Ex. 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 husbandlike 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. Woodf. Landl. & T. 255; 1 Esp. N. P. pt. 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; Dough. 201; Holt, N. P. R. 197; 2 Barn. & Ald. 15; 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, etc., may not be so in respect to another. Independently, however, of the usage and custom of the place, the rule of Mr. J. Buller, I apprehend, may be the correct one. In the recent case of Brown v. Crump, 1 Marsh. 567, Ch. J. Gibbs said, that he had often heard him (Mr. J. 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 husbandlike 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 C. P. must be reversed, and that of the justice affirmed.
c. Separate sale of manure.
no Massachusetts, 92. - 1872 •
Colt, J. - It was said in Fay v. Muzzey, 13 Gray, 53, that manure made in the course of husbandry upon a farm is so attached to and connected with the realty that, in the absence of any express stipulation to the contrary, it passes as appurtenant to it. This rule is applied in whatever situation or condition the material is before it is finally expended upon the soil. It is till then an incident of the real estate of such peculiar character that, while it remains only constructively annexed, it will be personal property if the parties interested agree so to treat it. Such an agreement, though it be unwritten, does not come within the statute of frauds, and is not to be rejected, although contemporaneous with the conveyance of the real estate. An oral contract for the sale of it is valid. In the case of fixtures which are not incorporated with, but merely annexed to the freehold, the rule is well settled that the statute does not apply. Browne on St. of Frauds, § 234; Hallen v. Runder, 1 C, M. & R. 266; Bostwick v. Leach, 3 Day, 476.
In the case at bar, evidence was offered that the defendant, while negotiating for the farm and before its conveyance to him, made a separate and distinct agreement for the purchase of the manure, to be his only in case he was the highest bidder at public auction; that the plaintiff advertised the sale as agreed, and the defendant at the sale for the first time claimed that the manure belonged to him under the plaintiff's deed, and that it was afterwards spread upon the land by him. The deed was in the usual form, conveying the land only, and reserving only to the plaintiff the right of occupying until the first of April following.
In the opinion of the court, this evidence supports the plaintiff's title to the property in dispute. It proves an independent preliminary agreement, by which it was severed from its relations to the realty before the deed was made. It serves to ascertain the subject-matter upon which the deed was intended to operate. 1 Greenl. Ev., § 286; Ropps v. Barker, 4 Pick. 239. Such an agreement, made upon good consideration, with the owner of land before it is conveyed, is, as a mode of severance, as effectual as a sale by the owner to a stranger, or an agreement between landlord and tenant by which the manure becomes personal property. Noble v. Sylvester, 42 Vt. 146; Ford v. Cobb, 20 N. Y. 344.
This case differs from Noble v. Bosworth, 19 Pick. 314, cited by the defendant. There the owner of land erected a dye-house upon it, in which dye-kettles, firmly secured in brick, were set up. And it was held that a verbal reservation of the kettles, before or at the time of the delivery of the deed of the land, was inadmissible to control the ordinary effect and operation of the deed. The property in dispute had been actually annexed to the building, and intentionally incorporated with the real estate by the owner for the purpose of permanent improvement. While in that condition before severance it was subject to the rules which govern the title and transfer of real estate, and passed by the deed. Here no act of severance was necessary to detach the manure from the land, and the agreement of the parties was sufficient.