Sidebilder
PDF
ePub

this was not a fence within the privilege given by the license. That privilege extended to a fence placed upon the division line. This fence cannot be fairly said to be placed or built on the division line. On the contrary, it crosses that line from side to side for its whole length. It deprives Morton of the use of portions of land not occupied by the fence. If this can be done for the width of three feet, it would seem it could be done for a greater width. Either result is plainly not contemplated by the license. If land of Reynolds is thereby left on the Morton side of the fence, it could not, either legally or practically, be used by Morton."

CONSTRUCTION AND ERECTION. - Hauling lumber upon the ground for the construction of a building is not "labor for or about the construction or erection" of the building. Wilson v. Whitcomb, 100 Penn. St. 547. The court said: "This subject has already received the consideration and determination of this court in another connection, but quite kindred to this. In the case of Moyer v. Pennsylvania Slate Co., 21 P. F. S. 293, an attempt was made to recover against the stockholders of a slate company for the cost of hauling slate for the company from the quarry to the railroad, for shipment. The act incorporating the company provided that the stockholders should be individually liable 'for debts due mechanics, workmen and laborers, employed by the company, and for materials furnished.' The plaintiff claimed that he had been employed by the company to haul slate, with his own team, from the company's quarries to the railroad station, and that the stockholders were liable for the service thus rendered under the clause in question. But we held, that notwithstanding the generality of the language of the statute, it did not impose individual liability for the service claimed, on the ground that it could not be regarded as labor within the meaning of the statute. Chief Justice Thompson, in delivering the opinion of the court, on page 298, said: The learned judge of the Common Pleas was right therefore we think, in holding as he did, that the charge for hauling slate, the party using his own team and contributing his own time, was not embraced by the liability clause quoted. Indeed, I regard it as not within the words at all. The teamster was not strictly a laborer or workman, but the ruling stands well enough on the general ground suggested. His was labor of the same kind as that performed by the railroad company in transporting the slates to market, and the yardman who took charge of them on their arrival at their destination.' We think these views quite pertinent to the present case. In both cases the character of the service rendered was the same. In the one the liability set up was personal or individual, but it was for a debt due to a laborer. In the other, the liability claimed is that of certain property, but it is for labor performed in and about the same. Essentially, there is no difference in the considerations which determine the question at issue in both."

LAST SICKNESS. Of these words in a statute

regulating nuncupative wills, it is said in Sadler v. Sadler, 60 Miss. 251: "We prefer not to give an exact meaning to these words until we shall have the concrete facts of some case before us. It seems clear that if the words are spoken during the last sickness, no lapse of time that may intervene between the speaking and the death of the party should invalidate them, if his physical or mental condition disabled him thereafter to alter his desires or gave no opportunity to reduce them to writing. It seems equally clear on the other hand, that the words 'last sickness' should not be extended over a lingering disease covering months or weeks, during which, and after the spoken words, there was afforded, both by the mental and physical condition of the party, every opportunity and inducement to prepare a written will."

THE ORIGIN AND DEVELOPMENT OF LAW.

[Address before New York State Bar Association, January 8, 1884, by John G. Milburn.]

The century in which we are living is one in many ways remarkable for its originality, its power and its In science it can certainly lay claim to achievement. transcendent distinction, and the same is true of it in the mechanical arts. Its contributions to philosophy stamp it as a time of clear and comprehensive thought. In literature and art, if it may not aspire to any supremacy, its product is still of a high order of merit, and of merit at many points tinctured with real genius. What can we say of its attainments in the domain of law? I will not venture to say that I could give an adequate answer to this question, but a partial one I propose to attempt in this address which you have done me the honor to ask me to make to you.

The question is surely one of signal pertinency and interest. Its consideration is, as it were, an anticipation of the verdict of history, that tribunal which will view us through the eyes of an impartial criticism with no mitigating voice at its side to soften an unfavorable judgment. The next age will examine and scrutinize the work of this to determine what parts of it were of permanent value, the creations of a high and sustained intelligence, and what parts of it were barren and poor. This process will be carried on from age to age and out of it will gradually emerge a valid estimate of our points of strength and weakness, and of the place we are entitled to among the centuries. As we have to be thus passed in review, constantly and unrelentingly, that a true judgment may be formed of our influence and effect on human progress, is it not wise to sit in review upon ourselves at times, that we may separate upward from downward tendencies and redirect where necessary our lines of effort? This we must do if we would know the deeper currents which are sweeping society along through ceaseless changes, and whether or not we are shaping them, so far as we can, to the amelioration of mankind.

And I put the question-what is this age and time accomplishing in the domain of law-because I believe it is now most opportune. As I look out over that domain I am impressed with the fact that there is a lack in some parts of it of those elements which are necessary to great results, and that consequently there is no sufficient response to the high spirit of intellectual conquest and advance so prevalent in other departments of human thought and effort. This is certainly of deep concern to us as a body of lawyers, if it be true. It raises a question of responsibility; it reflects

upon our capacity; and both of these are sensitive points. It is urgent then to determine whether those elements are lacking, and if they are, what demand of duty is made upon us to recover lost ground and secure the future.

When we use the term law we speak of something which may be looked at from different standpoints. It is not necessary, for the present purpose, to involve myself in the difficult task of definition with a view to philosophical completeness of statement. There is a plain way of dealing with the matter which is quite sufficient here. It is this. A certain amount of control is necessary to the existence of society and the proper ordering of the relations of the individuals composing it. Law is one of the forms of this control. From the point of view of its operation, it is a distinct function of the body social, with a sphere of its own to work in and set purposes. From the point of view of its structure, it is a vast body of rules, each of which, speaking generally, is a statement of some right or duty. Courts of justice and procedure are the machinery through which it carries on its corrective or coercive operations. As society advances and its conditions change and multiply, law is, slowly or quickly, adapted to the new conditions, and thus it changes and grows. Briefly, then, law is a necessary agent in social life and progress; it is a system of rules to which obedience is demanded; it is plastic and changeful; and it does its corrective work through certain machinery. This is not a very scientific statement, but it is explanatory enough to set before you the conception which underlies what I have to say.

It is a current phrase of legal literature that law is a science. It would be truer to say that the special methods of science may be applied to bodies of law to obtain the results which it is the aim of all science to seek out and state. But that is only one phase of it; that which may be termed its scientific phase. There is another side to it, practical rather than abstract. Each rule of law is the expression of some required particular of conduct which society, in its collective capacity, deems expedient or right. It is in some form or other, either deliberately at a stroke, or by piecemeal, formulated by official representatives of the community. The machinery for its enforcement is the device of human effort and skill, consciously applied in the main after the age of civilization is reached. At these points-the method of its expression and promulgation, and the administration of it as the affairs of men require its interposition-law comes in direct contact with human effort, in such fashion as to be really a practical art; and this may be termed its practical phase. The distinction between these two aspects-the scientific and the practical-is a wide and deep one, and as omnipresent as the subjects which it concerns. It conveniently divides the subject in hand, for we may consider in their order the quality of our achievements in legal science and in the practical art, confining ourselves strictly to the work which has been accomplished and the conditions which exist, in this country and England. To pursue the subject in its entire extent is quite beyond the possible scope of such an address as this.

I said at the outstart that the scientific work of this century was of a transcendent order. There is no period in the past to compare with it. The light of true science never shone more splendidly or over so wide an area. It has diffused life and energy over almost every, if not every field of possible inquiry. The physical world has been a hive of busy and searching investigators. The human mind and spirit, veiled as it is, and at the best communicative only to the few of supreme insight, has revealed many of its deepest secrets. Society so long disguised by so-called history, appears now as an organism with its analogies to other

organisms, and with sequence enough among the facts of its cohesion and movement to disclose the indelible laws of its being. And in law the same method and spirit of inquiry has laid the foundatious and raised imposing parts of the superstructure of a legal science on enduring lines. In proof of this last statement let us glance quickly over the surface of what has been done.

Bentham's labors are the starting point of the modern treatment of law on a scientific plan. Though born in the middle of the last century, his work overlapped well into this century and much of it was done right on its threshold, so that we may claim him as belonging to it. His labors were immense and so varied that I should shrink from the effort of condensing them if that were necessary. He drew the fundamental distinction between the science of jurisprudence, or positive law, and the science of legislation, assigning to the former as its subject-matter, the law as it is; and to the latter the law as it ought to be. He brought into clear view the characteristics of each of these sciences. Through him we see that the problem of the jurist is to determine the fundamental facts and conditions with which a legal system has to deal, including the relations which it acts upon, and to analyze and classify them; whilst the problem of the legislator is to ascertain from prevailing social conditions and the immutable laws of human nature, what is necessary in the way of legal control to promote the well-being and amelioration of humanity. The work he did in each of these sciences was in the highest degree creative. In jurisprudence it extended to the analysis of the ideas of sovereignty or the State; of government, and of law; and there is scarcely a topic of controlling importance contained within any of these subjects that he did not touch with his piercing logic and set in order. But legislation was the main field of his inquiries, and to that science he rendered the chief service. He applied himself to the ascertainment of a universal test to which all laws must conform to be approved, and his famous principle of the "Greatest Happiness of the Greatest Number" embodied his conclusion as to the final aim of all law. So as laws act upon human beings, who think and feel, some theory of man's mental and moral constitution is essential as a basis of legislation. That Bentham saw, and such a theory he constructed. Not content with the exposition simply of the abstract principles of the science, he filled out his labors by drafting specimen Codes, civil, penal, and constitutional, so far as to state the subsidiary principles they should embody, and the order they should follow. He accomplished a great task. The validity of parts of his work may, without doubt, be successfully disputed; but as a whole it will continue to stand as one of the main pillars of legal science.

After Bentham came Austin, who occupied himself with the anatomy of a legal system, if I may use the expression, and placed it upon an indisputable basis. The boundaries of the domain of positive law he fixed for all time. The constituent and universal facts of a legal system-laws, rights, duties, obligations, injuries -he dissected until every quality and feature of them was plain. He formulated the true and logical principles of legal classification. We have only to turn to his lecture on the study of jurisprudence to see clearly the ground that he set out to cover. Though it is the sad fact that his strength did not enable him to carry out his plan, all that he did was the perfection of accomplishment. Indeed his labors may be summed up in the statement that he was the real architect of formal jurisprudence. The finished part of his work was so complete that those who followed him have but amplified a little here and there; the main fabric is as he left it.

in a time when as Sir Henry Maine says, "they stood before all men's sight as the alternative to forcible reprisals, and as the avenger of their victim;" but the

portance of procedure-far into civilized times has a more intricate cause. Let us see what light the history of English law throws upon it.

Until comparatively recent times, the way in which law was made and enunciated was almost entirely through the decision of cases. The notion long current that somewhere there was a body of existing law, which judges were only declaring and applying, was humourously false. The fact was, that the judges made the law in their adjudication of the cases brought before them. Each case, if it involved any thing new, became a precedent, and precedents were the repository of the law. If there were no precedent to fit a case, the decision rendered really expressed the judge's notion of what the law ought to be, though this would not, perhaps, have been explicitly admitted.

The record is completed so far as is necessary to sketch this general outline by a reference to the labors of Sir Henry Maine. His investigations are of an entirely different turn and character from those of Ben-persistence of this fact-the vast and controlling imtham and Austin. He approached legal facts and phenomena from another side-from the side of history. We have heard much in the last quarter of a century of the comparative method, and the rich stores its employment has added to our knowledge of religions, languages, and institutions. The distinction of Sir Henry Maine is that he has applied that method with true genius to the explanation of legal ideas and facts, their origin and history. The law of to-day is the law of yesterday modified by changed social conditions, and so it is backwards to the beginning. This is true of all peoples and societies. Obviously then a comparison of the legal experiences of different peoples in different stages of civilization will disclose the similarities and variations which exist with their underlying causes, and they are the bases of all scientific induction. This line of inquiry, which is but an extension of the comparative method, Sir Henry Maine has pursued far and wide, and with such success that the main streams of legal evolution have been ascertained, and their relations with the connected phenomena and conditions of society estab lished. In fact, the results of these inquiries reach beyond this, for their significance and extent has constituted them a material part of the evidence which has been accumulating, that civilization is an unfolding process, with a natural and ascertainable sequence among its various steps.

With these investigators of the highest order of capacity, originality and insight, I might put others, perhaps not so eminent, still able and effective, notably our own Oliver Wendell Holmes, Jr., who rauks, if not with them, yet so close to them that he is virtually their peer; but I must not linger. A statement of the present state of the science with sufficient detail to make it a fair reflection is far beyond my present undertaking. I have sought only to indicate the outlines of the chief work that has been done; the work upon which the verdict of the future will be founded. Of the tenor of that verdict there can be no doubt. An adequate conception of a true legal science has been attained, and its foundations laid deep and strong. These achievements need shrink from no comparison. They are a crowning triumph of this age and time, and they place it in an indisputable supremacy.

I turn now to review the situation as it is, in what I have termed the practical department, and to ascertain if in that direction we have manifested power, skill and a sensitive intelligence. This we can best do by fixing upon the standard which should be the measure of our possible attainment, and holding up to it the actual condition of affairs. If we can determine what are the prevailing tendencies of a deep and controlling nature in the making and administration of law, this standard must be the conditions which would exist if those tendencies were fully realized, and the changes and readjustments they involve completely made. Our main inquiry then is to seek out these tendencies and the readjustments naturally incident to them.

One of the interesting facts brought to light by the investigations of Sir Henry Maine is that in the infancy of society courts of justice and legal proceedings are the pivots on which all there is of law turns. The first subject dealt with in the Decemviral Tables-the earliest body of written Roman law-is the first steps in a judicial proceeding, and the same is true of the earliest bodies of Teutonic, Celtic, and Hindoo written law. The prominence thus given to courts, and the proceedings which went on in them, was natural

Such a decision, no matter what the guise adopted, was in fact the creation of a new rule of law, and the accumulation of such decisions was the process by which by far the greater part of both the common law and equity law was brought into existence. This fact, simple as it is, has had a potent influence in many directions on English law. One of its consequences touches deeply the subject we are upon.

When judges made the law through the medium of cases, naturally judicial proceedings drew to themselves paramount consideration. They had a dramatic interest and effect aside from any distinct consciousness of their share in the actual process of law-making. They occupied a large place in the prevailing conception of law and justice. They were the sole means of ascertaining what the law was, and of declaring the rights of parties. Rights and duties were only dimly conceived of as having an independence of them, or any possible existence without them. Inevitably the human mind, prone as it is to be drawn to what it sees going on before it in a concrete form, exalted the office and importance of procedure. So in early times it was placed first in the Codes of written law, aud down to far later times it was still the centre and object of legal attention and skill. To this fact is in large part due the common-law system of pleading and procedure; a system founded on the idea that procedure was a matter of essence and the guardian of justice. So also to it was due in no small measure the long and despotic rule of the common-law Forms of Action, Debt, Trespass, and the like, the requirements of which an injury had to fit or go unredressed. Thus we see the conditions in which originated the immense ascendency of procedure, and which were necessary to its maintenance.

Let us now advance a step. With the rise of the chancellors' court, a new influence was set in motion in English law. After passing a certain point of development the common law gradually became rigid and unyielding to the needs and conceptions of an advancing civilization. Its restricted forms of action and its exclusive remedy of damages stood as a barrier obstructing the movement and expansion of society, until a new channel of legal communication was opened up. This new channel was equity. By the side of the old law and the old courts there grew a body of new law administered by a different set of courts. The new law at many points supplemented the old; at others it superseded it; it was pliant, expansive, copious; and it asserted itself with immense activity. It introduced a new principle of legal growth. How luxuriant that growth was whilst Equity was in its vigor any one may see by looking

over the titles of Mr. Pomeroy's great work on Equity Jurisprudence recently published.

The era of equity was still an era of judge-made law; but there were new elements in play, which wrought decisive changes. For instance, procedure was liberalized; pleadings came into vogue which were free and natural, instead of strained and technical; practice was moulded to the changing necessities of a litigation; and above all, remedies were adapted to the emergencies of each case. These were all points of advantage of the new system over the old, altogether apart from any difference in the intrinsic quality of equity as compared with the common law. They have a deep significance, for evidently there were influences at work drawing the legal mind toward a more truly proportioned appreciation of the office of procedure, and setting out in clearer distinction the rights and duties which it is the object, of law to define and guard, and the mere machinery of their enforcement.

It would be a difficult task to give a complete explanation of these tendencies of Equity; but the main fact in any such explanation may be readily seized upon. We know it to be an indisputable fact that equity openly avowed its aim and purpose of equity to supplement and supersede the common law in the advancement of a higher conception of justice and right. It distinctly asserted the superiority of its rules and principles, and constantly enlarged its sphere of action on the strength of this claim. Thus it was the source not only of new law; but of new law of an explicitly recognized higher type. This high claim of equity must have impressed itself upon the legal mind, and led it by degrees to the direct contemplation of legal rights and duties in their relations to their real grounds, dissociated from every thing else. It fixed attention upon them, and tended to emphasize them as the main consideration. In other words, whilst the tendency in the common-law era was to lay stress on the legal action, its essentials and requirements, the tendency in the equity era was more and more to lay stress on the rights and duties of parties, their essentials and requirements; and the moment this latter tendency set in, procedure dwindled in importance.

Equity had its time of robust energy and expansion, and then it waned. In making for the liberation of the idea of rights and duties from a false identification with the machinery for their enforcement, it laid an axe at its own roots. This liberation was immensely accelerated if not completed by the analysis of Bentham and Austin. The effect of it, united with the ripening ideas of popular government, was to start gradually into systematic operation a law-making power, more efficient because more direct and comprehensive in its action. This was legislation. Long intermittent only in its law-making, it was by degrees stimulated by a number of co-operating causes, to take upon itself this most legitimate of its functions, until finally it has assumed it to the practical exclusion of all other agencies. Judges have ceased to make law, with rare exceptions; as they often tell us, and sometimes inconveniently, their sole duty is to declare it. The well-spring of equity is dry. Legislation has taken their place, and it is a vast engine of unlimited and unrestrained capacity. In this fact we have the deepest and most far-reaching legal tendency at the present time. It overshadows all others; it is the dominant influence; conformity to it, with all the readjustments that it involves is the necessary requirement, if there is to be harmony and order in the coexistent legal system. It witnesses in full play the separation of the conception of legal rights and duties from the fact of procedure; the essence from the machinery; substantive law from adjective law. It responds to the behests of reason by authentically

stating the rules of human right and duty in a rational and coherent form. And observe how the revolutions of time have reversed the order of things and the legal action with its connected apparatus, which stood at the front in the infancy of society, is now simply an adjunct. It is a sweeping change; but it has been gradual and unbroken, and its incidents are imbedded in the history of English law. The last and most significant phases of it are still quite recent, and it remains for us to see whether the readjustments which should follow them are yet made, in whole or in part, or their necessity even realized.

The question arises, what are those readjustments? I say firstly, the utmost simplification of procedure, and secondly, the re-expression of the entire body of the law to secure unity of form and a fair maintenance of that unity. Enough has been said about the tendency of procedure to simplicity and naturalness, and surely no argument is necessary in favor of the desirableness of zealously conforming to it and carrying it into execution. But the other need-that of the re-statement of the law in statutory form-is in grave controversy and the battle is not yet decided. It is the old struggle between innovation and conservatism, always more a matter of temperament than logic. The ordinary arguments on both sides are wellthreshed straw, and it would be vain to once more set them up against each other. If any new light is to be shed on the subject that is to win both feeling aud conviction to the same side, it must be from an altered point of view. We know that the victory will eventually be with the right reason of the matter, but it may be long and injuriously deferred. Can we not lift ourselves out of the clouds of disputation and search for this right reason of the matter, with the single desire to find it? If we were to do this there would soon be but one persuasion one way or the other. Assuming that attitude we should face these questions: Is it reasonable to have one large section of the law scattered through thousands of volumes of reports, so that it has to be gathered from them by a difficult and laborious process of sifting relevant from irrelevant facts, and actual grounds of decision, which are evidence of the law from general disquisitions, which are not? Is it reasonable that one part of the law should be in that shape, and the remaining part supplementing and modifying the other in the form of detached statutes, incomplete in themselves by reason of being supplementary or amendatory? Is it reasonable that law which affects every member of society should be largely inaccessible because nowhere authentically stated in the form of rules? Is it consistent with the spirit of an era of legislation to resist its extension to the improvement of the form of that part of the law which has to be constantly detached from the confusion of decided cases? Does not the right reason of the matter stand out quite clearly if this is a correct statement of the points of dispute? Is it not that every part of the law should be authoritatively expressed in the form of definite rules, and the whole arranged in a system according to the most logical principles of legal classification? If the present unstatutory part of the common and equity law did as a result lose its elasticity that is no defect when legislation is the process of law-making in vogue. When judges were making the law through actual decisions, restricted to particular facts, and thus unfitted for the enunciation of general principles, it would have been highly disastrous to encrust the rulings of those decisions at any time in an inflexible form. It was necessary when those conditions existed that these rulings should be nnconfined and elastic, for they were but the germs and seeds in which lay all the possibilities of legal growth. But now that the law no longer grows in that way, or from such germs, and that all of

it which has so grown in the past is fixed and stationary, this elasticity is of far less importance than the definiteness and precision which would be attained by a re-statement of the entire mass of judge-made law in the form of rules. There is really no room for controversy if the true conditions of the problem were resolutely forced and all irrelevaucies excluded. With these essentials to the perfecting of the law as a practical art before us, I ask again the question I put at the outstart. What is the measure of our achieve

LANDLORD'S SHARE OF GROWING CROPS
CANNOT BE SOLD ON EXECUTION.

PENNSYLVANIA SUPREME COURT, MAY 25, 1883.

LONG V. SEAVERS.

A sale upon an execution against a landlord of a farm let on shares of his share of growing grain does not pass his title to it as against a subsequent purchaser of the land. CTION to recover the value of certain wheat.

ment? Let us glance first at procedure. The ideal A

would be on the lines laid down, a brief precedure act delineating the main features of the various legal proceedings, leaving the details to be supplied in rules of practice drawn up by the judges. Amongst these rules should be one to be sacredly observed to the effect that every error or mistake as to matters of practice covered by rules should be disregarded if no injustice were done. On this plan the essentials of procedure would be matters of strict rule, and the details invariably under control and unobstructive. If this be a true ideal I leave it to you whether we are making toward it, or even an intelligent perception of it. Our own code of procedure laying hold of every detail of practice and thus making its observance absolute, is direct evidence to the contrary. It has erected procedure into a vast and complicated system which has to be traversed without serious deviation to reach the seat of justice. It entirely lacks the flexibility which rules would have and which must pervade procedure if it is not to be an unwarranted and illogical obstruction. The condition of things which prevails in other States may be subjected to the same or equally valid criticism on other grounds. Nowhere in this country that I know of, is there a consistent effort being made to mould the existing system of practice to the true theory of the office of procedure. England alone, so far as my knowledge extends, has seen the true course and taken steps to follow it.

Glancing now at the form in which the law is expressed, the view is blacker still. The ideal on the same lines would be a complete codification of the law with periodical revision by experts to incorporate the new with the old. The original codification should be on a plan radical enough to permit of whatever changes of substance are necessary to bring the body of the law into correspondence with existing ideas, needs and conditions. On the other hand, subsequent revisions when required should be revisions pure and simple, reaching only to matters of form, and securing order, arrangement and clearness. In this way the voice of the Legislature, as to what the law should be would always be supreme and revision would do away with the defects of form in legislation incident to its conduct by a mixed body. Judged by any such ideal it is chaos which exists. Our system of law is a wilderness enshrouded in the darkest of night. Case law and statute law stand together unblended and in the greatest confusion. It has neither plan nor coherency in any part of it. The keenest eye is not sure of its way. Is it a surprise that justice often misses her mark and brings reproach upon herself? Her mission will always be in complicated conditions of society an intricate one, but now it is unnecessarily so and the sum of human suffering is thereby increased. We cannot shift the responsibility for this from our shoulders, and I have done the task I set myself if I have seriously raised a question of duty and in however slight a degree enlisted conscience in the work of reform.

The

facts were these: One Cyrus Allison owned a farm which he leased on shares to his son. One Meales, who held a judgment against said Cyrus Allison, issued an execution thereon, under which a levy was made upon wheat growing upon the farm, and the interest therein of Cyrus Allison was sold to the plaintiff below, Jacob Seavers. Thereafter under an execution upon another judgment the farm was sold to one Long. The grain was harvested by the tenant and delivered to defendant below, Ira L. Long, and other persons. This action was brought to recover the value of the wheat delivered. A verdict was rendered for the plaintiff below, and defendants took a writ of error to review the judgment thereon.

John Hayes, for plaintiffs in error.

J. A. C. McCune, for defendant in error.

GREEN, J. It is true that grain growing in the ground is personal property, and may be seized and sold upon execution. Hershey v. Metzgar, 9 Norr. 218. But that proposition in its generality relates to the interest in the grain of the person in possession. Where land is leased by the owner to a tenant upon shares, the landlord is entitled to his share of the grain when it is harvested. Lamberton v. Stouffer, 5 P. F. Smith, 284. Before that the landlord cannot enter upon the laud demised to take his share, or do any other act inconsistent with the tenant's right of possession. Under the act of June 16, 1836 (Hurd. 663, pl. 149), it is undoubted that the purchaser of the landlord's title under execution against him is entitled to the rent falling due after the acknowledgment of the sheriff's deed whether it is payable in money or grain. Where however there has been a severance of the landlord's share of the grain before the sheriff's sale of the land, that share does not pass by the sale. All this was ruled in Hershey v. Metzyar, supra. The test is the severance. In Hershey v. Metzgar there was a levy under a fi. fa. upon the owner's interest in his growing grain, and he elected to take the grain under the exemption law, and it was appraised and set apart to him, with the knowledge and without the objection of the plaintiffs in the judgment, who subsequently purchased the land. This was held to be a severance. In Fullerton v. Shauffer, 2 Jones, 220, it was held that when by the terms of the lease the tenant was to retain the rent, and apply it to the payment of a debt of the lessor for which the tenant was surety, this was such an appropriation of the rent in advance, that no rent was due after the subsequent sheriff's sale of the land, and hence none passed to the purchaser. In the present case the question is whether a sale upon a fi. fa. of the landlord's share of the growing grain before actual severance, works of itself such a severance as passes his title to it, as against a subsequent purchaser of the land. If the share were a subject of levy and sale upon a fi. fa., of course this result would be accomplished. But we think it is not. The landlord has no title to his share of the grain until it has been harvested. Lamberton v. Stouffer, supra. The whole of the grain while it is growing belongs to the tenant, and he must deliver to the landlord his share of it after severance. This of course is in the absence of special

« ForrigeFortsett »