delivered the opinion of the Court:
This was an action of debt brought in the Circuit Court of McLean county by LTorval Dixon, for the use of John Brodrick, against John Uiccolls and William S. Uiccolls, on a replevin bond.
The declaration is in the usual form, demanding twelve hundred dollars, the penalty of the bond, as the debt, and claiming damages to the amount of twelve hundred dollars. The breach was that the defendant did not prosecute his suit with effect, and did not return the property, although a return was, awarded by the court.
To the declaration, the defendants pleaded nil debet, and an agreement was entered into that all matters that could be specially pleaded might be given in evidence under this plea.
The cause was submitted to the court for trial without a jury, on the following agreed state of facts:
That John EL. Knoop, of Miami county, Ohio, was for several years before and up to and until the 1st day of October, 1864, the owner in fee, of the east half, and the north-west quarter, the east half of the south-west quarter, and the north-west quarter of the south-west quarter of section 32, town 24, range 3, east of the 3d principal meridian.
That on the first day of October, 1864, Knoop conveyed the premises to the defendant, John JSTiccolls, by a general warranty deed, without any reservation, whatever, in the deed, which deed contained full covenants of title, seisin, and against incumbrances.
That when the premises were conveyed by Knoop to TNiccolls, John Brodrick was the tenant of Knoop, upon a portion of the premises, for the rent year commencing March 1,1864, and ending March 1, 1865, the rent to be one-third of the crop payable in kind, the small grain rent (wheat, oats and barley), to be delivered to the landlord in the half bushel at the threshing-machine as soon as threshed.
That Brodrick had been the tenant of Knoop upon the same premises for several years previous, and immediately preceding the time of their conveyance by Knoop to jSTiccolls.
That at the date of the conveyance by Knoop to jSTiccolls, the small grain to be paid as rent from Brodrick to his landlord, together with Brodrick’s own portion of the crop, was cut and stacked together (being undivided) upon the premises, but was not yet threshed.
That- about the 24th day of October, 1864, Brodrick commenced to thresh the small grain, and defendant, John jSTiccolls, sent his agent to demand or receive from Brodrick the rent portion (one-third) of the small grain, that his agent did make such demand, and Brodrick refused to give up the rent; and thereupon, on the 25th day of October, 1864, defendant Miccolls commenced his action of replevin against Brodrick for the rent portion of small grain in kind “ to-wit, about 500 bushels of oats, 100 bushels of barley, and 300 bushels of wheat, being one-third of the small grain (to wit, the rent in kind, present season) raised by Brodrick upon section 32, town 24, range 3, east, in McLean county, Illinois,” filed his affidavit, and sued out his writ of replevin, and executed a replevin bond to In or val Dixon, sheriff, with William S. LTiccolls as security, in the penal sum of twelve hundred dollars, the bond being in the usual form; that immediately upon the execution of the bond, defendant, John BTiccolls, hy his agent, went, with the sheriff and the writ, to Brodrick, and Brodrick did then and there deliver over to the sheriff, upon his demand, by virtue of the writ, his one-third, or the rent in kind of small grain, which was by the sheriff delivered over to the agent of the defendant, John fficeolls. That the rent portion of small grain so replevied was worth the sum of eight hundred and fifty dollars.
That upon the trial of the action of replevin, John bTiccolls (plaintiff in the suit) dismissed his suit, and the merits of the suit were not passed upon or decided by the court; but judgment was rendered for costs, and a writ of retorno awarded as by the declaration is set forth.
That the present action of debt is brought upon the replevin bond above referred to, and that the property ordered to be returned by the writ of retorno hábendo, in the action of replevin, is the same property delivered to the agent of John Kiccolls, by the sheriff, as above set forth, and is the rent portion, in kind, of the small grain grown in the year 1864, by Brodrick upon a portion of the same premises conveyed by Knoop to Niccolls.
Defendants admit the execution of the bond, and that such proceedings were had by the court in the action of replevin as by the declaration is set forth; that plaintiff in replevin dismissed his suit; that the court rendered judgment for costs against plaintiff and ordered return of the property; that demand was made for return of the property upon said writ of retorno, but that the defendant, John Uiccolls, refused to deliver up the property so ordered to be returned; and defendants admit all the material allegations in the plaintiff’s declaration, except that an action had accrued, or that defendants are indebted to plaintiff; but set up the foregoing facts, which were not considered hy the court in the action of replevin, as a complete defense to this action.
On these facts, the court found for the plaintiff twelve hundred dollars debt and one cent damages, and that the debt be discharged by the payment of these damages.
A motion for a new trial was duly entered and overruled, and a bill of exceptions signed, and the cause brought here by writ of error to reverse the judgment. The plaintiff in error assigns the following errors : That the court erred in assessing the plaintiff’s damages at one cent only; in not assessing his damages at eight hundred and fifty dollars, the full value of the property replevied; in overruling the motion for a new trial.
The precise question presented by the record and the only one argued by counsel, the determination of which decides the case, is, to whom did the right to the small grain belong, on the sale by Knoop to Mccolls of the land on which it was grown ? The plaintiff in error contends that the grain, being cut and stacked, was severed from the realty, became personal property, and so remained at -the time the deed was made, and, therefore, did not pass by the deed.
The defendants in error insist that it was accruing rent and passed to the vendee by the deed, as settled by this court in the case of Crosby v. Loop, 13 Ill. 625.
The proper solution of the question depends upon the relation subsisting between Brodrick and Knoop, the owner of the land, at the time he sold and conveyed it to Mccolls.
If the relation of landlord and tenant existed, then the rent followed the reversion. If Knoop and Brodrick were tenants in common of the crop, then it did not pass by the deed.
In the agreed state of the facts it is conceded (item 3) that when the premises were conveyed by Knoop, Brodrick was the tenant of Knoop upon a portion of the premises for the rent, the year commencing March 1, 1864, and ending March 1, 1865, the rent to be one-third of the crop payable in kind, the small grain rent, wheat, oats and barley, to be delivered to the landlord in the half bushel at the threshing-machine, as soon as threshed.
The facts agreed further show, that the grain had not been threshed when the deed was made. It was not due by the terms of the agreement until it was threshed and measured in the half bushel. When the deed was made this had not been done, consequently it was rent not then due.
It would seem, by the admission of plaintiff in error, that Brodrick was the tenant of Knoop at a stipulated rent, and was in the exclusive possession of the land, that he has given up his whole ease. The law is well settled where a lessor makes an unqualified grant of leased land, the rent passes to the grantee as an incident of the reversion. By Knoop’s deed to Kiccolls, no reservation was made of any kind. A party selling leased or rented land, may reserve the rent, so he may sell the rent retaining the reversion. If he makes no reservation of rent and conveys the fee, the accruing rent goes to the grantee of- the fee. This doctrine is fully recognized in the case of Crosby v. Loop, 13 Ill. 625, and it is not now open to question.
But the plaintiff in error contends that the facts show a mere letting of the land to Brodrick by Knoop on shares, thus making them tenants in common of the crop. A number of cases are referred to in support of this position. If the facts made such a case, there would be no need of authority to support it, but they do not. The fact is conceded that Brodrick was tenant of Knoop, and the “rent ” was to be one-third of the crop; that he had exclusive possession of the farm, and had for a number of years previous, Knoop residing in Ohio. The leasing was from March 1, 1864, to March 1, 1865. As was said by this court in Allwood v. Ruckman, 21 Ill. 200, there may be a leasing of land from year to year, or for á single year, when the relation of landlord and tenant may exist, although the rent is to be paid by a portion of the crop, in which case the parties are not tenants in common of the crop raised, but the title to the whole is in the tenant until the rent stipulated is" paid.
But, in all cases, whether it is simply raising a crop on joint account or a tenancy, the rent payable in kind, depends upon the intention of the parties.
In this case there can be no misconception on that point. The exclusive possession of the farm for a series of years by Brodrick, a rent agreed upon, and the non-residence of Knoop, the owner, all conspire to show the relation of landlord and tenant, and thereby constituting Brodrick the exclusive owner of the crop until the stipulated rent was set apart or paid to the landlord. It is not like any one of the cases cited by the plaintiff in error. In all of them facts are disclosed, going to show the intention that theré should exist a joint ownership in the crop to be raised, and not a tenancy .at a stipulated rent. The plaintiff in error further contends if, in a legal sense, the share of the crop Knoop was to receive is to be regarded as rent, still, by the terms of the contract between him and Brodrick, the rent was due at the time the deed was made, and, therefore, did not pass by the deed to 3STiccolls. He argues that as, by the agreement, Brodrick was to deliver the small grain in the half bushel as soon as threshed, and as there was no time specified when it should be threshed, the law would hold that it should be threshed and delivered in a reasonable time, and he further insists that the court will judicially take notice of the time when such crops matured, on the principle that whatever ought to be generally known within the limits of its jurisdiction, of that the court will judicially take notice. We do not think the doctrine of judicial notice has been carried quite to the extent claimed by the plaintiff in error. It cannot be so extended, because the time for those crops of wheat, oats and barley to mature varies greatly in the different judicial divisions of this State. In the county where this cause was tried, and that in which this opinion is written, the time at which these crops mature is very different. Even in the same locality there is a 'difference. Of facts of unvarying occurrence, courts must take judicial notice, but not of the vicissitudes of climate or of the seasons. These, like other facts, if relied on as important, must be proved by the party seeking an advantage therefrom.
If the plaintiff relied on the fact that sufficient time had elapsed within which to thresh and measure the grain, he should have proved it. We believe opinions differ on the point. Some good farmers contend that small grain should not be stacked, but threshed from the shock, while others insist it should be stacked, and remain there a month or more before threshing, while others suppose the best economy is, to postpone that operation until the winter season, when farmers have the most leisure. Brodrick was threshing the grain on the 24th of October, when Niccolls demanded his share of it, as rent, he having purchased the premises on the first day of that month. We cannot say the time chosen by Brodrick, to thresh the grain was not in a reasonable and proper time after the crop.matured, not knowing when it did, in that latitude, in fact mature.
There is no special custom shown here when the rent was due, nor was thére any contract about the time; consequently, on general principles, the rent was not due until the expiration of the term, and that was on the 1st of March, 1865, and before the expiration of the term, Knoop sold the land to Kiccolls, without any reservation. Suppose instead of selling the land, Knoop had died, to whom would this rent, have gone? Bent is a chattel real, and would have gone to the heirs, and not to the executor or administrator. Crosby v. Loop, supra, and Green v. Massie, 13 Ill. 363; Foltz v. Prouse, 17 id. 487. The proposition is too plain and too well settled by authority, for argument, that when leased land is sold without any reservation of rent, the rent attends the reversion or fee in every case, when the relation of landlord and tenant exists. And where the rent is to be paid in kind, the tenant remains'the exclusive owner of the crop until the stipulated rent is 'set off to the landlord.
Among the number of cases referred to, in support of this position, by the counsel for the defendants in error, in addition to the case of Crosby v. Loop, decided by this court, is the case of Stewart v. Doughty, 9 Johns. 107, a case “ on all fours ” with this case, and well considered, in which the same doctrine is held. In fact, we can find no case in opposition to it.
As admitted by the defendants’ counsel, the case of Moulton v. Robinson, 7 Foster, 550, cited by plaintiff, bears more strongly against the opinion we have expressed, than any other case we have been able to find; but, when the reason for the decision in that case is understood, it will be found to be inapplicable to the relation of landlord and tenant as it exists under our law. The court say, the landlord relies on the crops as a security for the rent, and if they are all to be deemed the property of the tenant until a division is made, they might be taken for the debts of the tenant, and the landlord’s claim defeated, and they would not presume that the landlord intended thus to jeopard his interest by suffering the tenant to be sole owner until a division. Here the case is put on the ground of intention, and that is the true ground, but the reasoning can have no application in this State, protected as landlords are by the statute giving them a lien on all the crops grown on the demised premises. Scates’ Comp. 717. And as further protection to landlords, the right to distrain for the rent in arrear is extended six months after the expiration of the term, whether the rent be reserved in money, in specific articles of property, or in any part of the product of the demised premises. Scates’ Comp. 718.
The relation of landlord and tenant being established, and the stipulated rent not due, from all that appears, until the 1st day of March, 1865, the sale of the premises by Knoop, on the 1st of October, 1864, without any reservation of the rent, passed the rent to Mccolls, his grantee.
The fact that this suit is brought for the- use of Brodrick, for the share of his landlord, and which was all that Miccolls replevied, goes to show that he considered the grain his, otherwise the suit would have been brought for the use of Knoop. On the theory that he and Brodrick were tenants in common of the crop, and Brodrick had received his share, why should a suit for Knoop’s share. be brought for the use of Brodrick ? This, as well argued by defendants’ counsel, shows conclusively that Brodrick did not consider the crop as .joint property, but that the whole of it belonged to him as the tenant who rais.ed it, and as tenant he sues for it. The case of Allwood v. Ruckman, 21 Ill. 200, before cited, is conclusive on the point. The plaintiff in replevin having got, by means of the writ, that to which he was entitled, being the rent, and nothing more,, had no motive to promote the replevin suit, and suffered a non-suit. This suit is brought on the replevin bond, averring a non-return of the property. The merits of the case being now first disclosed, it is manifest the court decided right in. giving-nominal damages only, and by the payment of which the debt would be discharged. We perceive no error in the record, and therefore affirm the judgment.
Judgment affirmed.