Turner v. Bachelder , 17 Me. 257 ( 1840 )

The opinion of the Court was drawn up by

Emery J.

The plaintiff holding certain real estate in Home, by a parol agreement with Dudley Fogg, and having a bond for a deed of it, by indenture on the 1st of April, 1836, leased it as his farm with all the privileges and appurtenances thereto belonging, to his father, Lemuel Turner, for five years.

The facts disclosed, shew' a praiseworthy conduct in the son, if it were intended as a mark of filial respect.

But whatever might be the motives which induced the arrangement, as an attachment has been made of the hay on mesne process, and seized on execution against Juemuel Turner, we must ascertain the rights of the parties under the lease. The hay was replevied after the seizure of it on the execution. This hay grew on the place in 1837, and was harvested by Lemuel Turner. The plaintiff was absent in Penobscot county all that season, and Lemuel Turner was in possession and had been for ten years previous.

If the intention was, that all the hay raised should be the several and exclusive property of the plaintiff, the parties to the lease were unfortunate in the wording of the instrument. We cannot infer it from such terms as are employed. Lemuel Turner has the exclusive right to the farm for five years, with all its privileges and appurtenances, without any right in the plaintiff to interfere, till the expiration of the term. Notwithstanding jLemuel was in pos-' session before taking the lease, he would by that act be estopped from disputing Lyman’s general title. Binney v. Chapman & al., 5 Pick. 124; Codman v. Jenkins, 14 Mass. R. 93.

Although a man upon his feofrppnt or conveyance cannot reserve to himself parcel of the annual profits themselves, as to re-? serve the vesture or herbage of the land or the like, for that would be repugnant to the grant, as stated in Co. Lit. 142, a; yet we kpow that rept is often reserved in a portion of the produce. But the whole property in such produce remains in the lessee till it is divided, and the lessor’s share delivered to him or set apart for his use. A [creditor of the lessee therefore may legally seize the whole. On his decease before sugIi division and delivery, it would pass to his executor or administrator. Butterfield v. Baker, 5 Pick. 522; Dockham v. Parker, 9 Greenl. 137; Wait, Appellant, 7 Pick. 100.

Qn the facts agreed, we perceive no legal ground upon which the plaintiff can sustain his action. He must therefore become nonsuit, tpid judgment be rendered for a return with damage of six per cent, on the penal sum ip the bond, and costs in favor of the defendant.