CHAPTER VI. EMBLEMENTS. LIT. § 68. TENANT at will is, where lands or tenements are let by one man to another, to have and to hold to him at the will of the lessor, by force of which lease the lessee is in possession. In this case the lessee is called tenant at will, because he hath no certain nor sure estate, for the lessor may put him out at what time it pleaseth him. Yet if the lessee soweth the land, and the lessor, after it is sown and before the corn is ripe, put him out, yet the lessee shall have the corn, and shall have free entry, egress and regress to cut and carry away the corn, because he knew not at what time the lessor would enter upon him. Otherwise it is if tenant for years, which knoweth the end of his term, doth sow the land, and his term endeth before the corn is ripe. In this case the lessor, or he in the reversion, shall have the corn, because the lessee knew the certainty of his term, and when it would end.1 Co. LIT. 55 a, 55 b. "Yet if the lessee soweth the land, and the lessor after it is sown, &c." The reason of this is, for that the estate of the lessee is uncertain, and therefore lest the ground should be unmanured, which should be hurtful to the Commonwealth, he shall reap the crop which he sowed in peace, albeit the lessor doth determine his will before it be ripe. And so it is if he set roots, or sow hemp or flax, or any other annual profit, if after the same be planted, the lessor oust the lessee; or if the lessee dieth, yet he or his executors shall have that year's crop. But if he plant young fruit trees, or young oaks, ashes, elms, &c., or sow the ground with acorns, &c., there the lessor may put him out notwithstanding, because they will yield no present annual profit. And this is not only proper to a lessee at will, that when the lessor determines his will that the lessee shall have the corn sown, &c., but to every particular tenant that hath an estate uncertain, for that is the reason which Littleton expresseth in these words (because he hath no certain nor sure estate). And therefore if tenant for life soweth the ground and dieth, his executors shall have the corn, for that his estate was uncertain, and determined by the act of God. And the same law is of the lessee for years of tenant for life. So if a man be seised of land in the right of his wife, and soweth the ground, and he dieth, his executors shall have the corn, and if his wife die before him he shall 1 In tenancies for years the law is otherwise in Pennsylvania. Stultz v. Dickey, 5 Binn. 285 (1812). have the corn. But if husband and wife be joint-tenants of the land, and the husband soweth the ground, and the land surviveth to the wife, it is said that she shall have the corn. If tenant pur terme d'auter vie soweth the ground, and cesty que vie dieth, the lessee shall have the corn. If a man seised of lands in fee hath issue a daughter and dieth, his wife being enseint with a son, the daughter soweth the ground, the son is born, yet the daughter shall have the corn, because her estate was lawful, and defeated by the act of God, and it is good for the Commonwealth that the ground be sown. But if the lessee at will sow the ground with corn, &c., and after he himself determine his will and refuseth to occupy the ground, in that case the lessor shall have the corn, because he loseth his rent. And if a woman that holdeth land durante viduitate sua soweth the ground and taketh husband, the lessor shall have the emblements, because that the determination of her own estate grew by her own act. But where the estate of the lessee being uncertain is defeasible by a right paramount, or if the lease determine by the act of the lessee, as by forfeiture, condition, &c., there he that hath the right paramount, or that entereth for any forfeiture, &c., shall have the corn. MR. SPENCER'S CASE. COMMON PLEAS. 1622. [Reported Winch, 51.] Harvy, Serjeant, came to the bar, and demanded this question of the court, in the behalf of Mr. Spencer: A man was seised of land in fee, and sowed the land, and devised that to I. S., and before severance he died; and whether the devisee shall have the corn, or the executor of the devisor, was the question; and by HOBERT, WINCH, and HUTTON, the devisee shall have that, and not the executor of the devisor; and HARRIS said, 18 Elizabeth, Allen's Case, that it was adjudged, that where a man devised land which was sowed for life, the remainder in fee, and the devisor died, and the devisee for life also died before the severance, and it was adjudged that the executor of the tenant for life shall not have that, but he in remainder; and WINCH, Justice, said that it had been adjudged, that if a man devise land, and after sow that, and after he dies, that in this case the devisee shall have the corn, and not the executor of the devisor, nota bene.1 1 See Anon. Cro. El. 61. Hops grow old vines, beit held emblements because of cultivation. Prof. theks that LATHAM v. ATWOOD. be emblements. gralles would be feaches emblements. Prof says good case holds wild is whether froduct is due more to soil of Fail W woman, ein for life marries seif. Ifehas rene. The wife LATHAM v. ATWOOD. died just TROVER and conversion of two hundred and fifty pounds of hops. before the Upon not guilty pleaded, the case appeared to be: hawest: A woman, tenant for life, takes to husband the plaintiff, 5 Car. 1, the tops be remainder being to the defendant for his life. These hops were growlong to hus-ing out of ancient roots, being within the land in question; the wife band or rem dies the 19th August, 9 Car. 1, the hops then growing and not feld is hus severed, &c. for eachys. band, as beThe question was, Whether these hops appertained to the husband PEACOCK v. PURVIS. COMMON PLEAS. 1820. [Reported 2 Brod. & B. 362.] REPLEVIN for growing corn. Cognizances for half a year's rent, due the 12th of May, 1819. Pleas. First, non tenuit; second, a writ of fieri facias issued upon a judgment recovered by the plaintiff, in Hilary term, 1819, against W. Peacock, under which the sheriff seized the corn on the 28th April, 1819, and, having paid the landlord one year's rent, sold the corn (not saying by agreement in writing) to the plaintiff, who then became possessed of the same. There were also pleas, stating a custom for a waygoing crop. General demurrer and joinder. Hullock, Serjeant, for the defendant. D'Oyley, Serjeant, for the plaintiff. DALLAS, C. J. Though this question is not altogether new, there certainly are no decisions expressly in point. But different cases have been referred to: first, one in Willes; next, a case containing a dictum of the late Lord Chief Baron; and I shall begin by adverting to these, before I proceed to investigate the principles on which the present case must turn. In the case in Willes, the question now before us was not decided, although it was presented for the consideration of the court; because, upon the facts of that case, it became unnecessary to decide it. But it was certainly stated, that if the present question should occur, "it might have required very good consideration, it being a point of great consequence. That goods taken in execution, or even goods distrained damage feasant, are in the custody and under the protection of the law, and, therefore, cannot be distrained for rent, is expressly holden in Co. Lit. 47 a, and several other books; and we are inclined to be of this opinion." "But we think we have no occasion to enter any further into this matter, because we are all clearly of opinion, that if there had been no execution in the present case, yet the corn could not be distrained." That case, therefore, only proves the court to have thought, that this point, if presented for decision, would have required their best consideration. Gwilliam v. Barker was similar, in fact, to the present case, though the question before the court in that case is not the question here. It is admitted that a dictum is to be found in that case, in favor of the landlord's right to distrain, but that was not the point on which the decision turned; and this dictum of a moment is perhaps impaired by what follows. "I do not think the Statute applies to corn in the blade; it would be a monstrous thing to cut it in such a state." So that it seems inconsistent with the argument used to-day, and with the Statute, because by the Statute, corn in the blade may be distrained. This, therefore, being a new question, that is, a new question in judgment, and one on which no express decision can be found, we must recur to principle, in order to arrive at a decision; and, in considering the point on principle, we must look to the reason and sense of the thing. With respect to an execution on goods, the course of the sheriff is clear and easy; he seizes, makes a bill of sale, delivers the goods to the purchaser, and retires; and why does he deliver the goods? because he can deliver them, and is therefore bound to do so: that makes it necessary for us to consider the distinction between goods and growing corn. It is admitted, the law authorizes growing corn to be seized; and why? To satisfy the judgment. But the writ of fieri facias would be quite nugatory towards such a purpose, in a case like the present, if the right of the party were to cease the moment the bill of sale is executed, and if he were not allowed to wait till the corn became ripe and valuable, in order to reap the benefit of his purchase. With respect to goods, it is true, the sheriff, or the person purchasing of him, is bound to remove them within a reasonable time; but it is to the delivery that the law looks, and that must be made within a reasonable time; so here, the sheriff is bound to deliver, and in a reasonable time; but being so bound, when is it he can deliver? when the corn is ripe; and, after that period, it must not remain an unreasonable time. The question, therefore, always is, What is a reasonable time for delivery? and I fully agree with the counsel for the plaintiff, that the delivery of the crop and the satisfaction of the judgment, are the objects of the law; that not only things actually in the hands of the sheriff are in custodia legis, but that, virtually, all things taken in execution remain in such custody till the sheriff can deliver them, so as to give effect to the judgment. If there be any doubt as to this, we should refer to the Statutes respecting landlords; by those Statutes, growing corn is considered as goods; and the provisions touching a distress of such corn are, that it is to be distrained as if it were goods and chattels. I put, therefore, the same construction on this case, in favor of creditors, as obtains, under the Statutes, in favor of landlords. My opinion clashes with no authority; and being called on to decide on principle, I think, on principle, the defendant had no right to distrain. PARK, J. The question was well put by the counsel for the defendant, with the addition which was made by my Brother Burrough; and that is the fair question in this case. If the decision of the court were any other than it is to be, the effect of the law would be entirely destroyed; because, how could the law be available to execution, if those who purchased under a sheriff were not allowed to retain what they had bought? But the doctrine is not entirely new; for, though there was no direct decision on the point in the case in Willes, the language of the court there, is a pretty strong argument, to show that their opinion was against what the defendant contends for. I agree with the counsel for the plaintiff in his argument, that if the law authorizes this property to be taken under an execution, it authorizes everything which will make that execution available. Here, all was done which was requisite to render the seizure legal; the landlord had his deduction fairly allowed at the time, and the purchaser must be allowed to retain what the law has given him. BURROUGH, J. I have a high opinion of whatever proceeded from the late Chief Baron Thompson, but I do not think that which has been ascribed to him was his deliberate opinion; and the intimation of the court in Willes is an authority the other way. I am clearly of opinion that these goods were in the custody of the law. For, how does the case stand? Here is a judgment creditor, who purchases growing corn under an execution, but he has no satisfaction till the corn is carried away, and till then, he is under the protection of the law. The case of assignees and executors differs from the present: they stand only in the place of the bankrupt and testator, and there is a continuation of the same right of property; here, the property is transferred from one hand to another. Supposing we were not to decide as we have done, it would only alter the practice, and cause executions to be kept alive from term to term, it being clear that the landlord is entitled to no more than one year's rent on the execution of a fieri facias. RICHARDSON, J. I am of opinion, that crops in the hand of the sheriff's vendee are protected from distress; and this is a necessary consequence of allowing such crops to be liable to seizure. That, how |