BROWN, P.J.
It is well settled that a lease, like any other conveyance of a present estate in land, transfers to the lessee the right to the unmatured vegetable products growing upon the land at the time, unless they are expressly excepted from its operation. 2 Tiffany, Landlord Tenant, § 249; Edwards v. Perkins, 7 Or. 149; Willey v. Conner, 44 Vt. 68; Emery v. Fugina, 68 Wis. 505, 32 N.W. 236. Under the rule the crops passed to the lessee, Ogden.
The only objection to the question made the basis of the third assignment of error was met by the defendant, with permission of the court, filing the plea of set-off, and the objection was properly overruled.
If by filing the plea of set-off during the trial the plaintiff was placed at a disadvantage by not being prepared to meet this defense, the fact should have been made known to the court at that time. He could not remain silent and take his chance, and afterwards, on motion for new trial, plead that he was surprised.
There is no error in the record.
Affirmed.