DEFECT IN TITLE will not enable a purchaser in possession under a deed with warranty to resist in equity the payment of the purchase money: Abbott v. Allen, 7 Am. Dec. 554. Nor where nothing but prompt payment would stand with the contemporaneous understanding of the parties, is the purchase money to be detained for defects in the title subsequently discovered: Roland v. Tiernan, 8 W. & S. 196; Ludwick v. Huntzinger, 5 Id. 57; an intention which is to be ascertained from the nature of the transaction and the character of the security: Stroop v. Ransom, 10 Watts, 298.

RELIEF IN EQUITY AGAINST PAYMENT OF PURCHASE MONEY for defect in title to realty. Note to Abbott v. Allen, 7 Am. Dec. 558.

THE VENDEE CAN AVAIL HIMSELF OF KNOWN DEFECTS in the title, only by force of a covenant or on the ground of fraudulent misrepresentation: Krause v. Reigel, 2 Whart. 387, relying on the principal case; so, also, Ross' Appeal, 9 Pa. St. 496; and Bradford v. Potts, Id. 37, saying that the vendee can not detain the purchase money on the ground of a defect in title known when he purchased, where his possession has not been disturbed: Wolbert v. Lucas, 10 Id. 74.

Judge Rogers says, in Smith v. Sillyman, 3 Whart. 599, that the rule that "in a contract for the sale of lands, a failure of consideration in an action for the recovery of the purchase money is a good defense, in whole or in part, whether there be a general or a special warranty," is clearly, in Lighty v. Shorb, to be supported only by a long and uninterrupted use, and not founded on authority.

Followed in Beidelman v. Foulk, 5 Watts, 309, and in Rearick's Ex'rs v. Rearick, 15 Pa. St. 72, on the point that the deed is "the final accomplishment and consummation of all previous stipulations."

JOHNSON V. SMITH.

[3 PENROSE AND WATTS, 496.]

RENT RESERVED UPON A LEASE for a year or a term of years, which is the

same thing, is incident to and accompanies the reversion unless separated by an express reservation.

WHERE RENT IS PAYABLE OUT OF THE GRAIN RAISED, if the landlord sells the land, the vendee becomes entitled to that proportion of the gain growing at the time of the conveyance which the landlord would have been enti. tled to had he not conveyed.

TROVER for a quantity of grain. Clark, the owner of a tract of land, leased it to Smith, who was to pay, as rent, a certain share of the grain raised by him on the farm. In March, 1828, Clark sold the land to Johnson while Smith was in possession as tenant; but in April, Smith surrendered the possession to ohnson. Smith harvested the grain, placing the landlord's share into a spring-house on the farm, and Johnson, conceiving himself entitled to it, appropriated it, and refused to deliver it to Smith, who demanded it on behalf of Clark, and then brought this action for his benefit. Verdict for the plaintiff. Writ of error was then taken for misdirection of the jury.

Grier, for the plaintiff in error.

Frick, contra.

By Court, KENNEDY, J. The charge of the court was certainly wrong. For no principle is better settled in the law than that rent reserved upon a lease for a year, or a term of years, which is the same thing, is incident to and accompanies the reversion, unless separated by an express reservation. Upon the death of the lessor, the reversion descends to his heirs, and they are entitled to demand and receive the rents which shall become payable afterwards: Co. Lit. 47, a, 143, a; 3 Bac. Abr. 62, 63. Fealty is said to be inseparable from the reversion; but rent may be excepted, because, as Lord Coke says, "although it be incident to the reversion, yet it is not inseparably incident:" Co. Lit. 143, a. Neither is it necessary, in order to make rent incident to the reversion, and transmissible with it to the heir, or to an assignee of the reversion, that it should be payable in money; for says Sir Edward Coke, "it may as well be in the delivery of hens, capons, roses, spurres, bowes, shafts, horses, hawkes, pepper, comine, wheat, or other profit that lieth in render, office, attendance, and such like, or in payment of money:" Co. Lit. 142; Fry v. Jones, 2 Rawle, 11. It has, however, been contended here by the counsel for the defendant in error that under the terms and conditions upon which he held the farm of Clark, that the land belonged to Clark at the time the grain was sown; and that as soon as the seed was committed to the ground, it became the property of Clark, and must be considered his grain growing upon the land at the time he sold it to Johnson; and that according to the decision of this court, in the same cause in a former writ of error, Penn. 471, there being no express grant of the grain growing upon the land contained in the deed of conveyance from Clark to Johnson, it must be considered as reserved by Clark; and that Johnson acquired no right to it. The premises from which this conclusion is drawn, can not be sustained. Although Clark continued to be the owner of the land in fee after Smith took the possession of it under the assigument made with him for that purpose; yet by the terms of that agreement he parted with his right to the possession of it as the possession itself. He parted with his right, and all claim to the products of the land while growing upon it during the continuance of Smith's interest in the possession and use of the same under his contract with Clark, as completely as if he had

let the farm to Smith for a money rent. Clark, therefore, had no right whatever to an interest in the grain sown by Smith, and growing upon the land at the time he sold and conveyed it to Johnson. Upon this principle it was very justly and correctly held by the supreme court of New York, in Stewart v. Doughty, 9 Johns. 108, that the purchaser at a sheriff's sale of a crop of grain growing upon the land which the defendant in the execution, as whose property it was taken and sold, held at the time of sowing the crop under a lease for years, upon which he was to pay one half of all the grain raised by him on the farm in each year as his rent, delivered in the bushel, and which lease had been terminated by the lease before the grain had ripened and was cut, was entitled to the whole of the crop; and that the landlord had no interest in it until it was separated from the ground, and his proportion of it delivered to him in conformity to the terms of the lease. And it was also held in this case that the purchaser of the crop at the sheriff's sale might maintain trespass quare clausum fregit against the landlord himself who had expelled the plaintiff from the ground upon which the crop grew at the time he was cutting it.

The court below seemed to have misapprehended the point or question upon which the opinion of this court was pronounced upon a former writ of error: 1 Penn. 471, and not altogether without some reason; for in the report of the cause, the case as there stated presents the same question which is now raised; but the opinion of the court presents an entirely different one; that is, whether a sale, conveyance, and delivery of the possession of land passed with it a right also to the crop of grain growing on the land at the time of the grant or conveyance, which belonged to the grantor? This was the question which was then resolved by this court, and not that of whether a grant of the reversion carried with it a right to demand and receive the future accruing rents.

Judgment reversed, and a venire de novo awarded.

GROWING CROPS, ON EXECUTION SALE OF THE LAND, PASS TO THE PURCHASER-Crews v. Pendleton, 19 Am. Dec. 750 and note, 752.

GROWING CROPS PASS BY A CONVEYANCE OF THE LAND.-See note to Smith v. Johnston, 21 Id. 407.

GROWING CROPS CAN NOT BE IN POSSESSION of one person and the lands in the possession of another.-Foster v. Fletcher, 18 Id. 208.

CROPS RAISED ON LAND HELD BY TENANTS BY ENTIRETY are held by entirety.-Note to Den v. Hardenbergh, 18 Id. 383.

THE CROPS GROWING ON LAND FROM WHICH ONE HAS BEEN DISSEISED are not recoverable in replevin. The disseisee may bing ejectment and re

cover damages for the mesne profits: De Mott v. Hagerman and note, 18 Id. 443.

WHERE LAND IS LET ON SHARES the parties are tenants in common of the crop: De Mott v. Hagerman and note, supra.

GROWING CROPS MAY BE SOLD UNDER EXECUTION, the title vesting in the purchaser, who may gather them when ripe: Coombs v. Jordan, 22 Id. 236. Followed in Bank of Pennsylvania v. Wise, 3 Watts, 407, as authority that the sale of the reversion by the reversioner carries with it the right to the vendee to receive the rent for the year which had nearly run at the time of the sale

FEATHER V. STROHоECKER.

[3 PENROSE AND WATTS, 505.]

EVERY PARTITION AS WELL AS EVERY EXCHANGE implies not only a warranty at the election of the party, but a condition entire, the breach of which gives an entry into the whole; with this difference, however, that a voucher to warranty of the part evicted, affirms the partition by the acceptance of a compensation, while an entry for the condition broken defeats it.

IN EJECTMENT TO AVOID A PARTITION, a defendant who is at the same time heir of one of the original tenants in common, and widow of the son of another co-tenant, under whom the son entered, is not precluded from defending because of her character of tenant.

THE ORPHANS' COURT HAS NOT JURISDICTION TO DECREE a PARTITION between the children and their father's co-tenant, and then between the children themselves.

EJECTMENT by William Feather and Peter Strohoecker against Leah Strohoecker. Grant died seised of a tract of land which was bequeathed to John Garber and John Strohoecker. John Garber dying intestate, one of his two sons petitioned the orphans' court for a partition, and the court first made a partition between Strohoecker and Garber, and then partitioned the Garber lot among his heirs. The latter sold part of the land allotted to them to different individuals. Leah Strohoecker, the defendant, was Garber's daughter, and she and her husband came into possession, for which the ejectment was brought during the life-time of his father. Some of the partitioned lands were recovered in ejectment by a third person. The questions arising were, if the partition was not void ab initio, was it not avoided by the subsequent eviction, and was the relation of tenant, which Leah held to the plaintiffs, such as to preclude her from her defense on the merits?

The defendant excepted to the instructions given to the jury. Greenough, for the plaintiffs in error.

Lashells, contra.

By Court, GIBSON, C. J. This action is brought to dispossess the defendant of land, which she claims to hold in common with the plaintiffs. A larger tract, of which the land in dispute is part, was held by John Garber, her father, in common with John Strohoecker, the plaintiff's grantor. Garber died intestate, and in pursuance of a petition by one of his sons, the orphans' court awarded a writ of partition and valuation of his estate, without requiring it, as ought to have been done, first to be separated from the estate of Stroehecker by act of the parties or an action at the common law. The inquest made partition between Strohoecker and the heirs of Garber, in the first place, by assigning the lower part of the tract to the former, and then executed the writ on the residue as the several estate of the intestate.

That the orphans' court should have sanctioned the act of the sheriff and inquest in making a preliminary partition, as the foundation of what was to follow, is not a little surprising. It is not easy to imagine how any one but the heir or representative of an intestate could be made a party to a partition in the orphans' court. In the case of a tenancy in common by purchase, the judgment that partition be made, the application within a year to open it or make a new partition, the mode of producing equality of partition or of vesting the title, the appointment of guardians ad litem, in short, all the parts of the process, are peculiar to the courts of common law, and confided exclusively to the supreme court and the common pleas; from the benefit of which, to say nothing of the constitutional right of a trial by jury, the party ought not to be deprived by anything less than an express statute. On the other hand, the proceeding in the orphans' court without provision for personal service or publication of notice to the surviving tenant, or for determining whether he held in common with the intestate, or for charging a sum on either purparty for owelty of partition, or in case the land can not be divided, for deciding between the surviving tenant and the representatives of the dead one, which side shall take the whole, and many other matters which, though perfectly manageable in the courts of common law, involve interests and estates too multiform and complicated to be embraced by the proceeding in the orphans' court, which is adapted exclusively to the case of a tenancy in common by descent. The partition between Strohoecker and the heirs of Garber, therefore, seems to have been originally void for want of jurisdiction; but taking for granted that the parties confirmed it, or