutely as his own, or that he should only have the use of it. It is open to either construction, and the intent may therefore be shown by extrinsic and parol evidence. The note and memorandum say nothing as to the personal property in question. They do not purport to describe what the personal property was which the parties u liacl estimated at $390,” but only state that the note was given for the crops and cattle. When the parol evidence is introduced it is plain beyond dispute that the defendant was to have all the personal property absolutely as his own, and that the property which the parties had estimated at $390. did include all the personal property in dispute. II. The defendant, while he carried on the farm, was bound to good husbandry. He cut from 18 to 25 tons of hay and'fed out a portion of it on the farm, but drew off the greater portion. The plaintiff claimed that good husbandry required that the whole off the hay should be fed out on the farm, and that if any portion of it was drawn off that was, as matter of law and without further proof, a breach of good husbandry. This we think was the substance of the request, for the evidence tending to show that good husbandry in fact required it all to be foddered out on the premises does not appear to have been conceded by the defendant to be cor-» rect; and if not yielded to by the defendant it was for the jury to pass upon its credibility ; and it was so submitted to them by the court. Whether a portion of the hay crop may be sold off from a farm, without injury, must depend upon the condition of the farm. Good husbandry requires that farming lands should be kept fertile, and to this end that those crops, such as hay, which can. be returned to the farm as manure, should not be carried away to such an extent as will impair the fertility of the soil, or leave it unproductive if it is so. But there are lands so rich that the'sale of the whole crop of a single year would not impair their fertility ; so there are lands, such as the intervals of our rivers that are so fertilized by the deposit from the overflow of water as to need — 267 — no manuring. There are perhaps but few farmers who do not at some time sell a portion of their hay crop consistently with good husbandry. The practice of good farmers in this respect, in regard to their own farms, is good husbandry; for a good liusbandman.does not suffer his farm to be impoverished. In the case at the bar, it was not for the court to assume that the carrying off of the greater portion of the hay for a single year was necessarily bad husbandry. It was a question of fact .and was for the jury. The request which the plaintiff made was properly refused, and the question of fact properly submitted to the jury. There was no exception taken upon the ground that the court submitted the point to the jury without any instructions ; nor does it appear from the case that the court did so submit it. The cases cited from our reports (2 D. Chip. 108, and.19 Vt. 379) only show that manure left on a farm in the barn-yard or stables passes by a deed of the farm, and that the tenant,, who has fed out upon a farm the hay cut on it, cannot remove the manure. III. As between John Gray and the defendant the relation of landlord and tenant existed. The title of the farm was in John Gray. The defendant had a lease of it for one year, and was to pay the rent in money. There was a hop-yard on it but no poles. The defendant could not raise hops without poles — could not compel the plaintiff to furnish poles, and therefore had to furnish them himself or lose the use of the hop-yard. The 'landlord by the lease conferred om him the .right to cultivate the farm in the usual mode of husbandry, which as to the hop-yard was to set poles for the hops to run on, and, when the hops were fit to be picked, take them down to gather the crop. What could be more plainly unjust than to say that if he furnished poles to raise his crop they should thereby become the property of the landlord, not because the landlord had paid for them nor because such was the intent of the parties when they made the lease, (for their intent was plainly to the contrary), but by an arbitrary rule of law that setting the poles into the ground made them an irremovable part of .the realty. The case of Elwes v. Maw, 3 East 38, denying to erections for agricultural purposes the liberal rule which had been applied to — 268 — buildings made for the benefit of the trade, has often beer» questioned in this country, 2 Pet. 144; Leland v. Gassett, 17 Vt. 410-411; 17 Pick. 102 ; 16 Conn. 882 ; 80 Johns. 28. But we-deem it needless to review the authorities on this point, — for the-articles here annexed to the soil were so placed by the tenant, for a mere temporary use and with the intent to remove them, and would be held removable as between landlord and tenant both by English and American decisions. See the- authorities cited in 2 Sm. Lead. Cas. p. 208, 209, 218 and 219. If the defendant as between him and Gray had the right to-remove the poles we are next to inquire as to his right as affected by the deed from Gray to the plaintiff. When that deed was given the defendant whs in possession and had set the poles. His. possession was notice to the plaintiff so as to put him on inquiry as to the right by which the defendant possessed and his relation to the grantor ; and the plaintiff" must be deemed to be affected with knowledge of the facts he would have ascertained upon inquiry — that is that the defendant was a tenant having the right to carry on the farm for the year. This right he was not bound to put on the record, and his landlord by selling the land could not defeat any rights he had as tenant. The defendant was not bound to know of, or search the records for a subsequent conveyance from his landlord to a third person, or to omit the exercise of any right granted by the lease because the landlord might thereafter sell the farm. A subsequent grantee would take the land subject to the rights of the tenant under the lease. The lease so far as it went was as operative as the subsequent deed— and being prior in time and accompanied by possession, all the tenant’s rights as against the landlord continued as against his landlord’s grantee. The plaintiff therefore got no greater right by his deed than his grantor John Gray had. On this point the plaintiff further claims that the defendant was in substance an owner of the farm, as he had a -right to half of all it could be sold for above $1000. But this gave him no title to the farm. It was merely a chance to profit by speculation. It could not affect his right by his lease to cultivate the farm as a tenant in the ordinary way and to remove such fixtures as he was compelled to put on it in order to enjoy its use. The — 269 — right to erect and to remove the poles resulted from the tenancy —not from the provision that he might have half of what it might sell for over $1000. We do not deem it necessary to decide the question whether hop poles used upon a farm for permanent cultivation and kept upon the farm for such use are or are not a part of the realty so as to pass by a deed of the farm. The case in 1 Kernan (11 N. Y.) 123, Bishop v. Bishop, was decided substantially as between grantor and grantee. Here the rights of the parties depend on the relation of landlord and tenant. We have not time to review in detail .the authorities cited by the plaintiff; it may suffice to •say that none of them conflict with the views here expressed as to the rule applicable to" landlord and tenant. The case of Dennison v. Powers, 30 Vt. 752, recognizes the right of the tenant to remove fixtures as an exception to' the common law rule.. For the purpose for which the plaintiff cites that case to show that the tenant’s possession would not put a subsequent grantee upon inquiry it is not an authority; for the court say that the •plaintiff’s title in that case was derived from the Trull mortgage which was executed before Allard had such open and notorious .possession as would put a purchaser upon inquiry. We think there was no error in the charge 'on this point. IV. As to the posts and boards — they were personal property, -and there is nothing in the case to show that they were kept or left on the farm for the purpose of fencing in such a way as to ■convert them to realty. The case says there was no evidence for what purpose they were there. Of course they remained pei> •sonalty and would not pass to the plaintiff by his deed from Gray. Judgment affirmed.