The opinion of the Court was delivered by
Weight, A. J.The ease must be remanded to the Circuit Court. The judgment does not follow the conclusion of fact as found and reported by the Referee. The action was against W. H. B. Richardson and J. B. Richardson, for the recovery of real estate. It was clearly established by the evidence, and so held by the Referee, that the title to a portion of the land set out in the complaint, and sought to be recovered by the respondents, was defined by the proof as lying north of a certain creek, was vested in the said J. B. Richardson, and that he had committed no trespass on any of the land sued for outside of his own boundaries. The Referee, while dismissing the complaint as to the said J. B. Richardson, nevertheless adjudges “that the plaintiff recover of the said W. H. B. Richardson the possession of the whole plantation and one hundred dollars for the withholding of the same.” The judgment seems to be inconsistent with itself, for while it dismisses the complaint as to J. B. Richardson, it in fact not only establishes the right to his land in respondents, but requires the appellant, W. H. B. Richardson, to *146pay to the respondents “one hundred dollars for -withholding the same,” thus compensating them for the withholding of land, to which the report finds they had no title, and which had not been in the possession of the said W. H. B. Richardson. While the error thus charged by the appellant, W. H. B. Richardson, is good ground for his motion, notwithstanding no appeal by the said J. B. Richardson, it may not be out of place to refer to the consequences which would follow from the judgment as it stands. It adjudges to the respondents a recovery of the whole plantation, not excepting the portion to which it is found they have no title. Under -a writ of habere facias possessionem the Sheriff would be bound to put the respondents in possession of the premises, and, also, to turn out all who are in possession.—Ex Parte Black, 2 Bail., 8.
Thus, although J. B. Richardson was found to be the lawful owner of a portion of the very plantation, he would be liable to be ejected from the possession of his own property, and turned over to new and further litigation to obtain the very right which the judgment in his favor establishes.
The judgment, as against the said W. H. B. Richardson, is set aside, and the case remanded to the Circuit Court.
Moses, C. J., and Willard, A. J., concurred.