
    Wilie Parker v. George Storts.
    1. Whore lands are regularly and legally sold, at judicial sale, upon execution, or under decretal order in proceedings to foreclose a mortgage, the judgment debtor or mortgagor can not, after the sale and before confirmation, impair the rights of the purchaser, or prolong his own rightful use and occupation of the premises by sowing thereon, without the assent of the purchaser, crops which can not be harvested before confirmation.
    
      2. In thus sowing, after the sale, the debtor acts at his own peril; and in case of confirmation, and conveyance made to the purchaser, the debtor can not, thereafter, maintain replevin against the purchaser or his grantee to recover the crops thus wrongfully sowed.
    Error to the district court of Ross county.
    The defendant in error brought an action of replevin to recover of. the plaintiff in error the produce of a field of wheat, and damages for its unlawful detention.
    The parties, by their pleadings, made an issue as to the ownership of the wheat. Upon the trial of this issue, evidence was offered tending to show, that in and prior to the montn of October, 1860, the farm upon which the wheat in controversy was raised, was owned and occupied by Storts, the plaintiff below; that on the 6th of October, 1860, said farm was sold at judicial sale, pursuant to an order of court regularly made in a proceeding for the foreclosure of a mortgage executed by said Storts upon the premises; that said sale was regularly confirmed by the proper court on the 25th December, 1860, and pursuant to its order the premises were conveyed to the purchaser by the sheriff, December 27,1860; and that the purchaser soon afterward conveyed to Parker, the defendant below. That the wheat in controversy was sowed by the plaintiff below, after the sale of the premises by the sheriff, but before the confirmation of the sale by the court. There was no evidence tending to prove that the purchaser of the premises ever assented to, or, in any way, acquiesced in the sowing of the wheat by Storts. As to Storts having been expressly notified by the purchaser after the sale not to seed the premises, conflicting- evidence was offered.
    The evidence being closed, the court charged the jury, “ that the mere fact that said wheat was sowed after the day of the sale of said premises at said sheriff’s sale would not deprive the plaintiff of the right to remove said crop, and that if there was nothing else in the case, the jury should find for the plaintiff; that the time when said sale would be confirmed being uncertain, tbe plaintiff had a right to sow, and if he had a right to sow, he had a right to reap ; but that if the jury were satisfied that the wheat was sowed after the date of said sale, and that the purchaser, before any of said wheat was sown, notified said Storts not to sow said wheat, then they should find for the defendant.” To this charge the defendant excepted.
    The verdict being for the plaintiff, the defendant moved to set it aside, on the grounds that it was against the law, and that the court erred in its charge to the jury. This motion was overruled, and judgment entered, and exception taken.
    The district court on error affirmed the judgment of the common pleas. To reverse the judgment of affirmance, and also the original judgment, a petition in error was filed in this court.
    
      S. L. Wallace, for plaintiff in error:
    When a sale has actually taken place, the debtor, if he sows, does so at his peril. If the sale should be set aside, then the chance is resolved in his favor; or if he should, from any other cause, be permitted to hold and occupy the premises until after the crop matures, and he disposes of the same, the purchaser of the land would have no interest in the crop thus raised and gathered before he obtains possession.
    The relation existing between mortgagor and mortgagee has nothing to do with the question before the court. This is a question between judgment debtor and purchaser at judicial sale. The rights of the purchaser should be the same, whether the lands are sold upon execution, or decree, or order of sale. Chancellor Kent says: “ the mortgagor is only a tenant at will sub modo. He is not entitled to emblements as other tenants at will are, and is not entitled to notice to quit.” 4 Kent’s Com. 174, 212 note (b). See also Jackson v. Aldrich, 13 Johns. 106, et seq.
    
    The question in this case has never been decided by the supreme court of Ohio in any reported case.
    
      
      Alfred Yaple, for defendant in error, argued:
    That a mortgage debtor who sows a crop of wheat, without objection from the mortgagee or purchaser at-sheriff’s sale, between the sale and its confirmation is entitled to such crop, or emblements, though the sale be confirmed and possession taken by the purchaser before the crop is harvested; and that the purchaser is not entitled to such crop. Cassilly v. Rhodes, 12 Ohio Rep. 88-96; Houts v. Showalter, 10 Ohio St. Rep. 124-128; Riddle v. Bryan et al., 5 Ohio Rep. 48-55; 4 Kent’s Com. 75, 159, 163; 2 Story’s Eq. Jurisp. secs. 1025, 1026; Winn v. Littleton, 1 Vern. Ch. 3; S. & C’s. stat. 1034, sec. 306, 1050, sec. 374; Swan’s Pl. and Pr. 43, 44; Jenney v. Gray, 5 Ohio St. Rep. 45; 1 Coke upon Litt. chap. 8, sec. 68, 55 a, 55 b; Stewart v. Dougherty, 9 Johns. 112 ; Wright’s Rep. 738; Swan’s Man’l, 46; Swan’s Tr. 253; Baker v. Jordan, 3 Ohio St. Rep. 438; Youmans v. Caldwell, 4 Ohio St. Rep. 71; Penhallow v. Dwight, 7 Mass. 34; Bouv. Law Dic., Title “ Emblements.”
   Scott, J.

A purchaser of lands at judicial sale, where the proceedings are legal and regular, and no ground exists for setting aside the sale, becomes, by his purchase, and by the payment of the purchase money, or compliance with the terms of sale, the equitable owner of the premises ; and though he may not be invested with the legal title till the confirmation of the sale, and the execution of a conveyance by the proper officer, pursuant to the order of court; yet, when the legal title is thus vested, for many purposes it relates back to the day of sale.

The execution debtor in such case, though in rightful possession of the premises, has no right, after the sale, without the assent, express or implied, of the purchaser, to deprive him of the use and enjoyment of the premises, and prolong his own possession, by sowing, on his own account, crops which may not mature or be harvested for many months after the confirmation of sale, and conveyance of the legal title. His own unauthorized acts, after the sale, can not be allowed to impair the rights of the purchaser, and must be done at his own peril; If he can show sufficient cause for setting aside the sale, he may, of course, sow with safety. But if not, it is his own folly, that without any agreement with the purchaser, he has sown what he can not reap during the continuance of his rightful possession.

The case of crops growing at the time of sale, stands on wholly different ground, and former decisions of this court on that subject are, of course, wholly unaffected by the opinion in this case.

We think that in the absence of any evidence tending to show that the wheat in controversy was sowed with the assent of the purchaser under whom the defendant below derives title, the plaintiff was not entitled to recover; and that the verdict of the jury should have been set aside, and a new trial awarded for error in the charge of the court upon that point. The judgment of affirmance rendered by the district court will, therefore, be reversed, and rendering the judgment which that court should have entered, the verdict and judgment in the court of common pleas will be set aside, and the cause be' remanded for further proceedings.

Brinkerhofe, C.J., and Day, White, and Welch, JJ., concurred.  