
    Joseph D. McCormick et al. v. John D. McCormick, Administrator.
    1. Emblements. — Emblements are defined to be “the growing crops of those vegetable productions of the soil, which are annually produced by the labor of the cultivator.”
    2. Emblements: heik and personal representatives: to whom entitled at COMMON law AND by statute. — At common law, upon the death of the owner in fee of land, the growing crops thereon went to his personal representatives, and not to the heir. The rule has been changed in this State by statute.
    3. Emblements : eight to, as between heib and personal representatives, by statute. — By the laws of this State, on the death of the ancestor, the heir is entitled, not only to the property, but to the possession of the land of which the ancestor died seized; and the personal representative has no right or title to the land, or interest in it, except that conferred, to a certain extent and for a particular purpose, by statute.
    4. Emblements: when personal representative entitled to. — The personal representatives are entitled to the growing crops, as they existed at the time of decedent’s death, when they obtain an order of the Probate Court for their sale, or are allowed to take charge of the plantation and manage it until the crops be completed.
    5. Executor and administrator: heir responsible por use op stock, etc.— when the heir uses the stock, provisions, and farming implements of his ancestor, in cultivating and completing the crop growing upon his lands at the time of his death, he is accountable for the use of the same to the personal representatives.
    6. Replevin: action against party in possession. — An action of replevin will lie only against the party in possession of the property at the time the action is instituted.
    Error to tbe Circuit Court of Yazoo county. Hon. J". A. P. Campbell, judge.
    
      D. Jones, for plaintiffs in error,
    presented tbe following points:
    On tbe death of an ancestor intestate, seized of an estate of inheritance, bis lands immediately descend to bis heirs, with tbe right of entry and possession. 2 Black. Com. 208, 210; 1 Tnck. Com., book 2, 187, 188; 4 Kent’s Com. 374, 375; 3 Cruise’s Digest, 362, 363 ; 2 Comyn’s Digest, title Descent, 0.
    Tbis principle of the common law bas been incorporated into our statutes, and bave been in existence from its earliest legislation. Poind. Code, 41, section 50; How. & Hutcb. 393 ; Hntcb. Code, 623; Rev. Code, 452, article 110.
    An administrator bas no right to the possession of bis intestate’s real estate. Carrmchael v. Dcvois, "Walker’s (Miss.) R. 221; Smith v. Winston, 2 How. Miss. 601; Person v. Williams, 23 Miss. R. 64.
    Lands, in case of deficiency of personalty, are liable for tbe payment of debts; but this vests in the administrator an interest on condition. Rev. Code, 446, articles 88, 89.-
    
      Willcerson and Bowman, for defendants in error,
    contended,
    ' That but one question was presented, whether the personal representative or the heir is entitled to the crops growing upon the lands of decedent at time of his death.
    "faThere the deceased was seized in fee-simple of land, his personal representatives are entitled to emblements as against the heir.” 1 "Williams’ Exrs. 496.
   IíaNDY, C. J.,

delivered the opinion of the court.

This was an action of replevin, brought by the defendant in error, as administrator of John McCormick, deceased, against the plaintiff in error, to recover a quantity of corn and fodder, alleged to be the property of the administrator. The suit was brought in the County Court, and from the judgment of that court the case was taken by appeal to the Circuit Court, where a judgment was rendered on a special verdict for the administrator, and the defendant takes the case here by writ of error.

The case depends entirely on the correctness of the judgment of the Circuit Court on the special verdict, the only error assigned or insisted on by counsel being, that the judgment is erroneous in law upon the case made by the special verdict.

The special verdict is in the following words:

“"We, the jury, find the following facts: That John 0. McCormick died on his plantation in Yazoo county, on the 8th day of May, 1865 ; that he left a number of children, of whom Joseph D. McCormick was one, and the administrator another; there were several other children of the intestate; that intestate owed debts nearly enough to absorb his estate; that, at the time of his death, there was a crop of corn planted, about twelve or fifteen- acres of which were replanted by defendant; that a portion of the corn was ploughed up and put in cotton; that the corn in controversy was grown on the place in 1865, and was worth $1.50 per bushel, and there were two hundred bushels sold by defendants; that, on the 8th May, 1865, the ancestor died ; bis sons took possession of tbe land and slaves (wbom they hired for tbe remainder of tbe year) tben on tbe place, wbicb before tbe emancipation proclamation bad belonged to tbe ancestor; and tbat with tbe slaves, stock, provisions, and farming utensils belonging to said intestate, bis son Joseph raised tbe corn in controversy; tbat plaintiff administered in October, 1865; inventory and'appraisement embraced tbe corn sued for; that after tbe death of tbe ancestor, tbe son entered into a contract with tbe negroes on tbe place to make a crop, and under it paid their taxes and furnished medicines; and com is now worth $1 per bushel. If, upon these facts, tbe law be for tbe plaintiff, we find for tbe plaintiff: if tbe law is for defendant, tben we find for tbe defendant. And thereupon tbe court rendered judgment for tbe plaintiff for $188 and costs.

By tbe common law, emblements — wbicb are defined to be tbe growing crops of those vegetable productions of tbe soil wbicb are annually produced by tbe labor of tbe cultivator— went to tbe personal representative and not to tbe heir, upon the death of tbe ancestor who was seized in fee of tbe land. 1 "Williams’ Exrs. 496, 2d Amer. edit. If this rule remained in force to its full extent in this State, there is no doubt tbat tbe administrator would be entitled to tbe growing crops from and after tbe death of tbe decedent. But this rule appears to be materially modified by our legislation on tbe subject. On tbe death of tbe ancestor, tbe heir immediately is entitled not only to the property but to the possession, and tbe personal representative has no right or title to tbe land, or interest in it, except such as is conferred upon him to a certain extent and for particular purposes by oui- laws.

Our statutes, in force at tbe time tbe rights of tbe parties in this suit accrued, contained but two provisions touching tbe right and power of tbe personal representative in relation to crops of tbe decedent growing at tbe time of bis death. Tbe first is, tbat tbe Probate Court may, on application, decree a sale of such crops by tbe executor or administrator; and tbe second is tbat tbat court, if it shall be of opinion tbat tbe interest of tbe estate would be best promoted by cultivating and completing such crop, may order the executor or administrator to do so, who shall take charge of the plantation and proceed to manage the same until the crop be completed; and the proceeds shall be assets, the necessary expenses being deducted. Rev. Code, 448, article 96.

These provisions plainly recognize the right of the personal representative to the crop in the condition in which it exists at the time of the decedent’s death. But the effect of them is, that he can only exercise that right in one of two ways; he must either sell the crop under an order of the Probate Court, or obtain an order of the court allowing him to cultivate and complete it, in virtue of which he is authorized to take charge of the plantation and manage it until the crop be completed, and to incur the necessary expenses to that end. If he proceed in neither of these ways, the heir, who by the death 'of the ancestor is entitled to the possession, may consider the right abandoned, and take possession of the land and cultivate and complete the crop. In such a case the administrator would not be entitled to the crops completed and matured by the labor, and at the expense, of the heir; because they may be, and in this case actually are, for the most part the product of the labor and means of the heir. In their then condition they are not the specific and identical thing to which the administrator was entitled at the time of the intestate’s death; but both their form and value are materially changed, and that by the exertions and means of the heir. If, in such a case, the administrator be entitled to recover anything from the heir, it .is certainly not the specific articles raised and matured on the land, but the value of the crops at the time the heir took possession of them.

In the present case it is manifest that nearly all the value of the corn in controversy was derived from the labor and means of the plaintiff in error; and it would be most unjust to permit the administrator, when he had done nothing to give any value to the crops, to come forward and reap all the benefit of the heir’s labor and expense. If, in the cultivation of the crop, the plaintiff in error had the use of the stock, provisions, and farming implements belonging to his father’s estate, as is found by the special verdict, he would be accountable to the administrator for the same, but not in an action of this sort.

There is another objection to the judgment, which, though not presented in argument, we cannot overlook.

Our consideration of the case is confined entirely to the special verdict and the judgment rendered thereon, and the affidavit and proofs on which the suit was formded in the County Court. From the proceedings in the County Court, we learn that the action was replevin for a certain quantity of corn and fodder. For the evidence to support the action, we have to look entirely to the special verdict; and when we examine that, there is a total absence of all evidence that the defendant had any corn in possession, susceptible of being taken on the writ of replevin. All that is shown in relation to the defendant’s possession is, that he sold two hundred bushels of corn, that is, of the corn in controversy. But there is nothing to show that he had any corn in possession when the writ of replevin was issued, or at any time thereafter; and under that state of case, the action of replevin cannot be maintained.

Whatever the true state of the case may be, in this respect, we are compelled to view the evidence, on which the action rested, alone through the medium of the special verdict; and so regarding it, it is clear that upon the ground just stated the judgment was erroneous.

Upon these views of the case, we are of opinion that the judgment is erroneous, and it is therefore reversed, and a judgment directed to be entered on the special verdict for the plaintiff in error.  