
    [Pittsburg,
    September, 30, 1825.]
    SIMPSON and another against JACK and another.
    IN ERROR.
    A purchaser of land at sheriff’s sale, obtains possession of the land by a proceeding before two justices against the defendants in possession. Another person claiming under a lease subsequent to the judgment from one claiming title paramount to the judgment, and no party to this proceeding takes away the crop : in replevin by the purchaser, such person may show that he held under a title paramount to the judgment, and that the defendant in possession held by his permission.
    Two actions of replevin for three hundred and five dozen sheaves of wheat and ninety dozen of rye, were brought in the Court of Common Pleas of Westmoreland county, for which this writ of error issued, by James Jack and Andrew Byers, plaintiffs below, and defendants in error, against Thomas R. Simpson and Michael Kimmell, which was consolidated and tried together, and a verdict and judgment rendered for the plaintiffs.
    
      John Turner and wife obtained a judgment against Johsua Simpson, at May term, ISIS, in the Court of Common Pleas of Westmoreland county. A fieri facias was issued to November term, 181S, and a levy was made on the right and interest of the defendants, in a tract of land, including the locus in quo, which was condemned, and pursuant to a writ of venditioni exponas, issued to August term, 1819, was sold to the plaintiffs. Afterwards, to wit, on the 27th of December, 1819, they instituted a proceeding before two justices, against Joshua Simpson, and on the same day the precept of the justices was issued to the plaintiffs reciting notice, &c., and requiring Joshua Simpson to appear before them the 30th day of the same month, at which time a decision of a jury and of the said justices was regularly obtained against the said Joshua Simpson, and a warrant issued to the sheriff to deliver possession of the land to the plaintiffs.
    The defendants then offered in evidence a location in favour of Thomas■ Simpson, dated 13th of June, 1769, No. 3399, and a receipt of William Thompson, deputy surveyor for the surveying fees, dated the 11th of May, 1771.
    The defendants offered to prove, that Thomas Simpson the locator, took possession of the land mentioned in the application, in the year 1772, and continued in possession by himself or tenants, until the 6th of April, 1819, at which time he executed a lease of the land, on which the grain, the subject of this action, had grown, to Thomas II. Simpson, which lease was offered in evidence. That in pursuance of the same lease Thomas R. Simpson, on the 6 th of April, 1819, was put in possession of the premises, and farmed the land and raised the grain mentioned in the writ of replevin. That he continued in possession of the premises as the tenant of Thomas Simpson, until the 2d of January, 1820, when he was forcibly dispossessed by the sheriff of Westmoreland county, by virtue of the warrant issued by the justices aforesaid; and that Joshua Simpson at the time Thomas Simpson was turned out of possession lived on the premises, under and by permission of the said Thomas R. Simpson. That Joshua Simpson whose interest the plaintiffs purchased as aforesaid had no interest in the land nor any right whatever to the crops raised by the said Thomas R. Simpson, nor to the grain which is the subject of this action. Which evidence was objected to by the plaintiffs’ counsel and overruled by the court and exception taken.
    The rejection of the evidence was now assigned for error.
    
      Forward, for the plaintiffs in error.
    
      Byers and Jack, the purchasers at sheriff’s sale, acquired the right of Joshua Simpson only, and not any better right, or any other privilege, than he possessed in relation to the locus in quo, or the grain there growing. Their purchase could not affect the right, or the possession of one who claimed by a title distinct and independent of Joshua Simpson. This was the condition of Thomas R. Simpson, the plaintiff in error. He held the locus in quo by a lease from Thomas Simpson, the legal owner; and, as Joshua Simpson could not have entered upon or disturbed him, the purchaser of Joshua Simpson’s interest could not do it. Thomas R. Simpson was illegally expelled from the possession of the locus in quo, which he held under Thomas Simpson, the real owner. No complaint was made against him, before the justices; no notice was served on him. He was not a party to the proceeding before the justices. Their warrant of possession was not issued against him. His expulsion was, therefore, illegal, jmd could give the plaintiffs below no right whatever to the demised property, or the crop of Thomas R. Simpson. Act of the 6 th of April, 1802, sec. 1. Purdon’s Digest, 622.
    
    The plaintiffs below did not prove property. Evidence of the title in Thomas Simpson, and his lease to Thomas E. Simpson, was proper, to show the right to the grain which grew on the land. A purchaser at sheriff’s sale acquires no right to grain growing in the ground, even if it belong to a tenant of the defendant in judgment. It is fructus industrialis, and distinct from the freehold. Wood’s Inst. 631. 2 Tid’s Prac. 917. 2 Wils. Bac. 714. 2 Johns. 418.
    
      Alexander, for the defendants in error,
    contended, that the grain growing on the land at the time possession was delivered to the purchasers at sheriff’s sale, under a judgment and levy, prior to the date of the lease to Thomas E. Simpson, belonged in law to such purchasers; and no testimony could be received to impugn their right.
   The opinion of the court was delivered by

Gibson, J.

To show that the evidence was competent, it is necessary only to state the facts. The grain, which is the subject of this replevin, is the produce of land- which was purchased by the plaintiffs below, on a judgment against Joshua Simpson, and of which they obtained possession, by proceedings before two justices of the peace; to which proceedings the defendants were not party. The defendants offered to prove, that the title to this land was in Thomas Simpson, the father of Joshua; that Thomas leased the premises to Thomas E. Simpson, his grandson, who is the son of Joshua, and the substantial defendant in the cause; that Thomas, the defendant, entered in pursuance of the lease, farmed the land, raised the grain in question, and continued in possession until he was turned out, under a writ of possession, from the two justices, against Joshua Simpson; and that Joshua was residing on the premises by permission of Thomas, the defendant. The plaintiffs below object here, that, as they are purchasers at sheriff’s sale, under a judgment and levy, prior to the date of the lease to Thomas, the defendant, the property in the grain growing on the land when possession was delivered to them, vested in them by operation of law, and so conclusively, that no evidence could be received to impugn their right; and undoubtedly this holds good, in regard to any claim by Joshua Simpson himself, because the judgment and proceedings on it to which he was party, would conclude him. But Thomas B. Simpson was not party to the judgment, or those proceedings; and why he should be supposed to be concluded, I am at a loss to imagine. Even dispossessing him under the warrant against Joshua, was a trespass, without the colour of authority. Had he been made a defendant in the proceeding before the two justices, upon an allegation of having come into possession under Joshua, he might, if the fact was found by the inquest, have lawfully been dispossessed; but even then, the inquisition would have been onl j prima facie evidence that the property in question was in the plaintiffs, because Thomas, the defendant, claims by title paramount to Joshua. Property in the grain is a consequence of property in the land. Now, all that could be sold on the judgment against Joshua, was the interest which he is supposed to have derived from his father. But the father would be admitted to disprove his estate; and if so, the grantee of an estate from the father would also be admitted. Then,,suppose even that Thomas, the lessee, had been a party to the proceedings before the justices; he might either have set up the title of his lessor, and thus have stayed the proceedings; or he might have suffered himself to be turned out; but he would not in any event have been precluded from defending his possession, under the title of his lessor, in whose place he stands: otherwise, the latter, by refusing to make oath before the justices, and give security for the prosecution of his title, according to the requisition of the act, would have power to defeat his own grant. The lessee, therefore, notwithstanding the finding of the inquest that he held under the defendant in the execution, would be permitted to show that he held by title paramount. But here there is no pretence that the lessee was a party even to the proceedings before the justices, and it would be monstrous to conclude him.

Judgment reversed, and a venire facias de novo awarded.  