A tenancy by sufferance " is of such a nature as necessarily implies an absence of any agreement between the owner and the tenant, and if express assent is given by the owner to such possession, the tenancy is thereby instanter converted into a tenancy at will or from year to year, according to the circumstances." Wood's Landlord and Tenant, 15. It matters not what parties may designate such a tenancy.
This view of the case would be conclusive of the question, but there is another view of the case which is equally so.
A mortgage being simply a lien to secure the payment of a debt, it cannot be held to give to a mortgagee or person purchasing under it any greater right to ungathered crops standing upon the mortgaged land than would a person have who purchased under a lien acquired in any other manner prior to the time the crop was planted, or the right to plant it accrued. Hogsett v. Ellis, 17 Mich. 363.
' Crops, whether growing or standing in the field ready to be harvested, are, when produced by annual cultivation, no part of the realty. They arc, therefore, liable to voluntary transfer as chattels. It is equally well settled that they may be seized and sold under execution." Freeman on Executions, 113, and citations; Benjamin on Sales, 120. Such being the case, if there be nothing in the contract of the parties by which land is conveyed, nor in the circumstances attending the sale, evidencing the intention of the parties that crops nearly or quite matured should pass with land sold, it is difficult to see upon what principle it can be held that property strictly personal in its character should pass by an instrument which upon its face purports only to convey land. The weight of authority, however, is to the effect that such crops will pass by the sale of the land if they belong to the owner of the land at time of sale. The application of this rule to sales made under mortgages, having only such effects as mortgages here are held to have, upon crops produced many years after the mortgage was given, need not further be considered. As, however, the crops are separate and distinct in their nature from the land upon which they grow, the ownership of the one, even on mortgaged property, may be in one person, and the title to the other in another; and whenever crops growing or standing upon land covered by a lien given by the owner of the land, or acquired by law, have in law or in fact been severed in ownership, or actually severed from the land prior to sale of the land under the lien, title thereto will not pass by the foreclosure of the lien.
A mortgagor is entitled to sever in law or fact the crops which stand upon his land at any time prior to the destruction of his title by sale under the mortgage; this results from his ownership and consequent right to the use and profits of the land, and the mortgage is taken with knowledge of that fact.
In the case of Meyers Assignees v. White, I Rawle, 355, it appeared that Meyers had executed a mortgage upon a tract of land, subsequent to which he had a crop upon the land, which, with the land, he assigned for the benefit of his creditors. There was subsequently a sale under a foreclosure of the mortgage, and the purchaser at that sale of the land claimed the crop, and it was held that the crop passed to the assignees, and not to the purchaser under the foreclosure of the mortgage; and this upon the ground that the crop, by conveyance to the assignees, had been severed. The court said: "As there is no difference in this respect between a judgment and a mortgage creditor, this case has been virtually decided in Hambach v. Yeates, not yet reported, in which it was held that grain growing in the ground is personal property, and might be levied upon and sold as such, and that it did not pass by a sale to the sheriff's vendee. Peter Meyers, before judgment on the seire facias, had parted with his interest in the crop. At the time of the sale, all his right was vested in his assignees for the benefit of his creditors."
In the case of Stambaugh v. Yeates, 2 Rawle, 161, Yeates had recovered a judgment against Kyrm and caused a fieri facias to be levied upon his land and returned, after which the land was sown in grain, and another creditor caused a levy to be made upon the grain under a judgment which he had obtained, and the grain was sold; afterwards the land was sold under a venditioni exponas, and it was held that the creditor who levied on the grain was entitled to the proceeds.
These cases are approved and applied in Bear v. Bitzer, 16 Pa. St. 178, and in Groff v. Levan, Id. 179.
All of these cases, as well as the case of Bittinger v. Baker, 29 Pa. St. 70, were considered in the case of Metsgar & Crugg v. Hershey, 90 Pa. St. 218, and were reviewed and approved; and referring to the case of Bear v. Bitzer, the court say: " The latter case rules that a purchaser of land at sheriff's sale is entitled to the growing grain thereon, which had not been severed before the sale. There the owner of the land which was sold owned the crop, and there had been no act of separation. The test is, whether there has been a severance of the growing grain; if so, it does not pass to him who purchases the land subsequent to the severance; if not, it goes with the land." All these cases recognize a sale by the owner or by judicial process, if made before the sale of the land, as a severance.
The Court of Appeals of Maryland, in Purner v. Piercy, 40 Md. 223, in speaking of what constitutes severance, say: "There is nothing in the vegetable or fruit which is an interest in or concerning land, when severed from the soil. . . . Whether grain, vegetables, or any kind of crop (fructus industriales), the product of periodical planting and culture; they are alike mere chattels, and the severance may be in fact, as where they are cut and removed from the ground, or in law, as when they are growing, the owner in fee of the land, by a valid conveyance, sells them to another person, or when he sells the land, reserving them by an express provision." To the same effect is the case of Titus v. Whitney, 1 Harrison, 85.