GREEN v. CUTRIGHT, 1 Ohio Ch. 738

By the Court. The party against whom process of execution issues after it has lain five years, may have it set aside on motion, and put his adversary to his scire facias to revive the judgment; but the writ so issued is not void. Whether emblements are assets depends on the evidence, they may be so in a certain event. The evidence is admitted. The evidence for the plaintiff being closed Wright, J. The statute provides, (29 O.

L. 235) that in case of a death between the 31st of December and the 1st of March, the emblements growing on the land of the deceased, shall pass to the heir with the land, but if the death occur after the 1st of March, the emblements which shall be severed before the 31st of December, shall he assets in the hands of the executor or administrator. The death here took place several years before the crop of corn was planted which was levied upon, and the corn, therefore, was not growing at the death, and not within the provision declaring it assets.

By what authority the plaintiff sustains the right to’ seize the crop on descended lands, several years after the descent, as assets in the hands of the administrator, we are left to conjecture, none is cited to us. It seems to us too clear for dispute, the corn crop in question was not assets, nor subject to levy on an execution against the administrators. In that state of case, the sale by the officer transferred no right to the plaintiff, upon which he can recover, and the nonsuit is ordered. Wright, J. Wo do not discover any mistake of the law in ordering the nonsuit.

As to the right of the administrator, that question must be settled between him and the heir, the plaintiff' has acquired no legal authority to adjust it. The motion is overruled.