
    
      Samuel Pope v. Wm. A. Clarke and John Manning, the landlord admitted to defend for his tenant.
    
    A landlord, admitted to defend the title for his tenant, will recover against a plaintiff who had purchased the land at Sheriff’s sale, under an execution against the tenant, if he prove such title as would enable him to recover against the tenant himself.
    In trespass to try title, a grant which is not in issue — under which neither party claims, and which is not produced in evidence, is, for the -purposes of that suit, a mere nullity, and therefore can be no bar to the recovery of land within its limits by the party showing paramount title at the trial.
    
      Before Mr. Justice O’Neall, at Horry, Fall Term, 1844.
    REPORT OP THE CIRCUIT JUDGE.
    This was an action of trespass to try title* It appeared by the record, that several plaintiffs of the name of Alston, had sued the defendant, Clarke, in an action of trespass to try title, and in it, had recovered the land in dispute, except eleven acres, which was found for the defendant, Clarke, as his actual possession of more than ten years before action brought. This recovery was had, Fall Term, 1840. Under theji.fa. issued for the damages and costs, the eleven acres thus found for the defendant was levied on, sold, and purchased by the plaintiff, to whom the Sheriff conveyed, the 4th July, 1842. The defendant, Clarke, still retained possession; the plaintiff sued him, and Manning, asserting that he was his tenant, was, by order of the 'Court, allowed to come in and defend. It appeared that a grant to Harper issued in 1802, and was that which conflicted with the Alston title, and which was set up as part of the defendant’s title in the case of Alston v. Clarke. Harper conveyed to Carr in 1828, and Carr conveyed to Clarke in 1831; this was as far as the defendant exhibited title in the case of Alston v. Clarke. It now appeared, that in October, ’31, a few days after the deed ofCarr to himself, Clarke conveyed the land to Manning ; he has, however, remained in possession ever since. His acknowledgment of tenancy, dated in January, 1832, to Manning; was given in evidence. The deed from Carr to Clarke had obviously undergone some alteration in the dale. It appeared that Manning was present when the case of Alston v. Clarke was tried, and interposed no claim.
    The jury were told, that the plaintiff, having bought Clarke’s title, and finding him in possession, was entitled to eject him, unless Manning could show a title paramount to the land. It stood upon the sttme ground as if Clarke had surrendered the possession after' the Sheriff’s sale, tcf Pope, and he (Manning) was suing to recover the land. — 1 Looking at it in that way, I said to the jury, it was plain he had no title; for the Alston title was paramount and had defeated Clarke’s paper title, which was that Manning set up ; and i^Clarke’s deed to him had been given in evidence on that trial, he could not have held a part of the land ; for then his possession would have begun in October; 1831, and between that and the beginning of the action; was much short of ten years.
    The fact of the alteration of the deed was presented tcf the jury by Mr. Dunkin, in his argument for the plaintiff. The jury were instructed, if the alteration was in a material part of a deed, (another date here might be material in carrying the deed back beyond Alstons’ recovery or commencement of their suit,) and if they were satisfied it was done after execution, the deed was void. The jury were, however, told, that in the view first presented, this inquiry was wholly unimportant. The defendants cottn-sél, when I closed my charge, asked that I would explain the alteration in the deed : I said to him, I had none now to make; they could see the alteration as well as I could, and that was all I knew about the fact of alteration. He then proposed to explain it himself. This I refused to allow, on two grounds: 1st, there was no proof about the matter to be explained, and none was offered in explanation ; and 2d, that defendant’s counsel had had his turn in argument, and had no right to address the jury after they had been charged. The jury found for the plaintiff, the land and $5 damages. ■
    The defendants appealed and moved for a new trial, on the grounds—
    1. Because his Honor erred in charging the jury, that the defendant had no title to the land in dispute, because the said land was within an older grant, held by T. P. Alston, W.' A. Alston, and C. C. P. Alston, when no such grant was given in evidence, and when defendant proved that he had the actual possession of the land by his tenant, Wm. O. Clarke, for more than ten years before the Sheriff’s deed to plaintiff, and before suit brought; and had also proved a chain of title from the grant to Wm. Harper, under which he held.
    2. Because his Honor erred in charging the jury, that as the said Wm, O. Clarke’s deed to the defendant divested the said Clarke of the title to the said lands, the finding in favor of said Clarke in the suit between T. P. Alston nnd others against him, was improper, and should be regarded as a gift by said Alstons to him, which would prevent defendant from recovering on the strength of his (defendant’s) title; notwithstanding the jury in that case, found that the said Clarke had been in the actual adverse possession of the same for years before suit brought by said Alstons, and had, from the 1st January, 1832, and after the said recovery by said Alstons, acknowledged himself tenant of the defendant upon the said land.
    3. Because the deed from Henry Carr to Wm. O. Clarke is a good deed, and was admitted in evidence without being objected to, and was not. erased or interlined in any material part, as the change of the date in the year of the sovereignty and independence of the United States of America, was strictly in accordance with the date of the/ deed ; and his Honor should so have instructed the jury, which he refused to do, or give them any explanations thereon, when called upon by defendant’s counsel; but charged them, if they were not satisfied that the erasure and interlination was made before it was executed, the deed was void.
    4. Because his Honor charged the jury, that if they were satisfied that defendant knew of the pendency of the suit between T. P. Alston and others v. Wm O. Clarke, and had allowed the said Clarke to set up title by possession in himself to defeat the plaintiff’s recovery against the said Clarke, it was a fraud which should prevent defendant from recovering; when it is respectfully submitted, that in that suit the plaintiffs could not have recovered the said land, of which Clarke had been in the actual adverse possession for more than ten years.
    5. Because the verdict was in other respects contrary to law and evidence.
    Harllee, for the motion.
    Monroe & Dunkin, contra.
    
   Frost, J.

delivered the opinion of the Court.

By’the Sheriff’s sale under the execution against Clarke, and the conveyance to the plaintiff, he acquired all the right, title and interest of Clarke to the land in dispute, and was, by law, substituted to Clarke’s possession and right of possession.

The admission of Manning to be a co-defendant, does not oblige the plaintiff to more proof than would be necessary to support his action, if Clavke alone were defendant. Manning, as co-defendant, is only permitted to show a paramount title to Clarke; which he must do, as if the plaintiff were in possession, instead of Clarke. He has shown a title to the land in dispute, in himself, derived from the grant and through Clarke’s conveyance to him, in Ociober, 1831.

The land is included in a grant, held by the Alstons, senior to that under which Manning claims; and between him and them, if the title were in question, to be decided by documentary evidence, they would have the right.— But in an action by them against Clarke, his title, by adverse possession, was established ; and Manning, by the proof of his adverse possession, by the tenancy of Clarke, since January, 1832, has also shown an adverse possession to the Allstons, for more than ten years prior to the Sheriff’s sale to the plaintiff. He has then shown a title by deed against Clarke, and possession long enough to give a statutary title against the Alstons, if that were necessary. He can, therefore, recover against Clarke, and, by consequence, against the plaintiff. But besides this, Alston’s title was not in issue in this case. Neither Clarke nor the plaintiff claimed under it. It was not produced in evidence, and therefore, for the purposes of this suit, does not exist, and is no bar to Manning’s recovery. The charge of the presiding Judge is liable to objection, in that he instructed the jury that the Alston title defeated Clarke’s paper title, and Manning’s right to recover.

It is true that Clarke filched this land from the Alstons, when, in the action against him, by them, he set up an adverse possession in himself, and succeeded in supporting his claim by a verdict; for if he had not suppressed his conveyance to Manning and acknowledgment of tenancy, in January, 1832, it would have appeared that he had no possession in his own right, and that Manning’s possession was less than ten years, before that action was brought to recover the land. Manning knew of the action and was present at the trial, but interposed no claim to the land, and, doubtless, participated in the fraud. But the practices by which Clarke and Manning succeeded in getting possession of a part, of the Alston land, do not, in law, affect Manning’s title on the case presented.

In considering the grounds of appeal, the alteration in the deed, from Clarke to Manning, has not been noticed. — ■ The date is obviously altered, but whether before or after the execution of it, does not appear. As no objection was made to the deed, on this account, when produced in evidence, Manning had no opportunity to explain this suspi-. cious circumstance. It may be accounted for on a second trial.

The motion is granted.

Richardson, J. O’Neall, J. Butler, J. and Ward-, laav, J. concurred.

Motion granted.  