
    Wood vs. Turner.
    1. The deed of a sheriff does not take effect from the time when made, but relates to the date of the sale, and vests a legal title from that period.
    2. A party whose land is sold by execution against him, while he is in possession of the premises, is a quasi tenant of the purchaser, and cannot dispute his title; aliter, where is not in possession.
    3. Where land was sold at execution sale and after the sale the original owner who was notin possession at the time of the sale, rents the land to a third person, it is held that the relation of land lord and tenant existed between the parties and that the tenant who purchased the title of the purchaser at execution sale could not set up the title of such purchaser against the original owner.
    Action for unlawful detainer, brought before two Justices of the Peace in Gibson county, by Edwin G. Moore against James Turner. The Justices gave judgment for the defendant, from which the plaintiff appealed to the Circuit Court of said county. The cause was tried by jury, William Fitzgerald, Judge, presiding, and resulted in a verdict and judgment for defendant. The plaintiff again appealed. The facts will appear in the opinion of the court.
    
      
      Totten, for plaintiff in error.
    1. The defendant went into possession under plaintiff by virtue of a lease made in 1844, renewed for 1845. He cannot resist the title of his landlord. Washington vs. Conrad, 2 Humph. Rep. 562; Lane vs. Orment, 9 Yerg. Rep. 86; Marley vs. Rogers, 5 Yerg, 217.
    2. The title cannot be tried in this suit. Act of 1821, sec. 20; Davidson vs. Philips, 9 Yerg. 95.
    3. We do not desire that the validity of the sheriff’s sale shall, at present, be tested. But whether the sale be valid or not, it can in no wise affect the merits of the case. The deed of the sheriff relates to the day of sale, and takes effect, if at all, as of that date. Porter's lessee vs. Cocke, Beck’s Rep. 39; Jackson vs. Dickenson 15 J. R. 315; 1 Ire. Dig. 440.
    
      Gibbs, for defendant in error.
    This is an action of forcible detainer and the ground of de-fence is that the land was sold on a' judgment, and purchased by a Mr. Hoover, who received a deed from sheriff and then sold it to defendants, and therefore not bound to surrender the possession to plaintiff.
    1st. The right to real estate is 1st, possession, 2d, the right to possession, 3d, the inheritance in fee, and wherever the tenant for life or for years, purchases the outstanding fee, the inferior estate merges, and he can consequently hold against his former landlord &c. See 4 Kent Com. 100; Preston on Property, 15, 201.
    2. Where land is sold by Ji. fa. the tenant becomes the tenant of the purchaser, 8 Cowen 13; Nichols vs. Willis, 8 Yerg. 1S2, and by the act 1821, the purchaser can turn the tenant out of possession by forcible detainer, 5 Yerg. 217, Marley vs. Rodgers; 2 Wendal 508.
    3. Although tenant cannot show outstanding and better title to land against his landlord; yet he can do so when the relation has been extinguished by the acts of the party or operation of law, 6 Wendal 666; 4 Tenn. R. 682; 3 John. R. 288; Jackson vs. Wilden, 4 Wendal 633; Jackson vs. Vincent, 5 Cowen R. 124; Jackson vs. Davis.
    
   Green, J.

delivered the opinion of the court.

This is an action for an unlawful detainer.

It appeared in evidence, that the land in controversy was levied on as the property of the plaintiff, by virtue of a judgment and execution against him, and was sold by- the sheriff on the 4th day of November, 1843, and purchased by H. B. Hoover. The sheriff executed a deed to Hoover on the 5th of November, 1845, and Hoover conveyed by deed to the defendant on the next day, the 6th. There was no evidence that the plaintiff was in possession at the time of said levy and sale.

The plaintiff proved that the defendant rented the land from him in 1844 and 1845, that he went in possession thereof as his tenant in 1844, and so continued in 1845.

The court charges the jury, that the judgment, levy and sheriff’s deed dissolved the relation of landlord and tenant, previously existing between the plaintiff and defendant, from and after the execution of the deed by the sheriff to Hoover the purchaser at the execution sale, and that from that time, the defendant became, by operation of law, the tenant of Hoover, and it was his duty to attorn to him. In this direction, we think, his honor, the Circuit Judge, erred.

The deed of the sheriff did not take effect at its date, but related to the date of the sale, and vested in Hoover a legal title from that period. It could not, therefore, affect the relation between the plaintiff and defendant, which had been entered into after the sale.

It is true, that a party whose land is sold by execution against him, while he is in possession of the premises, is held to be a quasi tenant of the purchaser, and cannot dispute his title. But here there is no evidence that Wood was in possession at the time of the sale. After the sale he rented the land to Turner, and while Turner is thus in possession he takes a title from Hoover, and refuses to deliver possession to Wood of whom he rented. It is therefore, the simple question, whether a tenant can be permitted to buy up an outstanding title, and thereby protect himself against his landlord. This, it is admitted, cannot be done. Good faith requires, that he should surrender the possession to the party of whom he received it, and whose title he acknowledged by consenting to hold under-him. The ground assumed by his honor, that the sheriff’s deed operated to transfer the right of possession to the purchaser at its date, and not at the date of the sale, cannot be maintained.

Reverse the judgment, and remand the cause for a new trial.  