#### *Foster vs. Fletcher.*

Trespass.

Case 109.

Appeal from the Nicholas Circuit; Wm. O. Brown, Judge.

*Possession. Growing crop. Sheriff's return. Repugn nance. Trespass on goods.*

Declaration in trespass *de bonis aspo'rlatts.*

Flea, trial ami verdict, and judgment for plaintiff

Facts of the base.

October 9.

Judge Owsley

delivered the opinion of the court.

Fletcher sued Foster in trespass *met*armis, and declared against him for having, with force and arms, taken, carried away and converted to his use, two hundred barrels of corn, of which Fletcher is alleged to have been the rightful owner, and peaceably possessed.

The trial was had on the general issue, with leave to give in evidence any thing that might be specially pleaded; and verdict and judgment for one hundred arid forty five dollars were recovered by Fletcher.

It is unnecessary to notice each of the various questions of law moved at the trial and decided by the court, because there is one which, upon principles familiar in practice, rhust be adjuged to have been erroneously decided, and will, we apprehend, he conclusive against the right of Fletcher to recover in the present form of action. To' that question, therefore, the few remarks we shall make will be directed.

The facts out of which the question arose were proved to be substantially these:

In 1820, Fletcher was living on a tract of land in the county of Bath, planted a part thereof in corn, and continued to reside thereon and cultivate the corn until about the middle of July in that year. Prior to that year, there was depending in a court of competent jurisdiction, between Foster and his wife and Leonard Turly, a traverse to an inquisition taken under a warrant for forcible detainer, sued out by Mrs. Foster, before her marriage with Foster; and judgment for .restitution having been rendered therein against Turly after the corn Was planted by Fletcher, a writ of restitution was sued out on the judgment in favor of Foster, directed to the county of Bath, under which the sheriff to whom the writ was directed entered upon the *535land occupied by Fletcher, turned him out of the possession, and delivered the possession thereof to Foster. The sheriff made upon the writ of restitution the following return, to-wit:

Sheriff’s return on the writ of restitution.

> “The within named Leonard Turly is no inhabitant of Bath comity, and the within named David Foster and wife represented certain premises to me, lying on the waters of Flat creek in Bath county, to be the same in this writ mentioned, which are now occupied by Wm. Fletcher, who they also represent to be privy to Turly; and the plaintiff, Foster, went on the premises and commanded me to give him the possession of the same, which I did, agreeable to the command of the within writ, on the 7th July, 1820, except the crop on the ground, which, by the consent of the plaintiff, was reserved for the said Wm. Fletcher.”

_ On being dispossessed, Fletcher *left*the plantation, did nothing more in cultivating the corn, which was *then sufficiently*tended, *and removed*with his family *to the*distance of two or three miles therefrom, but he occasionally passedthrough the plantatation, and requested Wilson, the tenant then upon the plaee, under Foster, to take care of the crop.

Immediately on receiving the possession by the sheriff, Foster leased the plantation to Wilson, who, as tenant to Foster, entered thereon, and has continued *in*possession thereof ever since. In the Au-tum of 1820, after the corn, which was growing upon the land when possession was delivered by the sheriff, had become ripe, Foster, claiming it as his own, went into the field, gathered it, and has converted it to his own use.

It is for thus gathering and converting the corn hv Foster to his use, that the present action was brought by Fletcher,; and the question to which we have alluded is, can the action upon the preceding facts be sustained? or, in other words, assuming the facts to be true, will trespass *vi et armis*lie against Foster for gathering and carrying away the corn, and should not the court have instructed the jury to find as in case of a nonsuit?

*5360>ie person cannot be in the oosMssioD of the laud and an .titer of the corn growing on it.

In the return ■of tiro sheriff of the execution of a n rit of po-session, certifying he had delivered thepossession of the land, •■a clause stating he had excepfed for the defendant the growing corn, is repugnant and void, and plaintiff has possession of all.

Plaintiff must have the ¡josses'ion to maintain trespass.

Nothing is more clear, than that at the time the corn was gathered, it was neither actually or constructively in the possession of Fletcher. The sheriff seems to have entertained a notion, that whilst one is possessed of land, another may have the possession of corn growing upon it: and in his return, after stating that he had delivered the possession of the land agreeable to the command of the writ, he has gone on to except the crop on the ground. But we know of no rule or principle of law by which the possession of crop growing upon land can be separated from the land, so as *to*place the possession of the land in one, and the crop in another. The crop, whilst growing, is attached to and composes part of the land, and must necessarily be in the possession of whomsoever ¡¡he land is possessed,

1 The exception as to the crop, mentioned by *the*sheriff in his return, is therefore obviously repugnant to the body of his return, by which the premises is stated to have been delivered to Foster agreeable to the command of the writ, and *being*repugnant, cannot, in opposition to the other parts of the return, be admitted sufficient to prove possession of the crop in Fletcher. Were such a repugnant exception admitted to have any influence, (and whether or not we shall not stop to enquire,) it might possibly destroy entirely the effect of the *return as*evidence, but could not upon any rational principle establish the possession of the crop to be in Fletcher; and the return out of the case, the other facts are conclusive to show that Fletcher was neither actually nor constructively possessed of the land or crop, when it was gathered and carried away by Foster.

Having failed to shew that he was possessed of the corn at the time the injury complained of by him was committed, it is perfectly clear that Fletcher has shewn no right to maintain his action of trespass *viel armis,*and that the court should have instructed the jury to find as in case of a nopsuit. For there is no rule of law better settled, and none more frequently recognised and acted on, than that which makes it necessary for a plaintiff, in order to maintain trespass, to have been'in possession at the time the injury was committed.

*537
      *Crittenden*for appellant; *Triplett*for appellee.

The judgment must be reversed with cost, the cause remanded to the court below, and further proceedings there had not inconsistent with the principies of this opinion.