44 Mich. 83 | Mich. | 1880
April 5, 1877, the plaintiff’s father, Levi McDaniels, died intestate, seized in fee of fifty acres of land in Wayne county, and leaving a widow and eight children.
The substantial question is, whether under the legal doctrine concerning emblements, the plaintiff was not entitled to the wheat and the free ingress,'egress and regress in order to cut and carry it away, and we are satisfied he was. The estate descended to the heirs, but for the term of six years from the death of the intestate was subject to sale for the payment of debts under license from the probate court, and subject also, during the settlement of the estate, to the jurisdiction of the court of chancery against the commission of waste. Act 138, Public Acts of 1877, p. 126. Subject to these qualifications the estate of the heirs and the right of enjoyment were absolute. There is a concurrence of principles in the plaintiff’s favor. Wherever it can be done con
When the wheat in controversy was sown, the possession and right of possession were in the plaintiff. He was entitled to the en joyment to the exclusion of all others. Whether, for the purpose of settling the estate, the title and right of possession would be transferred was uncertain, and this state of uncertainty might continue for six years from the death of the intestate. In ease the change should take place it would be by act of law and not by any act of the plaintiff. It was for the public advantage that the land should not lie fallow, and in order to favor its cultivation it was proper that the plaintiff should be under the protection of the rule which declares that he who sows shall reap. Again, the law gave him the succession and right of possession, and it is a natural presumption that the attending advantages were meant to be given also. It would be absurd to suppose that a barren occupancy was intended which might continue for several years.
An ancient application of the doctrine concerning emblements is worth citing. A lease was made to husband .and wife during coverture, and the husband sowed the land, and afterwards they were divorced causa prceconiractus. It was held that the husband, nevertheless, should have the emblements, and not the lessor; for although the suit was the act of the party, yet the sentence which dissolved the marriage was the judgment of the law. Oland's Case 5 Co. 116 b. See also Bulwer v. Bulwer 2 B. & A. 470.
So here the right and interest of the plaintiff were determined by an act of law which he was not in a condition to foresee, and he was entitled to the crop, and the interference complained of was undoubtedly a trespass, and he was entitled to recover for the wheat. As a crop in his ownership separate from the land, it was competent to sue defendants
The judgment must be reversed with costs and a new trial granted.