
    Samuel Sumner and Wife vs. Elisha Palmer.
    A. purchaser of land at sheriff’s sale, who had complied -with the terms of sale, but had never taken titles, devised the land for life, with remainder in fee. About twelve years after the sale, the devisee for life released to the remainder-man, and gave him an order on the sheriff to make titles to him: — Held, That the sheriff then in office, the successor of the one who sold, could make titles under the Act of 1839, sec. 61, to the remainder-man.
    In an action of trespass to try title by a purchaser at sheriff’s sale, against the party as whose property the land was sold, the defendant is estopped from showing title in a third person whose tenant he claims to be.
    BEFORE WHITNER, AT UNION, SEPTEMBER, EXTRA TERM, 1856.
    Tbe report of Ms Honor, tbe presiding Judge, is as follows:
    “ This was an action of trespass to try title; and plaintiffs claimed to have acquired defendant’s title to tbe lands in dispute, under a sale of Ms interest therein, by B. Johnson, Esq., tbe sheriff of Union, made 7th February, 1843, under a fi. fa. in favor of Edwards & Gowing vs. Elisha Palmer. The lands were bought by one James Palmer, for tbe sum of one hundred dollars, the purchase-money paid, and by tbe sheriff applied to executions in Ms office. James Palmer received no deed from the sheriff, and by Ms last will and testament, bearing date 6th December, 1844, gave Ms interest in tbis land, on which he was living at the time of his death, and had been many years before, to his wife and mother, during their lives, and after their death to Mrs. Sumner, Ms daughter, the wife of Samuel Sumner, the plaintiffs in this suit. The mother of testator died, and Mrs. Sarah Palmer, the widow, executed an assignment of her interest, and by an order to tbe sheriff, directed titles to be made to her daughter 9th February, 1854. Accordingly, sheriff Gibbs executed a deed to plaintiffs, in virtue of the sale by his predecessor, 12th February, 1855. The land, it was said, had once belonged to the father of James and Elisha Palmer, and it was in proof that Elisha Palmer had lived on the land from his birth until the present time.
    “ The plaintiffs introduced, in the progress of the case, the record of a suit in equity, instituted by defendant, 29th April, 1851, for partition, against the plaintiffs and others. The claim to an interest in these lands, on the part of- complainant in that suit, was resisted; and the bill was dismissed, because Elisha Palmer had no interest.
    “ The introduction of the deed from Gibbs was resisted, as unauthorized by the statute, not being to the purchaser, no proof being offered of any application to sheriff Johnson, and from lapse of time. The deed was admitted, and a motion subsequently submitted for a non-suit, resting on the same grounds, was refused.
    “ As matter of defence, the defendant offered to introduce judgment, and fi.fa., in favor of Pratt vs. Elisha Palmer, confessed October 5th, 1845, which had been levied 28th October, 1845, on same land, and a sale made by same sheriff, Johnson, to one John J. Howard, for one hundred dollars, to whom Johnson, on payment of purchase-money, had executed a deed, bearing date 7th March, 1850, and admitted to record in register’s office; and further, to prove that defendant* was now the tenant of Howard. ' Objections were interposed as to the admissibility of this evidence, and although I was struck with the peculiarity of these matters of defence, going, it might be, to the avoidance of plaintiffs’ deed, yet I felt constrained to hold that these were questions to be raised by Howard, and not by the defendant in execution, in an action by the first purchaser at a sheriff’s sale; that the defence was liable to the objection long acted on in our courts, that the defendant could neither deny title in himself, nor set up a paramount title in a third person, I held that it was not competent, in this case, for the defendant to give in evidence the deed of Johnson to Howard.
    “ The jury returned a verdict for plaintiffs for the land in dispute, and thirty dollars damages.”
    The defendant appealed on the grounds:
    1. Because the Cor;rt. ruled that it was not competent to offer in evidence the deed made by B. Johnson, late sheriff, to John J. Howard, for the land in dispute, dated in 1850, to defeat the deed made by Gibbs, his successor, in 1854, to the plaintiffs, the defendant holding under said Howard as tenant.
    2. Because- the deed made by Gibbs, (as well as the assignment from Sally Palmer,) was inadmissible in evidence, and conveyed no legal title to the plaintiffs.
    Herndon, for appellant.’
    Dawkins, contra.
   The opinion of the Court was delivered by

Whitster, J.

The points raised in the grounds of appeal, involve inquiries into the competency of evidence rejected on the part of the defendant and "admitted bn the part of'the plaintiffs.

I think the case will, perhaps, be more readily understood by reversing their order; and I proceed, therefore, first to inquire, whether the deed from sheriff Gibbs to plaintiffs was admissible. The Act of Assembly of 1839, (11 Stat. 38, sec. 61,) is very explicit. “ In all cases where any sheriff shall have legally sold, or hereafter shall legally sell, any real or personal estate, and snob sheriff is now dead, resigned, or out of office, or shall hereafter die, resign, or otherwise go out of office, before he shall have executed titles therefor to the purchaser, it shall be lawful for any subsequent sheriff of the same district, upon the terms of the sale being complied with, or satisfactory evidence produced that they have been- complied with, to make and execute good and sufficient titles to the purchaser for the property sold.”

Prom the earnest zeal with which .this ground is pressed, I have thought it proper to present the entire section of the Act, and I ask merely that the facts established by plaintiffs, and as shown by the brief, may be reviewed. Jt will appear, that the lands of this defendant were legally sold by a sheriff who went out of office without having executed titles to the purchaser, who had paid the money, and thus complied with the terms of the sale; the most satisfactory evidence whereof existed, and the money applied to executions in the office. The purchaser died without having received a deed, and these plaintiffs, in virtue of his last will and testament, and an assignment regularly executed from the party succeeding to the estate of testator, and an order to the sheriff in like manner regularly executed, received from the successor in office the deed in question. Taking up the case as we are obliged, a branch at a time, what good objection existed to its admissibility when thus offered. Every requisition of the statute was met, and unless the right to a title deed was forfeited by the death of the purchaser, what else appeared as ground of objection. It cannot be maintained, that a purchaser at sheriff’s sale may not rightfully transfer his interest. In fact, I do not understand this to have been seriously con-troyerted in the argument. The case of M'Elmurray vs. Ardis, 3 Strob. 212, is directly in, point. The time which had intervened constituted no bar. It is not to be found in the statute, or to be inferred from any recognised principle of law.

In reference to tbe other ground of appeal, the report of the case sufficiently suggests the difficutly in the way of the defence attempted. A purchaser at a sheriff’s sale acquires all the right and title to the land sold then in the defendant in execution. “ In an action of trespass to try titles by the purchaser against the defendant, the defendant will not be permitted to give evidence that the title of the land was not in himself, but another, whose tenant he was.” O'Neall vs. Duncan, 4 M’C. 246. Cases have been multiplied, and the doctrine is now familiar.

The sheriff is the agent of the defendant in execution in selling his land to pay his debt, and hence the sheriff’s deed operates very much as his own.” “It is too clear to be questioned,” says O’Neall, J., in a case of strong analogy, “that this defendant cannot set up a paramount title in another to defeat the purchaser of his own title.” 2 Eich. 26.

The case is 'doubly fortified as against this defendant, who, by a written paper, set up on another occasion in a proceeding in equity, showed his admission of title in the purchaser at sheriff’s sale, 'with whom he had treated for a repurchase. It is not the case cited by corrnsel of Pope vs. Clark & Manning, 2 Strob. 363, where a landlord had been admitted as a co-defendant. In such a proceeding, where one comes in by leave of the court, there is no surprise, and, to avoid the multiplicity of suits, there is propriety in enlarging the inquiry and permitting such title tó be shown as would entitle to a recovery against the plaintiff, even although he was in possession and defendant in the action. The reason is manifest for adhering to rules, and the fact that another, in whom it is insisted there is a perfect paramount title, has not thought proper to assume the responsibility of taking his place on the record, but has chosen rather to conduct this contest behind one claiming as a tenant, and it may be wholly irresponsible, may afford a proper illustration of tbe wisdom of such, rules.

I bave not entered upon any inquiry as to tbe relation of plaintiffs’ deed to tbe judgment and execution under wbicb tbe land was originally sold. It bas not been necessary to tbe case made. Such, a question on tbe part of tbe present plaintiffs, with others suggested on tbe part of tbe defendant, may find their solution when other parties present themselves on this battle-field, already somewhat notorious in our court.

Tbe motion for a new trial is refused.

O’Neall, Withers, Glover, and Muítro, JJ., concurred.

Motion refused.  