
    CONSTITUTIONAL COURT, COLUMBIA,
    MAY, 1810.
    Ann Dupont and others v. James Ervin.
    A verdict was obtained for four undivided ninth-parts of a tract of land, in an action to try titles, in favor of four plaintiffs, and judgment having been thereupon entered, a writ of hab. fa. poss. issued to put plaintiffs in possession of the whole tract of land; and this was adjudged to be correct. But in such case the sheriff cannot oust a co-tenant; and may demand indemnity from the demandant, if any one on the land claims as co-tenant.
    Motion to reverse a decision made by Wilds, J., in Darlington district in November, 1809. Plaintiffs brought trespass to try titles to land, and obtained a verdict for four undivided ninth parts of a certain tract of land in dispute; it appeared on the trial, that there were other persons besides the plaintiffs jointly entitled to the same land. The plaintiffs had sued out a writ of habere facias possessionem, and the motion in the District Court was to set aside the same writ for irregularity, as the same was to put the plaintiffs in possession of’ the whole tract, and not of four-ninths. This motion was overruled;, whereupon, the motion was submitted to this court to reverse the judgment of the District Court; which was argued by Richardson* for the defendant, and Blanding, for the plaintiffs.
    For the defendant was cited 1 Burr. 362. 2 Sellon, 198. 1 Burr. 114. 5 Burr. 2673. 1 Burr. 638. 3 Wils. 49. Runningt. 110*
    For the plaintiffs was cited, 1 Burr. 362,.&c.
    
      
      Note. See 5 Johns. Jackson v. Ostrander. In an actifcm of ejectment, where defendant alleges that plaintiff's lessor had taken possession of more land than was recovered by the verdict, the court will order a restitution; but if the facts be doubtful, the proper course is to award a feigned issue to try the question,
   Reevaot), J.,

delivered the opinion of the whole court. We have 'considered this case, and are all of opinion the decision of the Dls. irict Court was correct. The judgment must conform to the ver-diet, which is for four undivided ninths of a'eertain tract of land ; and the execution must conform to the judgment, to put the plaintiffs in poossession of the four undivided ninths of the same land. The plaintiffs must haye possession of thé whole tract; but not ex. elusive possession. The Co-tenants not named in the judgment, are also entitled to their undivided ports of the land. The sheriff ill executing the writ, by which he will be authotized to put the plaintiffs in possession, will be bound to give them possession of the whole, as their four-ninths cannot be distinguished from the other ninths, to which other persons, npt named in the judgment, are entitled ; but in doing this, he must take care not to oust or disturb any of those other persons so entitled, or persons holding under them. The plaintiffs ought to point out to the sheriff the land mentioned in the writ and judgment, and those wrongfully in possession who are to be put out; and if the sheriff is doubtful, he may demand indemnity from the plaintiffs. In the present case, however, it cannot be pre-* Sumed that the defendant is entitled to keep possession, as co-tenant, as had he been co-tenant when the suit was prosecuted, he might have pleaded that circumstance in ¿abatement. If he has become entitled by purchase since, he may- hereafter bring his writ of partition for his part, and the. recovery in this case, and writ of pos. session, will not prejudice his right. And if he should be unjustly expelled by the sheriff in executing the writ of habere facias posses-sionem, lie may be relieved in a summary way by the Court of the District on motion. The judgment and execution for an undivided part will authorize the sheriff to put the plaintiffs in possession of the whole, i

Motion rejected.  