majority">BEOADDUS, J.

This is an action of replevin for corn grown on certain premises by one Brost under a lease which expired March 1,1903. The plaintiff bought the corn after it had matured and while on the stalk standing in the field, and before the expiration of Brost’s term under his lease. The defendant leased the *464premises for a term to begin upon the expiration of Brost’s lease. When his term began the plaintiff’s corn was still ungathered. Defendant gathered a part of it in the latter part of March and hauled it away and put it in a crib, when the constable came with the writ and gathered the remainder. There was evidence tending to show that the weather and the condition of the ground was unsuited for gathering and removing the com before defendant began gathering it. But the preponderance of the evidence was, that plaintiff was dilatory in Ms effort to remove the corn from the premises.

It was shown that the defendant did not claim to own the com he gathered, but that he gathered it and hauled it to Ms cribs in order to get it out of Ms way so that he could farm the land; and that he only intended to Charge the owner of the corn for Ms labor in gathering it and that he did not set up claim of ownersMp until after suit was brought. There was evidence that Roberts, the owner of the premises, informed defendant at the time he leased them to him that the corn belonged to the plaintiff.

The court sitting as a jury found for the defendant. The plaintiff asked the court to instruct the jury that under the law and evidence the finding should be for him, which the court refused but gave the following:

“The court declares the law to be that if David Roberts, at the time he rented to defendant the land on which the com in controversy grew, informed defendant that there was corn on the stalk on said land belonging to plaintiff, and which plaintiff was to have an opportunity to remove, and the defendant rented the land with that understanding, then said com did not become the defendant’s property because not removed before the expiration of the lease for the preceding crop year.”

‘ ‘ The court declares the law to be that if defendant took possession, as tenant, of the land on which the corn in controversy grew, knowing that the corn on the stalk *465at the time he took possession was plaintiff’s corn and the defendant removed and penned the corn in order to get it ont of his way, hnt not intending to assert any claim of ownership to the corn, then said corn did not become the property of the defendant.”

No instructions were asked or given on the part of the defendant. As the two instructions given for plaintiff contained the law of the case,, and as it was shown without a doubt that defendant leased the premises with the knowledge that Meffert was the owner of the corn in controversy, and that it did not go to him, defendant, under his lease, and that in fact he did not claim to be the owner until after this suit was brought, we are somewhat at a loss to know upon what theory the court based its finding.

The defendant, however, urges that under the law Brost’s tenancy being for a certain time, the tenant or his assigns were required to move the crops before the expiration of the lease, citing Sanders v. Ellington, 77 N. C. 255; Edwards v. Perkins, 7 Ore. 149; Whitemarsh v. Cutline, 10 Johns. 360; Chesley v. Wilsh, 37 Me. 106. But the court in the giving of said instruction held to a different theory, and we think properly. There is no question but what grain or other crops raised upon leased property when matured or severed from the soil during the term of the tenant’s lease become personal property.

It is true that plaintiff should have removed his corn from defendant’s premises within a reasonable time. But we can not see that by reason of his failure to do so the title vested in defendant. It is true, defendant was under no obligations to care for the corn under the circumstances, but he had the right to remove it from the premises. The true rule governing the case is stated in Smith v. Boyle, 92 N. W. 1018, wherein it is held that the theory, ‘ ‘ that a tenant forfeits his property to the landlord by neglecting to remove it within a rea*466sonable time, is wholly untenable.” And that, “it is fixtures only which the tenant forfeits or abandons by neglecting to remove them during the term of his lease, or while still in the possession of the premises.” In Hecht v. Dettman, 56 Iowa 679, in speaking of grain which had matured and was ready for harvest, the court decided that, “it then possesses the character of personal chattels and is not to be regarded as a part of the realty.” We can not conceive upon what theory plaintiff’s failure to remove the corn vested any title to or in the defendant.

As there was no question under the evidence but what the corn belonged to plaintiff and that defendant having failed to justify his withholding its possession from plaintiff under any legal or equitable claim, the plaintiff’s refused declaration of law should have been given and the finding and judgment should have been in his favor. As the plaintiff waives in his brief all claims for damages, and as he has .possession of the corn under his writ, the cause is reversed and remanded with directions to enter a judgment for the plaintiff that he retain the corn, and for one cent damages and costs.

All concur.

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