Hunter v. Whitfield

Mr. Justice Sheldon delivered the opinion of the Court: The statute gives the landlord a lien upon the crops grown or growing upon the demised premises, for the rent thereof, to continue for six months after the expiration of the term of the demise. Appellants contend.that though this.be so, still it is a mere lien, and does not give the landlord the right to the possession of the crops, unless he obtains such possession by the levy of a distress warrant, as provided for by the statute. The statute recognizes the right of distress for rent, and regulates that remedy. There is nothing in the statute which indicates that the levy of a distress warrant is essential to a right .of possession of the property upon which the lien exists, or that that is the exclusive remedy for the assertion or 'protection of the landlord’s lien. In Miles v. James, 36 Ill. 399, property subject to such a lien had been levied upon, and sold under an execution against the tenant. Thereafter the landlord took the property by distress for the rent and sold it. It was held that the levy and sale under the execution were subject to the landlord’s lien upon the grain; that such sale under the execution in nowise affected the lien, and the purchaser only acquired the right to retain the overplus after satisfying the rent; and that the landlord could still, notwithstanding the sale on the execution, proceed, by distress, to enforce his lien against the grain. This case recognizes that there was no previous levy of a distress warrant upon the property necessary in order to protect it from sale under execution; and, although there the subsequent proceeding for the enforcement of the lien was by distress, there is no intimation that such was the exclusive remedy. In Thompson v. Mead, 67 Ill. 395, where, in the case of a like lien, there had been a levy of a writ of attachment, against the tenant, upon the crop, and a sale thereof under the judgment in the attachment proceeding, in an action of trespass subsequently brought by the landlord against the purchaser and the officer selling, it was said: “This lien the law gives him (the landlord) ; it does not grow out of the levy of a distress warrant. It is a paramount lien, of which every person must take notice, and can be lost only by waiver or failing to enforce it at the proper time.” And it was held that the lien of the landlord was prior to that of the "attaching creditor. This corn here was in the possession of "Vaughn, the landlord, within his reach to enforce his lien. The bringing of the suit of replevin by Hunter against Vaughn to get the possession admits such possession in Vaughn. Hunter has failed to return the property as ordered by the court—appropriates it to his own use. May be it has been disposed of and placed beyond the reach of any remedy in rem; at any rate, it is not placed back in the possession of the landlord where he may enforce his lien, and he is not required to go in quest of and search it out in order to the realization of any benefit from his lien. The property being charged with this lien, and Hunter having appropriated to himself the property, he should answer here to the amount of the lien, the value of the corn exceeding such amount. If it were necessary that Hunter should have had notice of the lien in order to subject his purchase t’o its operation—as to which we express no opinion—we think, under the facts here, he was chargeable with such notice. See Watt v. Scofield, 76 Ill. 261. As Hunter testified that Vaughn told him. there was hay and corn enough in his barn belonging to Moore to pay the $100 rent that Moore owed him, it is urged that this should preclude a recovery for the use of Vaughn, upon the principle that where there are two funds, and one party may resort to either of the funds for the satisfaction of his claim, but the other party can only resort to one, the court will compel him having the right to look to both funds to resort to that upon which the other has no claim. This is a doctrine of equity, which courts of equity enforce, but it has no application in a proceeding at law. It is objected that the replication set up title to the corn in Vaughn—that the issue was upon title to the corn in him— and that the evidence did not maintain the issue in favor of Vaughn, it showing that he did not own the corn, and only claimed a landlord’s lien upon it for a certain amount. The recovery was only for the amount of the lien. Had it been for a larger amount than that, and to the full value of the property, there might have been force in the objection; as it is, the objection is not substantial. The judgment will be affirmed. Judgment affirmed.