Opinion by
Mr. Justice Mitchell,The defendant may have a good title to one half of the land as tenant in common, but a more disorderly method of asserting it rarely comes before a court. He had a paper title by deed made in 1866, the trespass complained of took place in 1888, and there was no pretence that he had been in actual possession of the land between those dates. On the contrary the legal possession was in the Zieglers under claim of exclusive title, and the actual occupation was by plaintiff as their tenant.
Even under defendant’s claim of title, plaintiff was in lawful occupation of the whole of the land, for his lessors’ possession was per mie et per tout, though they and perhaps he might be liable to an account for plaintiff’s share of the profits. Plaintiff’s occupation of the land being lawful, his title to the crops which had been severed and become personalty, was clear and exclusive. If defendant claimed adversely as joint owner of the land, then there was no contract with him as to rent and his only right was to mesne profits, or for use and occupation, in either case an unliquidated claim that could not be enforced by summary caption of the goods. If on the other hand he claimed as landlord in affirmance of the lease from his co-tenants, then he clearly had no title to the grain, for it had not yet been divided or set apart: Burns v. Cooper, 81 Pa. 426; Ream v. Harnish, 45 Pa. 376; Long v. Seavers, 103 Pa. 517.
The question of defendant’s right of entry on the land does not affect the result. The statement is as much a narr in trespass de bonis asportatis as in quare clausum fregit, and the gravamen of the action is the carrying away of the grain. As that was without legal justification the defendants became trespassers ab initio, and the jury should have been directed to find for plaintiff.
Judgment reversed and venire de novo awarded.