CHARGE.

'the mortgagee, notwithstanding the form, has but a chattel, and a mortgage is only a security.'

This has been the uniform view taken by the courts of this State, so far as we have any knowledge. The last reported case in this State in which this subject was considered is Seals vs. Chadwick, 2 Pennewill, 381, decided by the Court in Banc on March 9th of the present year, in which the Court say: "It is well settled in this State that a mortage is merely a security for the payment of a debt or the performance of some other condition. The estate of the mortgagor in the land remains in him, and passes to his assignee, devisee or heir, subject to the lien of the mortgage. What is called the equity of redemption is here the title to the mortgaged land, with the right to redeem it from the incumbrance of the mortgage.

"The mortgagee takes by the mortgage no title to the land, but merely a lien upon it, which upon his dying intestate, passes, not to his heir at law, but to his executor or administrator.

"A mortgage no more divests the title of the mortgagor in the mortgaged land than does a general judgment divest the title of the defendant in land bound by the lien of such judgment."

While these general principles are admitted by the counsel for the defendant, he insists that the purchaser of land at a sale under a mortgage acquires a title to all crops growing upon the land at the time of sale, whether they were planted or cast by the owner of the land or by his tenant.

It is the policy of the law of this State, as disclosed by our decisions and statutes, to encourage the use and cultivation of land.

A sale of land upon execution, whether the execution be upon a general judgment or a judgment upon a mortgage, does not immediately terminate a tenancy, before the expiration of the current year of such tenancy. On the contrary, Section 28 of Chapter 111 of the Revised Code, page 836, recognizes the continuance of the tenancy after such sale, by providing for the apportionment of rent

CHARGE.

between the lessor and the purchaser and the methods for the recovery of their respective proportions.

The provisions of said chapter 111 in reference to writs of possession are instructive as to the question under consideration. Section 42 of said chapter is as follows:

"On making the rule for a writ of possession absolute, the court may direct a reasonable stay of execution. If the person in possession be a tenant, execution shall be stayed until the usual expiration of the year of tenants, according to the custom of letting in the place, or neighborhood, wherein the premises are situate."

These provisions are not limited to sales under executions upon general judgments, but are equally applicable to the sales under executions upon judgments on mortgages.

In cases of tenancy of the character admitted to have existed in this case, the tenant, by the general and well recognized custom in this State, is entitled to the way-going crop.

The right to the way-going crop exists in the tenant, whether the letting is terminated by notice of the landlord to quit at the end of the year, or by writ of possession with a stay as to the tenant until the end of the current year.

In Clark vs. Banks, 6 Houst., 592-3, the Court say: "It is a rule of law, applying generally to the case of landlord and tenant, that all the rights of the latter end absolutely with the tenancy; but there was always a custom, with respect to agricultural holdings, that the tenant, if he sowed in the fall a crop of grain (wheat for example) which required for its ripening a period greater than the unexpired time of the lease, should have the right to enter upon the land when it matured and harvest it. Indeed, with respect to that crop, the ground upon which it was sowed was treated as being still in the rightful possession of the tenant; so much so that an action of trespass would lie for him against any one who entered upon it. Some of the authorities state that as to the land bearing such crop, the lease of it is extended until such reasonable time after the grain is cut as will give the tenant ample opportunity to

VERDICT.

secure and market it. This court has allowed such tenant his action of trespass for injury to his crop after the period fixed for his tenancy has expired, thus giving sanction to the doctrine I have stated. This crop is called the away-gowing crop, and the tenant the offgoing tenant."

The right to the way-going crop may be defeated by the ex-press agreement of the parties, but, in the absence of any such agreement, the right to the way-going crop exists in favor of the tenant under the general custom in this State.

In the case of a letting on shares, where there is a right to the way-going crop, the tenant may, after the expiration of his term, and after his removal from the premises, return and gather the crop and prepare it for market.

For these purposes he is deemed to be in possession of the crop, and the landlord has no right to interfere with his possession.

Until his share is separated, the landlord has no interest in the crop which can be taken in execution against him, except by laying an attachment in the hands of the tenant as garnishee.

The defendants request us to instruct you that if you find for the plaintiff, his damage should be the value of his share of the crop at the time the writ of replevin was executed, less what it would have cost him to harvest the same. We decline so to charge.

If the tenant was in lawful possession of the crop, and the defendants ousted him of that possession, and gathered the crop and prepared it for market, against his will, they did so at their own risk.

If the value of the tenant's property was, against his will, increased by the labor and money of the defendants, the tenant is entitled to the benefit of such increased value.

(Exception noted for the defendants.)

Verdict for plaintiff for $335.81.

SYLLABUS.

TRUSTEES OF MIDDLETOWN ACADEMY vs. ROBERT A. COCHRAN,

ET AL.

Execution-Venditioni Exponas-Practice-Dollarage-Sheriff.

Where a fi. fa. has been levied and returned stayed, thirty days not having elapsed before said return, and where a venditioni exponas is subsequently issued to the same sherift and the case is settled before and without sale, more than thirty days having elapsed from the time the fi. fa. had come into the Sheriff's hands and levy made, he is entitled to dollarage.

(December 15, 1900.)

LORE. C. J., and SPRUANCE and GRUBB, J. J., sitting.

John H. Rodney for plaintiff.

William S. Hilles for the Sheriff.

Superior Court, New Castle County, November Term, 1900.

Venditioni Exponas (No. 2, February Term, 1901).

The following facts were admitted by the respective counsel: That the fieri facias went into the hands of the Sheriff on the third of November, and levy was made on the same day; that Court met on November 26, and the fieri facias was returnable on that day, to which the sheriff's return was, "Levied on the within named goods and chattels as per inventory and appraisement annexed and stayed by order of the plaintiff's attorney." That afterwards, on the thirtieth day of November, A. D. 1900, a venditioni exponas was issued, being number 2 to the February Term, 1901. That after thirty days had expired from the date of the levy, a settlement was made amicably.

Query-Is the sheriff entitled to dollarage on the levy, under the statute (Rev. Code, 895) which provides that where a sheriff

SYLLABUS.

makes a levy and there is a settlement after the expiration of thirty days, he is entitled to dollarage?

Upon these facts, the Court held that it made no difference whether it was a fieri facias or a venditioni exponas, but that upon a writ in the sheriff's hands in the same transaction, when the settlement was made after the expiration of thirty days from the date of the levy, he was entitled to his dollarage.

NATHAN B. DANFORTH 78. EMIL HERTEL and PAUL ISENSCHMID, trading as HERTEL & COMPANY.

Assumpsit-Evidence-Mercantile Agency Investigation-Partnership-Dissolution of—Notice of-Personal-By Newspaper-By Circumstances.

I. In a suit against partners where the defense is dissolution of the firm, it is competent for the plaintiff to show by the general manager of a mercantile agency that at the instance of the plaintiff the said agency made a careful search of the newspapers, covering the period during which the goods were delivered, and found that no notice of the dissolution of the partnership in question was published during the time.

2. The agreement of dissolution in question, being formally proved on the part of the defendants, is admissible in evidence.

3. A partnership is a contract of two or more competent persons to place their money, effects, labor and skill, or some or all of them, in lawful commerce or business, and to divide the profit and bear the loss in certain proportions.

4. The act of each partner, in transactions relating to the partnership and within the scope of its particular business, as a general rule, is considered the act of all. After the dissolution, neither of the former partners can enter into any new contract or obligation to bind his former partner.