When the buckwheat in controversy in this action was sown and harvested, the plaintiff was not in the actual possession of the premises upon which it was grown, but the farm was in the actual possession of her tenants, claiming under a lease for five years from the 13th day of January, 1869, at a rent of $896, payable annually, with a privilege for the tenants to purchase for $12,800, upon terms specially stated in the lease. The evidence tended to show that default was made in the payment of the annual rent due on the 13th day of January, 1870, and some time thereafter the plaintiff commenced an action of ejectment against her tenants, which was contested and resulted in her favor, and on the 23d of September, 1870, she was put in possession of the premises by the sheriff of the county of Chenango. The record in the ejectment suits does not show the exact time the action was commenced, nor that it was brought for the non-payment of rent. The complaint in that action was very general, and averred that the plaintiff then was, and for ten years last past had been, the owner of the premises in fee simple, and that the defendants, Tripp and others, were wrongfully in the possession thereof, and wrongfully withhold the possession thereof and refuse to surrender the same to the plaintiff. The answers denied the complaint and alleged that they were lawfully in possession of the premises under a lease from the plaintiff, with the privilege of purchasing, the terms of which, as they alleged, had been fully kept and performed. The trial, as before stated, resulted in favor of the plaintiff, and she was put into possession by due process of law. When the buckwheat was taken, in the present action, it had been harvested and threshed, and a portion of it, as appears by the evidence, to have been removed on the day the sheriff executed the writ of possession in favor of the plaintiff and the residue on the day following. For the purpose of presenting the principal question which I propose in the first place to discuss, it is sufficient to say, that the learned justice before whom the case was tried at the Circuit, at the close of the evidence decided, that according to the *Page 423 record in the ejectment suit, the lease was forfeited before the defendant went upon the farm and sowed the buckwheat, and also shows that the plaintiff was entitled to the products raised upon the farm during the spring and summer of 1870, and so instructed the jury, under the exception of the defendant.
I think it entirely accurate to say, that the judgment record in the ejectment suit, upon which the plaintiff's right was wholly made to depend, shows no such fact as was announced by the learned judge in disposing of the case at the Circuit, and does not show any other reason for the recovery than that the legal title was in the plaintiff when the suit was commenced, and that the defendants were wrongfully in possession, and it may be added that there is no evidence connecting the judgment in ejectment with any default in the payment of rent, except the proof that the rent was not paid and that the plaintiff went into possession for the non-payment, when the documentary evidence shows that she went in by virtue of legal process upon a judgment which does not declare whether it was recovered on account of default in the non-payment or otherwise. It seems to have been assumed that the recovery in ejectment was had for the non-payment of the annual rent reserved by the lease, which became due on the 13th of January, 1870, and for the present, I shall consider the case upon that assumption. During the pendency of the ejectment suit, and during the summer of 1870, the defendant, by permission of the tenants in possession and as subtenant, sowed and harvested the buckwheat in controversy.
In order to solve the present question it is necessary to consider the respective rights of landlord and tenant in respect to what the law terms emblements, or the profits of a crop, which the tenant has sown or planted, and the doctrine is somewhat ancient in its origin and was borrowed from the feudal law (2 Bl. Com., 123), and it is perhaps now sufficiently well settled that, to entitle a tenant or his executors to emblements, the estate or interest which he has must be uncertain in duration, *Page 424 for if he knows before he plants his crop that his estate or interest will terminate before it can be gathered, his successor will take it. (1 Washb. on Real Prop., 103.) The principle upon which the law giving emblements is founded, is that the tenant should be encouraged to cultivate by being reasonably sure of receiving the fruits of his labor, but the tenant was entitled to that species of product only which grows by the industry and manurance of man, and to one crop only of that product; but the rule does not extend so far as to give the tenant all the fruits of his labor, for in such case the right might be extended to things of a more permanent nature, as trees, or to more crops than one, for the cultivator of the soil very often looks for a compensation for his capital and labor in the produce of successive years. (Graves v. Weed, 5 Barn. Adol., 105.) In 1 Coke upon Littleton, by Thomas (p. 736), Littleton says (§ 68): "If the lessee soweth the land, and the lessor, after it is sown, and before the corn is ripe, puts 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 reversion, shall have the corn, because the lessee knew the certainty of his term and when it would end." Lord COKE, in his commentary on the passage above quoted, says: "The reason of this is 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 profits; 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, ash, elms, etc., or sow the ground with acorns, etc., then the lessor may put him out, notwithstanding, because they will yield no present *Page 425 annual profit." But the learned commentator also adds: "If the lessee, at will, sow the ground with corn, etc., and after he, himself, determine his will, and refuseth to occupy the ground, in that case the lessor shall have the corn, because he looseth his rent. * * * But when the estate of the lessee being uncertain is defeasible, by right paramount, or if the lease determine by act of the lessee, as by forfeiture, condition, etc., then he that hath the right paramount, or that entereth for any forfeiture, etc., shall have the corn."
These general principles of the law of emblements have, so far as I have discovered, been adopted by the courts of this country, and appear to be quite conclusive in favor of the title of the defendant to the buckwheat, unless an exception is to be made because, in this case, the lease was for a certain term of years, or unless the judgment in ejectment had the effect of transferring the title to the crop after it had been sown or harvested, from the defendant to the plaintiff.
Although, in this case, the lease was for a certain term of years, it is very apparent no objection could be made to the defendant's right to the buckwheat but for the recovery in the action of ejectment, for if no default had been made, the term would not have ended until the 13th of January, 1874. It does not appear that the defendant knew the character of the suit pending between the plaintiff and her tenant, and it is, perhaps, not material whether he did or not, but if he did he must have known that both parties claimed the right to the possession of the property when he sowed the buckwheat, and that there must be a trial of the controversy at some future day before a court and jury, and that in any aspect, the plaintiff could not recover the possession until that trial had been had and a result reached. It was not, therefore, unreasonable for him to suppose that the termination of that litigation was so uncertain as to time, and possibly as to results, that he might not only sow, but reap the crop in peace before it was determined where the possession of the premises rightfully belonged. When it is said that the law of emblements has no application to a case of tenancy for years, it means only that if it is *Page 426 apparent that the tenancy will certainly terminate before the crop can be gathered, the tenant will lose the fruits of his labor. (Whitemarsh v. Cutting, 10 J.R., 360; Bain v.Clark, id., 427.) But even in such a case the rule has been relaxed in favor of undertenants, where the tenancy of years was terminated for breach of condition committed by the first tenant. (Taylor's Landl. and Ten., § 536; Doe v. Wetherill, 3 Bing., 11; Bevans v. Brescoe, 4 H. J., 139; Oland v. Burdwick, Cro. Eliz., 46.) It appears to be very clear that the same reason exists for giving emblements to a tenant for years, as to a tenant for life (or his executor), or at will, where the estate is terminated by the happening of some uncertain event before the full end of the term, and such, so far as the defendant is concerned, is the present case.
It has been seen that the plaintiff, at the Circuit, recovered the buckwheat solely by the legal force of the judgment record in ejectment, and the decision cannot be supported upon any thing else that appears in the case. When the crop was sown and gathered, the plaintiff was not in possession of the premises, but had commenced an action against her lessees to recover it, and the action was pending, and the defendant was in the actual possession for the cultivation of the crop, under an arrangement with the defendants in the ejectment suit, who were resisting the plaintiff's claim. In this condition of things the title to the buckwheat was in the defendant, at least until the termination of the proceedings in ejectment, and could have been seized and sold by a creditor upon an execution against him.
If there had been an actual entry by the plaintiff before the crop was sown, no question in respect to the plaintiff's right could arise, and perhaps an actual entry by title paramount while the crop was growing would have terminated all the rights of the defendant. (Davis v. Eyton, 7 Bing., 154.) In the case cited the landlord re-entered for condition broken, on the eleventh of May, while crops planted by the tenant were growing, and took possession, and afterwards harvested and sold them; and upon trespass brought by the assignees of *Page 427 the tenant, who had become bankrupt, the landlord was held entitled to the crops. There can be no reasonable doubt but that after actual entry by the landlord for non-payment of rent, or other condition broken so that he is again actually vested with his former estate, that the crops then growing belong to him, and he may take and gather them. But to give in this case the effect which was given to the judgment record at the Circuit, we must hold that the actual possession given to the plaintiff by the sheriff on the 23d of September, 1870, instantly ran back to the day of the commencement of the suit, and diverted the title to all crops planted, gathered and removed in the meantime by tenants in actual possession under a claim of right, and that trespass or replevin may be maintained for them wheresoever or in whosesoever possession they may be found, and this is in fact the claim of the plaintiff; but it does not appear to be sustained by the authorities cited, nor do we think any such authority can be found in the books.
The general rule, doubtless, is, that a recovery in ejectment, as far as respects the right to mesne profits, is conclusive of the title as to the land possessed by the defendant when this action was brought. (Jackson v. Stone, 13 J.R., 447.) So a disseizor gets no title as against the true owner to property which he wrongfully severs from the freehold and carries away (Morgan v. Varick, 8 Wend., 587), and he may be pursued in trespass after the owner has regained possession of his estate. But where the entry was in the first instance lawful, as in the case of a tenant who plants and harvests an annual crop before the estate is determined by the actual re-entry of the landlord, the question as to whom the crop belongs assumes a very different aspect, and depends upon different considerations. If the crop be growing at the time of re-entry, we have seen that the landlord may gather it, and he may be entitled to grass, if cut, or to trees which have been felled; and if the re-entry be by action of ejectment, the judgment establishes his right to mesne profits from the commencement of the suit, but does not give him title to crops raised by *Page 428 annual cultivation and labor, which have been planted and gathered by a tenant in actual possession between the commencement and the termination of the suit.
But to give the record in the ejectment suit any force whatever in respect to the title to the buckwheat, it should at least show that the defendant recovered for a default in the payment of rent happening before the commencement of the suit, and this it does not show, but rather that the plaintiff recovered in repudiation of any relation of landlord and tenant, for in that action the defendants set up the lease of 1869 in defence of their possession, and averred that they had fulfilled all its conditions, and fully paid and satisfied the rent. It is therefore just as probable, so far as it is proved by the judgment record, that the pretended lease was a forgery as that there was any default in the payment of rent upon which the recovery was grounded. It cannot be that a general recovery in ejectment, after an animated controversy of many years, has such relation back to the commencement of the action that, per se, the title to all the crops raised by the defendant during the litigation is instantly changed, and that the plaintiff, being put in possession, may abandon his claim to mesne profits, and bring trespass or replevin for the crops; and, indeed, the very proposition that in such case the defendant is liable for mesneprofits is founded upon the supposition that while in possession, which although determined by the judgment to have been wrongful, he, in some form, made that possession profitable to himself. The result, so far, appears to be that if the entry for which the recovery in ejectment is had was originally wrongful, and the wrong-doer has severed and carried away property from the premises, the plaintiff, on regaining possession, may have his action, not only for the trespass, but for the property thus taken away. And in the case of landlord and tenant, if a lawful entry be made for condition broken, the landlord may have all crops standing and growing at the time he is revested with his former estate.
It has been suggested that upon the foreclosure of a mortgage, *Page 429 and a purchase by the mortgagee at the sale, he is entitled to the crops growing at the time of the sale; and that a landlord re-entering for condition broken is in the same condition as to his right to growing crops at the time of re-entry. To this we may fully assent, for we do not doubt but that crops growing at the time of an actual re-entry by a landlord belong to him. If they, prior to that time, have been severed and removed by a tenant in actual possession, a different question arises. We have seen, also, that there is a manifest distinction in this respect between the case of an entry originally lawful or the entry of a disseizor. It perhaps may be said that an actual sale on foreclosure is equivalent to an actual re-entry, but however that may be, it has been decided in this State that a mortgagee becoming the purchaser at a foreclosure sale is legally entitled to crops growing at the time as against the lessee of the mortgagor. (Lane v. King, 8 Wend., 584.)
It will be seen, however, that this doctrine proceeds upon the ground that a mortgagor has no right to make a lease, and if he made one, he was a wrong-doer. In Keech v. Hall (Doug., 21) the mortgagee brought ejectment against a tenant who claimed under a lease from the mortgagor given after the mortgage without the privity of the mortgagee, and Lord MANSFIELD, in giving judgment, said: "On full consideration, we are all clearly of the opinion that there is no inference of fraud or consent against the mortgagee to prevent him from considering the lessee of the mortgagor as a wrong-doer." And in the case of Lane v.King, Mr. Justice SUTHERLAND put the case on the ground that "the mortgagor has no power, express or implied, to let leases not subject to every circumstance of the mortgagee." It was held in McKircher v. Hawley (16 Johns., 292) that the relation subsisting between the mortgagor and mortgagee did not imply a right on the part of the mortgagor to lease, and Judge SUTHERLAND adds, in the case of Lane v. King (supra), that "the mortgagor giving a lease becomes, as to the mortgagee, a disseizor." And following the judgment of Lord *Page 430 MANSFIELD in Keech v. Hall (supra), Mr. Powell, in his elaborate treatise on mortgages (Powell on Mortgages, 213, 214, chap. 7), says that a mortgagor has no right to lease, and that the case of the lessee of a mortgagor as to emblements cannot be distinguished from that of any other tenant under a tortioustitle. It is not perceived, therefore, that the case of a mortgagee is any different in respect to the question here involved than the right of the owner of real estate unlawfully dispossessed, after he has regained possession, to maintain trespass.
In the present case the original entry by the defendants in the ejectment suit was lawful, and the defendant in the present action sowed and harvested the buckwheat by their permission during the continuance of that possession. Perhaps it may be said that as the judgment in ejectment determines this possession to have been unlawful, that no rights whatever as against the plaintiff could be acquired by them thereunder, and this is certainly plausible. But the difficulty appears to be that where the original entry was lawful, but was for some reason unlawfully continued, a recovery in ejectment has no such relation back as remits the plaintiff to his former seizin and possession, so that he can maintain an action for crops in the meantime sown, gathered and carried away. That right exists only where the original entry was unlawful. (Morgan v. Varick, 8 Wend., 590.) It can readily be conceived that an honest dispute may exist between parties, respecting the possession of land, resulting in a litigation of many years duration, and if, in the end, the plaintiff recovered the possession, I think it never has been suggested that by virtue of the recovery the plaintiff therefore became vested with the title to all the crops sown and gathered by the defendant during the litigation, so that trespass or replevin could be maintained. In such case, in ordinary actions of ejectment, the plaintiff must rely upon his remedy formesne profits, which may be supposed to represent the value of the use and occupation by the defendant and of the crops sown and gathered by him during the period of *Page 431 his unlawful possession, and this case, I think, comes within this rule. (Stockwell v. Phelps, 34 N.Y., 363.)
The case has been presented for our consideration upon the assumption that it appeared from the judgment record in the ejectment suit, that the recovery was had against the defendants therein for default in the payment of rent. It is apparent that no such fact appears upon the face of the record, and the argument entirely fails of support, and I find nothing in the case dehors the record in ejectment, which supports the plaintiff's re-entry, other than by force of a general judgment in ejectment in her favor. At common law, the landlord might re-enter for non-payment of rent, but it must be preceded by a strict demand of the rent, in the land, at the precise time at which it became payable, and at the common law this demand was necessary preparatory to bringing ejectment (Co. Litt., 201 b, 202 a), and it was for the purpose of avoiding "the many niceties which attend re-entries at common law," that the statute 4 George II, chapter 28 was passed, which was early re-enacted in this country, and continued in every subsequent revision of the laws. (2 J. V., 238, § 23; 1 K. R., 134, § 23; 1 Rev. Laws 1813, 440, § 23; 2 R.S., 505, § 30.) By these statutes, when a right of re-entry by the landlord exists, the service of a declaration in ejectment stands in the place and stead of a demand and re-entry, and to authorize the action, evidence is required that no sufficient distress could be found on the premises to satisfy the rent due. (Jackson v. Collins, 11 J.R., 1; Van Rensselaer v. Jewett, 5 Den., 121; The Same v.Hayes, 5 id., 477; Same v. Jewett, 2 N.Y., 141.) In 1846 (Laws of 1846, chap. 274), distress for rent was abolished and it was provided that if, after a notice of fifteen days, the tenant did not pay the rent, the landlord might re-enter; and it was held that this notice of fifteen days stood in the place of the evidence of a want of goods upon which to distrain. (VanRensselaer v. Snyder, 13 N.Y., 299.)
In this case there is no pretence of any re-entry at common law, and if, under the statute referred to, there is no proof of a want of goods upon which to distrain, or of the fifteen days *Page 432 notice required by the third section of the act of 1846, and there is therefore no view in which the judgment in ejectment, so far as appears from the record, can be regarded as a re-entry by the plaintiff for the non-payment of rent.
Without considering some other minor questions appearing in the case, I am of opinion that the order granting a new trial should be affirmed, and judgment absolute ordered in favor of the defendant, with costs.
For reversal: LOTT, Ch. C., GRAY and DWIGHT, CC.; for affirmance: REYNOLDS and EARL, CC.
Order reversed and judgment ordered for plaintiff on verdict.