Hershey v. Metzgar & Krug

Mr. Justice Trunicey

delivered the opinion of the court,

Growing grain is personal property, and may be seized and sold in satisfaction of an execution, though there be an older judgment which is a lien on the land ; for land is bound from the entry of a judgment; personalty, only from delivery of the execution to the officer. Where grain growing in the ground had been sold on an execution against the debtor, before sale of the land upon a venditioni exponas, it was decided that severance was implied, and that the grain did not pass with the land: Stambaugh v. Yeates, 2 Rawle 161. A mortgagor assigned all his property for the benefit of his creditors; it was held that the growing grain passed to the assignees, and not to the purchaser at sheriff’s sale of the land sold by virtue of the levari facias, because the assignment amounted to a severance: Myers v. White, 1 Rawle 353. In Bittinger v. Baker, 5 Casey 66, Lowrie, J., places Stambaugh v. Yeates and Myers v. White with erroneous cases, “ continually tending to mislead the bar and bench.” Notwithstanding his dictum, the principle decided in them remains unshaken, and was recognised as sound, and distinguished from Sallade v. James, 6 Barr 144, in Bear v. Bitzer, 4 Harris 175. The latter case rules that a purchaser of land at sheriff’s sale is entitled to the growing grain thereon, which had not been severed before the sale. There the owner of the land which was sold owned the crop, and there had been no act of separation. The test is, whether there has been a severance of the growing grain; if so, it does not pass to him who purchases the land subsequent to the severance; if not, it goes with the land.

Metzgar and Krug, in 1870, conveyed a farm to Forrey, and took judgment for part of the purchase-money. In 1874 they issued a fieri facias upon which the sheriff “proceeded to levy the personal and real estate.” Forrey claimed the exemption under the Act of 9th April 1849, and appraisement of the personal property he selected was duly made in presence of one of the plaintiffs. The personalty, not covered by the defendant’s claim, was sold, and inquisition was had of the land. Afterwards the plaintiffs purchased the land at sheriff’s sale. Substantially stating the facts in their points, the plaintiffs demanded instructions that they were entitled to recover. A verdict was directed for them, subject to the opinion of the court on points reserved.

The question presented is, did the grain pass to the purchasers of the land? Were it one of distribution of the proceeds of real estate it would be governed by Ulrich’s Appeal, 12 Wright 489. The principle on which that decision is based bars a defendant, in a judgment for purchase-money of land, from claiming exemption of the land or any part of it against the execution of the judgment. But it is no bar of his claim to other property. Had the plaintiffs, upon their execution, seized the land only and sold it, the growing crops thereon would have passed to the purchaser. In that ease the defendant would have had no right of exemption, and had the sheriff procured an appraisement, and setting apart growing crops, no right thereto would have remained in the defendant. They seized both lands and goods. Of the latter the defendant was entitled to-the exemption. The appraisement of the growing grain, under the circumstances, was a severance. Had that not been done he might have claimed other goods instead. The plaintiffs had knowledge of all that was done, and were 'silent. They may not be estopped from asserting” the truth, but they assert nothing to avoid their apparent acquiescence. They purchased the land,' knowing the growing grain was severed and set apart to the defendant.

Judgment reversed, and now judgment entered for plaintiffs in error, defendants below, non obstante veredicto, with costs.