Altes v. Hinckler

• Decision Date: 30 November 1864
• Citation: 85 Am.Dec. 407,1864 WL 3146,36 Ill. 275
• Parties: PHILIP ALTESv.CHARLES HINCKLER AND GEORGE ABBOTT.
• Court: Illinois Supreme Court

36 Ill. 275

1864 WL 3146 (Ill.)

85 Am.Dec. 407

PHILIP ALTES

v.CHARLES HINCKLER AND GEORGE ABBOTT.

Supreme Court of Illinois.

November Term, 1864.

ERROR to Circuit Court of Monroe County.

The case is sufficiently stated in the opinion.

H. K. S. O'Melveny, for plaintiff in error.

W. H. Underwood, for defendant in error.

LAWRENCE, J.

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. Witherwick, 11 E. C. L., 8; Strode v. Swim, 1 A. K. Marsh., 366; Brother v. Hurdle, 10 Ired., 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 reëntry 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...