Mr. Justice Gordon
delivered the opinion of the court, May 2d 1881.
By virtue of a certain writ or writs of venditioni exponas, issued out of the Court of Common Pleas of Montgomery county, at the suit of J. M. Albertson & Sons against William Leidy, the plaintiff in the present suit, the land of the said Leidy was sold by the sheriff to tho defendant, Joseph Proctor, and a deed made therefor, which-was duly acknowledged and delivered to him on the 10th of September 1878. From this period he was the absolute owner of the land, and though Leidy continued in the actual possession, that possession was wrongful; tho right thereto was in Proctor. This very obvious legal proposition I do not understand to be disputed, but if Proctor had both the title and right of possession. [490] why might he not lawfully enter ? Or how does it come, that in the exercise of a lawful right, it is possible for him to be subjected to those pains and penalties to which one whose entry is without right ought alone to be exposed ? Had Leidy’s possession been by a tenant, immediately upon the delivery of the sheriff’s deed, Proctor, by force of the statute, would have become the landlord of that tenant, and had Leidy after that entered upon the land, he would have been a trespasser. Hence, it was held, in the case of St. Clair’s Heirs v. Shale, 8 Harris 105, that a sheriff’s vendee might lawfully obtain possession of the premises by the attornment of the tenant of defendant in the execution. But if the law thus casts the immediate right of possession on the sheriff’s vendee, in the one case, why not in the other ? Of course, to all this there is but one answer, and that is the one made use of by the plaintiff —that under the Act of 1836, the defendant is entitled to possession for the period of three months after the notice to quit. The learned judge of the court below thought this position unsound, and we are of the opinion he was right. The summary process given by the Act of 1836 was certainly not intended for the benefit of the defendant in the execution — the language of the act negatives such an idea; for “ in case of a finding for the petitioner, as aforesaid, the jury shall assess such damages as they shall think right, against such defendant or person in possession, for the unjust detention of the premises.” Clearly the statute was not intended to favor one whose possession it assumes to be unjust; one- who maintains such possession without right; it must therefore have been intended for the benefit of the purchaser at the sheriff’s sale. Because he may not be able, by reason of the hostile attitude of the defendant or person in possession to possess himself of the premises peaceably, and because the acúon of ejectment is tedious and expensive, therefore is this summary remedy, under the Act of 1836, given. But the sheriff’s vendee is not thereby deprived of any of his previous or concurrent remedies ; he may serve notice and proceed under the act, but this is optional with himself. If he does not choose to avail himself of this statutory process he may resort to his common-law remedies. This very point was ruled in Kellam v. Janson, 5 Harris 467, where it was held that the vendee of land had no title at all as against a purchaser at sheriff’s sale under a prior judgment against the vendor, because such title was wholly divested by the judicial sale. In the case cited, the court below assumed just what is'here contended for on the part of the plaintiff, that is to say, that the sheriff’s vendee had no right to disturb the possession of the person claiming under the defendant in the execution, except by the process prescribed by the Act of 1836. That case, like the one in hand, was trespass, brought by the vendee of the debtor against the purchaser at the sheriff’s sale; and the complaint was that this purchaser had [491] entered during the temporary absence of the plaintiff, broke open his house and turned his goods out of doors. This was undoubtedly a strong case, nevertheless it was held, reversing the court below, that “an action is well founded only when a right is invaded, but that the plaintiff’s right ceased by the entry of the defendant- — an act that completely obliterated the shadow of right cast by the plaintiff’s possession. A complaint against the assumption of possession is a complaint against the assertion of a right, and a demand that the law shall give the plaintiff damages for the loss of that which it was wrong for him to baye.” It was further said, that the case was covered by the principle governing Overdeer v. Lewis, 1 W. & S. 90, and of all those cases where redress is allowed by the act of the party, that the statutory remedies do not affect such right, since they are necessary only because such possession cannot always be assumed by the mere act of the party. It is true that the ease cited was one where the plaintiff had entered after the date of the sheriff’s sale, and in this it is dissimilar to the case in hand, where the plaintiff merely continued a possession which had previously belonged to him. The principle, however, pervading the two cases is identical. In either case the plaintiff’s right of action ceased with his right of possession, and that right had its end when the lawful owner made his entry. Moreover, if Over-deer v. Lewis is in point, as it is said to be, any shadow' of doubt that might remain is swept away. In this case it was held, that a landlord might enter and remove from his premises a tenant holding over after the expiration of the lease, though he had not given notice as required by the Act of 1772.
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Mr. Justice Gordon
delivered the opinion of the court, May 2d 1881.
By virtue of a certain writ or writs of venditioni exponas, issued out of the Court of Common Pleas of Montgomery county, at the suit of J. M. Albertson & Sons against William Leidy, the plaintiff in the present suit, the land of the said Leidy was sold by the sheriff to tho defendant, Joseph Proctor, and a deed made therefor, which-was duly acknowledged and delivered to him on the 10th of September 1878. From this period he was the absolute owner of the land, and though Leidy continued in the actual possession, that possession was wrongful; tho right thereto was in Proctor. This very obvious legal proposition I do not understand to be disputed, but if Proctor had both the title and right of possession. [490] why might he not lawfully enter ? Or how does it come, that in the exercise of a lawful right, it is possible for him to be subjected to those pains and penalties to which one whose entry is without right ought alone to be exposed ? Had Leidy’s possession been by a tenant, immediately upon the delivery of the sheriff’s deed, Proctor, by force of the statute, would have become the landlord of that tenant, and had Leidy after that entered upon the land, he would have been a trespasser. Hence, it was held, in the case of St. Clair’s Heirs v. Shale, 8 Harris 105, that a sheriff’s vendee might lawfully obtain possession of the premises by the attornment of the tenant of defendant in the execution. But if the law thus casts the immediate right of possession on the sheriff’s vendee, in the one case, why not in the other ? Of course, to all this there is but one answer, and that is the one made use of by the plaintiff —that under the Act of 1836, the defendant is entitled to possession for the period of three months after the notice to quit. The learned judge of the court below thought this position unsound, and we are of the opinion he was right. The summary process given by the Act of 1836 was certainly not intended for the benefit of the defendant in the execution — the language of the act negatives such an idea; for “ in case of a finding for the petitioner, as aforesaid, the jury shall assess such damages as they shall think right, against such defendant or person in possession, for the unjust detention of the premises.” Clearly the statute was not intended to favor one whose possession it assumes to be unjust; one- who maintains such possession without right; it must therefore have been intended for the benefit of the purchaser at the sheriff’s sale. Because he may not be able, by reason of the hostile attitude of the defendant or person in possession to possess himself of the premises peaceably, and because the acúon of ejectment is tedious and expensive, therefore is this summary remedy, under the Act of 1836, given. But the sheriff’s vendee is not thereby deprived of any of his previous or concurrent remedies ; he may serve notice and proceed under the act, but this is optional with himself. If he does not choose to avail himself of this statutory process he may resort to his common-law remedies. This very point was ruled in Kellam v. Janson, 5 Harris 467, where it was held that the vendee of land had no title at all as against a purchaser at sheriff’s sale under a prior judgment against the vendor, because such title was wholly divested by the judicial sale. In the case cited, the court below assumed just what is'here contended for on the part of the plaintiff, that is to say, that the sheriff’s vendee had no right to disturb the possession of the person claiming under the defendant in the execution, except by the process prescribed by the Act of 1836. That case, like the one in hand, was trespass, brought by the vendee of the debtor against the purchaser at the sheriff’s sale; and the complaint was that this purchaser had [491] entered during the temporary absence of the plaintiff, broke open his house and turned his goods out of doors. This was undoubtedly a strong case, nevertheless it was held, reversing the court below, that “an action is well founded only when a right is invaded, but that the plaintiff’s right ceased by the entry of the defendant- — an act that completely obliterated the shadow of right cast by the plaintiff’s possession. A complaint against the assumption of possession is a complaint against the assertion of a right, and a demand that the law shall give the plaintiff damages for the loss of that which it was wrong for him to baye.” It was further said, that the case was covered by the principle governing Overdeer v. Lewis, 1 W. & S. 90, and of all those cases where redress is allowed by the act of the party, that the statutory remedies do not affect such right, since they are necessary only because such possession cannot always be assumed by the mere act of the party. It is true that the ease cited was one where the plaintiff had entered after the date of the sheriff’s sale, and in this it is dissimilar to the case in hand, where the plaintiff merely continued a possession which had previously belonged to him. The principle, however, pervading the two cases is identical. In either case the plaintiff’s right of action ceased with his right of possession, and that right had its end when the lawful owner made his entry. Moreover, if Over-deer v. Lewis is in point, as it is said to be, any shadow' of doubt that might remain is swept away. In this case it was held, that a landlord might enter and remove from his premises a tenant holding over after the expiration of the lease, though he had not given notice as required by the Act of 1772.
These cases then settle this part of the present controversy and support the ruling of the learned judge of the court below. It is, however, the fifth assignment which the couusel for the plaintiff considers the most important, and he regards that part of the judge’s charge covered by it as containing a startling legal-heresy. “I charge you distinctly,” says the court, “that all the timber that lay upon the ground before the sheriff’s sale, and which had fallen, did not pass to the purchaser, Mr. Proctor, but was the personal property of Mr. Leidy. I do not think that this is material in this case, for the reason that there is no evidence here, not a scintilla, that Mr. Proctor ever carried away a single stick of this fallen wood. If others came in and took it, they are liable for their trespasses. It is not bis. Even if they did it under a sale from him, it would make no difference whatever in this case, for the conditions were that none of it was to be taken until the first of April next succeeding, and besides Mr. Leidy declares that in pursuance of instructions from Mr. Corson he obtained a portion of that wood which was still lying there, even as against Mr. Proctor’s tenants.” But in this there is no error of which the plaintiff had any right to complain. The court assumed that [492] Leidy had a right to the fallen timber, though he had done no act prior to the date of the sheriff’s sale which indicated an intention to convert it into personal property. On this assumption it may be admitted that had the defendant by sale or otherwise authorized any person or persons to enter and take this fallen timber before the bringing of this suit, he would have been liable as a trespasser, but he did nothing of the kind. He authorized no one to go upon the premises before the 1st of April 1879, which was long after the bringing of this suit, so that if any timber was taken from •that land, it was not only without his authority, but in express violation of the conditions of sale; We are, therefore, unable to see how in all this there was error of which the plaintiff could reasonably complain. Had the court gone farther than it did, and told the jury that the fallen timber which the plaintiff had not converted into saw logs, rails or firewood, before the date of the delivery of the sheriff’s deed, passed with the freehold to the defendant, no more would have been said than the law warranted. In Rogers v. Gilinger, 6 Casey 185, where the action was trover for the fragments of a building which had been blown down by a tempest before the date of the sheriff’s sale under which the defendants claimed, it was held that the plaintiffs could not recover; that these fragments belonged to the sheriff’s vendees.
In this case Justice Strong, who delivered the opinion of the court, made use of the following language: “What then is the criterion by which we are to determine whether that which was once part of the realty has become personalty on being detached ? Not Capability of restoration to the former connection with the freehold,- as is contended, for the tree prostrated by the tempest is incapable of re-annexation to the soil, and yet it remains realty. The true rule would rather seem to be that that which was real shall continue real until the owner of the freehold shall, by his election', give it a different character.”
As this opinion was very carefully considered, and as the authorities therein cited most fully sustain it, we must regard it as a definitive settlement of the question, adding only that were the question a new one, onr own judgment would lead us to the same conclusion.
The judgment is affirmed.