
    GREEN v. CUTRIGHT.
    Emblements — dormant judgment — assets—sale of a stranger’s property passes no right— nonsuit.
    A purchaser at sheriiT’s sale of property not belonging to the defendant, acquires no right by the purchase.
    If execution issue upon a dormant judgment it is not void, though the defendant may have it set aside, and put his adversary to a scire facias.
    In case of death between the thirty-first of December and the first of March, emblements growing on the land of the deceased pass to the heir with the land; but if the death happen after the first of March, emblements severed before the thirty-first of Decémber, are assets in the hands of the administrator.
    Crops put in years afterwards, though claimed by the administrator, are not assets and cannot be levied on as such; the claim to them must be settled with the heir.
    Trover for a crop of corn. A judgment was recovered against the administrators of one Davidson, several years after his death.
    In 1830, a fi. fa. was taken out and levied on Davidson’s interest in a crop of corn in the ground, which was sold to the plaintiff. The defendant was in possession of the ground as a cropper, and was to deliver the landlord twelve bushels of corn to the acre in the field for rent. When the levy was made the tenant stated the terms of his contract. After the com was pulled and taken away from the field, the plaintiff demanded it, when the defendant replied there was no such corn there, what was there was all his own, and that his contract permitted him to take the crop at twelve and a half cents a bushel, which he had taken, since the levy, and he refused to deliver, wherefore suit was brought.
    
      Bond, for the defendant,
    objected to the execution and levy,
    1. Because as the judgment had lain more than five years, and become dormant, the execution was void.
    2. Because the corn was not assets subject to levy.
    
      Bond,
    
    moved for a nonsuit, because the property was not liable to levy on the execution.
    
      Douglas, contra.
    
      Douglas, for the plaintiff,
    moved to open up the nonsuit and for a new trial, insisting that the decision of the court had taken him by surprise, as he was unaware of the provision of the statute; and, also, that if the emblements belonged to the heir, but had come to the possession of the administrator, the law would not protect him, by screening them from execution.
   By the Court.

The party against whom process of execution issues after it has lain five years, may have it set aside on motion, and put his adversary to his scire facias to revive the judgment; but the writ so issued is not void. Whether emblements are assets depends on the evidence, they may be so in a certain event. The evidence is admitted.

The evidence for the plaintiff being closed

Wright, J.

The statute provides, (29 O. L. 235) that in case of a death between the 31st of December and the 1st of March, the emblements growing on the land of the deceased, shall pass to the heir with the land, but if the death occur after the 1st of March, the emblements which shall be severed before the 31st of December, shall he assets in the hands of the executor or administrator. The death here took place several years before the crop of corn was planted which was levied upon, and the corn, therefore, was not growing at the death, and not within the provision declaring it assets. By what authority the plaintiff sustains the right to’ seize the crop on descended lands, several years after the descent, as assets in the hands of the administrator, we are left to conjecture, none is cited to us. It seems to us too clear for dispute, the corn crop in question was not assets, nor subject to levy on an execution against the administrators. In that state of case, the sale by the officer transferred no right to the plaintiff, upon which he can recover, and the nonsuit is ordered.

Wright, J.

Wo do not discover any mistake of the law in ordering the nonsuit. As to the right of the administrator, that question must be settled between him and the heir, the plaintiff' has acquired no legal authority to adjust it. The motion is overruled.  