King v. Bosserman

• Decision Date: 23 April 1900
• Docket Number: 5-1900
• Citation: 13 Pa.Super. 480
• Parties: King v. Bosserman
• Court: Pennsylvania Superior Court

13 Pa.Super. 480

King v. Bosserman

No. 5-1900

Superior Court of Pennsylvania

April 23, 1900

Argued March 12, 1900

Appeal by plaintiff in a suit of Hamilton W. King, assignee of A. B Kauffman, against Lewis Bosserman from judgment of C.P. Adams County-1899, No. 4, in favor of defendant on case stated.

Case stated. Before Swope, P. J.

It appears from the case stated that a farm of Aaron B. Kauffman was sold under execution on October 15, 1896 to Lewis Bosserman, the defendant, and a sheriff's deed therefor duly executed and delivered on October 19, 1896. The farm was leased to one Humpert who remained on the farm after the sale until April 1, 1897, under a lease from Kauffman. On September 2, 1896, Kauffman made an assignment for the benefit of creditors to the plaintiff. The rent reserved for the farm was one half of all the crops raised thereon. There was no definite time fixed for the payment of rent. Previous to the sale and delivery of the sheriff's deed, of the crop grown on the farm there were 1,585 bushels of corn on the ear, which had been severed, husked, garnered and set apart, one half of which, 792 bushels being set apart in the landlord's crib and one half or 792 bushels in the tenant's crib, and the balance of 930 bushels, was on the shock in the field, unhusked, not garnered and none of the same set apart as the landlord's share. The value of the corn at the time of the acknowledgment of the sheriff's deed was $ 87.12. On the day of the sheriff's sale, there was of the crop grown on the farm 400 bushels of oats in the sheaves in the mow of the barn, unthreshed and not divided or separated. The value of the said oats was eighteen cents a bushel.

If the court were of opinion that plaintiff was entitled to receive one half of all the corn and oats, divided and undivided at the date of the delivery of the deed, then verdict and judgment for plaintiff for $ 174.27 with interest; or if the court be of opinion that plaintiff was only entitled to the amount of the corn that was harvested and divided at the date of delivery of the deed, then verdict and judgment for plaintiff for $ 87.12, with interest.

The court entered judgment for plaintiff for $ 87.12 with costs of the action; costs on the case stated to be paid by plaintiff. Plaintiff appealed.

Errors assigned were in not having held that the deed of assignment by Kauffman created a legal severance of the growing crops so as to vest the landlord's title in the same on the leased premises in the assignee of the landlord and that the same could not pass in any event to a sheriff's vendee of the land at a sale subsequent to the assignment -- the legal severance. In not having held that the crops having been as a fact severed prior to a sheriff's sale of the land passed to the landlord's assignee and not to the sheriff's vendee under a deed acknowledged after such severance. In ruling that such crops as were severed prior to a sheriff's sale of the land but threshed and divided by the tenant of the landlord after the sale under a lease payable in kind passed the landlord's share of the same to the sheriff's vendee, and that the said crops did not vest in the assignee of the landlord. In entering judgment on case stated for plaintiff for $ 87.12 and in not having entered judgment on the case stated in favor of the plaintiff for $ 174.27.

Affirmed.

Wm McClean with him Wm. Arch. McClean, for appellant. -- Where 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: Long v. Seavers, 103 Pa. 517; Hershey v. Metzgar, 90 Pa. 218; Loose v. Scharff, 6 Pa.Super. Ct., 155.

Donald P. McPherson, with him John B. McPherson, for appellee. -- By the terms of the lease, no time being fixed for the payment of the rent it therefore did not accrue or become payable until the end of the term, April 1, 1897: Boyd v. McCombs, 4 Pa. 146.

The facts in Holtsman v. Loudensleyer, 1 Pearson, 241, are identical with this case and the reasoning of the learned judge is so irresistible that we would ask the court to give it due weight.

Before Rice, P. J., Beaver, Orlady, W. W. Porter, and W. D. Porter, JJ.

OPINION

WILLIAM W. PORTER, J.

The question here is: Did the sheriff's vendee of the real estate take the landlord's share of the crops severed from the land, but not set apart or divided by the tenant, under a lease in which no time was fixed for the payment of the rent and of which the term expired subsequently to the delivery of the sheriff's deed? The court below answered the question in the affirmative and rightly.

The lease before us does not indicate in terms when the rent should be paid. As there was no covenant to pay at any particular time, the end of the year is the period which the law assigns for the annual reditus to the landlord: Boyd v. McCombs, 4 Pa. 146; Menough's Appeal, 5 W. & S 432. The sheriff's deed was...