Creel v. Kirkham

Citations

• 47 Ill. 344

Syllabus

<p>1. Landlord and tenant—or tenants in common of the crop. Where a contract between the owner of land and another, provides that the former should furnish the land, seed and utensils for raising the crop, and the latter is to bestow his labor in that regard—the contract not giving to the latter a right of possession of the premises—the relation between the parties is not that of landlord and tenant, but they are simply tenants in common of the crop.</p> <p>2. Growing crops—whether they pass on a devise of land. Where the owner of land devises the same, there being a growing crop on the land at the time the title of the devisee vests, the crop being owned by the testator and another as tenants in common thereof, the portion of the crop which would have belonged to the testator, had he lived until it matured, would pass with the land under the devise, to the devisee, there being no reservation of the crop in the will.</p> <p>3. Assumpsit—waiver of tort. Assumpsit will not lie to recover property wrongfully withheld from the owner; but when it has been sold and converted into money or money’s worth, the owner may waive the tort, in wrongfully taking or withholding the property, and sue in assumpsit for money had, and received for his use.</p> <p>4. So, where a crop which belonged to the devisee of land, was taken by the executor of the testator, and delivered to the widow, as personal property belonging to the estate, and the widow refused to surrender it to the devisee, it not appearing that she had converted the crop into money or money’s worth, the devisee cannot maintain assumpsit against the widow for the value of the crop, but must resort to an action of replevin or trover.</p>