The opinion of the Court was delivered by
Sergeant, J.It appears that the plaintiff Wilkins contracted with Vashbinder to purchase his land on the 8th of October 1835, the deed to be made and possession delivered on the 8th of April *3791836. In the fall of 1835 the defendant employed Howard to sow part of the land on shares with rye and wheat. On the 8th of April 1836 the defendant made a deed and delivered possession to the plaintiff according to the contract, there being no reservation contained in the deed or made at the time of its execution, on the part of the defendant, of a right to the growing grain. In the summer of 1836, Vashbinder and Howard entered on the land and cut and carried away the grain sown and growing, and the plaintiff instituted a replevin against them.
This state of the facts raises the question, who is entitled to grain growing on the land at the time of a sale and conveyance of the land, where there is no reservation or agreement in respect to it: a question which has, of late years, more than once occurred in this court, and in relation to which its opinion has varied. In Smith v. Johnston, 1 Penns. Rep. 471, it was decided, that by a sale, conveyance and delivery of possession of land, the grain growing thereon does not pass to to the- vendee. In the case, however, of the Bank of Pennsylvania v. Wise, 3 Watts 394, the point incidentally arose, and was carefully considered by the court: and they came to the conclusion which is expressed in the opinion declared by Mr Justice Kennedy, that where the owner in fee, after having sown the land and before severance of the crop, conveys or devises the land, the emblements, that is the corn growing on the land at the time of the conveyance or the death of the testator, will pass with the lands to the grantee or devisee. In support of this opinion, various authorities are referred to, showing it to have been long since repeatedly settled as the legal principle on the subject. In this opinion we all, on mature consideration of the point, concur, and are satisfied that the case of Smith v. Johnston, 1 Penns. Rep. 471, was erroneously decided.
The right therefore of the defendant Vashbinder in the grain sown (for as to Howard, the cropper, a non pros, was entered by the plaintiff) passed by his deed to the plaintiff; and the question submitted to the jury by the court below, whether the defendant at the time of the contract agreed not to sow the fields, and afterwards violated his agreement by causing the grain to be sown, was immaterial, because without such agreement the plaintiff by virtue of his deed and possession acquired the right t.o the grain sown.
On the other hand, the deed being absolute and without any reservation of the grain by the defendant, the circumstances that the persons who put in the grain under the defendant on shares had repaired the fences around the grain without objection or notice from the plaintiff that he intended to claim it, and that notice had been sent by the plaintiff’s father, who lived with him on the premises, to come and put up the fences to keep the grain from being destroyed, would not be sufficient to divest the plaintiff of his property in the grain.
Judgment reversed, and a venire facias de novo awarded.