103 Pa. 517 | Pa. | 1884
delivered the opinion of the court,
It is true that grain growing in the ground is personal property and may be seized and sold upon execution : Hershey v. Metzgar, 9 Norr. 218. But that proposition in its generality relates to the interest in the grain of the person in possession. Where land is leased by the owner to a tenant upon shares, tho landlord is entitled to his share of the grain when it is harvested : Lamberton v. Stouffer, 5 P. F. Smith 284. Before that the landlord cannot enter upon the land demised to take his share, or do any other act inconsistent with the tenant’s right of possession. Under the Act of June 16th 1836, Purd. 603, pi. 149, it is undoubted that the purchaser of the landlord’s title under execution against him, is entitled to the rent falling due after the acknowledgment of the sheriff’s deed whether it is payable in money or grain. Where, however, there has been a severance of the landlord’s share of the grain before the sheriff’s sale of the land, that share does not pass by the sale. All this was ruled in Hershey v. Metzgar, supra. The test is the severance. In Hershey v. Metzgar, there was a levy under a fi. fa. upon the owner’s interest in his growing grain, and he elected to take the grain under the exemption law, and it was appraised and set apart to him, with the knowledge and without the objection of the plaintiffs in the judgment who subsequently purchased the land. This was held to he a severance. In Fullerton v. Shauffer, 2 Jones 220, it was held that where by the terms of the lease the tenant was to retain the reíd, and apply it to the payment of a debt of the lessor for which the tenant was surety, this was such an appropriation of the rent in advance, that no rent was due after the subsequent sheriff’s sale of the land, and hence none passed to the purchaser. In the present case the question is whether a sale upon a fi. fa. of the landlord’s share of the growing grain before actual severance works, of itself, such a severance as passes his title to it, as against a- subsequent purchaser of the land. If the share were a subject of levy and sale upon a fi. fa., of course this result would be accomplished. But we think it is not. The landlord has no title-to- his share of the grain until it has been harvested: Lam beatón--y. Stouffei’, supra. The whole of the grain while it is growing belongs to the tenant, and he must deliver to the landlord his-share of it after severance. This, of course, is in the- absence- of special contract to the contrary. Thus we said, in Rinehart v. Olwine,
' Judgment reversed and venire de novo awarded.