Burket v. Miller. tate described in his complaint, and it is further ordered by the court that no writ of restitution issue upon this judg ment until after the 5th day of March, 1890. Dated February 21, 1890." Appellants' whole defense rests upon this judgment. If the judgment rendered by the justice as above set out, which dispossessed Boone, and gave the possession of the land and the growing crops to appellant, then appellee had no title to the wheat, and he could not be damaged by the taking of the wheat by appellant, because, under appellants' theory of the effect of the judgment, the appellant would be the real owner. As between landlord and tenant it has been universally held in this State that growing crops are personal property. Cunningham v. Baker, 84 Ind. 597; Gordon v. Stockdale, 89 Ind. 240; Perry v. Hamilton, 138 Ind. 271. In the last mentioned case the court said: "The only reason suggested in argument in support of the action of the court in granting an injunction is that the cutting and removing of the stocks would be an injury to the freehold. The reason is unsound, because, as between landlord and tenant, the annual crop constitutes no part of the freehold." The transcript of the proceedings and judgment, including the agreement entered into between the parties to the suit in the case begun by the landlord for possession, does not show such a judgment as is required to effect a forfeiture and eviction; neither by the complaint nor by the agreement between the parties was such a judgment authorized. The right to the wheat was not in litigation, and was not determined. The question argued by appellants' counsel is squarely determined adversely to appellants' contention in the case of Sullivan v. O'Hara, 1 Ind. App. 259, and again in Collier v. Cunningham, 2 Ind. App. 254. The instructions given by the court to the jury stated the law applicable to the evidence, and it appears from the whole record that the right conclusion has been reached by the lower court. Judgment affirmed. Indianapolis Nat. Gas Co. v. Pierce. INDIANAPOLIS NATURAL GAS COMPANY ET AL. V. [No. 2,958. Filed Jan. 31, 1900. Rehearing denied June 20, 1900.] LANDLORD AND TENANT.-Gas and Oil Lease.-Uncertainty of Description.-Evidence.—In an action to recover upon a covenant of a gas and oil lease for the payment of a specified sum annually upon failure to drill wells, it was not error to admit in evidence the lease on the ground of uncertainty of description, where the land was described as thirty acres of a certain tract "excepting and reserving therefrom twenty acres, more or less, around the buildings, the boundaries of which shall be designated and fixed," and the lessor had designated such boundaries to the lessee's agent at the time the lease was executed. pp. 119, 120. SAME.-Lease.-Assignment.—An expired gas and oil lease, on which there is a stipulated sum due as damages for breach, is a mere chose in action, and not an interest in the land, and an assignment thereof need not be under seal. pp. 122, 123. From the Hamilton Circuit Court. Affirmed. T. J. Kane, R. K. Kane and T. E. Kane, for appellants. A. F. Shirts, L. S. Baldwin and Geo. Shirts for appellee. COMSTOCK, J.-Appellee brought this action on a gas lease executed by Isaac B. Anderson and Mary J. Anderson to J. M. Guffy & Co., assigned by said Anderson to appellee and assigned by Guffy & Co. to the Indianapolis Natural Gas Company, and by that gas company to the Indianapolis Gas Company. The cause was put at issue, a special finding Indianapolis Nat Gas Co. v. Pierce. of facts made by the court upon proper request, on which judgment was rendered in favor of appellee for $750. The errors separately assigned by appellants, the Indianapolis Natural Gas Company and the Indianapolis Gas Company, are: (1) That the court erred in overruling the separate demurrers filed respectively by said appellants to the complaint; (2) in its conclusions of law on the facts found; (3) in overruling the motion for a new trial by each of the appellants. The following is a statement of the facts: On the 3rd of May, 1887, I. B. Anderson and Jennie Anderson executed a lease for five years to J. M. Guffy and Company, granting to said Guffy and Company the right to operate, store and transport petroleum oil or gas over and "from all that certain tract of land situated in Washington township, Hamilton county and State of Indiana, bounded and described as follows, to wit: On the north side by the lands of J. Mendenhall, on the east by the lands of S. M. Smith, on the west by the lands of William G. Pierce, on the south by the lands of S. M. Smith, containing thirty acres more or less, excepting and reserving therefrom twenty acres more or less, around the buildings, on said premises upon which there shall be no wells drilled by either parties, the boundaries of which shall be designated and fixed by the party of the first part," reserving therefor the one-eighth part of all oil discovered, and in case gas only was discovered $100 for each well drilled, and in case no well was drilled $100 per annum was to be paid; Guffy and Company assigned said lease to the Indianapolis Natural Gas Company who assigned the same to the Union Trust Company of New York and Lafayette Perkins of Indianapolis, who assigned the same to appellant, the Indianapolis Gas Company. After the five years limitation of said lease had expired, said I. B. Anderson and Jennie Anderson assigned a copy of said lease to appellee herein who commenced this action. No well was drilled under the lease, and no rent was paid. Under the first specification of the assignment of errors, Indianapolis Nat. Gas Co. v. Pierce. counsel for appellants claim that J. M. Guffy and Company, the original lessees, should be made parties defendant. It is alleged in the complaint that J. M. Guffy and Company sold, assigned and transferred the lease to the Indianapolis Natural Gas Company, which company sold and transferred the lease to the Indianapolis Gas Company; that these assignments were in writing indorsed on the original lease, but that a copy of the same could not be given because the lease was lost. Under the averments, Guffy and Company were not necessary parties. $276 Horner 1897. It is insisted in further support of the proposition that the complaint is insufficient, that the assignments of the lease by the lessees gave the assignee (appellee) no cause of action. The assignment is in the following language: "For value received we hereby sell, transfer and assign all our interest, right and title in and to the original contract of which this is a true copy to W. G. Pierce." It is contended by counsel for appellants that as appellee did not own the reversion, or as the land was not conveyed to the assignee, the assignment of the lease would not carry with it rent which had accrued before the assignment; that the right of action on the covenant to pay rent had accrued before the attempted assignment to appellee. In order to pass to appellee the right of action for rent the lessors should have assigned the claim for rent. Appellants cite in this connection: Allen v. Wooley, 1 Blackf. 148; Carley v. Lewis, 24 Ind. 23; Junction R. Co. v. Sayers, 28 Ind. 318; Bethell v. Bethell, 54 Ind. 428, 23 Am. Rep. 650. By the assignment, the Andersons sold whatever right or interest they had by virtue of the contract assigned. The lease is dated May 31, 1887, and was for five years; the right of Guffy and Company and their assigns to enter upon the land expired May 3, 1892. The lease was no longer operative against the land at the time of its assignment to appellee. The Andersons could only look to the agreement contained in the lease whereby it was stipulated that the Indianapolis Nat. Gas Co. v. Pierce. lessees should pay certain sums of money as damages for a failure to put down a well. Parties may stipulate for the amount of damages on account of breach of contract. Wambaugh v. Bimer, 25 Ind. 368; Harrison v. Lockhart, 25 Ind. 112; Stanley v. Montgomery, 102 Ind. 102; Jaqua v. Headington, 114 Ind. 309. A lease may be assigned by the lessor so as to give to the assignee the right to receive rent reserved without a sale or transfer of the reversionary interest. The doctrine of the common law that choses in action are not assignable does not obtain with us. Ridman & Lyons on Landl. & Ten. p. 439; Taylor on Landl. & Ten. §426; Willard v. Tillman, 2 Hill 274. It is averred that the assignment to appellee was made after the expiration of the lease. When the assignment was made to appellee, there was due under the contract in question to the Andersons the amount stipulated therein for the breach of the same. It was a chose in action. They had a right of action under the contract and when they assigned all their rights and interest therein, they assigned this right of action to appellee. The time for which the land was leased having expired, there remained nothing but this right of action to be transferred. To hold that the assignment transferred only the original instrument would be to narrow a construction. The authority cited by appellant is not applicable to the facts in the case at bar. Appellants' counsel discuss the second specification of the assignment of errors, viz., "that the court erred in its conclusions of law on the facts found," and the first and third reasons for a new trial, together. The first reason for a new trial is because the decision of the court is contrary to law. The third is that the court erred in permitting plaintiff (appellee) to introduce in evidence, over defendants' objection made at the time, the lease contract sued on in the complaint. The court found that "Anderson granted, demised and let unto J. M. Guffy and Company of Pittsburgh, Pennsylvania, for the purpose of drilling and opera |