
    Jackson, ex dem. Potan, against Hoag.
    ~W-YORK,
    May, 1810.
    A.devised lands dren, as tenants teHhe’death^f an action of debt on ? bonA A-against the heirs and devisees, one of whom only was taken ad respondenothei-s a"dwere h”®# jug obtain-a % default"against ants^fesued6"™ vSn"4™" which «fand sold8 the iands belonging to all the defendants,as heirs and devisees It was held, ¿at defen<¡ants°fnot taken on the capias ad respondendum, could not he affected by the judgment* nor sold under the execution ; tlxe estate of. the devisees being separate, and not joined.
    THIS was an action of ejectment. A verdict was taken for the plaintiff, subject to the opinion of the court, upon the following case, with liberty to either party to turn the same into a special verdict.
    
      Johannis Van Der Hoyden, deceased, was seised in J ... fee of the premises in question, and on the 12th of - . •nit . March, 1771, by wtll, duly executed, devised his estate, ot which the premises were a part,, ta his children, “ John, Mary, (the lessor of the plaintiff,) Rachel and Jane, their heirs and assigns, for ever, as tenants in common; and if any of them should die without lawful heirs,, and unmarried, that then the share of him, her, or them, so dying,, should go to the survivor or survivors, equally,” The testator, soon after, died seised of the premises.
    
      Jane died, unmarried, and without issue, and Rachel, ** and her husband, Jonathan Ogden, afterwards, and on the 23d of September, 1796, by deed duly made and executed, conveyed their share of the testator’s estate, to the" lessor of the plaintiff, her heirs and assigns for ever.
    
      Harme Gansevoort commenced an action of debt in the court of common pleas of the county of Albany, against John Van Der Heyden, (the son,) Mary, (the lessor of the plaintiff,) and her then husband, Matthew Potan, (who died before the bringing of the present suit,) and Rachel, and her husband, Jonathan Ogden, as heirs and devisees of Johannis Van Der Heyden; all of which defendants were returned not found, except John Van Der Heyden.
    
    The plaintiff having declared, in the action, on a bond made by the testator, obtained judgment, by default, against all the defendants, in their personal, and hot in their representative capacity, for the penalty of the bond, and the costs, in the term of October, 1787.
    Under this judgment, a fieri facias was issued to the sheriff of Albany, who sold the premises in question, then lying within that county, to Harme Gansevoort, and conveyed the same to him, his heirs and assigns, for ever, by deed, bearing date on or about the 16th day of February, 1789. . ,
    The defendant claimed and held the premises by title derived from Harme Gansevoort, subsequent to the sheriff’s sale, and .was in the actual possession thereóf, at the commencement of this suit.
    Henry, for the plaintiff, contended,
    1. That the judgment in favour of Harme Gansevoort, against such of the heirs of Johannis Van Der Heyden, as were not brought into court, was void; and that, therefore, no title in their shares of the premises in question passed by the sheriff’s sale, under that, judgment.
    2. That there was a subsisting title to two undivided third parts of the premises in question, for which the plaintiff ought to have judgment.
    
      
      Sudara, contra.
   Per Curiam.

As the lessor of the plaintiff was never taken, in the suit against the heirs and devisees of her father, the judgment and execution could not affect her separate estate, nor her person. She was a tenant in common with the other heirs, in the lands devised by her father; but her share of the estate could not be sold under that judgment. It was a separate, and not a joint estate. This is the restriction in the act (Laws, vol. 1. 353.) authorizing proceedings against joint debtors, when all are not taken; and, independent of this statute, a plaintiff cannot proceed against a debtor not taken, but by prosecuting him to outlawry. This is the course pursued when heirs in gavelkind are sued and not taken. (Dyer, 239. a. Postal’s Ent. 208. b.)

The right to proceed against several executors, where one only is taken, and to obtain judgment against all, is also founded on an English statute, which we have adopted. (Laws, vol. 1. 538.)

The judgment and execution in this case did not, therefore, authorize the sale of the share of the lessor, or of that of her sister, which she has since purchased, and consequently she is entitled to judgment for two third parts of the premises.

Judgment accordingly^ 
      
       24 sess. o. 98, s. 13.
     
      
       24 sess. c. 174, s. 11.
     