
    Hickman’s lessee vs. Dale.
    An ejectment is brought by A against B, pending which, C and D take possession of the land in dispute. A recovered a verdict and judgment: Held, that the sheriff, by virtue of the writ of possession, must dispossess C and D, and deliver the possession to A.
    B has several tenants in possession of distinct parts of the same tract of land, one of whom only is sued by A. A declared for the whole tract; B, the landlord, is admitted to defend, and pleaded not guilty. A obtained a verdict and judgment for the land declared for. Held, that the sheriff must deliver possession of the whole tract to A, and in doing so, he had the right to dispossess those tenants of B, who were not originally sued.
    Where a landlord has several tenants on the same tract of land, one only of whom is sued, and the landlord is made defendant and pleads not guilty, he will not be permitted afterwards to say tliat he was only sued for a part.
    This was a motion made by Dale, to be' restored to the possession of a part of a tract' of land of which, as he averred, his tenants were wrongfully dispossessed by the sheriff, in executing a writ of possession founded upon a judgment in ejectment, recovered by Hickman against him at the last term of this court.,. The facts upon which the motion was founded are substantially stated in the opinions delivered by the judges.
    
      G. W. Gibbs and J. B. Forrester, in support of the motion,
    cited and commented upon the following authorities; Runnington on Ejectment, 149: 5 Johns. Rep. 366: 5 Bur. Rep. 2773: 3 Wilson’s Rep. 49: 1 Cane’s Rep. 499: Blair vs. Palhkiller’s lessee, 5 Yerg. ftep. 230.
    
      J. Rucks, contra,
    cited and relied upon Runnington on Ejectment, 120, 151, 152: Jackson vs. Tuttle, 9 Cowen’s Rep. 233: Long vs. Morton and others, 2 Marshall’s (Ken.) Rep. 40.
   Catron, Ch. J.

In August, 1816, John Den, on the demise oí Edwin Hi clonan, brought an ejectment against Richard Fen for two hundred and twenty-eight acres of land, beginning at a poplar, south two hundred and twenty-six poles; east one hundred and sixty-one and a half poles; north two hundred and twenty-six poles; west one one hundred and sixty-one poles, to' the beginning; laying his demise from the 1st of January, 1816, and the eviction 2d January, 1816.

A notice was served on James Chaney, as tenant in possession, to appear and defend. At the return term, (August, 1816) Adam Dale was admitted as defendant instead of R. Fen; and the tenant in possession gave security for costs, confessed lease, entry and ouster as alleged; agreed to rely on the title only on the trial, pleaded not guilty, and issue was thereon joined.

At October term of Smith circuit court, 1825, the cause was finally tried. The jury found the issue for the plaintiff; whereupon it was adjudged that the plain tiff recover against the defendant Dale, his term yet to come in and to the tract of land with the appurtenances in his declaration mentioned, and his costs of suit.

From this judgment, Dale appealed in error to the supreme court, where the judgment was affirmed. The bill of exceptions shows Dale defended for the whole land, and fully tried the merits of his title with Hickman.

Hickman having recovered the whole land against Dale, a writ of possession issued to the sheriff of Smith county, reciting that Hickman had recovered of Dale two hundred and twenty-six acres of land, lying and bounded as in the declaration and judgment described, to wit, beginning at a poplar south two hundred and twenty-six poles to two beaches; east one hundred and sixty-one and a half poles to a stake; thence north two hundred and twenty-six poles to a stake; thence west one hundred and sixty-one poles to the beginning; £cwe therefore command you (says the writ) to cause the said Edwin Hickman’s lessee to be put into quiet and peaceable possession of the above described tract of land, together with the appurtenances according to law. Herein fail not,” &c.

Dale had several tenants on the land, all of whom the sheriff turned off by virtue of this writ. The tenants are not complaining, but Dale complains by petition, alleging that in 1816, when the suit was brought, he had three tenants on the land, in the occupation of three different farms, to wit, James Chaney, Moses Garrison and Levi Garrison, none of whom were sued except Chaney. That part of the plantation of which Levi Garrison had possession when suit was brought, he, Dale, by his tenants, had had uninterrupted possession ever since, and that Lewis Parker and Ezariah Garrison had been turned out by the sheriff, who were his tenants; and he prays for a writ of restitution for the farm in the possession of Levi Garrison when suit was brought. The defendants Parker and Ezariah Garrison had been in only a few months before they were turned out by the sheriff, and wore avowedly Dale’s tenants, and holding for him.— The writ of possession was the sheriff’s authority. It commanded him to give quiet and peaceable possession to the plaintiff, Hickman’s lessee. He found trespassers on the land, who had come in pending the litigation; indeed long after the judgment was rendered, and who, prima facie, were subject to be put out. Hickman declared for the whole laud; Dale defended by his plea, and on the trial for the whole land, Hickman, by the verdict and judgment, recovered the whole, and the writ of possession pursued the judgment. Although Chaney’s name is in the caption of this cause, he never in fact was a party to it. Í can find no instance where a defendant has taken upon himself to defend for the whole premises declared for, that he has been permitted to say ho was not sued for part. The assertion plainly contradicts the defence and the judgment. Had Dale come in and do fended jointly with Chaney, the same consequences would ensued as to Chaney and Dale. How could Chaney come in and say, he wished to be restored to part? Say Dale is just so far liable as Chaney yrould have him, had he defended, and how is it? Chaney could not deny that he was guilty of the trespass and ejectment for the whole land. If Dale intended to defend for less than the whole, only for the lease holden by Chaney, he should have done so by his plea, and surrendered the residue to Hickman. Runnington on Ejectment, ch. 9.

What was recovered from Dale: the right of personally evicting Dale? Not at all. He never was in possession save by his tenants. Where the landlord defends instead of the tenant, judgment formerly was entered against the casual ejector for the whole lands, so that those in possession might be turned out, and the lessor of the plaintiff put in. Runnington, 120. But now the landlord (as here) defends for the casual ejector, tries the whole title, and if a recovery is had, he cannot gainsay the truth of the judgment, that the lessor of the plaintiff has the better right. Truly, a third person not sued, against whom the record is no evidence-, may come in and show he has a right of possession, of which he has been ousted, and ask to be restored; but it is because he is not concluded by the record. Dale’s younger grant is merely void. He had no right to trespass on the land of Hickman, no right to aid others to do so. He defended by virtue of every title that existed opposed to Hickman’s, and defended for every part of the land recovered. This as a matter of law and fact the record proves. Dale has no right to complain, whatever right others not parties to this suit may have. The sheriff could not be a trespasser on Dale. This is the complaint and, the trespass asked to be rectified in a summary way. The writ commanded the sheriff, as against Dale, to put Hickman into possession of the whole land described in the writ. As to others, not parties to the suit, and in possession before it was brought, or those claiming under them, they could not be ousted of their possession, because their distinct titles had not been tried; but not so of tenants coming in under Dale, the landlord, pending the suit. They are bound by the judgment on bis title. Runnington, 151-2. The motion will be refused.

Peck, J. concurred.

Gtieen, J.

dissentiente. Dale had several tenants on the same tract of land; one only of whom was sued.— The plaintiff’s grant, as described in the declaration, covered the whole of Dale’s tract, and included all his tenants. He caused himself to be made defendant instead of the tenant who was sued, and pleaded to the declaration. A recovery was had by the plaintiff, and all Dale’s tenants were turned out of possession. This is a motion made by Dale to be restored to the possession of those tenements, the possessors of which were not sued. It is manifest, if dale had not caused himself to be made defendant in place of the one sued, that upon the rendition of a judgment against him, he only could have been turned out. But how is the case altered by the landlord becoming defendant? He defended for such tenant only; the issue upon his plea could not embrace and put in controversy any more land than would have been embraced by an issue made up by the tenant himself, and consequently the judgment could only award execution for the land which had been put in issue by the pleadings. The fact that the tenants who were not sued having gone out of possession during the pendency of the suit, and being succeeded by others can make no difference. The latter were no more liable to the operation of the action of ejectment than the former. Nor can the fact, that Dale, the landlord of all the tenants, and not the tenants themselves, is complaining, alter the principles of the case.— ^ have-shown that Dale’s defence of the action -was no broader than would have been the defence of the tenant sued; so his right to be exempted from the operation of the writ of possession is the same which would have existed in the tenants not sued. That these tenants could not have been turned out must be admitted, for that would have been depriving them of their possession by virtue of a proceeding of which they had no notice; and although they might hold under the same title, yet there might have existed facts in their cases, which, if shown, would have prevented a recovery, and which facts did not exist in the case of the tenant who was sued. Suppose there are several tenants on the same tract; the possession of neither will extend to the whole tract, and, consequently, if one be sued who has not had possession seven years, the fact that another has had such possession will be no defence. In such case would a judgment against such one authorize all to be turned out? Surely not; although the landlord may have defended.

I am of opinion, therefore, thatthé plaintiff took possession of more land than he was entitled by his recovery in this case, because no tenant, who was in possession anterior to the commencement of this ejectment, ought to have been dispossessed upon a judgment and writ of possession to which he was no party. 1 Caine’s Rep. 500.

The landlord Dale is in the condition of both his tenants, subject to the liabilities of the one, and entitled to the rights of the other.

As to the practice, it is settled, that if a plaintiff cause himself to be put in possession of more land than he is entitled to by his verdict and judgment, the court will set it right in a summary way. Run. Eject. 149: 5 Johns. Rep. 366: 2 Bac. Ab. 434: 5 Bur. 2773: 3 Wilson’s Rep. 49: 1 Caine’s Rep. 499: Blair vs. Pathkiller’s lessee, 5 Yerg. 230.

Motion refused.  