The opinion of the Court was delivered by

The question in this case is, what passed by the agreement of the 25th of January 1838, from Maits to Burnside; whether by this conveyance the grain in the ground was transferred, which had been reserved by Maits when he leased to Weightman. For if it was, then Maits had no right in it on the 5th of April 1838, and could not sell it to Weightman or any other person.

Distinctions are to be found in the books how far, in cases of reservation in a conveyance of land, the thing reserved continues part of the soil or not. If a man lets his manor exceptis omnibus boscis, the soil of the woods is excepted, but it remains parcel of *270the reversion of the manor, and will pass by a grant or lease of the manor. 5 Co. 11; Cro. Eliz. 521. But if one grant the reversion excepting the rent, this is a good exception, and keeps it from passing, and the rent is severed from the reversion and becomes a rent in gross. Shep. Touch, by Preston 78. By the grant of the herbage or vesture of the land, (and it is a rule that what will pass by words in a grant will be excepted by the same words in an exception, lb. 100), the soil does not pass; for though he may have trespass quare clausum fregit, yet he shall have only the corn, grass, &c., and not the houses, trees, mines which are fixed to the soil: Co. Lit. 4 b. If one grant viginti acras saliceti, fraocineti, lupuliceti, &c., the wood growing only passes. Co. Lit. 4 b. So a grant of all saleable woods growing does not pass the soil. 2 Cro. 52. So of all the great wood, viz., oaks, as his, &c.; for the viz. explains what wood is intended, lb.; Roll. 455; Com. Dig. tit. Grant. E. 5. So of all timber trees; for nothing passes, except the trees and so much of the soil as is requisite. 2 Cro. 487. In analogy to these authorities, it would seem, that by the reservation in the lease of the field of grain in the ground, the soil of the field was not reserved, but only the right to the grain, with authority to enter and carry it away when ripe, which was in the nature of a chattel interest remaining in Maits after the lease.

This being so, if the agreement between Maits and Burnside contained nothing more than an agreement to convey the land, the right to this grain, not being part of the land or real estate, might not have passed to Burnside. But whether it was part of the land or only a chattel interest relating to it, or devisable out of it, it was the sole property of Maits, to dispose of as he saw fit; and if he has chosen to do so by the plain and positive words of his agreement with Burnside, he could not sell it a second time to Weightman. And I think the words of the agreement between Maits and Burnside embrace this right, whether it be considered as part of the soil, or as a chattel interest devisable out of it. Burnside agrees to pay Maits “ for his plantation that he is in possession of at the present time.” And then Maits agrees to give up to Burnside “ the premises as it now stands, with all the improvements of whatever kind it is in possession of, either houses or lands, of whatever kind.” These words clearly import an intention to convey all that then was part of or connected with the land, or that it was in possession of; and I am not aware that any words could be used more strong to include the grain growing on the twelve-acre field, which the grantor had reserved in the former lease; the right once severed, might be re-annexed to the land and conveyed along with it, and he seems to have done so.

Then as to this being an article of agreement and not a deed, there is no difference in its construction, and it is in equity a transfer of the title, as full and binding from the time of its exe*271cution as a deed executed, except as to the rights of third persons, ■who have no notice of it. And if the defendant were in that position at the time he bought the grain, he might avoid the effect of the article: but if he had knowledge of the article of agreement, he could not acquire a title to the grain by Maits’s conveyance of it to him after the execution of the article.

Judgment reversed, and a venire facias de novo awarded.