
    Fincher Jones et als v. Wm. Burget et als.
    It is error in a judgment for plaintiff, in a suit of trespass to try title, to award a wilt of possession against persons other than defendants, who have entered upon the premises recovered, prior to the institution of the suit.
    Appeal from Kaufman. Tried below before the Hon. John H. Reagan.
    The facts sufficiently appear in the opinion.
    
      Word, Jackson & Word, for appellants.
    
      John C. Robertson, for appellees.
   Walker, J.

This case has been in litigation since the twenty-third of October, 1856. It might here be terminated but for one error, which may indeed be an error of the clerk in copying the record, or it may have been an error of the court in entering the decree. On page 146 of the record this language occurs in the decree

“ It is further ordered by the court, that a writ of possession issue from this court, to turn said defendants out of possession of said land, and all other persons who have entered said land since the twenty-third day of October, 1846, and place the said plaintiffs in •possession.”

This decree, as it comes to us, is erroneous. The suit was commenced on the twenty-third of October, 1856, and would only be notice to such persons as settled on the land pendente lite.

There may have been persons in possession who settled upon the land prior to the commencement of the suit, who could not be thus summarily dispossessed. They would be entitled to their day in court.

It is true no such persons are heard complaining in this •court, and should there be any persons thus wrongfully affected they may not have had the opportunity to be heard here. The counsel for appellants insist upon this error in their brief, and perhaps the error assigned as the fifth in order would cover this defect in the decree and raise the question for the consideration of this court.

We find nothing in the other assignments for error upon which we think this judgment should be reversed; but for the reasons assigned the judgment is reversed and the cause remanded.

Reversed and remanded.  