The opinion of the court was delivered by
Lowrie, J.
— There are several erroneous cases in our books of reports on the subject of the waygoing crop, which, if they are not known as such, are continually tending to mislead the bar and the bench. In Stambaugh v. Yeates, 2 Rawle 161, it was decided that if, during the currency of executions which resulted in the sale of land, the crop on it was sold by a constable, his vendee’s title is good against the sheriff’s vendee of the land with the crop still on it. In Myers v. White, 1 Id. 353, it was decided that, even after the commencement of suit on a mortgage, the mortgagor may dispose of his growing crop, and then it will not pass to the sheriff’s vendee, though it be still growing on the land. In Smith v. Johnson, 1 Penn. R. 471, it was decided that, even after a private sale of land, the law allows the vendor to enter and carry off the crop previously sown by him.
If these cases were right, then the conclusion would be inevitable, and a fortiori, that a tenant of the owner of the land would be entitled to his waygoing crop, notwithstanding a sheriff’s sale of the land before it was gathered; for he got his title to it prior to the sale, as others did in the first two cases. But we can make no use of them; for they are all erroneous, and have all been corrected by the decisions, declaring that all rent in grain or in money falling due after a private sale of the land, or after a judicial sale with the deed acknowledged, and all,grain of the vendor or debtor then growing on the land, go to the vendee, and no assignment of them is good against the sheriff’s vendee: 3 Penn. 496; 9 Watts 436; 7 Id. 378; 3 Id. 394; 5 W. & S. 432; 4 State R. 146; 16 Id. 175. And these corrections are fully sustained by decisions elsewhere: 6 Geo. R. 452; 6 Barb. Sup. C. R. 370; 8 Blackf. 428; 2 Denio 174; 1 Leigh 297; 2 Mees. & W. 54; 2 Leon. 54.
The case of Fullerton v. Shauffer, 12 State Rep. 220, if we understand the report of it, decides that a rent payable by a share of the corn, &c., and agreed in the lease to be applied to a debt due by the lessor to the lessee, is a rent paid as of the day of the lease, and that, on a subsequent sheriff’s sale of the land, the lessor’s share of the growing crop did not pass to the sheriff’s vendee, so as to entitle him to claim it under the lease as a rent accruing after his purchase. It is difficult to reconcile this with other decisions, 4 State Rep. 146; 5 W. & S. 432; and with the Act of Assembly, which declares that rent paid in advance shall [69]*69not be good against the sheriff’s vendee under a prior lien, and with the fact that a rent of a share of the crop cannot be in fact paid before the crop is gathered, and its amount ascertained. If it merely means to declare that when the sheriff’s vendee affirms the lease by suing on it, he must abide by its terms; then we are not prepared to deny the doctrine. The case, however, is so defectively reported, that we cannot regard it as an authority for anything.
In recovering from’ the errors of the three cases first above referred to, it seems almost natural that there should be an oscillation towards the other extreme; and we come to this extreme in the cases of Sallade v. James, 6 State Rep. 144, and Groff v. Levan, 16 Id. 179, where it is decided that, when a lease is subsequent to a mortgage or judgment, a sale upon either will take away the lessee’s growing crop. At first the crop, or share of the crop, of the lessor and debtor, was the matter in dispute, and the rights of the lessee 'were conceded: 5 W. & S. 432; 4 State Rep. 146; 12 Id. 220; 7 Watts 378. It was quite lately that the tenant’s rights began to be denied. We think it was right to treat mortgage and judgment liens as entirely equivalent in their effect upon the tenant’s rights; for both of them are mere liens upon land by our law, and not titles to it, and the executions to enforce them by sale have the same effect on other interests. In states where a mortgage is treated as a title to land, and not as a lien, it is natural enough that, on the foreclosure, the tenant loses his crop; for he is considered as without title, and the mortgagee enters by paramount title and takes all; but even he cannot have an action of trespass for mesne profits: 2 Cruise Dig. 108; Coote on Mortg. 351; 8 Wend. 584. It is plain enough, however, that this rule pays much more regard to the form than to the substance of the transaction in this respect. In Ohio the tenant’s growing crop is safe even against a mortgage: 12 Ohio Rep. 88.
If, at the time of the acknowledgment of the sheriff’s deed, there be a lessee in possession of the land, the execution law of 1836, § 119, makes him the tenant of the purchaser on the terms of his lease; and if the lease is of later date than the lien on which the sale is made, the same law, § 105, requires him to give up the possession within three months after the purchaser shall choose to give him notice to do so, and to pay to the purchaser all the rent, or the value of the use of the land, accruing after the acknowledgment of the deed, and all damages for unjust detention, §§ 111, 119 ; and these provisions are codified from the old law.
It seems to us very plain that this law makes the lessee, under a lease of later date than the lien, a tenant at will of the purchaser under such lien; and then it follows, on well settled common law principles, that if he had a crop in the ground before he was notified of the landlord’s election to determine the tenancy, [70]*70lie will have a right to take it away. It is essentially a lease for years, but subject to be determined by an uncertain event depending on the will of others, that is, on the will of lien creditors and the purchaser under their liens. As between the lessor and lessee it is a lease for years. As between the lessee and the sheriff’s vendee it is a lease at the will of the latter, unless he ratifies it as a lease for a term. If a tenant subject to liens were not entitled to the privileges of a tenant at will, then liens would become a nuisance, preventing the leasing of lands -encumbered by them, and requiring leases to be made at ruinous rates, because of the risk that is to be run by the tenant.
The influence of this Act of Assembly seems to have been overlooked in the case of Sallade v. James, and of Groff v. Levan, which follows its lead; and the decision in the former case is deduced from the assumption that a lessee can have no greater right than his lessor would have had. But this is a mistake, logical as it may at first seem; for it is a familiar principle that a lessee may be entitled to. his waygoing crop even in cases where his lessor would not be: as where a widow is seised of an estate during widowhood, and marries; she cannot have her growing crop, but her lessee is entitled to his: 1 Bl. Com. 124; Cro. Eliz. 460* ; Goldsb. 189. Or if there be a lease by a husband of his wife’s land, and then a divorce while the tenant’s crop is growing, the wife shall not take it from him: 1 Tyler R. 409.
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The opinion of the court was delivered by
Lowrie, J.
— There are several erroneous cases in our books of reports on the subject of the waygoing crop, which, if they are not known as such, are continually tending to mislead the bar and the bench. In Stambaugh v. Yeates, 2 Rawle 161, it was decided that if, during the currency of executions which resulted in the sale of land, the crop on it was sold by a constable, his vendee’s title is good against the sheriff’s vendee of the land with the crop still on it. In Myers v. White, 1 Id. 353, it was decided that, even after the commencement of suit on a mortgage, the mortgagor may dispose of his growing crop, and then it will not pass to the sheriff’s vendee, though it be still growing on the land. In Smith v. Johnson, 1 Penn. R. 471, it was decided that, even after a private sale of land, the law allows the vendor to enter and carry off the crop previously sown by him.
If these cases were right, then the conclusion would be inevitable, and a fortiori, that a tenant of the owner of the land would be entitled to his waygoing crop, notwithstanding a sheriff’s sale of the land before it was gathered; for he got his title to it prior to the sale, as others did in the first two cases. But we can make no use of them; for they are all erroneous, and have all been corrected by the decisions, declaring that all rent in grain or in money falling due after a private sale of the land, or after a judicial sale with the deed acknowledged, and all,grain of the vendor or debtor then growing on the land, go to the vendee, and no assignment of them is good against the sheriff’s vendee: 3 Penn. 496; 9 Watts 436; 7 Id. 378; 3 Id. 394; 5 W. & S. 432; 4 State R. 146; 16 Id. 175. And these corrections are fully sustained by decisions elsewhere: 6 Geo. R. 452; 6 Barb. Sup. C. R. 370; 8 Blackf. 428; 2 Denio 174; 1 Leigh 297; 2 Mees. & W. 54; 2 Leon. 54.
The case of Fullerton v. Shauffer, 12 State Rep. 220, if we understand the report of it, decides that a rent payable by a share of the corn, &c., and agreed in the lease to be applied to a debt due by the lessor to the lessee, is a rent paid as of the day of the lease, and that, on a subsequent sheriff’s sale of the land, the lessor’s share of the growing crop did not pass to the sheriff’s vendee, so as to entitle him to claim it under the lease as a rent accruing after his purchase. It is difficult to reconcile this with other decisions, 4 State Rep. 146; 5 W. & S. 432; and with the Act of Assembly, which declares that rent paid in advance shall [69]*69not be good against the sheriff’s vendee under a prior lien, and with the fact that a rent of a share of the crop cannot be in fact paid before the crop is gathered, and its amount ascertained. If it merely means to declare that when the sheriff’s vendee affirms the lease by suing on it, he must abide by its terms; then we are not prepared to deny the doctrine. The case, however, is so defectively reported, that we cannot regard it as an authority for anything.
In recovering from’ the errors of the three cases first above referred to, it seems almost natural that there should be an oscillation towards the other extreme; and we come to this extreme in the cases of Sallade v. James, 6 State Rep. 144, and Groff v. Levan, 16 Id. 179, where it is decided that, when a lease is subsequent to a mortgage or judgment, a sale upon either will take away the lessee’s growing crop. At first the crop, or share of the crop, of the lessor and debtor, was the matter in dispute, and the rights of the lessee 'were conceded: 5 W. & S. 432; 4 State Rep. 146; 12 Id. 220; 7 Watts 378. It was quite lately that the tenant’s rights began to be denied. We think it was right to treat mortgage and judgment liens as entirely equivalent in their effect upon the tenant’s rights; for both of them are mere liens upon land by our law, and not titles to it, and the executions to enforce them by sale have the same effect on other interests. In states where a mortgage is treated as a title to land, and not as a lien, it is natural enough that, on the foreclosure, the tenant loses his crop; for he is considered as without title, and the mortgagee enters by paramount title and takes all; but even he cannot have an action of trespass for mesne profits: 2 Cruise Dig. 108; Coote on Mortg. 351; 8 Wend. 584. It is plain enough, however, that this rule pays much more regard to the form than to the substance of the transaction in this respect. In Ohio the tenant’s growing crop is safe even against a mortgage: 12 Ohio Rep. 88.
If, at the time of the acknowledgment of the sheriff’s deed, there be a lessee in possession of the land, the execution law of 1836, § 119, makes him the tenant of the purchaser on the terms of his lease; and if the lease is of later date than the lien on which the sale is made, the same law, § 105, requires him to give up the possession within three months after the purchaser shall choose to give him notice to do so, and to pay to the purchaser all the rent, or the value of the use of the land, accruing after the acknowledgment of the deed, and all damages for unjust detention, §§ 111, 119 ; and these provisions are codified from the old law.
It seems to us very plain that this law makes the lessee, under a lease of later date than the lien, a tenant at will of the purchaser under such lien; and then it follows, on well settled common law principles, that if he had a crop in the ground before he was notified of the landlord’s election to determine the tenancy, [70]*70lie will have a right to take it away. It is essentially a lease for years, but subject to be determined by an uncertain event depending on the will of others, that is, on the will of lien creditors and the purchaser under their liens. As between the lessor and lessee it is a lease for years. As between the lessee and the sheriff’s vendee it is a lease at the will of the latter, unless he ratifies it as a lease for a term. If a tenant subject to liens were not entitled to the privileges of a tenant at will, then liens would become a nuisance, preventing the leasing of lands -encumbered by them, and requiring leases to be made at ruinous rates, because of the risk that is to be run by the tenant.
The influence of this Act of Assembly seems to have been overlooked in the case of Sallade v. James, and of Groff v. Levan, which follows its lead; and the decision in the former case is deduced from the assumption that a lessee can have no greater right than his lessor would have had. But this is a mistake, logical as it may at first seem; for it is a familiar principle that a lessee may be entitled to. his waygoing crop even in cases where his lessor would not be: as where a widow is seised of an estate during widowhood, and marries; she cannot have her growing crop, but her lessee is entitled to his: 1 Bl. Com. 124; Cro. Eliz. 460* ; Goldsb. 189. Or if there be a lease by a husband of his wife’s land, and then a divorce while the tenant’s crop is growing, the wife shall not take it from him: 1 Tyler R. 409.
The principle of these cases is that, where a person is in possession of land under a title that may be determined by an uncertain event not within his control, it is essential to the interests of agriculture that such a determination of his lease shall not prevent him from reaping what he has sown: Co. Litt. 55; 4 Kent 73 ; 3 Watts 405. It is a rule demanded by the common sense of the people and depending on it; and if it does not extend to a case like the one we are considering, then we have revealed to us this strange anomaly of a rule of common law or general custom that is unknown to the people, and that operates as a snare to them when acting on the dictates of common sense.
This principle is further illustrated by numerous cases; as when a husband sows land held by him and his wife during marriage, and they are divorced, he shall have his crop; for though the suit is the act of the parties, the sentence of divorce is the act of the law: Goldsb. 189; Cro. Eliz. 460*; 5 Co. 116. And where a daughter enters on land as the heir of her father and sows a crop, she may take it away though her title is defeated by an after-born son before it matures: Co. Litt. 55. And in tenancy by statute merchant, which is a tenancy for years, subject to be defeated by payment of the debt by other means, if it is thus defeated, the tenant shall have his growing crop: Id. And so much is this a favour to him that sows, that when land with a growing crop on it [71]*71is devised to A. for life with remainder to B., and A. dies before the crop is gathered, his executors cannot have it: and if a woman sows her land and marries, and her husband dies before the crop is gathered, the wife and not his executors shall have it: Goldsb. 189.
Under our execution law, we do not see how it is possible to treat a lessee in possession, or in partial possession by his growing crop, at the time of a sheriff’s sale, otherwise than as a tenant for years or as a tenant at. will.. If he is tenant for years, he is entitled to the usual waygoing crop of fall grain, under the common law or general custom of Pennsylvania, unless his contract be otherwise. If he is tenant at will he is entitled to the larger emblements or waygoing crop that belongs, by the common law, to that species of tenancy. Either of these views is sufficient to protect him in the present case. But his claim here can only be as tenant for years; for his term had expired before the sheriff’s sale of the land, and the only right remaining to him was his way-going crop as tenant for years. He had no right to sow more, and therefore could reap no more. The sale of the landlord’s right did not defeat the tenant’s right to his crop which he had lawfully sown on a fair and honest lease.
Judgment reversed and a new trial awarded.
Knox, J., dissented.