Adams v. McKesson's

The opinion of the court was delivered by Strong, J. Bittinger v. Baker, 5 Casey 66 (overruling Sallade v. James, 6 Barr 144, and Groff v. Levan, 4 Harris 179), is supposed to govern this case and decide it in favor of the plaintiff in error. The doctrine of that case is, that a lessee of land encumbered by a judgment older than the lease, is entitled to the waygoing crop in preference to a purchaser at sheriff’s sale, under [83] tbe judgment. The decision was based upon the provisions of the Act of Assembly of June 16th 1886, entitled “ An act relating to executions,” which, it was thought, make a lessee holding under a lease of later date than the lien, a tenant at will of the purchaser under such lien. From this it seemed to follow that if he had a crop in the ground before- notice of his landlord’s election to determine the tenancy, he has a right to take it away. If this is so, it is obvious that it can make no difference at what time prior to the sheriff’s sale the lease was fliade or the grain was sown. In Bittinger v. Baker the lease was made after the entry of the judgment, and before the execution was issued under which the land was sold. The grain in the ground was also sown, it is probable, before the execution was sued out. But the issue of an execution does not determine the tenancy of the lessee, nor even convert his tenancy for years into a tenancy at will. At most it informs him anew of what the judgment had previously informed him, that he may become a tenant at will of whatever person may purchase his landlord’s interest in the property. Until he receives notice of the purchaser’s election to determine his tenancy, he has a right to the enjoyment of the subject of the demise. He is in possession under a title that may be determined by a contingency not within his control, and hence it is held that a determination of his lease, by the happening of such a contingency, shall not prevent his reaping what he has sown. Nor is the principle of Bittinger v. Baker affected by the question whether the lease of the judgment-debtor to his lessee be in writing or verbal, or whether it be a demise of the entire possession of the land, or only a partial possession. A parol lease not exceeding three years is as valid as any other, notwithstanding the Statute of Frauds, and a lessee of a part of the land becomes as completely a tenant at will of the purchaser at the sheriff’s sale as he would be if the subject of the demise were the lessor’s entire interest. It is not then on these grounds, if on any, that the case before us is to be distinguished from Bittinger v. Baker. But the doctrine of that ease is applicable only where the person who claims the crop was a lessee of the land' sold at the sheriff’s sale. It is such a person only who becomes a tenant of the purchaser at the sale, under the 119th section of the Act of Assembly. A mere cropper is no such -tenant. If one be hired to work land, receiving for his compensation part of the produce, he is a cropper not a tenant. “ He has no interest in the land, but receives his share as the price of his labor. The possession is still in the owner of the land, who alone can maintain trespass ; nor can he distrain, for he does not maintain the relation of landlord and tenant, whieh is inseparable from the right of distress.” Thus it was laid down by Rogers, J., in Fry v. Jones, 2 Rawle 12. In the case we have before us, we have not been furnished with [84] the evidence. The paper-book of the plaintiff in error, however, presents the case thus: “ that after the judgments were obtained against the property, and after the sheriff held the inquest, which resulted in the condemnation of the land, and after the venditioni exponas was issued, but before the sale was made by the sheriff, Frederick Foreman made a verbal agreement with Catharine Rein-hart (the debtor), to put out from 25 to 80 acres of the farm in wheat; Foreman to have two-thirds of the crop, and Mrs. Rein-hart one-third.” If this be a correct statement, and it is the plaintiff in error’s own version, not questioned by the other side, it is not a case of tenancy at all. Foreman under the contract was a mere cropper, and not a tenant at will of the purchaser at sheriff’s sale, entitled to emblements on the determination of his lease by the landlord. It follows that the doctrine of Bittinger v. Baker is inapplicable to his case, that the entire crop passed by the sheriff’s sale to McKesson, and by his deed to Adams, and consequently that the plaintiff in error had nothing to defalk from the claim of the plaintiff below. In this view of the case no error appears in the charge of the court below, or in the refusal to affirm the defendant’s points, and the jury was correctly instructed that their verdict should be for the plaintiff for the whole amount of her demand. Judgment affirmed.