H. V. Reardan, for Appellant.

Any interest in real property may be taken on execution. (Code Civ. Proc., sec. 688.) A convenant not to assign is not broken by any involuntary transfer by operation of law, unless expressly prohibited. (2 Greenl. Ev., sec. 245; Wood on Landlord and Tenant, pp. 534537; Taylor on Landlord and Tenant, secs. 403, 408, 409.) The lease would continue in force notwithstanding a breach until re-entry. (Wood on Landlord and Tenant, p. 530; Shattuck v. Lovejoy, 8 Gray, 204.) The execution purchaser of the lessee's interest was substituted to and acquired all his rights. (Code Civ. Proc. sec. 700.) A forfeiture cannot take place by consent, nor can a surrender affect rights of third parties. (Gaskill v. Trainer, 3 Cal. 340.) There can be no re-entry for breach of covenant without express provision for reentry in case of breach. (Wood on Landlord and Tenant, sec. 506.)

Carter P. Pomeroy, for Respondent.

Any apt words in the lease showing that it was the intention of the lessor to limit the estate to the immediate lessee will have the effect to prevent an assignment by operation of law. (Taylor on Landlord and Tenant, sec. 409; Davis v. Eyton, 7 Bing. 54; Cooper v. Wyatt, 5 Madd. 482; Doe v. David, 5 Tyrw. 125; Doe v. Clarke, 8 East, 185; Roe v. Galliers, 2 Term. Rep. 133; Doe v. Hawks, 2 East, 481.) In the lease here in question, it was evidently the controlling intention of the lessor to limit the leasehold estate to the immediate lessee. The crop was the property of the landlord by the terms of the lease, and the lessee's only possible right, had the lessor refused to deliver his share as provided in the lease, would have been to sue for breach of contract. Such a provision in the lease reserving property in a growing crop to the lessor is valid. (See Howell v. Foster, 65 Cal. 169,

and cases cited; Smith v. Atkins, 18 Vt. 462; Paris v. Vail, 18 Vt. 277; Edson v. Colburn, 28 Vt. 631; Briggs v. Oaks, 26 Vt. 138.) The evidence of the written acknowledg ment of forfeiture by the lessee was proper. The defendant claiming under him is bound by the admission of the lessee made while in possession. (Code Civ. Proc., sec. 1161.)

WORKS, J.-Action to recover damages for the conversion of a lot of wheat. Judgment for the plaintiff, from which, and an order denying his motion for a new trial, the defendant appeals.

The respondent being the owner of certain real estate leased the same to one Butler for a term of years. The lease contained the following covenants:

"And the said party of the second part does hereby covenant and agree that he will not underlet any portion of said premises nor assign this lease without the written permission of the said party of the first part, his agent or attorney, and he will, during the said term of lease, keep the buildings, corral, and other improvements now on said premises, or which may be put thereon during the terms of this lease by the said party of the first part, in good repair, damages or loss by fire excepted; that he will not commit or suffer waste to be committed thereon; and the said party of the second part further covenants that he will, in good and farm-like manner, at his own cost, charge, and expense, till and cultivate the said premises as follows, and not otherwise, to wit: That in due and proper season in the fall of 1884, he will plow to the depth of four inches, or deeper, and sow to wheat, the cast one half of said premises, and in due and proper season in the spring of 1885, he will plow to the depth of four inches or deeper the west one half of said premises, and sow the same to wheat in the fall of 1885; that he will, at his own cost, charge, and expense, well and carefully tend, take care of, and protect the crops while

LXXIX. CAL-37

growing on said premises during said term of this lease; and that as soon as the same is suitable for harvesting, he will without delay, and at his own cost, charge, and expense, harvest, thrash, glean, and sack in good and new merchantable sacks, all the grain raised on said premises; and as soon as thrashed and sacked, deliver to said party of the first part, his agent or attorney, without charge, all of the grain, one third thereof, quality and quantity considered, to be delivered in the town of Biggs, in Butte County, California, and the remaining two thirds to be delivered on the said premises.

"And the said party of the first part hereby covenants and agrees, that upon said wheat or hay, or wheat and hay, being delivered as aforesaid, he will immediately deliver and transfer to the said party of the second part two thirds of said wheat or hay, quality and quantity considered.

"And it is mutually covenanted and agreed that until such delivery and transfer by the said party of the first part all of said wheat and hay shall be the property of the said party of the first part, and the said party of the second part shall have no right to dispose of or encumber any portion thereof."

The appellant brought his action and recovered judgment against Butler, the tenant, and levied his execution upon this leasehold interest in the respondent's property. After the levy of said execution, and while the lien thereof was in force, the tenant executed to the respondent the following acknowledgment of forfeiture of the lease:

"Whereas on account of financial embarrassment, I am unable to perform my obligations under a certain lease made by C. E. Farnum to myself on the fifteenth day of October, 1884, in the city and county of San Francisco, California, to [describing the property], and having already, to the detriment of the said C. E. Farnum, committed breach of covenant of said contract; and whereas said C. E. Farnum demands forfeiture of

said lease or contract, in order to secure himself from loss on account of such breach of contract,-now, therefore, in consideration of the foregoing, I hereby forfeit to the said C. E. Farnum the said lease or contract with all my rights under it."

The appellant proceeded to enforce his judgment and execution lien by a sale of the property on such execution, and himself became the purchaser. He entered upon the lands under his purchase, and proceeded to harvest the wheat growing on the land. While so in possession, he was notified by the respondent to give possession of the property, and forbidden to harvest the grain. After having harvested and thrashed the grain, he tendered to the agent of the respondent the wheat, as provided in the lease. One Frank Hefner, a son of the appellant, testified as follows with reference to the delivery of and offer to deliver the wheat:—

"When I had cut and sacked the grain I visited Biggs, and notified Mr. Robinson (respondent's agent) that the grain was ready for delivery, and requested him to name the place where I should deliver it. He refused to name the place, and refused to make any division of the grain. I thereupon hauled all of the grain to Biggs and deposited it in the warehouse, had it weighed and divided, and deposited two thirds of it under one receipt, and one third under another. I again called upon Mr. Robinson and informed him that all of the grain was at the warehouse, and tendered him the receipt for one third of it, which he at first refused to accept, but in a short time concluded to and did accept the one third."

Mr. Robinson testified as follows:

"After the grain was cut and sacked, Mr. Frank Hefner, the son of the defendant, called upon me at Biggs and notified me that the grain had been cut and sacked and was ready for delivery, and requested me to desig nate where it should be delivered, and also to make division. I refused to accept the grain unless it was deliv

ered free from any claim by Mr. Hefner for any part of it. Afterward Mr. Frank Hefner notified me that the grain had all been delivered at the warehouse at Biggs, and weighed, and tendered me the warehouse receipt for one third of said wheat. I at first refused to receive it, but afterward accepted and received it."

At the trial the appellant offered in evidence the judgment roll in the action of himself against Butler, under which the leasehold interest of Butler was sold. Objection was made to the evidence by the respondent, and the court below excluded it, and this is assigned as error.

The respondent contends that the ruling of the court was right, on three grounds: 1. The transfer of the leasehold interest by the execution sale to the appellant was an assignment within the terms of the lease, and worked a forfeiture thereof; 2. The lease has been forfeited by the written acknowledgment of the tenant; 3. The tenant, under the provisions of the lease, had no interest in the crops harvested, and therefore no interest could pass to the appellant by the sale.

1. The first of these contentions presents the question whether an involuntary transfer of the leasehold interest of the tenant was in violation of the terms of the lease and worked a forfeiture of his estate. If so, the ruling of the court below was right. Otherwise, so far as this point is concerned, it was error. The covenant in the lease is the ordinary kind, which applies, it seems to us, to a voluntary, and not an involuntary, assignment of the lease. It is firmly established by authority that under such a covenant an involuntary assignment by sale under execution-bankruptcy and the like-is not a violation of the covenant and does not work a forfeiture. (2 Greenl. Ev., sec. 245; Wood on Landlord and Tenant, 2d ed., p. 714; Riggs v. Pursell, 66 N. Y. 198; 1 Taylor on Landlord and Tenant, sec. 408; Bemis v. Wilder, 100 Mass. 446; Jaskson v. Silvernail, 15 Johns. 277.)