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ner without being a trespasser, or the purchaser's being liable in an action of trespass or trover? And has the owner any other remedy than an action for damages for bad husbandry and mismanagement of the farm? In the case supposed, the manure is a part of the annual produce of the farm ; and, as such, belongs to the tenant; and might be attached and sold on execution to satisfy the debts of such tenant, without rendering the officer or the creditor a trespasser. That is to say, a tenant, as in the case supposed, may injure himself and impair his own profits ; but the manure of the season next before the known term of the lease, is the produce of that season and designed for the use of the farm the following season, at which time the owner is to occupy or have the control of the land as in the above-mentioned reported case. Now, all the observations made on this head apply to the lease at will in the case under
1827. The manure was made during the following winter, and the tenancy at will has never been determined ; of course, the rights of no one have been impaired, but Elwell's; or rather the loss of profits by reason of the seizure and sale of the manure has been only his loss; the same having been a part of the annual profits designed for his own use and benefit, and which would have been so applied had not the sale prevented it. The hay and fodder cut on the land by Elwell in the summer of 1827, belonged to him as tenant, and that hay and that fodder were the materials of which the manure was composed, which is the subject of dispute, and which, had it not been taken and sold, would have increased his crops in 1828; and a similar alternation of profits and manure to increase them, probably occurred annually for two years, at least, afterwards; for the facts before us do not show any interruption of the natural order observed in such business on a farm. On this view of the cause we think the plaintiff is not entitled to maintain this action. As we have before observed, this case differs from Lassell v. Reed, and we do not mean to extend the principle of that decision beyond the peculiar facts, or to intimate any opinion as to the question whether manure, lying in heaps or yards, passes to the grantee by an absolute deed of land, where no mention is made of it as a subject of the conveyance. A nonsuit must be entered."
MIDDLEBROOK V. CORWIN.
[Reported 15 Wend. 169.] ERROR from the Orange Common Pleas. Middlebrook sied Corwin in a justice's court, for several loads of manure carried away from a farm occupied by one Van Cleft as tenant to Middlebrook for a year.
1 But see Perry v. Carr, 44 N. H. 118.
The farm was stocked by Middlebrook with twenty milch cows, a pair of working cattle, and other cattle. The manure was sold by the tenant to the defendant, and taken from the barn-yard of the farm shortly before the expiration of the tenant's term. The justice rendered judgment in favor of the plaintiff, which was reversed by the Orange Common Pleas, on certiorari. The plaintiff below sued out a writ of error.
C. G. Bradner, for defendant in error.
Nelson, J. It is laid down in several books, that manure in heaps, before it is spread upon the land, is a personal chattel. 11 Viner, 175, tit. Executors ; Toller's Law of Executors, 150 ; Matthew's Executor, 27. It further appears that it is common to insert a covenant in the lease of a farm, to leave the manure of the last year upon it. All this would seem to imply that the article belongs to the tenant, and that without a covenant he might remove it. If a farm is leased for agricultural purposes, good husbandry, which without any stipulation therefor is implied by law, would undoubtedly require it to be left; if rented for other purposes, this conclusion might not follow. In Watson v. Welch, tried in 1785, in summing up to the jury, the judge said that it was matter of law to determine what was using the land in a husband-like manner, and expressed the opinion that under a covenant so to work a farm, the tenant ought to use on the land all the manure made there, except that when his time was out, he might carry away such corn and straw as he had not used there, and was not obliged to bring back the manure arising therefrom. Woodfall's Landlord and Tenant, 255; 1 Esp. N. P. part 2, p. 131. Perhaps this rule should be taken with some qualifications. The practice and usage of the neighboring country, and even in relation to a particular farm, should enter into the decision of the question. 4 East, 154 ; Doug. R. 201 ; Holt's N. P. R. 197; 2 Barn. & Ald. 746. This is reasonable, because the parties are presumed to enter into the engagement with reference to it, where there is no express stipulation. What may be good husbandry in respect to one particular soil, climate, &c. may not be so in respect to another. Independently, however, of the usage and custom of the place, the rule of Mr. Justice Buller, I apprehend, may be the correct one. In the recent case of Brown v. Crump, 1 Marsh. 567, Chief-Justice Gibbs said, that he had often heard him (Mr. Justice Buller) lay down the doctrine, “that every tenant, where no particular agreement existed dispensing with that engagement, is bound to cultivate his farm in a husband-like manner, and to consume the produce on it. This is an engagement that arises out of the letting, and which the tenant cannot dispense with, unless by special agreement.” Without carrying the doctrine to this extent, we may, I think, safely say, upon authority, that where a farm is let for agricultural purposes, no stipulation or custom in the case, the manure does not belong to the tenant, but to the farm ; and the tenant has no more right to dispose of it to others, or remove it himself from the premises, than he has to dispose of or remove a fixture.
Case is the appropriate action for the injury complained of. 1 Chitty's Pl. 142. The tenant having no authority himself to remove the manure, could give none to the defendant. The judgment of the Common Pleas must be reversed, and that of the justice affirmed.
GOODRICH v. JONES.
(Reported 2 Hill, 142.] On error from the Tioga C. P. Jones sued Goodrich before a justice, in trover, for taking and converting manure and boards (inter alia) the alleged property of Jones. The proof before the justice was, that in September, 1835, Jones contracted to sell a farm to Goodrich, for a money consideration payable 20th April, 1836. Under this agreement, Jones, by Goodrich's consent, conveyed a part of the farm to one Vose, and the residue to Goodrich, who claimed and converted to his own use certain fence boards lying on Vose's part; and certain manure in the barn-yard on his own part. This was after the deeds were executed. At the time of the deed to Vose, the boards were on the premises. They had all been in fence on that part, and some still remained so; though a good many of them were displaced, some let down and some blown down. The manure lay in the barn-yard, on Goodrich's part, where it had been accumulating for a long time. The conversion of both by Goodrich was proved ; but the justice holding that both passed by the deeds, rendered a judgment for him (Goodrich). On certiorari by Jones, the C. P. reversed the judgment, on the ground “ that the manure was personal property, and did not pass to the vendee.” Goodrich brought error to this court.
N. W. Davis, for the plaintiff in error.
Cowen, J. The Common Pleas appear to have taken the same view of Goodrich's, or rather Vose's, title to the boards, as did the justice. There cannot be a doubt that they were right. Fences are a part of the freehold ; and that the materials of which they were composed are accidentally or temporarily detached, without any intent in the owner to divert them from their use as a part of the fence, works no change in their nature. Vide Walker v. Sherman, 20 Wend. 639, 640.
With regard to the manure, we have held that even as between landlord and tenant, it belongs to the former; in other words, it belongs to the farm whereon it is made. This is in respect to the benefit of the farm, and the common course of husbandry. The manure makes a part of the freehold. Middlebrook v. Corwin, 15 Wend. 169. Nar, though it be laid up in heaps in the farm-yard. Lassell v. Reed, 6
Greenl. 222 ; Daniels v. Pond, 21 Pick. 367; see Staples v. Emery, 7 Greenl. 203. The rule has always been still stronger in favor of the vendee as against vendor, and heir as against executor. In Kittredge v. Woods, 3 N. Hamp. Rep. 503, it was accordingly decided, that manure lying in a barn-yard passes to the vendee. Vide also Daniels v. Pond, before cited.
The case of Kittredge v. Woods was very well considered ; and the right of the vendee to the manure, whether in heaps or scattered in the barn-yard, vindicated on principle and authority I think quite satisfactorily.
There are several English dicta which conflict with our views of the right to manure, as between landlord and tenant, and that of the court in New Hampshire, as between vendor and vendee. And vide 2 Kent's Com. 346, note c, 4th ed., and Carver v. Pierce, Sty. 66. But they may all be considered as repudiated by Middlebrook v. Corwin. Vide the introductory remarks of Mr. Justice Nelson, 15 Wend. 170.
The judgment of the Common Pleas must be reversed ; and that of the justice affirmed.
SUPERIOR COURT OF JUDICATURE OF New HAMPSHIRE. 1852.
(Reported 24 N. H. 355.] TROVER, for forty-five loads of manure, April 1, 1848.
It appeared that on the 13th of September, 1847, the defendant conveyed to the plaintiff his farm in Dublin, in this county, which the defendant then occupied. By a clause in the deed he reserved the possession until the first of April, 1848, and agreed at that time to give the plaintiff the possession.
At the date of the conveyance there was some manure about the barns and yards, all of which was carried out in the fall and spread upon the land for the use of the plaintiff.
At that time there was in the barn, hay and other fodder belonging to the defendant, and a portion of it was fed out to his cattle in the course of the ensuing winter season, and the manure was thrown out of the windows, and a portion of it lay about them and another part about the barn-yards. Prior to April 1, 1848, the defendant sold all the manure made from his stock kept by him on said farm, and from his said hay and fodder, and the same was in part drawn away from said farm by the purchaser, and the residue was sold by the purchaser to the plaintiff, and by him used on the farm.
A verdict was taken, by consent, for the plaintiff, for the value of the manure made from said hay and stock after said conveyance, and
1 See Ruckman v. Outwater, 4 Dutch. 581, contra.
Wash.) 379?roctor, 2 D. regar
before the first of April, 1848, on which judgment is to be entered, or the verdict set aside, as the court shall adjudge.
Chamberlain, for the plaintiff.
BELL, J., delivered the opinion of the court. It is settled here that manure, as between the buyer and seller, passes with the land, whether it is drawn out upon the land for the purpose of use there, or is lying in heaps, or otherwise, about the barns or yards; Kittredge v. Woods, 3 N. H. Rep. 503. The same is regarded as the law elsewhere in this country. Stone v. Proctor, 2 D. Chip. 115; Wetherbee v. Ellison, 19 Vt. (4 Wash.) 379 ; Lassell v. Reed, 6 Greenl. 222; Middlebrook v. Corwin, 15 Wend. 169; Goodrich v. Jones, 2 Hill, 142; Daniels v. Pond, 21 Pick. 371.
That principle, however, does not reach this case, since there is here no question except in relation to the manure made upon the premises subsequently to the sale, and while the defendant may be regarded as a tenant of the purchaser.
In England, in the case of manure made by a tenant of merely agricultural property, in the ordinary course of husbandry, Chancellor Kent seems to be of the opinion that the custom is for the outgoing tenant to sell or take away the manure. 2 Com. 347, n. a. He cites Roberts v. Barker, 1 C. & M. 809; and the cases of Higgon r. Mortimer, 6 C. & P. 616; Hutton v. Warren, 1 M. & W. 466 ; 2 Gale, 71; Beatty v. Gibbons, 16 East, 116, support that view, while the cases of Brown v. Crump, 1 Marsh. 567; Putney v. Sheldon, 5 Ves. 147, 260, n., and Onslow v. - 16 Ves. 173, seem to countenance a different rule, where there is no special contract or custom of the country.
In this country, in some of the States it has been held that the manvre made by the tenant during his term, is his property, which he has the right to remove or sell, and which may be attached and holden as his property for the payment of his debts. Staples v. Emery, 7 Greenl. 201 ; Southwick v. Ellison, 2 Iredell, 326.
In others, it is held that in the absence of special agreement, or a special custom, the rules of good husbandry require that the manure made upon a farm, in the ordinary course, should be expended upon it; that such manure is an incident of the freehold, and belongs to the landlord, subject to the right of the tenant to use it in the cultivation of the land ; and that the tenant has no right to remove or dispose of it, or to apply it to any other use, either during or after the expiration of his tenancy. Wetherbee v. Ellison, 19 Vt. (4 Wash.) 379; Middlebrook v. Corwin, 15 Wend. 169; Goodrich v. Jones, 2 Hill, 142; Lassell v. Reed, 6 Greenl. 222; Daniel v. Pond, 21 Pick. 371 ; to which add Kent's opinion, 2 Com. 347, n. a.
But it is urged upon us, that whatever may be the rule as to agricultural property, it is here immaterial, because the tenancy was not for agricultural purposes, in the ordinary course of husbandry. By his deed, the defendant reserved the possession of the property from its