The opinion of the court was delivered by
Kennedy, J.The charge of the court was certainly wrong. For no principle is better settled in the law, than that rent reserved upon a lease for a year dr a term of years, which is the same thing, is incident -to and accompanies the reversion; unless separated by an express reservation. Upon the death of the lessor, the reversion descends to his heirs, and they are entitled to demand and! receive the rents which shall become payable afterwards. Co. Lit. 47 a, 143 a. 3 Bac. Abr. 62, 3. Fealty is said to be inseparable from the reversion; but rent may be excepted, because as. Lord Coke, says, “although it be incident to the reversion, yet it is not inseparably incident. Co. Lit. 143 a Neither is it necessary, in order to make rent incident to the reversion, and transmissable with it to the heir, or to an assignee-of the reversion, that it should be payable in money; for says Sir Edward Coke,, “it may as well by in the delivery of hens, cap,offs,! roses, spurres, howes, shafts,. *501horses, hawkes, pepper, coniine, wheat, or other profit that lieth in render, office, attendance, and such, like, or inpayment of money. Co. Lit. 142. Fry v. Jones, 2 Rawle, 11.
It has however, been contended here, by the counsel for the defendant. in error, that under the terms and conditions, upon which he held the farm of Clark, that the land belonged to Clark at tho time the grain was sown; and that as soon as the seed was committed to the ground it became the property of Clark,- and must, be considered his grain growing upon the land at the time he sold it to Johnson; and that according to the decision' of this court, in the same cause in a former writ .of error, Penn. Rep. 471, there being no express graht of the grain growing upon the land, contained in the deed of conveyance from Clark to Johnson, it must be considered as reserved by Clark-, and that Johnson acquired no right to it: The premises from which this conclusion is drawn, cannot be sustained. Although Clark continued to be the owner of the land in fee after Smith took the possession of it under the assign-men t made with him for that purpose, yet by the term's of that agreement, he parted with his right to the possession of it, as the possession itself. He parted with his right and. all claim to the products of the land while growing upon it during the continuance of Smith’s interest in the possession and use of the same under his contract with Clark, as completely, as if he had let the farm to Smith for a money rent, Clark, therefore, had no right whatever to an interest in the grain sown by Smith, and growing upon the land at the time he sold and conveyed it to Johnson. Upon this principle it was very justly and correctly held by the Supreme Court of New York in Stewart v. Daughty, 9 Johns. Rep. 108, that the purchaser ata Sheriff’s sale of the crop of grain growing upon the land which the defendant in the execution, as whose property it was taken and sold, held at the time of sowing the crop under a léase for years, Upon which he was to pay one half of all the grain raised by him on the farm in each year as his rent, delivered in the bushel, and which-lease had been terminated by the lease, before the grain had ripened and was cut, was entitled, to the whole of the crop; and that the landlord had no interest in it until it was separated'from thé ground, and his proportion of it delivered to him in conformity to the terms of the lease. And it was also held in this case, that the purchaser. of the crop at the Sheriff’s sale, might maintain trespass quart clausum fregit against the landlord himself who had expelled the plaintiff from the ground upon which the crop grew at the time he was cutting it.
The court below seemed to have, misapprehended the point or question, upon which the opinion of this court was pronounced upon a former writ of error. 1. Penn. Rep. 471 and not altogeth*502er without-some reason: for in ¡the report of- the Cause, the case as there stated, presents the same question which is now raised; but theropinion oí the court'presents an entirelyMifierent one; that is, whether a sale, conveyance and delivery df the possession of land, passed with it a right also to the crop of grain growing on the land at the time of the, grant or-conveyance, which belonged to the grantor? This Was the questioh, which was then resolved' by this pourt; and not that of whether a grant of the reversion carried with it a right to demand and receive the future accruing rents?
Judgment peyerspd anc} a venire de novg awarded.