
    
      BEON vs. MORGAN.
    
    Eastern Dis'ct
    
      May, 1827.
    Appeal from the court of the first district.
    The share f a co heir cannot be seized on an execution.
   Matthews, J.

delivered the opinion of the court. In this suit the petitioner alleges, that she is the owner of a slave which was seized by the defendant, as sheriff, by virtue of a fi. fa, in the case of Waterman vs. Beon. She claims title as heir to her mother, and in consequence of an amicable partition made in the state of Virginia, between her and her co-heirs, of whom Thomas Beon is one.

The defendant acknowledges the seizure, and states in his answer, that it was not under execution, but attachment. The object of the suit appears to be, to claim possession of the property, of which the plaintiff alleges she has been illegally deprived. The court below, in rendering judgment, seems to have considered the seizure as having been made, by authority of an execution, and ordered that the slave should be restored to the plaintiff; and from the judgment thus rendered, the plaintiff appealed.

Whether the seizure and detention were made in pursuance of a writ of attachment, or fi. fa, cannot affect the decision in the present case, which may well be considered as a possessory action. The judge a quo, declined giving any opinion in relation to the exclusiveness of the plaintiff’s title, believing (it is presumed) that the situation of the parties to this suit, does not authorise a final adjudication, on the alleged partition. In this we think he was correct. Whether the appellee be sole or joint owner of the slave which was seized, she cannot, in our opinion, be legally deprived of possession, in the mode pursued by the defendant. If the seizure was made by mesne process of attachment, nothing more was attachable, than such interest as the defendant, in that proceeding, might have as co-heir, in property which was common to him and the present plaintiff; and the latter ought not to have been ousted of her legal possession.

If the property was taken under execution, the measure was illegal; because the undivided share belonging to a co-heir, in a succession, cannot be seized on execution, &c.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court, be affirmed, with costs.

Moreau Lislet for the plaintiff, Watts & Lobdell for the defendant.  