Altes v. Hinckler , 36 Ill. 275 ( 1864 )

Mr. Justice Lawrence

delivered the opinion of the Court:

At the May term, 1863, of the Monroe Circuit Court, Hinckler and Abbott recovered a judgment in an action of ejectment against Altes, on which a writ of possession was at once sued out, and Hinckler and Abbott were put in possession of the premises. At the time, a crop of wheat and barley was growing upon the land, having been sown during the pendency of the ejectment. Notwithstanding the execution of the writ of possession, Altes afterwards entered and cut the crop, and carried it away. Thereupon Hinckler and Abbott brought an action of trover against him, and recovered a verdict and judgment for the value of the crop. To reverse this judgment Altes has brought up the record.

It is urged upon the part of the plaintiff in error, that growing crops are personal property. For some purposes, and as between some parties, they are so, but as between the successful plaintiff in an action of ejectment and the evicted defendant, they are unquestionably a part of the realty. Adams on Ejectment, 347 ; Upton v. Witherwiclc, 11 E. C. L. 8 ; Strode v. Swim, 1 A. K. Marshall, 366; Brother v. Hurdle, 10 Iredell, 490.

The same principle is also settled in Crotty v. Collins, 13 Ill. 567.

• Apart from authority, it is quite clear as a matter of principle. If the defendant in the ejectment was entitled to the crops of the year 1863, when the recovery was had, on what ground could he be held liable for the mesne profits of 1862, and of the preceding years. To hold him liable for the profits of the land one year, and permit him to enter in order to secure them the next, would be absurd. Besides, the writ of possession, as given by the statute, commands the sheriff to give the plaintiff possession of the land and its appurtenances. When this writ is executed, he is in under his paramount title, with rights as complete as if he had never been ousted. He can, if he desire, plow up whatever growing crops he may find upon his fields and a re-entry by the former occupant, is as much a trespass as would be a similar entry by a stranger. The court below decided correctly in holding the plaintiff in error responsible for the value of the crops carried away by him.

The ad damnum in the declaration was for only five dollars. The judgment was for three hundred and seventy-five dollars. For this we are obliged to reverse the judgment, and remand the cause, with leave to amend declaration.

Judgment reversed.