The opinion of the Court was delivered by

— The learned judge was right in declaring that Earnest could not be his own lessee, and that, when he voluntarily joined in the proceeding by which the title was conveyed to Keisel, he parted with the proportion of the growing crop that corresponded with his share of the land; for, after some trouble in Pennsylvania, it is now settled that a vendor cannot claim a way-going crop. But this proposition leads directly to another; that, at the worst, Keisel was owner of the crop in common with Earnest, and could not be sued in trover for taking the exclusive possession of it.

Even if Earnest, though one of the tenants in common, might be entitled to a lessee’s privilege of a way-going crop, it could not exceed the shares of which he was lessee; and, since one tenant in common in possession is not presumed to be the lessee of his co-tenants, his title as lessee must be measured by the testimony. As to some of the shares, we discover nothing that even looks like evidence that he was lessee of them; and as to the others, the testimony is entirely inconsequential.

The proof that one heir demanded rent for the use of his share of the land for the year 1848, is no evidence of a lease for 1849 with its way-going crop, when, as tenant in common, Earnest could *97not be dispossessed by a co-tenant. Two of the other heirs say that they allowed him to enter as tenant; but this does not make him a lessee, for no terms were fixed; and the most that could be made of such a permission is that it constituted him tenant at will of those shares. The proper result of the evidence is that Earnest was a tenant in common in possession, and bound to account for the rents and profits to his co-tenants. If he had been properly allowed to take the crop, it would have added to his liability to his co-tenants, and given them a profit out of the land after their title had ceased. If he could be regarded as a tenant at will, he might be entitled to emblements at common law; but even that right is barred when the tenancy is terminated by the act of the tenant, as it was here by his joining in the proceedings of sale.

When we find all the co-tenants, in January, 1849, joining in an action of partition of the land, and Eli Earnest one of the plaintiffs, it is impossible to infer from his possession in 1848, even if under a lease, that he was to hold for the year 1849, as on a lease from year to year; for such an inference is entirely incompatible with the demand for partition made before the first year had run out. Even the judgment that partition be made, 2d March, 1849, preceded the termination of the first year’s possession. Thus the implication of a tenancy from year to year of any share of the land is necessarily excluded.

But when we notice some other matters, this claim appears still more remarkable. It was ascertained that the land would not divide, and, in August, 1849, the Court ordered it to be sold. It must have been after that this crop was put in, and yet it is plain justice that one tenant in common has no right in this way to extend his interest in the land to a period beyond the sale in partition, a proceeding intended to alter the relations of all the parties to the land.

Add to this that, at the sale, there was no notice that Earnest was a lessee of any of the shares or was claiming a way-going crop; that the deed contains no reservation of it; and that Earnest is a substantive party to it, conveying all his interest in the land; and we are at a loss to see any just or legal reasons for his claim to a way-going crop.

Judgment reversed and new trial awarded.