Hershey v. Metzgar

• Decision Date: 26 May 1879
• Citation: 90 Pa. 217
• Parties: Hershey <I>et al. versus</I> Metzgar and Krug.
• Court: Pennsylvania Supreme Court

Page 217

90 Pa. 217

Hershey et al. versus Metzgar and Krug.

Supreme Court of Pennsylvania.

May 8, 1879.

May 26, 1879.

May 8th 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, WOODWARD, TRUNKEY and STERRETT, JJ.

Error to the Court of Common Pleas of York county: Of May Term 1879, No. 114 W. C. Chapman, for plaintiffs in error.

Blackford & Stewart and Cochran & Hay, for defendants in error.

Mr. Justice TRUNKEY delivered the opinion of the court, May 26th 1879.

Growing grain is personal property, and may be seized and sold in satisfaction of an execution, though there be an older judgment which is a lien on the land; for land is bound from the entry of a judgment; personalty, only from delivery of the execution to the officer. Where grain growing in the ground had been sold on an execution against the debtor, before sale of the land upon a venditioni exponas, it was decided that severance was implied, and that the grain did not pass with the land: Stambaugh v. Yeates, 2 Rawle 161. A mortgagor assigned all his property for the benefit of his creditors; it was held that the growing grain passed to the assignees, and not to the purchaser at sheriff's sale of the land sold by virtue of the levari facias, because the assignment amounted to a severance: Myers v. White, 1 Rawle 353. In Bittinger v. Baker, 5 Casey 66, LOWRIE, J., places Stambaugh v. Yeates and Myers v. White with erroneous cases, "continually tending to mislead the bar and bench." Notwithstanding his dictum, the principle decided in them remains unshaken, and was recognised as sound, and distinguished from Sallade v. James, 6 Barr 144, in Bear v. Bitzer, 4 Harris 175. The latter case rules that a purchaser of land at sheriff's sale is entitled to the growing grain thereon, which had not been severed before the sale. There the owner of the land which was sold owned the crop, and there had been no act of separation. The test is, whether there has been a severance of the growing grain; if so, it does not pass to him who purchases the land subsequent to the severance; if not, it goes with the land.

Metzgar and Krug, in 1870, conveyed a farm to Forrey, and took judgment for part of the purchase-money. In 1874 they issued a fieri facias upon which the sheriff "proceeded to levy the personal and real estate." Forrey claimed the exemption under the Act of 9th April 1849, and appraisement of the personal property he selected was duly made in presence of one of the plaintiffs. The...