delivered the opinion of the court,

This is an action of trespass quare clausum fregit, brought by the defendant in error against her son-in-law and daughter. The alleged trespass consisted in cutting four trees standing on a piece of land containing about fifteen acres, the legal title to which was in the defendant in error, and also in ploughing up some meadow land thereon. Under some arrangement between the parties, the precise details of which are in dispute', the plaintiffs in error moved on to the land in the spring of 1876. In general terms, it may be said they were to live on the property, take care of and support Mrs. Auman during her life, and, at her death, Mrs. Berkey was to have the land. The evidence is conflicting as to whether, by the terms of the contract, the plaintiffs in error were to take and hold the exclusive possession during the life of Mrs. Auman. As matter of fact they appear to have so taken it, and for some months thereafter Mrs. Auman lived with them, and was supported by them. During the year of 1876 they cultivated the improved land, putting in oats, corn, potatoes and buckwheat. They also improved the property to the value of $200 or more, by clearing the fields and fixing the house, out-buildings and fences. .While the plaintiffs in error were thus occupying the house and cultivating the lands, and Mrs. Auman living with them, they committed the acts complained of. The trees appear to have been cut to use the lumber made therefrom in repairing the fences and buildings on the premises. Mrs. Auman remained with them until after oats harvest of the same year, when she became dissatisfied, gave them *484notice to leave, and then she left and moved off the farm, taking most of her property with her, but leaving a few household goods. The plaintiffs in error remained in possession, and were still there when this suit was brought.

In affirming the point covered by the second assignment, the court assumed the defendant in error to be in possession, and held that if the plaintiffs in error failed to fulfil their contract, their right to remain on the premises at once ceased and determined. In this there was error. The actual possession was a matter of fact to be determined by the jury. In addition to the evidence of the plaintiffs in error, that they took possession under the parol contract, the evidence of the defendant in error herself, as well as that of Levi Adams, a witness called by her, as to the manner in which they occupied the farm, was amply sufficient to submit the question of their actual possession to the jury. She testified to Mr. Berkey having ploughed and put in the crops stated, and added: “ I did not order him to do it. I gave him no permission to plough.” Thus clearly showing he was not acting under her authority or instructions, but under his own claim of right. Adams, on cross-examination testified that he was there often; that Berkey “ was farming while she was there; she made no objections. He had the control of the farm, and used it as his.” Still further, if the plaintiffs in error had such a lawful possession as authorized them to put in the crops, their right of possession did not, during the growth thereof, at once cease and determine, so as to make them liable in trespass for continuing there, although they failed to fulfil all the terms of their contract thereafter. Even if tenants at will, they were entitled to a reasonable time to take the emblements therefrom. She could not determine the estate after they had sowed, and before they had reaped, so as to deprive them of the crops. The possession of the land on which the crops were growing continued in the plaintiffs in error until the time for harvesting them arrived: 4 Kent’s Com. 3; Clark v. Smith, 1 Casey 137. Any notice which she may have given them to leave before a reasonable and proper time for harvesting the crops, did not destroy their right of possession. If then they were in possession, and she out, trespass cannot be maintained. The second and third assignments are substantially sustained. We see no merit in the remaining assignments.

Judgment reversed and a venire facias de novo awarded.