
    Henry Houts v. Jacob Showalter.
    On a sale of real estate by a sheriff, under proceedings in partition, growing crops.of grain do not pass thereby to the purchaser.
    Error to the district court of Wayne county.
    On the 19th of April, 1855, the plaintiff in error, being the owner,, as tenant in common, of seven undivided ninth parts of a tract of land in Wayne county, filed his petition for partition.
    In the fall of the year 1855, one Rhodes, holding the land under a lease from the owners, put in a crop of wheat on the halves.
    *On the first day of February, 1856, the defendant in error, by contract in writing with the co-tenants of the plaintiff in error, became the purchaser and owner of the two undivided ninth parts of the land, and of that proportion of half of the wheat in the ground.
    On the 14th of February, 1856, by virtue of an order and other proper preliminary proceedings in the partition case, the land was-sold at public sale to the plaintiff in error. The defendant in error was present at the sale, and bid on the land.
    At the time of the sale, Rhodes, the lessee, was entitled to one-half of the wheat in the ground, and the plaintiff in error to seven-ninths of the other half, and the defendant in error to the remaining two-ninths. ' These respective rights were known to the parties-at the time of the sale.
    The sale was confirmed by the court, and a deed made under its order, to the plaintiff in error.
    Afterward, in the fall of 1856, Rhodes, the lessee, delivered, in the bushel, in the barn on the premises, one-half of the wheat, as he was bound to do.
    Thereupon the defendant in error went to the barn and got of Rhodes twenty bushels of this one-half, deposited there, being two-ninths of it, and carried the same away as his own property.
    Thereupon the plaintiff in error, claiming that, by the partition-sale, he became the owner of all the wheat except Rhodes’ share, brought an action of replevin against the defendant in error for this twenty bushels of wheat.
    The issue joined as to the title to the wheat, came to trial, in the court of common pleas of Wayne county, on appeal, at the February term, 1857.
    
      The testimony being closed, the plaintiff’s counsel requested the court to charge the jury, that the sheriff in making the sale to the plaintiff in error, under the order in the partition proceedings, stood in the stead of the parties in interest in the land and growing crop, as a vendor, and that the plaintiff in error, as purchaser at said sale, ^became the vendee of all the interest the parties in partition had in the land and growing crop.
    The court refused thus to instruct the jury, but did charge, in substance, that although as between a vendor and vendee of land at private sale, the growing crops upon the land would pass to the vendee, as part of the land, unless reserved in the deed by the vendor, or by agreement or understanding of the parties outside of the deed, and before or at the time of the sale; yet a purchaser at sheriff’s sale, under an order in partition proceedings, would not, ‘by virtue of the purchase, acquire title to the growing crops. That 'in such ease the growing crops are not appraised as part of the land, and do not j^ass with it. That the plaintiff in error did not, by his purchase at the partition sale, acquire title to the grain in controversy.
    To which refusal to charge, and to the charge given, the plaintiff in error excepted. And the verdict having been for the defendant in error, both as to the right of property and the right of possession, judgment was entered accordingly.
    To reverse this judgment the plaintiff in error‘filed his petition in error in the district court, but the judgment of the common pleas was affirmed.
    To reverse this judgment of affirmance is the object of the proceeding in this court.
    
      Jeffries & Parsons, for plaintiff in error.
    
      McSweeny & Given, for defendant in error.
   Brinkerhoef, C. I.

It has long been settled in this state, that in "the ease of ordinary sales of real estate upon execution under judgment or decree, growing crops of grain do not pass to the purchaser. Cassilly v. Rhodes, 12 Ohio, 88. And the single question arising on the record before us is, whether the same rule obtains in the case of a sale by a sheriff under proceedings in partition.

*We are urged, in the argument of this case, to review the doctrine of Cassilly v. Rhodes, on the ground that it is against the general current of authority elsewhere.

If the holding of the court in that case had no foundation on reasons derived from the peculiar policy of our own legislation in respect to judicial sales of real estate, it might readily be conceded that the ease was decided against the current of authority elsewhere, and ought to have been decided the other way. As a general rule elsewhere, real estate is sold on execution without appraisement, and for whatever sum it will bring; while, in this state, it must first be appraised, and can not be sold for less than two-thirds-of its value as appraised. The decision in Cassilly v. Rhodes, rests-on the reasons that where lands are valued for judicial sales, the-value of growing crops is not included in the estimate; and that the debtor’s rights, therefore, can bo saved only by regarding the-annual crops as personalty, requiring a separate levy. These reasons, while they can have no application where no appraisement is-required, and no minimum is fixed below which the sale shall not be made, are yet, it seems to us, just and conclusive under the peculiarities of our own legislative policy.

Where lands are valued for judicial sales, the growing crops are■ not included in the estimate; indeed, generally, they can not be. Under our system, frequent advertisements and offers for sale, and, occasionally, revaluations are necessary, before a sale can be effected. When an appraisement is made, it can not be foreseen when a sale will be effected. It is not for the interest of any party, nor for the-public interest, that the land should thenceforth lie waste; then there may have been no crop sown or planted; but when the sale-comes to be made, there may be growing crops put into the ground in the meantime. If these passed by the sale, it would be unjust to the debtor, for they could not have been valued.

It is true that in Indiana, where statutory regulations *in respect to the sale of real estate upon execution are nearly identical with our own, it has been held that growing crops do pass to the purchaser at such sale. Jones v. Thomas, 8 Blackf. 428. But that case was apparently decided solely on the authority of cases adjudged where our system of appraisements was unknown, and without any consideration of the reasons, derived from peculiar legislation on the subject, on which Cassilly v. Bhodes was decided. With those reasons we are satisfied.

Sales made in partition are subject to regulations entirely similar to those which govern sales on ordinary execution. The lands must be appraised, and can not be sold for less than two-thirds of their appraised value. And the same considerations which forbid us to hold that the growing crops pass to the purchaser in the one case, forbid it in the other.

We think there was no error in the judgment of the court below, and that it ought to be affirmed.

Judgment accordingly.

Scott, Sutliee, Peck, and G-holson, JJ., concurred.  