
    Hardeman vs. Shumate.
    Landlord and Tenant. Lien on Crop. Landlords, by the virtue of the “lien on the crop growing on the rented premises,” given by the act of 1825* c 21, have no property in, or right to the crop, and can maintain no action grounded on any taking, or detaining of, or injury to it.
    Same. Precedence of debt for rent, how secured. The landlord’s debt for rent is entitled to satisfaction out of the cro|>, growing, &c., j>recedent to all other debts of the tenant; and this precedence is preserved by bringing suit for the debt, within three months after the rent falls due, and prosecuting it to judgment, — the lien of which judgment, and the execution thereon, takes, date from the day the rent fell due.
    About the 1st of January, 1837, the plaintiff, Franklin-Hardeman, rented thirty acres of cleared land to Isaac Potete,, at two dollars per acre, to be paid on the 1st of January,, 1838. Potete planted the land in corn, of which he made a crop of seventy barrels, and died intestate and insolvent in the fall of 1837. Administration on his estate was granted,, by the county court of Williamson, to the defendant, William J. Shumate, on the first Monday of November, 1837. Shumate, in the character of administrator, though notified' by the plaintiff not to sell the corn till the rent was paid, nevertheless sold it, in the month of November, 1837, for about one hundred and twenty dollars.
    On the 31st of March, 1838, the plaintiff sued Shumate in the circuit court of Williamson, not in his representative-capacity, hut in his own rights, and declared in case, laying-the gravamen of his action in this, that the defendant by selling the crop whilst the lien thereon continued, but before any action to enforce it could be brought against him as administrator (he not being suable in that character till six months after-his qualification,) had deprived the plaintiff of the benefit of' the lien.
    At the trial before Judge Marchbanks, at November Term, 1838, he charged the jury, that unless the plaintiff satisfied them by proof, that he had recovered judgment for the rent against Potete, or his administrator, in that character, he could not recover in this action. The jury returned a verdict for the defendant; and the court, having overruled the plaintiff’s motion for a new trial, he appealed in error.
    
      January 15.
    Marshall, for the plaintiff
    said, the plaintiff had a lien "on the crop for the payment of his rent, by the act of 1825, c 21. By the act of the defendant complained of, he is deprived of his security for this debt. The insolvency of the tenant is shown to ascertain the extent of the damage done the plaintiff by the wrongful acts of the defendant, in depriving him of his security; and it is no objection, that no judgment ws taken against the administrator in that character. 1. Because the gist of the action is the plaintiff’s loss, of his debt, by the defendant’s tortious act; 2, Because the administrator, by the act of 1829, c 57, could not be sued in that character, for six months after his qualification, which six months embraced the three months immediately after the rent fell due, and the law would require the plaintiff to do an impossible thing.
    3. It is the administrator in his own right who is sued, within the three months after the rent fell due, being the person against whom in his fiduciary character the judgment must be taken. And he is sued in his own right, because, having all the papers of the deceased, and knowledge of all the evidence, if any, going to show that the deceased never did owe the rent, or that he, or his representative had paid it, it would he competent for him to make proof, in this action, to show that the act of defendant was not tortious, or did not damage the plaintiff. And a judgment against him could not possibly injure him, for it is only the .surplus of the crop, after discharging liens on it, that is assets in his hands; and it is only for that which is not assests that the plaintiff would recover.
    4. If the act of 1829, c 57, had not stood in the way, and the act of 1833, c 31, had never been passed, still if the plaintiff had sued the defendant as administrator, on the unliquidated account for the rent, the defendant might have pleaded plene administravit, or outstanding debts of higher dignity, and the only judgment he could get would be of assets, quando, &c., upon which he could sue out no fi.fa. It is true that this would ascertain the claim, but when the claim is ascertained by a suit between the same parties wherein all proof on this question is as competent in the one form as in the other, the one is as likely to be right as the other; and it would be worse than useless to put the plaintiff and defendant to the costs of two suits when one would settle the dispute as well, and in precisely the same way.
    5. Because, under the act of 1833, c 36, the administra* tor, or any creditor of the deceased might have suggested the insolvency of the estate, before the rent fell due, and no judgment of any kind could have been obtained by the plaintiff, even if the act of 1829, c 57, had been out of the way. The plaintiff in order to have benefit of a legal right will not be required to do an impossible thing.
    6. Because a judgment by the plaintiff against the admin-trator quondo, would be of no service to him, he could take out no fi. fa. on it, to seize the crop, or give him a perfect lien, in order to have recourse over against a stranger, if the defendant is to be looked on as a stranger.
    The case of Ballantine vs. Greer, 6 Yer. 267, was an action of assumpsit by the heirs of the landlord against the assignee of a ginner’s receipt for cotton supposed to have been raised on the rented premises. The tenant was alive, and was passed, and the assignee sued in an action, in form ex contractu, though a total stranger to the renting, or the dealings between the landlord and tenant, and without any privity whatever with the parties, except the fact of being assignee without notice. From the report of the case, it would seem, that it was an action barely for money had and received. If the point of the decision is apprehended, it is, that the landlord could not sue the assignee without a judgment against the tenant, because he could not take possession of the crop, if in the tenant’s possession, without such judgment. This reasoning is specious, and possibly correct, in an action of assumpsit, if the lien under the act of assembly is understood to be inchoate and of no value, until a judgment is taken against the tenant, and perhaps a fi.fa., (as the crop is personal property after it is gathered,) issued in order that the lien may be made a perfect lien, according to the doctrine in chancery, when a bill is fixed to subject equties to the payment of a legal demand. But however this may bé, in such a case as Ballantine vs. Greer, it is insisted that the reasoning does not apply to the case before the court.
    This is a special action on the case against the administrator of the tenant, who is dead insolvent, and the defendant fully notified of all the facts, and forbid to do the act complained of; to wit: from converting and disposing to his own use, of property, in which the plaintiff was interested to a certain value, whereby the plaintiff was deprived of that interest; and to sustain this action it is wholly immaterial, whether he has the right of possession or not. It is sufficient that he has an interest, that he has been injured in, by the act of plaintiff, like the case of a reversioner against a stranger, who commits waste affecting the inheritance, whilst rightfully in the possession of a tenant for years. The rever-sioner may bring his action on the case for the damage done his inheritance against the stranger, although the reversioner had neither the possession of the thing wasted nor the right to the possession, and though the tenant for years might sue the same stranger in tresspass for the same act, for the damage done the term; and so of many cases that might be mentioned. In the case before the court, the act of 1825 vests in the plaintiff an interest in the crop. The defendant has deprived him of that interest, and it is insisted that he ought to recover the damages consequent thereon.
    Alexander for the defendant,
    said — 1. The plaintiff must allege and show to the jury that he has recovered d judgment against the tenant or his representative, or he cáhnot recover; Ballantine v. Greer, 6 Yer. 267.
    2. The plaintiff has no lien on the crop until he recovers his judgmet and gets execution; Lawrence v. Jenkins, 7 Yer. 494.
    3. The difficulty of being precluded by the acts of assembly from recovering a judgment against the administrator until the three months, and with it the lien for the rent would expire, must be remedied by the legislature, and not by the courts; Cockfy Jack v. McGinnis, M. & Y. 361.
    4. From the fact, that the landlord has no lien on the crop till he recovers his judgment, two things result: 1. That the crop raised on the rented premises, being personal property, went to the defendant as administrator of the tenant on the grant of letters of administration to him, and he was obliged to sell and treat the crop as assets, and he would be liable to creditors or distributees if he were to fail to do so. 2. The crop, in case the tenant was insolvent, being a part of his personal estate, must be distributed pro rata among all the creditors; and the plaintiff should file his claim and receive his dividend under the act of 1833, the contract having been forfeited, according to the doctrine, 7 Yer. 494, on the 1st January, 1838, after the sale of the crop by the administrator.
    Jan. 17.
   Greene, J.

delivered the opinion of the court.

This is an action on the case to recover the sum due the plaintiff for the rent of thirty acres of land rented by him to Potete for the year, 1837.

In the fall of that year Potete died, and the defendant administered on his estate and sold the crop, that had been raised on the lands of plaintiff, knowing that the rent was unpaid. The suit was brought against the defendant in his individual character, and not as administrator of Potete.

The plaintiff insists that this case differs from the cases of Ballantine v. Greer, 6 Yer. Rep. 267, and Lawrence v. Jenkins, 7 Yer. Rep. 494, because those were actions of as-sumpsit, and this is an action on the case; and that although the act of 1825 would not give the landlord such a lien on the crop for the rent, that he might sue for, and recover the property, still it gives him such an interest in it, as that the appropriation of it by another, is such an injury to him, that case will lie.

We cannot perceive that there is any thing in the form of the action that will prevent the application of the cases, which have fixed a construction of the act of 1825, c. 21. If this act does not give to the landlord a specific lien upon the crop, so that he might recover in trover, for its conversion, but confers a mere priority of satisfaction, — the lien of his judgment and execution taking date from the day the rent falls due, — it follows that a conversion of the crop is not a wrong done to the landlord, for which case will lie; 7 Yer. Rep. 494.

The judgment must be affirmed.

Note. It is a misconception of the nature of the thing* which has led to the suits, of which this case and the two reported in Yergev, are examples. No lien is such an interest as that for an injury to the property, to which it attaches, the party entitled to the lien may maintain an action. The several classes of persons mentioned by Story — Bailments, § 440 — have a lien, accompanied with posses, sion of the thing, touching which the lien arises. Besides the actual possession, ¿hey have a right to possession, until the charge, attaching to the property is paid or discharged. Story’s Eq. § 506. And for an amotion or deprivation of such possession, or for the abuse or damage of the thing, while the possession continues in any of those persons, they may maintain an action as well as the general owner. 2 Bl. Comm. 144,145. But it is the possession and the injury to & not the lien, or any damage of which it is capable, which gives the action. There are some cases, besides that of landlords, of liens not accompanied with possession, — as the lien of a vender of real estate, the lien of judgment creditors, and perhaps others; and, in none of them, can the party entitled to the lien, maintain an action for an injury or damage to the property, to which the lien attaches. The landlord’s lien gives him neither jus in re nor jus ad rem, neither a right in, nor to, the crop; but only a priority, which is of such an ideal nature, that it is not susceptible of injury by a conversion of the property, and can only bealost by the neglect of the landlord himelf. And so of every other lien not accompanied by possession. * Reporter.  