King v. Fowler

31 Mass. 238

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1833
• Status: Published

Opinion

Per Curiam.

During the pendency of the writ of right, the land was sowed by one of the defendants, and though the crop was not severed till after the plaintiff obtained seisin and possession, this defendant contends that he is entitled to the crop as emblements, because his entry was under a judgment and so lawful. This proceeds upon a mistake. It is true there was a judgment for the defendant’s grantor in a writ of entry, an action of inferior degree ; but upon the higher action, it was determined that the defendant was in without right, in effect reversing and annulling the former judgment. The general rule is, that if a man enter by title paramount, he shall have the emblements, as if a disseisor sow and the disseisee enter before severance. Co. Litt. 55 b.

The Court are of opinion, that the claim for emblements cannot be sustained, and that the defendants are liable. But we think here was no ground to claim exemplary damages ; but the value of the growing crop is the proper measure of damages. The plaintiff is therefore entitled to recover the agreed value of the grain, deducting the expense of harvesting.