Wetsel v. Mayers

Mr. Justice Scholfield delivered the opinion of the Court: Whether appellant would have been entitled to the possession of the corn, had he, before the levy of the execution or the commencement of this suit, tendered appellees the amount of rent due, is a question not before us. Nor is it now material to inquire whether, in any case, the tenant can, by contract alone with the landlord, invest him with an absolute title to the property upon which he has a lien for rent, as against the claims of judgment creditors of the tenant. The statute (Rev. Stat. 1874, p. 661, § 31,) provides, that “ every landlord shall have a lien upon the crops grown or growing upon the demised premises for the rent thereof, whether the same is payable wholly or in part in money or specific articles of property or products of the premises, or labor, and also for the faithful performance of the terms of the lease. Such lien shall continue for the period of six months after the expiration of the term for which the premises were demised.” We have held that this lien does not grow out of the levy of a distress warrant—that it is a paramount lien, of which every person must take notice, and which can be lost only by waiver or failing to enforce it at the proper time. Thompson v. Mead et al. 67 Ill. 395 ; Prettyman v. Unland et al. 77 id. 206. We are aware of no principle upon which it can be asserted that the abandonment of the proceedings by distress can be held to be a waiver of the lien, it not being dependent, in any degree, upon those proceedings for vitality. Suppose it be conceded the parties could not, by their mutual agreement, vest the landlord with the absolute title to the corn, to the exclusion of the claim of appellant—what follows ? Simply that that agreement was nugatory, and the rights of the parties are to be determined as if .it.had not been made. Then the appellees have a prior lien upon the property to secure them in the rent due them, and they are entitled to its possession to enforce their lien. Perceiving no error in the record, the judgment is affirmed. Judgment affirmed.