
    Bevans, et ux. vs. Briscoe.
    If a tenant for before ule espira-umierVomt’, Jf®?» lands,i.ent-tied to Ihe right’’of 'in! serve, gather, and tenant foe bfe dies in posses-sinn. tho vwwsirmn sion, the reversion» er vv remainder-che occupation lani!s °.n wingv until that ,“’0|’a‘3 reafonaWe the law» the ,ame ñmi%setforyeara in'?fii'lmul'‘iteniHlt* If tenantforyeair the j>re ufi’11,0 ‘'elK|nÍT* recover the use
    A> b>'a foil of ibio,leased !hly«ü?mifanl b Knoherent"irayI able in August sigñndWtoCwfam¡ pái'u'iy c. ^in Ápni wu thHm<u wáswcíu )lfiiino)t110“.t0ma,i,i'® the remane was brought a" action against C for use &nii occupation fit»» April mi yiki- — "/¡,*/)1 ihat ^ °¿the cupred’b, c&om £afiLtotie<i wth. wi>«» growing. & liada right to enter for the purpose of securing it; and for the time the wheat was growing, and until it was taken off, he was not liable to pay for the use and occupation of the land on which it was growing. That the parol lease of H determined with his decease, and C, as his tenant, had no right to possess the demised premises, except to preserve the crop; and if he occupied them, or any part of them, for any other purpose, hewafe liable to A for the ase and occupation thereof.
    Appeal from Kent County Court. This was an action for the use and occupation of 500 acres of land called Stanley's Lot. The general issue was pleaded.
    1. The plaintiffs below, (the present appellants,) proved that the defendant had used and occupied the land, men tioned in the declaration, from April 1811 to the end the same year, and that it was the property of Ann, female plaintiff, whilst she was sole. Ihey also proved its value. The defendant then offered evidence to prove, that a certain David Lamb, the former husband of the female plaintiff, did early in the year 1810, lease the said ]and, by a parol agreement, to the defendant, for the and 1811, reserving as rent therefor one third of the corn, “ © ’ and one third of the wheat which might be ¶ . rown during the term; that the land was contained in one field,, .con sisting in part of woodland, and the residue cultivated corn in the year 1810, and seeded m wheat in the fall 1810 by the defendant. That Lamb, in November 1810, agreed with the defendant to alter the nature of the and in pursuance of that agreement did receive and take the bond of the defendant, conditioned for the payment of the sum of g300 for the said rent, to be paid to Lamb . ,»»ii iit-7 i Angus? 1811, which bond was assigned by Lamb, on “ .. ’ _I_ O -- y _ 7 — _ 1st of December 1810, to William Harris. That died in Ant'd 1811; and that the defendant paid and satis - tied Harris the money due on the bond tn August 1811. The defendant then prayed the court to direct the jury, that if thev should be of opinion from the evidence, Lamb, in the fall or 1810, agreed with the defendant for the rent of the farm for 1811, and that the defendant gave his bond to Lamb for the rent, amounting to S300, paya ble sometime in August 1811; and that Lamb, on the 1st of December 1810, assigned away the bond to William Harris, who in the fall of the year 1811, received the money due on the bond from the defendant, that then the plaintiffs could not recover the said rent, or the proportion thereof, from the month of April 1811, the time when Lamb died. Which direction the Court, (Earle,, Ch. J.) accordingly gave. The plaintiffs excepted.
    . . . f,t 2. The plain tiffs then prayed the opinion or the court to the jury, that they, the plaintiffs, were entitled to a ver-diet,'for the value of the land used and occupied by the defendant, from April 1811 till the end of the same year, well that part on which the wheat was growing at the death of Lamb, as for every part thereof, and while the wheat was growing thereon. But the court refused to give this o © o opinion, being of opinion that the defendant was entitled to the wheat growing, and had a right to enter, for the purpose of securing the same; and for the time the wheat was growing, and until lie had secured the same and taken it off, he was not liable to pay for the use and occupation of the land on which it was growing. The court were further of opinion, that the parol lease of Lamb determined with his decease, and the defendant, as his tenant, had right to possess the demised premises/ and if he occupied the same, or any part of them, he was liable to pay to the plaintiffs for its use and occupation. The plaintiffs excepted. Verdict for the plaintiffs, and damages assessed to 820, which sum not being within the jurisdiction of the court, judgment was entered for the defendant. The plaintiffs appealed to this court.
    The cause was argued before Nicholson, Johnson, and Martin, J.
    
      Chambers, for the Appellants,
    cited the stat. 11 (Seo. II, eh. 19, s. 14, 15, giving executors of a tenant for life an action for a proportion ot rent. The husband of a feme tenant in fee, is to be considered as tenant for life. Co, Lilt. 351 a. 273 b. A reversioner' is entitled to recover from the time of the death of the tenant for life. Jenner vs. Morgan, 1 P. Wms. 392.
    
      Tilghman, for the Appellee,
    referred to 6 Bac. ,3b. tit. Bent, 14. Rockingham vs. Penrice, 1 P. Wms. 177. Shut-tleivorlh vs. Garrett. 1 Shower, 35. 2 Blk. Com. 144. Lit-tleton vs. Burns, Leon. 136; and 1 Pow. on tout. 156.
   Nicholson, J.

delivered the opinion of the court. The law is well settled, that where tenant for life makes a lease for years, and dies before the expiration of the term, the under-tenant, or tenant for years, if he has sown the lands, shall reap them; or in other words, that he is entitled to the emblements. Co. Litt. 50. 2 Blk. Con. 145,

Trior to the statute 11 Geo, II. ch. 19, if tenant for life, who made a lease for years, died before the day on which the rent was payable, his executors had no remedy for the recovery of the rent from the tenant for years, to whom in fact it became a donation. By that statute, however, (section 15,) a remedy is provided, and the executors of tenant for life may recover a proportion of the rent to be computed to the time of the death of tenant for life. Before and since the statute, the reversioner or remainderman, had the same right to enter upon the tenant for years, as he had to enter where tenant for life died in possession. If executors of tenant for life held over, the remainderman or reversioner had his action against them, and might recover a compensation for the wrong done to him in holding over, lie may, since the statute, recover in an action for use and occupation. He has the same remedy against tenant for years who holds over. The question then is, in what respect shall the tenant for years, or executors ef tenant fop life, be said to hold over, so as to be subject to the action ■of the reversioner or remainderman? It being settled, that tenant For life, and his under-tenant tor years, are entitled to the emblements, it is equally well settled that he has the'i light to ingress, egress and regress, to preserve the eropr to gather it, and to carry it off, ' it must necessarily follow that in doing this he is no trespasser upon, nor a tenant holding under the remainderman or reversioner. The fifteenth section of the statute provides a remedy for the executors of tenant for life, but gives no remedy to the re-mainderman or reversioner, nor does it place him in a better situation than he was before. The fourteenth section embraces him, as well as all other persons, in the general provision which gives the action for use and occupation. His rights are precisely what they were before the statute, although the nature of his remedy maybe somewhat changed. Where tenant for life dies in possession, the rever-sioner or remainderman is not entitled to the occupation of the lands on which a crop is growing, until that crop is taken off, or a reasonable timéis given for taking it off; and the law must be the same where the lands are leased for years to an under-tenant, who has all the rights which the executors of tenant for life would have had if he had died in possession.

If tenant for yeavs occupied the premises after the em-blements were taken off, the remainderman was entitled to recover for the use and occupation; and so the court instructed the jury, as stated in the second bill of exceptions.

Some further provisions may be necessary on this subject, but these are for the legislature to make.

The court agree with the court below in the opinions given in both of the bills of exceptions.

JUDGMENT AFFIRM Eli.  