Ellison v. Dolbey

Citations

• 19 Del. 45
• 3 Penne. 45
• 49 A. 178
• 1900 Del. LEXIS 51

Syllabus

<p>Replevin—Landlord and Tenant—Mortgage—Security for Debt— Sale on Levari Facias—Custom—Way-going Crop—Evidence.</p> <p>I. In a suit by the off-going tenant against the purchase of the farm at sheriff’s sale on Levari Facias, for said tenant’s share of a wheat crop which had been gathered, threshed and sold by the new tenant under instructions from the defendants; testimony as to the cost of harvesting, threshing and delivering said crop, offered as going to reduction of damages, held to be inadmissible.</p> <p>2. 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 value of such increased value.</p> <p>3. The right to the way-going crop exists in favor of the tenant under the general custom in this State. In case of letting on shares, the tenant may, after the expiration of his term, return and gather 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.</p> <p>4. The sale of land upon execution, whether, 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.</p> <p>5. In this State a mortgage is merely a security for the paymeat 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. The mortgagee takes by the mortgage nó 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