Loose v. Scharff , 1897 Pa. Super. LEXIS 327 ( 1897 )

Per Curiam,

This dispute arose over the title to a growing crop of grain. The plaintiff claimed as purchaser at sheriff’s sale of the crop as personalty; the defendant as purchaser at a subsequent sheriff’s sale of the land.

It was decided in Long v. Seavers, 103 Pa. 517, that where land is let upon shares a sale upon a fi. fa. of the landlord’s share of the growing grain before actual severance does not of itself work such an implied severance as will pass the landlord’s title to the purchaser under the fi. fa. as against a subsequent purchaser of the land at sheriff’s sale who obtains his deed before the rent falls due. The case was precisely like the present except in this particular. There the subject-matter of the dispute was the landlord’s share, reserved as rent to be delivered to him when the crop was harvested and divided ; here it was the whole crop of winter grain sown by the tenant whose tenancy was under and subject to the local custom prevailing in Berks county which required him, when going, to leave a crop of winter grain in the place of that which he found. Notwithstanding this distinction the similarity of the two cases in respect of the possession at the time of the sale of the crop upon fi. fa. remains. The relation of landlord and tenant existed, and the possession of the tenant was exclusive. The landlord had not the actual or constructive possession of the land or the crop; nor had he a right to the immediate possession, tie had no right to enter upon the land demised to take the crop or do any other act inconsistent with the tenant’s right of possession, until the expiration of the term, and before that took place the land was sold at sheriff’s sale. Under the act of 1836, the purchaser of the landlord’s title to the land under execution against him is entitled to the rent falling due after acknowledgment of the sheriff’s deed, whether it he payable in money or grain. But conceding for the purpose of the case that the crop had not all the characteristics of rent, strictly speaking, still the facts as to the possession seem to bring the case within the limitation of the general rule as it was stated by Mr. Justice Green in Long v. Seavers. “ It is true that grain growing in the ground is personal property and may be seized and sold upon execution: Hershey v. Metzgar, 90 Pa. 217. But that proposition in its generality relates to the interest in the grain of the person in possession.” For the reasons suggested, which are more fully elaborated in the opinion of the learned judge of the court below, the judgment is affirmed.