
    The Lessee of Henry Boyd v. Nicholas Longworth.
    A sheriff’s deed takes effect from the day of sale, so as to pass whatever interest the judgment debtor had in the lands sold at the time of the levy.
    The covenants in a deed which operate as estoppels, are those running with the land.
    This is an action of ejectment from Hamilton county.
    On the circuit there was a special verdict for the defendant, if on the questions of law made on the trial and reserved, he is, in the opinion of the court, entitled to it; but if not, then verdict to-be entered for plaintiff. On September 10, 1816, an execution-issued from the Hamilton common pleas, on a judgment rendered at the March term thereof, in the same year, in favor of Isaac-Morgan and another, against William R. Goodwin and another, and was levied on the land in question, as the property of the said Goodwin. Under a vendí, issued thereon, the said premises were-sold on *December 31, 1822, to the said Morgan, who immediately entered into the actual possession, and so continued until after the sale of the property, as his, by the sheriff, hereinafter mentioned. -On April 16, 1823, William Butler, the then late coroner, who made the sale, executed and delivered to him a deed, which does not contain the requisite recitals of the judgment and execution, and was made without an order of court confirming said sale, and directing the execution thereof.
    On the said April 16, 1823, an execution issued from the same-court, on a judgment rendered at the December term thereof in-1820, against the said Morgan, and on April 29, 1823, was levied on the said premises as his property. Under a vendí, issued thereon, the same' were sold, on November 19, 1824, to Israel Schooley. This sale was confirmed by the court, and a deed ordered, and afterward duly executed and delivered on March 9, 1825. Schooley, on September 30,
    At the Augusj: term, 1825, the said court, on motion, confirmed said sale of December 31, 1822, and ordered David Jackson, the then coroner (the sale having been made by the late coroner, and although there was then a sheriff in office), to execute and deliver to the purchaser a deed, which was done on October 4,1825,. in due form of law.
    Doubts having arisen as to the validity of this deed, as there-was then a sheriff in office, the said court, at the February term,. 1835, to wit, on the 2d of March, in said term, ordered the then sheriff to execute and deliver to the said purchaser, a deed for-the said premises, which was done on March 3, 1835.
    The lessor of the plaintiff claims title :
    1. Under a deed from the heirs of the said Goodwin (who had departed this life after the first sale aforesaid), dated and acknowl.edged February 7,1835; and,
    2. Under a deed from the said Morgan, in consideration of forty dollars, with a covenant, “that he had not done anything-^whereby the title could be annulled.” This deed bears date on January 20, 1835, was acknowledged on February 2, 1835, and recorded on February 9, 1835, and, of course, was delivered before the last sheriff’s deed of March 3, 1835.
    The reporter was furnished with no argument for the plaintiff,
    Y. Worthington, with Wright & Hodges, for defendant:
    This case presents several important and intricate questions. Several that it is proper to consider, though the case may be settled and leave them untouched. I shall, therefore, endeavor to discuss them apart, successively, and in the order that may give the least labor to the court.
    I. It will be perceived that the plaintiff claims title by the deed from'the heirs of Goodwin. This source of title is overcome by the judicial sale to Morgan, and the subsequent proceedings ratifying and confirming it. True, the coroner’s deed of April 16, 1823, may be considered bad on account of the defective recitals, Chase’s-L. 1237 ; and because there was no order of court confirming the sale and directing its execution, Chase’s L. 1236; 1 Ohio, 278; but these are cured by the subsequent orders and deeds, and this branch of the title, as at present advised, may be considered as disposed of.
    II. It will next be perceived that the plaintiff claims title through the judicial sale to Morgan, under a deed executed and delivered in February, 1835, before the sheriff’s deed of March 3,1835, under the order of March 2, 1835, without covenants of warranty, but with a covenant that nothing had been done to annul the title.
    1. Under this aspect of the case, to sustain the plaintiff’s title, it may be necessary to sustain the coroner’s deed of October 4, 1825, and we ask if that can be done? There was then a sheriff in office. The sale had been made by the *then late coroner, and the order of the court confirming the same, directed the then •coroner to execute a deed to the purchaser. When ■& title is derived from a statute, independent of a judicial order, there is no question that the statute must be strictly pursued, or it does not pass. The power is not executed. 3 Ohio, 233; 4 Craneh, 412.
    But when it has its origin in a judicial order of a competent tribunal, the title will vest, notwithstanding any irregularities that should have forbidden the order in the given case, and can, if at all, be overcome only by overcoming or reversing the order upon which it rests. 3 Ohio, 352; 10 Pet. 245. In such cases the court have the power, but exercise it upon an improper state of case. 3 Ohio, 560, 257, 272, 325; 4 Ohio, 130; 5 Ohio, 450, 500; 6 Ohio, 268; 7 Ohio, 12, 200; 9 Ohio, 19. And even then the title will not be overcome unless the party to the record is the purchaser. 8 Ohio, 127; 2 Chase’s L. 1301; Swan’s Stat. 479; 3 Ohio, 353.
    But in no case can a judicial sale be sustained if the court had uo power to make the order upon which the sale rests, or which is necessary in fact to sustain a deed under such sale. In all such cases the title is not affected, but remains. This was the great question in the Ludlow cases that have occupied no inconsiderable part of the attention of this court; 3 Ohio, 254, 554; 4 Ohio, 5; 5 Ohio, 494; as well as that of the federal courts. 2 Pet. 492.
    In the present case, the power exercised by the court in ordering the coroner to execute the deed of October 4, 1825, must be derived from some statute, if it exist. The only law in force at the time, upon this subject, will be found in Chase’s L. 1301, of the act regulating judgments and executions. It provides, “that if the term of service of the sheriff or other officer who hath made, or shall hereafter make sale of any lands and tenements, by virtue of an execution against the same, shall expire, etc., it shall be lawful for any succeeding sheriff or other officer, on receiving a certificate from the court from which execution issued, for the sale of said lands *and tenements, signed by the clerk by order of said court, setting forth that sufficient proof hath been made to the said court that such sale was fairly and legally made, etc., to sign, seal, and deliver to the said purchaser or purchasers, or his legal representatives, a deed,” etc. Section 20 of the present act, Swan’s Stat. 478, contains precisely the same provisions. This, law, as I understand it, requires the court to issue the order to the officer succeeding the one who had made the sale, and whose term had expired. The officer who had made the sale was the coroner-acting in the place or stead of the sheriff. He was the acting sheriff. His successor in all the offices exercised or to be exercised in this matter was the sheriff, and the order should have goue to him. The law gives no power to the court to direct who shall make the deed, but gives the power to the officer succeeding the one in office who had made the sale as to that subject matter, when he has received the requisite certificate. The court’s power is to grant the-certificate to the succeeding officer, and his power under the law is then to execute the deed, which shall be good and valid in law and have the same effect as if the officer who had made the sale-had executed the same.
    The case of Fowble v. Rayberg and Taylor, 4 Ohio, 62, does not present this precise point, but the court there held that the deed should be executed by the sheriff in office at the. time of the order. That case was on certiorari, and not in a collateral action. I, however, assume this to be a question of power, and claim that the court could only grant the certificate-indicated by the statute, and that, under it, the sheriff in office should execute the deed, and not the coroner; that the sheriff, as-to this matter, was the successor of the officer who made the sale, and to him the law gives the power to execute the deed.
    If this be the correct construction of the statute, the deed of October 4, 1825, is inoperative, and of no avail to the plaintiff in tracing out his title. He is then-forced to rely upon the deed of March 3, 1835, or go out of court.
    *2. We come, then, to consider whether he can rely upon this deed. If he can, it must be upon one of two grounds: either his deed from Morgan, in February, 1835, vests the title by estoppel or rebutter; or the deed of March 3, 1835, relates back to some period anterior to the deed of Morgan, in February, 1835,. so as to vest the legal paper title before the execution of that deed.
    Is the deed from Morgan to the lessor of the plaintiff, in February, 1835, sufficient to pass an after-acquired title by Morgan, if the deed of March ’3, 1835, is to be so considered, by way of estoppel ? I am not aware that any covenant in a deed, except-that of warranty, operates by way of estoppel or rebutter, to •vest the title, nor am I aware that any conveyance, except a feoffment, will pass a future estate, or one acquired after the alienation. Coke says (2 Thomas’ Coke, 353), “ This ancient manner of conveyance by feoffment and delivery of seizin, doth, for many respects, exceed all other conveyances. For, as hath been said, if the feoffor be out of possession, neither fine, recovery, indenture of bargain and sale enrolled, nor other conveyance, doth, .avoid an estate by wrong, and reduce clearly the estate of the feoffor and make a perfect tenant of the freehold, but only livery •of seizin upon the land.” And the annotator says (note B, 1): •“And it not only passes the present estate of the feoffor, but bars him of all present and future right to the estate which is so conveyed.” 2 Thomas’ Coke, 457. Coke also says (2 Thomas’ Coke, 245), “A warranty is a covenant real annexed to lands or tenements, whereby a man and his heirs are bound to warrant the ■same; and, either upon voucher, or by judgment in a writ of warrantia chartce, to yield other lands and tenements (which, in old books, is called in excambio), to the value of those that shall be evicted by a former title, or else may be used by way of rebutter'’ 'The annotator (2 Thomas’ Coke, 245, note a), says: “Express warranties are contracts which have all the import and effect of the feudal contract between the lord and tenant. For, first, they rebut such warrantor and his heir from claiming any right in the land.”
    *And Coke, commenting upon section 446 of Littleton (2 Thomas’ Coke, 457), says: “ For if there be a warranty annexed to the release, then the son shall be bound. For, albeit the release can not bar the right for the cause aforesaid, yet the warranty may rebut, and bar him and his heirs of a future right, which was not in him at the time ; and the reason (which, in all cases, is to be sought out), wherefore a warranty, being a covenant real, should bar a future right, is for avoiding of circuity of action (which is not favored in law) ; as he that made the warranty should recover the land against the tertenant, and he, by force of the warranty, to have as much in value against the same person.”
    So also in 1 Shep. Touch. 182, it is said: “ The fruit and effect of the warranty in a deed is, that it doth always conclude and bar the warrant of himself of the lands so warranted forever; so that all his present and future rights, that he hath or may have therein, '.are hereby extinct.”
    In 14 Johns. 194, the court say: “No title not then in esse would pass, unless there was a warranty in the deed; in which last case, it would operate as an estoppel, for avoiding circuity of, action.”
    In 3 Pick. 60, the court say : “ It has been the common understanding, that when one, supposing he has title, though in fact he has none, for a valuable consideration, conveys land by deed with warranty, and afterward purchases, that his new title shall accrue -to the benefit of his grantee.”
    To the same point see also 9 Cranch, 43; 9 Wheat. 454; 11 Johns. 97; 2 Serg. & Rawle, 515; 3 Ohio, 120.
    In 1 Swift’s Dig. 621, it is said : “ If one gives a deed of land he does not own, with warranty, and afterward purchases the same land, he would be estopped by his warranty, to say he did not own the land at the time of making the deed. A mortgagor is estopped to dispute the title of the mortgagee. A man shall not be permitted to defeat a deed under his hand, covenanting that the defendant shall enjoy the premises, and also for further assurance.”
    *So in 1 Ld. Raym.729, itwas held: “That if A., not having anything in certain land, demises it by indenture to B., and afterward A. purchases the land, this will be a good lease by estoppel.” Every lease contains an implied covenant of warranty.
    The case in 4 Bibb, 436, was under a warranty deed. So is the case in 1 Ohio, 402. In 5 Ohio, 193, the court say: “No man is permitted to deny an admission under his own seal. When this duty can be enforced under the forms of pleading, it is called an estoppel. But the instrument itself has never been held to bar him from setting up his alter-acquired title, unless it contains an effective clause of warranty.”
    The case in 5 Ohio, 194, and that in 7 Ohio, 228, relate more properly to recitals in a deed. They, however, bear upon the same point. The case in 8 Ohio, 223, and that in 6 Ohio, 366, are to the same point. A deed to work an estoppel must be an operative warranty deed. So also is the case in 10 Ohio, 70.
    In 7 Groenl. 96, it is said that a covenant that neither the grantor nor his heirs shall make any claim to the land conveyed, though not technically a warranty, runs with the land, amounts. substantially to that covenant, and estops the grantor and alb claiming under him.
    In the view of these authorities, I do not feel authorized to say that any covenant in a deed, unless it be in substance and in effect a covenant warranting the title or future enjoyment of the property conveyed, can operate as an estoppel. The reason why the covenant of warranty operates as a rebutter, would seem to apply with equal force to the covenant for quiet enjoyment; but I am not advised that the latter covenant can, upon principle, be held to furnish anything but an indemnity, in case of actual disturbance by a paramount title.
    In the present deed, there is none of the ordinary covenants, but simply the covenant that the grantor has done nothing whereby the title can be annulled. It is alone against his personal act, and if it could, under any circumstances, operate as *an estoppel, it must be in a ease within the covenant, where he had done some act to defeat the title, and had asserted title in the face of that act. In no aspect could the covenant work an estoppel, unless the position assumed by the grantor would constitute a breach of the covenant. If the right he asserts will constitute a breach of his covenant, then, if at all, he may be estopped by his covenant to assert such a right. But, -where the right asserted does not conflict with the covenant, it, of course, can not estop him.. If, then, the title vested in Morgan by the deed of March 3, 1835, conduces to establish that he had, prior to the deed of February, to the lessor of the plaintiff, done, or suffered to be done, some act to impair his title, he should be estopped by that covenant to assert title under the deed of March 3, 1835, otherwise not. But such is not the case, and the covenant, of course, no estoppel.
    If the covenant had been, that he had omitted no act necessary to perfect the legal title, and he subsequently should have asserted title, under a deed after acquired to perfect the title, for some omission covenanted against, then in this view, the covenant would have worked by estoppel, and vested the after-acquired title under the deed containing the covenant.
    It seems, then, that the plaintiff can not claim title under the deed in question, by an estoppel, and it remains to inquire whether the deed of March 3, 1835, relates back so as to give him title under his deed in February previous. If this deed relates back so as to pass the title before its delivery, there must be some particular point to which it goes for all purposes. Deeds executed under contracts are said to relate back to the dates of the contracts, so as to render valid intermediate sales by the vendees, and cut off statutory liens by law against the vendors. 3 Cowen, 75; 2 Johns. 510; 1 Johns. Cas. 81, 85; 2 Caine’s Cas. 301; 3 Caine’s Cas. 262; 1 Ohio, 257; 3 Ohio, 527; 7 Ohio, 225; 15 Johns. 309.
    So a deed, by the sheriff, gives the purchaser title, by relation, to the time when the lien attached, so as to cut off all intermediate rights. 10 Ohio, 404; 3 Ohio, 530; 9 Ohio, 185; 15 Johns. 315; 3 Cowen, 75; 12 Johns. 140; 8 Cowen, 538.
    So in 5 Ohio, 55, it is said, in substance, that the sheriff’s deed vests under the statute, in the purchaser, all the title of the defendant, at, or after the time, when said lands became liable to-satisfy said judgment. This is the language of the statute. Swan’s Stat. 476; Chase’s L. 1237, 1300.
    So in 8 Ohio, 107, it was held, that a deed executed by a sheriff in office, and acknowledged by him after his term had expired, was carried back and cured by relation.
    In the case of McGuire v. Ely and others, Wright, 520, the court held, that at a sheriff’s sale, the purchaser’s right vested on the day of sale, and the deed must relate back to give him title of that date. The law is imperative, as to the power of the court in ordering the deed in case the proceeding conform to its provisions or requisitions. They also say, that in the case of a reversal, after sale, under section 22 of the judgment and execution act, Swan’s Stat. 479, the deed, nevertheless, must be made, and restitution will be made of the money for which the land sold, with interest from the day of sale.
    In Scribner’s Lessee v. Lockwood, 9 Ohio, 184, this court held a purchaser, at sheriff’s sale, to be a bona fide purchaser from the time of the sale, and to be protected as such ; and though they do not exactly go the doctrine of relation, yet they countenance it, ' and their decision can not be upheld upon any other principle; because the basis of the decision, that he is in truth an innocent purchaser, can not be upheld without a legal title to rest on, and the deed, when delivered, must, to that end, go back to the day of jsale. 10 Pet. 177; 7 Pet. 252; 7 Johns. Ch. 76; Talmadge v. Talmadge, from Portage, decided in bank, last winter, and not yet reported.
    
      Without reference further, we suppose the purchaser’s rights to the property commenced with the day of sale, and the deed relates, when executed, back to that period. He is entitled to rents from that period, and bound for all assessments for ^public purposes, accruing thereon after that time ; and from that period the property will be bound for his debts.
    It is manifest there can be but one subsisting legal estate in fee simple, and that there can be but one available legal title thereto. It is also equally manifest that this legal available title must vest in some person, natural or artificial, and can not be in nubibus, nor in abeyance. It must rest somewhere. If we find it in one, and then in another, there must be some precise time of its transition. Some period when the property ceases to be legal estate of the one, and becomes that of the other. Some period when the legal title is in the one, and then in the other. In this instance there is a precise point at which the legal title passed from the judgment debtor to the purchaser on the execution. That point is at the delivery of the deed by the sheriff, or at the day of sale. If at the delivery of the deed, then the lands, after sale, and before the delivery of the deed, would be subject to levy, as the property of the judgment debtor, and the surplus of the sale would, if any, be applicable thereto; whereas, the money in the hands of the sheriff would not be, if the title passed, at this point in the judicial proceedings, by relation. 1 Ohio, 275. In case of reversal, the law, as we have seen, restores the purchase money with interest from the day of sale. If that be so, the emblements from that time belong to the purchaser. The pernancy of the rents must be his, because it would bo against reason and justice to permit the judgment debtor to enjoy the estate lawfully up to the delivery of the deed by the sheriff, and, upon reversal, to recover interest on the sale while he is in the enjoyment of the thing sold. If, in such a case, the interest on the sale money would be his from the day of sale, the rents or profits of the estate sold should not be, and must pass to the purchaser.
    In this view of the ease the deed to Morgan, of March 3, 1835, operated back, so as to vest him with the title at the time of the sale; if not, it did not' vest till the day of the delivery. If it operated .back to the day of sale, then it inures to give title to the plaintiff, and we are thrown upon the ^defensive. If it did not, then the plaintiff makes no title under it, and has ■established no claim to the judgment of the court.
    3. We have said that if the deed of March 3, 1835, relates back .so as to pass the title on the day of sale, the plaintiff makes a ease for relief unless we can show a better title; and this brings us to our third position, which is, that if the deed of March 3, 1835, or that of October 4, 1825, immaterial which, relate back to the day of sale, then the deed of March 9, 1825, under which we claim, divested Morgan of all title, and he had no estate to convey, by the deed, to the lessor of the plaintiff, in February, 1835. The deed executed by the sheriff, or by the party through the sheriff, has the same force as if executed by himself. 9 Ohio, 186; 15 Wend. 596. Morgan is the common source of title to both parties, and it is not competent'for either party to deny his right. 5 Ohio, 107. Indeed they can not, because their right depend upon it. If, then, both parties are precluded from denying Morgan’s title, and the sheriff’s deed, under which we claim, has the same operation it would have if executed by Morgan himself, the whole matter is settled by the priority of our deed over that of the lessor of the plaintiff. If, then, the deed of March 3, 1835, ■operates to pass the title as of the day of sale, it inures to confirm our title, and we are entitled to judgment, because we have the senior, and therefore better title.
    4. Here, probably, it might be sufficient for us to rest. But there is another view of this case, to which we will now direct the attention of the court. It will be perceived that when the levy was made, under which we claim title, Morgan was in possession under his purchase at. sheriff’s sale, with a deed in confirmation thereof, though defective, for the reasons above assigned, and that ho so continued in possession until after che sale to Schooley, on November 19, 1824. We claim that this possession alone constituted an interest in Morgan, which was subject to levy and sale ; .and when the sheriff’s deed emanated, in 1835, or the coroner’s, in 1825, it inured, also, to the purchaser at sheriff’s sale. Morgan, against *the purchaser, could not assert title; he could not set up title in. another, nor could any one, claiming title under him. 10 Ohio, 70, 403; 2 Ib. 224; 5 Ib. 55; 7 Ib. 228; 8 Ib. 23; 4 Cow. 601; 18 Johns. 94; 15 Wend. 593; Wright, 117.
    We grant that a mere equity in lands can not be sold on an execution at law; but if it be connected with the possession, as to all the world, except the holder of the paper legal title, the equity is merged or drowned by the legal title growing out of the possession, and, in legal contemplation, has no existence, Courts of law look alone to the legal right. Possession is evidence of legal title. It is, in fact, a legal title. 7 Johns. 206; 18 Johns. 94; 1 Ohio, 314, 257, 281; 2 Ohio, 244; 10 Ohio, 70, 403. It is transmitted by descent. 1 Marsh. 4, 62; 2 Marsh. 620; Wright, 216; 5 Ohio, 198; 3 Cond. Pet. 216, 570; 3 Wash. C. C. 475; 4 Des. 562; and may pass by grant or will. It is true that it is the lowest grade of legal title, but it is impregnable to the holder, except against the paper title, and in the run of time will drown it. Possession, under a contract executed, is a defense against the vendor in ejectment. 14 Wend. 227; 9 Ohio, 249. Why? Because the possessor has the better legal title. He is no trespasser. He is in lawfully, and must be in default before he can be dispossessed. He never can be evicted, unless he is a wrong-doer in legal contemplation. So, a decree against the holder of the legal paper title, barred by possession, is inoperative for the same reason. 10 Ohio, 69; 5 Ohio, 194. Possession gives title, and it becomes so strong by time and age, that nothing can overcome it. So, also, an adversary possessory title that bars a legal paper title,, bars all equities connected with, and springing out of, the legal paper title that is overcome by it. 10 Ohio, 104, 26; 9 Pet. 413; 2 Merv. 356; 2 Sch. & Lef. 628, 630, 636; 3 Serg. & Rawle, 310; 3 Johns. Ch. 216, 217; 2 Cond. Eng. Ch. 188; 7 Johns. Ch. 126. This shows the power and strength of a mere possessory right from its very inception. *It is strong in fact and in law. But one right can overcome it. All others fall before it.
    I have said that a court of law looks alone to the legal lights of the parties, and can take no notice of matters in equity; when it finds a party in possession of land, it holds him to be there by right. If he be there under a contract executed, he has the legal title against all the world, except the vendor; who can not evict him, nor transfer the legal title to another who can, because his possession is notice to the world that he is in lawfully. 5 Johns. Ch. 29; 4 Johns. Ch. 47; 3 Paige, 421; 3 Pick. 149; 6 Paige, 387.
    His equitable title under the contract has become united to his legal possessory title, and except for the single purpose, if the contract be executory, of securing the vendor’s lien, the equitable-title has become merged in the legal title.
    
      Whenever a greater and a less estate unite in the same person, the latter merges or sinks into the former; and whenever an equitable and legal title meet, immaterial what may be the grade of the latter, in one person, in the same right, the former merges. .It is true, in both cases, that equity prevents the merger, and preserves the estates distinct, for special purposes ; but, otherwise, the merger takes place, and the distinction is lost. 3 Johns. Ch. 56; 6 Johns. Ch. 393, 417; 5 Johns. Ch. 35, 214; 2 Thomas’ Coke, 556, 557, note K; 2 Atk. 67; 9 Ves. Jr. 509; 3 Ves. Jr. 126, 339.
    No man can be a trustee for himself. Take the case in its strongest aspect, and the principle seems to me to be tested. A. sells to B. a tract of land, receives payment in full, gives him a title bond, and puts him in possession. The legal paper title is in A. , but the possession is in B. For whose use does B. hold the land ? He does not hold it for A., because he has parted with his right to the possession and to the usufruct, as well as emblements. B. , then, if he holds to a use, must have a cestui que trust for whom the use exists. If there be no cestui que trust, or use, there is no use as independent of the possession, and B. holds in his own right. It then follows that there *is no independent equity, and a transfer of the possessory right must pass with it all equities connected with, or growing out of it, or upon which it is based.
    Take a very familiar case. A mortgagor is in possession, and condition broken. Against the mortgagee he has a mere equity, and against everybody else he has the legal title. While in possession, the land may be sold on execution as his, because of his possession; but if the mortgagee has possession, then it can not be .sold, because he has a mere equity. If it be sold while he is in possession, and the mortgage debt paid, the title of the purchaser is perfect. If the mortgagee buy the land, the mortgage merges, and the legal title prevails. If the land be sold on execution afterward, as the property of the mortgagee, he can not set up the mortgage. 6 Johns. Ch. 417. Now upon what basis does all this rest? It is upon the merger of the equitable into the legal title when they unite in the same person. No man can be a trustee for himself, nor can he be a creditor or debtor to himself. Whenever therefore, an equitable title unites in him with a legal title, so far as he is concerned, and so far as the whole world is concerned, except he who is interested in preserving the estates distinct, the former is gone, and he is held and treated as the legal owner of the estate. The law considers him in his best position, and as holding the-estate in the manner and under the title conducing to his highest interest. The law always places a man “ with his right foot foremost.”
    In 10 Ohio, 404, this court seem to consider this “as a question of the gravest character, and incumbered with great difficulties.” It may, therefore, be excusable in me to prosecute the inquiry somewhat further. The difficulty in the case seems to be, to determine in what way the purchaser under the execution is to be substituted to the rights of the vendee under the contract. He is substituted, I think, by the operation of the law working necessarily upon the case, as it does in all cases when it acts coercively. Suppose the vendee, after his purchase by deed, conveys the land without any reference to the contract, then it is clear, I apprehend, the purchaser *is substituted to his rights, and can compel a deed to him from the vendor, and the vendor may convey to him in affirmance of the contract without danger to or from the vendee. If, in such a state of case, the vendee should take a deed from the vendor, after his sale and conveyance, he would be estopped by his deed. He would not be permitted to say that ho had no title, and in accordance with one of the positions above assumed, his-deed would relate back to the date of his contract, so as to protect the intermediate purchaser.
    Such, then, would be the result where the vendee, in or out of possession, sells. We have seen that a judicial sale is as operative as a voluntary sale by the party. 15 Wend. 596; 9 Ohio, 186. But a judicial sale can only take place where the vendee is in possession. It passes to the purchaser of the property sold (8 Ohio, 24), to hold at law as the vendee or judgment debtor held it. 5 Ohio, 55; 9 Ohio, 186. That is the operation of a voluntary deed, and if a deed under a judicial sale is to have the like operation with a voluntary deed, the purchaser under the one should in all respects occupy as good a position in the law as the purchaser under the-other, and should in the like manner receive the same proteetionIf, then, the vendee would be estopped by his deed, he must be by the judicial deed. Why ? Because the deeds in both cases pass-the property and his legal right to the property, and that drowns and swallows up all his equities thereto. The possession gave a legal title. The acquisition of the legal paper title goes to confirm-the possession, and not to give a new right. It is, from the beginning, one and the same title, one and the same right. It is not distinct and independent of the right out of which the possession grew, and upon which it had fastened.
    In the present case, Morgan’s right grew out of his purchase on December 31, 1822. His possession is under that purchase, and the deed is to confirm his'purchase, and gives him no new right. After the sale he paid the purchase money and took possession, and had (the proceedings all being regular) an undeniable right to a deed. Wright, 520. *The deed, when received, inures to establish and confirm the possession already taken. He is in under one and the same right. There is no unity of distinct estates or rights, no merger. The possession and deed hang upon the sale; and are fed by it, and they all constitute but one title, operating upon the same estate. If he had sold and conveyed before he received his deed, the deed when made inures to protect the title of his vendee. If he sell and convey by the sheriff or other judicial officer, the same result must follow.
    We therefore claim, that if Morgan had conveyed this land before he received his deed, the purchaser could have received his deed'from the sheriff, and, on a proper case, it would have been ordered to have been executed and delivered to him. 7 Ohio, 204. We also claim that the sheriff’s deed, made to him after his sale and conveyance, would inure to the benefit of his vendee, and he would be estopped by his deed. We also claim that, in such a case, the same consequences would attach to a judicial sale and conveyance. After Sehoolcy received his deed, he could have obtained the sheriff’s deed, as the assignee of Morgan, by operation of law; or, if the deed was made to Morgan, as it was, if inured to his benefit, in confirmation of the possession previously taken by Morgan, and upon precisely the same ground that it would have inured, had ho been the voluntary vendee from Morgan.
    
      Wp therefore insist, in any aspect in which this case may be considered, the defendant’s possession ’should be protected, and ask, in his behalf, a judgment.
   Birchard, J.

Several questions are presented, which render this case intricate, and the decision somewhat difficult, if they are allowed to be so mixed up as to prevent each one from receiving a separate consideration. In examining them severally, we have found little difficulty in arriving at conclusions satisfactory to our own minds, aided, as we have been, by the careful, orderly, and thorough preparation of the case by counsel.

*The plaintiff’s first claim of title is under the deed from the heirs of Goodwin. These heirs took, by descent, from Goodwin whatever interest they had to convey. Their estate was no greater than that of their ancestor. Goodwin’s interest in the lot was levied upon and sold in 1822; and this sale, which was subsequently confirmed, left in him no interest whatever, from and after the day of sale. When the sheriff’s deed was finally executed and delivered, it, by relation, took effect as of the day of sale, and passed to the purchaser all the interest he then had.

Subsequently to that sale, he acquired no new interest in the land, and therefore dying seized and possessed of no right or title to the land, his heirs inherited nothing from him, and their deed to the plaintiff passed nothing, and may be treated as out of the way.

Whether the deed from Morgan vested in the plaintiff’s lessor any title or not, is the next question in the order of inquiry. Morgan’s right grew out of the coroner’s sale to him, which was made on December 31, 1822, and his possession, which was under that sale. The deed which was subsequently executed, under the order of the court confirming the coroner’s proceedings, gave him no new right. It merely confirmed the right acquired at the sale. If he had sold and conveyed, before the sheriff’s deed was finally executed, the' deed would have inured, when executed and delivered, to protect the title of his vendee; for the sheriff’s deed would relate back to the sale on execution, and operate as a conveyance to him from that time.

With this view of the title deeds offered in evidence by the plaintiff’s lessor, let us next consider the effect produced by the evidence given by the defendant. I lay out of view, as evidence of title, the coroner’s deed, executed on April 16, A. d. 1823, because it does not contain the requisite recitals, and was executed without a confirmation of the sale by the court; also, the deed of the coroner, executed October 4, A. d. 1825, because there was then in office a sheriff, who was the proper successor of the coroner who made the *sale, for the purpose of executing the deed. Schooloy, under whom defendant claims, was a purchaser at a sheriff’s sale, on execution against Morgan, who was then in. possession of the lot, and who was a purchaser at the sale upon •execution against Goodwin. He then owned all the right which he ever had to the premises. The sheriff’s deed vested all the title which Morgan had, at the time of sale, in Schooley. This is the effect produced by the statute, and if we are right in holding that a sheriff’s deed relates back to the sheriff’s sale, and is operative from that time as a conveyance, concerning which we have no doubt, it follows that the estate of Morgan, in this land, was -divested by that sale, and that the defendant is entitled to judgment.

But it is said that the deed of Morgan, of February, 1835, being prior to the sheriff’s deed of March, in the same year, and containing a covenant “ that he had done nothing whereby the title could be annulled,” vests a title in the plaintiff’s lessor, by way of estoppel or rebutter. To give this effect, it must be assumed that the setting up of title by the defendant, as derived from the sheriff’s sale to Schooley, is an act done by Morgan, in the face of his covenant. It could not be pretended that the covenant would work an estoppel, unless the position assumed by the defendant is to be regarded as the act of Morgan, the grantor, and is such .as to constitute a breach of his covenant.

The right asserted by the defendant, however, does not conflict with Morgan’s covenant. It does not establish the fact that he had done anything whereby his title could be annulled. It simply proves that he had omitted an act which was necessary to perfect his title, and this makes no case of estoppel, for estoppel is a matter of strict law.

An express warranty is the only contract which has the effect to estop the warrantor, and those claiming under him, from maintaining title under a subsequent purchase. The covenant must be me running with the land.

Judgment for defendant.  