67 Ill. 395 | Ill. | 1873
delivered the opinion of the Court:
The demised premises were one and indivisible. The house and land were rented at the same time—the rent for the first named to be paid in money \ of the other, in kind—and was rented to one and the same party. The farm, a portion of which was demised, was in one body; a part in one township, and partin another, a public road running on the county line. The road did not make the premises two farms. Section 8 of the act respecting landlords and tenants, ch. 60, R. S. 1845, provides that every landlord shall have a lien upon the crops growing or grown upon the demised premises, in any year, for rent that shall accrue for such year. The lien is not confined to any particular crop, but embraces all the crops, or any portion of them, no matter upon what particular part of the premises they were raised. This lien the law gives him; 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.
The court, after instructing the jury on behalf of the plaintiff, in conformity to section 8 of the statute, and that such lien took precedence of the lien of an execution or attachment creditor of the tenant, unless the lien was waived by the act of the landlord, and that the landlord might distrain upon any one or more of the crops, growing or grown, upon the demised premises, or on any part of any crop, for the rent of the whole premises—instructed the jury, for the defendants, that, if they believed, from the evidence, the rent was paid on the tract of land on which the corn in question was grown, for the year, then, as against creditors who attached that corn after the rent was paid, and before levied upon by the landlord for other rents, the plaintiff could have no lien upon the corn for rent of other premises as against them, and they must ' find for the defendants.
This, after the charge in favor of the plaintiff, could not have failed to confuse and mislead, and was incorrect in itself. The proof was, the premises were an entirety—a part of one farm—and though the rent of the house was payable in money, the law gave to the landlord a lien on the corn, or other crop, growing on the same premises. Equally incorrect, and calculated to mislead, was the instruction given by the court on its own motion. In this, the court told the jury that, although a landlord might distrain for any rent due for . any premises upon crops grown upon any other premises, or any other property of the tenant, yet he has no lien upon crops grown upon certain premises except for rent due for said particular premises; and, unless the landlord has a lien upon a crop, he stands in no better condition than any attachment or execution creditor, and, as between him and such creditor, priority of levy gives precedence.
This is so different from the first instruction given for the plaintiff, that it seems irreconcilable with it, and must have misled the jury, and was not proper, in itself, on the facts of this case. Each and every part of the premises demised was subject, to the lien for the rent of anyone part, and the preference of the landlord does not depend on the levy of a distress warrant, or any proceeding. The law creates the lien, and from its very nature, and under the statute, must have precedence unless it has been waived, or the landlord been guilty of laches, neither of which was, or could- be, set up in this case.
There was but one contract, but one demise, and of one premises. The lien of the landlord covered each and every part of the crops growing upon it.
For the reasons given, the judgment must be reversed, and the cause remanded for further proceedings in conformity to this opinion.
Judgment reversed.
