McGinnis v. Fernandes

Mr. Justice Wilkin

delivered the opinion of the Court:

On April 21, 1886, appellee brought an action of ejectment against D. E. McGinnis and others, in the circuit court of Sangamon county, claiming the lands described in his declaration. Three trials were had, each resulting in favor of appellee, and on the last, (November 10, 1887,) judgment was -rendered in his favor, finding that he owned the premises in-fee, and was entitled to the possession thereof. From this judgment said McGinnis appealed to this court, which appeal remained undetermined until November 14, 1888, when the judgment of the circuit court was affirmed. On the same day a certified copy of the' order of affirmance was filed in the clerk’s office of the circuit court, and a writ of possession issued. On the next day the writ was executed, by placing appellee in possession of the premises. In March, 1888, after the rendition of said judgment in the circuit court, and while the appeal was pending here, said D. E. McGinnis leased the-land to appellants, his sons, who took possession and raised a crop of corn thereon. This corn, at the time of the execution of the writ of possession, was cut up, and placed in shocks on the ground. Appellee refused to deliver it to appellants on demand, and they thereupon brought this suit in replevin. The judgment in the circuit court was for appellee. Appellants appealed to the Appellate Court for the Third District, where the judgment of the circuit court was affirmed.

The only question involved in the case is, to whom did the property belong at the time this suit was brought. It was expressly decided in Altes v. Hinckler, 36 Ill. 275, that, as between the successful plaintiff in an action of ejectment and the evicted defendant, growing crops are a part of the realty, and belong to the plaintiff. This ruling rests upon the fact that in law the defendant is treated as a trespasser. See, also, McLean v. Bovee, 24 Wis. 295; Rowell v. Klein, 44 Ind. 290; 15 Am. Rep. 235, and cases cited.

Appellants, can not claim to be in any better position as to-the corn in question than would have been their father had he raised it. They were wrongdoers in holding possession of the land and cultivating it. They, in law, have no better standing than had Collins, in Crotty v. Collins, 13 Ill. 567, or than did Rogers, in Simpkins v. Rogers, 15 Ill. 397. Being trespassers, appellants had no right to plant or cultivate the crop. Therefore, while growing or standing on the ground it belonged to-the owner of the soil. The act of cutting and shocking it was also the act of trespassers. The growing corn was the property of appellee. The wrongful act of severing it from the soil could not destroy that ownership. The fact that the successful plaintiff in ejectment may have his action for mesne profits can not affect his right of ownership to crops grown on the land wrongfully withheld from him. That remedy may be wholly unavailing, by reason of the insolvency of the defendant.

We are satisfied with the conclusion reached by the Appellate Court, and the reasoning by which it is sustained in the opinion of Justice Wall.

Judgment affirmed.