delivered the opinion of the court.

On the trial of this case in the circuit court, the verdict and judgment were for the lessors of the plaintiff for the possession of the premises in controversy. No objection is made to this. But the defendant in the court below gave notice, under the sixth section of the act of 1846, Hutch. Dig. 857, that upon the trial he would claim an allowance for improvements made upon the land for seventeen years past. The verdict assessed the amount of rents and profits due the plaintiff’s lessors, and also the value of the improvements made upon the land, and found *323an excess of value of improvements over the amount due for rents and profits of $5,050 against the plaintiff’s lessors. The judgment rendered was for the land and costs, and the writ of habere facias possessionem was awarded to the plaintiff’s lessors.

This judgment is alleged to be erroneous, because: Í. No judgment is rendered for the excess due for improvements. 2. The award of habere facias possessionem was erroneous.

The first ground of objection is well founded. The verdict finds due the defendant an excess for improvements over the value of the rents, and in such case, the third section of the act above referred to provides that “ the court shall give judgment in favor of the defendant for such excess,” which shall operate as a lien upon the land, and execution may issue therefor, &c.

But it is insisted, in behalf of the defendants in error, that the record contains no evidence to support or justify this verdict for the excess, and therefore that the court acted properly in disregarding it; that as the record does not contain the evidence, the court must be presumed to have rendered the judgment which was warranted by it. "We do not consider these positions tenable. The record does not purport to set forth any of the evidence touching the question of rents and profits and improvements. That matter was distinctly put in issue by the proceedings in the case, and it therefore became a proper and necessary part of their verdict. The evidence on which it was found by the jury being omitted, the presumption of law is that it was sustained by the evidence. No objection was taken to it, nor motion made to set it aside. It therefore stood as a proper verdict, responsive to a material issue in the case. The judgment must correspond with the material facts found by the verdict, and embrace every matter properly forming a part of, it.

The only evidence shown by the record to have been before the jury was the proceedings of the probate court under which the defendant below claimed title, and the deed to him in consequence thereof; and this was offered and admitted solely to show that he was in possession under color of title, in order to entitle him to the benefit of an allowance for improvements *324under the statute above mentioned. This proof was necessary and proper under the circumstances of the case, and was sufficient to entitle the defendant to submit his claim for improvements to the jury. We cannot say that the verdict was erroneous, as the question was properly submitted for their consideration, and the evidence on which it was found is not presented to us.

The second error alleged, is apparent from the above view of the case and a reference to the sixth section of the act of 1846, which provides, that in a case like this the writ of habere facias possessionem shall be stayed until the amount found by the verdict to be due the defendant shall be paid. It is said that the order awarding the writ in this case was a mere direction to the clerk. Still it was an irregularity operating to the defendant’s prejudice., For if it had been demanded by the plaintiff, the clerk could.not have refused to issue it, as it was expressly and unconditionally awarded by the judgment of the court. Nor could th„e court have prevented it, except by supersedeas duly issued. The correct practice in cases where an excess is found for ihq, defendant, doubtless is, to enter it of record as part of the judgment, that the habere facias shall be stayed until the amount assessed to the defendant in the verdict and judgment be paid.

The judgment is reversed, and a new judgment directed to be entered here in conformity to the verdict and the views herein contained, and the case is remanded.