
    Thomas’ lessee vs. Blackemore.
    A lease or an assignment of a lease for more than a year, is valid and passes the interest, although not proved and registered. It is good as between the parties and against creditors and purchasers.
    A sheriff’s return, stating that he had sold all the interest of A in a certain tract of land, (describing it,) is sufficient evidence of the sale, where the interest sold was an estate for years.
    John P. Thomas was the owner of a tract of land containing 308 acres, lying in Sumner county; he executed a lease to William Dickinson for said tract of land, for the term of twenty years; the lease was dated 18th October, 1818, and was proved and registered. On the first of February, 1820, Dickinson conveyed by deed the remainder of said term, to Alexander Bowling, and Bowling to the lessor of the plaintiff. The conveyances from Dickinson to Bowling, and from Bowling to the lessor of the plaintiff, were not,registered, but the handwriting of the parties who conveyed, was proved at the trial.
    At the November term, 1820, of the county court of Sumner, Smith and Turner recovered a judgment against William Dickinson, for $922 53; an execution issued on this judgment, tested the 3d Monday of May, 1821, on the back of which execution is the following return: “sold all the right, title, claim and interest, which Wm. Dickinson had to 308 acres of land, lying on Essex creek, whereon Alexander Bowling now lives, (after giving lawful notice,) for fifty dollars, to David Thomas-Charles Morgan, D. S.”
    On the 12th March, »1829, (during the trial of this cause in the circuit court,) the sheriff executed a deed to said Thomas, for Dickinson’s interest in said land, reciting the judgment of Smith and Turner, the execution and sale to Thomas, under it. The deed was acknowledged and registered the same day.
    
      ^ was Prove(^ ráat conveyance from Dickinson to Bowling was fraudulent, and made to defraud Dickinson’s creditors.
    At the May term, 1828, of the county court of Sumner, the defendant, Blackemore, recovered a judgment against said William Dickinson, for $234 33; this judgment was founded on a note or bond, executed by Dickinson to Blackemore in 1819; an execution issued on this judgment, by virtue of-which Wm. Dickinson’s interest in the premises was sold by the sheriff of Sumner to defendant, by deed bearing date 8th September, 1828: this deed was acknowledged and registered a few days after its execution.
    The court charged the jury, that the deed executed by the sheriff to the lessor of the plaintiff during the trial, would take effect when registered, from the execution sale under Smith and Turner’s judgment, in 1821, and would by relation, vest the legal title in the lessor of the plaintiff, from that time; and that his title was therefore older and better than defendant’s, „ who had acquired his after said sale, and before the execution of the deed by the sheriff; that although more than a year had elapsed after the sale, before the deed was executed, that that would make no difference; it would still take effect from the sale, and overreach any title acquired in the mean time, and that its being executed and registered after this suit was commenced, made no difference.
    The court was requested to charge, that although for some purposes, a deed executed more than a year after a sale by the sheriff, would relate and pass the title from the sale: yet a deed executed more than a year after the sale; would not take effect by relation to the sale, so as to vest the legal title to the injury of third persons or strangers, who were not parties, and who had acquired these rights in the intermediate time. The court refused to give the instruction to the jury. The court was then requested to instruct the jury, that the special return on the back of Smith and Turner s execu- . . , . „ - , , tion, was m contemplation oí law, a transier oí legal title; and that unless the same was proved and registered within the time-prescribed by law for the registration of deeds, &c. it was void as to the creditors of Dickinson. The court refused to give this instruction also; but stated to the jury, that the return vested a mere equitable interest, and that a deed was necessary to vest the legal title; but when that was procured, it vested the legal title, by relation, from the"time of the sale.
    The jury found a verdict for the plaintiff; a new trial was moved for and refused by the court; the defendant excepted to the opinion of the court in the charge to the jury,’and in’overruling the motion for a new trial,
    
      G. S. Yerger, for plaintiff in error.
    In this case two questions are presented for consideration. 1. Has the plaintiff any title or right to the premises, as against the defendant, by virtue of the conveyances from Dickinson to Bowling, and from Bowling to Thomas? 2. Has he a title by virtue of his purchase at the execution sale under Smith and Turner’s execution?
    1. The conveyances from Dickinson to Bowling, and from Bowling to the lessor of the plaintiff, are void as to the creditors of Dickinson, because neither of them were proved and registered within twelve months from their execution.
    The act of 1815, ch. 38, it is admitted, does not apply to alease, but the act of 1805, ch. 15, (Revised Laws 61,) is explicit; it directs all conveyances for the absolute transfer of any estate in lands, tenements and heredita-ments, to be proved and registered within nine months, or the same shall be void as to creditors and purchasers. The subsequent acts passed upon this subject, alter the time within which the instrument is to be proved and registered, from nine to twelve months-
    
      The words, conveyance of any estate, in this act, embrace the conveyance of a term, for years. A term for years, is an estate in land for a given number of years; a conveyance of it must then necessarily operate as a transfer of an interest or estate in lands.
    The word estate, means such an interest as the tenant hath in the land. If his interest is to exist during his life, he has an estate in the land for his life; if his interest is to determine after a certain number of years, then he has an estate for years. In both cases, he has an estate in the lands. 2 Bile. Com. 108.
    Mr. Preston says, the interest which any one has in lands or other, property, is called an estate; and to this term; at least in conveyances, some adjunct or expression should be added to show the time for which the estate is to continue. Preston on Estates, 20.
    In New York, it has been decided, upon the construction of an act not so strongly worded as ours, that a conveyance of a term for years must be registered. 2 Johns. Rep. 514: 2 Johns. Ch. Rep. 603. So in Kentucky, 2 Marshall, 33.
    It is then clear, that the lessor of the plaintiff has no title by virtue of these conveyances; they were void as to the defendant, who was a creditor of Dickinson at the time they were executed.
    2, Has he a better title than defendant, by virtue of bis purchase at the sheriff’s sale under Smith and Turner’s judgment?
    The first position I assume upon this part of the case, is, that the conveyance by the sheriff of an interest or estate in land, must be proved and registered within the time prescribed by law, as well as conveyances between private individuals. 13 Johns. Rep, 471: 1 Hawks’ R 307: 2 Caine’s Rep. 64: 2 Johns. 260.
    It is a rule, which I presume will not be denied, that if the sheriff has made a conveyance sufficient in law to transfer the legal estate, which conveyance has not been proved or registered within twelve months after its execution, and is consequently void as to creditors, that a subsequent conveyance, although proved and registered ■within twelve months from its execution, is a nullity. The party cannot, after he has neglected to register the first, procure another, have it registered, and then say it relates to the sale, and was registered within twelve months from its execution.
    Was there a conveyance by the sheriff, previous to the one executed during the trial? Unless the conveyance of a lease for a term of years, requires a deed; I maintain that the return of the sheriff, on Smith and Turner’s execution, operated a complete transfer of the title.
    This not being a freehold, a transfer at common law in writing without deed, and even without writing, was perhaps sufficient. ■ The statute of frauds now requires a note or memorandum in writing, but it does not require it to be sealed; and it might well be questioned whether the transfer of title by the sheriff, is now required to be in any case by deed. At common law, when a thing took effect out of a naked power or authority, the authority might be executed by parol, because the party did not claim by virtue of the execution of the power, but claimed under the instrument creating the power. The statute authorizes a debtor’s land to be sold for his debts, and the judgment and execution against him authorizes the sheriff to sell; the sheriff then merely executes a power; and before the statute of frauds, a sale without writing would be sufficient. Co. Litt. sec. 169: Sanders vs. Owen, Salkeld’s Rep. 467.
    It is probable, however, that the statute of frauds has altered this rule, and in a case like the present, a deed or conveyance in writing is required.
    Is not the return then, a transfer of the interest? The property is properly described; it is identified as the place on which A. Bowling then lived; it does not purport to |je an agreement to sell, but says he actually has sold. Ihe interest is completely translerred. It was admitted hy the court, in Simons vs. Catlin, that if the return was sufficiently special, it would pass the estate. 2 Conn. Rep. 63, 66: 2 Johns. Rep. 260.
    In England, the return of the sheriff of the inquisition upon an elegit, passed the title, if the description was sufficiently specific to identify the property. 2 Douglass’ Rep. 473.
    If this then is a sufficient conveyance, it must he registered. 13 Johns. Rep. 471. In this last case, the court incline to the opinion that the return is not sufficient to pass the estate, and that a deed is required; but that was a sale of a freehold interest, in which it was held, that a conveyance by writing, without deed,,was insufficient. See Catlin vs. Jackson, 8 Johns. Rep.
    3. But suppose a sheriff’s deed is necessary. If it is not procured for seven or eight years, will if, when procured, relate to the sale, and defeat rights acquired in the meantime? It would be very strange and contradictory for the law to be, that if a deed be procured shortly after the sale, and not registered within the year, it is void as to creditors; but if it be not procured within ten years, that when registered it shall relate and overreach a creditor’s title procured in the meantime. If this be the Jaw, it encourages laches and neglect.
    The doctrine of relation is a fiction of the law, made to promote the ends of justice, not to defeat them; and from a correct analysis of the cases, it seems to me the following rules may be laid down.
    1st. That the doctrine of relation will not be applied so as to affect intermediate rights acquired by strangers.
    2d. An exception to this rule is where the law has fixed a positive time within which an act must be done; then if done within the time, it will relate, and overreach rights acquired in the meantime. And
    3d. If the act be not. done within the required time, or within a reasonable tune, then it will relate as between the parties.
    Thus in England, a judgment must be rendered the same term in which the verdict is given; and if so, it will relate to the first day; if rendered at a subsequent term, it will not relate to the time the verdict was rendered, but only to the first day of the subsequent term. So deeds of bargain and sale enrolled under statute Henry VIII, and deeds under our registration laws, if registered in the time prescribed, will relate, but if registered after the time, they will not.
    The second rule thus laid down is thus stated in Viner: “In cases of relation, they many times shall have relation to make or defeat a thing to some respects, and to other respects the same thing shall not relate, and shall always be taken as reason allows.” Viner’s Ab. Relation C. PI. 3.
    Again; relation shall extend only to the same thing, and to one and the same intent, so they shall extend only between the same parties, and shall never be strained to the prejudice of a third person, who is not party or privy to the same act. Ibid, PI. 6.
    Where two ceremonies are necessary to the perfection of a thing, it is not then of any validity until the last be effected; but then it shall not relate to prejudice a third person. Ibid, D. PI. 11, in note.
    The case of Baker vs. Butler, (3 Coke’s Rep. 29, a,) lays down the following rules as to relation: “1st. That it is not allowed in destruction of an estate vested. 2d. That it shall help acts in law, not acts of the parties, which are in themselves void. 3d. That it shall extend only to the same parties,_ and not be strained to prejudice a third person.”
    The first and third rule establish this, that relation in law shall not be allowed to destroy a vested right in a third person, who is no party to the act to which the relation is to apply, The first and third rules arc supported by the following cases1 Albany’s case, 1 Coke’s Rep. 110; Hind’s case, 4 Coke’s Rep. 70, b: Diggs’ case, 1 Coke’s Rep. 173, and Thompson vs. Leach, 2 Ventres, 198.
    A bargain and sale enrolled within the time prescribed by statute of Henry VIII, will make a deed good by relation between bargainor and bargainee; yet it is not so to all intents, for it has been held it will not make an intermediate lease good. Bellingham vs. Asop, Cro. James, 52; Isham vs. Morris, Cro. Car. 110: Bern's vs. Bower, 2 Shower’s Rep. 156.
    In Demarest vs. Wyncoop, (3 John. Ch. Rep. 146,) a sale of mortgaged premises, was made at public' auction, by a surviving executor; the deed was made nineteen years afterwards. The Chancellor says, as between the parties themselves, and where there is no intervening ' right, there can be no objection to the retrospective operation of the deed.
    In Jackson vs. Bard, the Supreme Court of New York say, “The deed from Dickinson to Smith cannot in its operation relate back to the time of the contract, so as to bring it within the scope of the decision of Jackson . vs. Raymond, 1 John. Casesj 85, in note. It is a general rule with regard to the doctrine of relation, that it shall not do wrong to strangers; as between the same parties, it may be adopted for the advancement of justice. Barton was a stranger to the contract between Dickinson and Smith, and it would be the extreme of injustice to permit his mortgage to be defeated by considering Smith’s deed to take effect by relation from the time of the contract for the purchase of the premises.” 4 John. Rep. 234. This case and the preceding one, are directly in point, if the sheriff’s sale was a mere contract. This deed executed seven years afterwards, shall not relate so as to destroy the right acquired by Blackemore in the intermediate time. The same point was ruled in Heath vs. Ross, 12 Johnson’s Reports, 140.
    So it is a rule, that where a voidable estate is confirmed the confirmation relates to the beginning, but it will not , ^ ... . ... , J3 J?’ „ . relate it it prejudices another. Com. Digest, Confirmation D, 5.
    But it is said the case of Garner’s lessee vs. Johnson, (Peck’s Rep. 24,) conflicts with the above rules. My opinion is, that it rather confirms them. In that case a deed was made from Hill, the grantee, to Campbell and Bayles, dated 2d January, 1809, acknowledged November, 1820. Campbell and Bayles conveyed to Scott by deed dated May, 1809, acknowledged 5th May, 1814. Scott conveyed to the plaintiff by deed dated the 28th April, 1814, acknowledged 4th May, 1814. The defendant’s title was a sheriff’s deed dated March, 1814, and recited a sale in 1810, by which the interest of Scott and Hill in the premises was sold.
    The supreme court, on this state of facts, decreed: 1st. That the sheriff’s deed would relate to the sale. 2d. That the deed of Campbell and Bayles, when acknowledged in 1820, vested their title by relation in the person who had Scott’s title. These positions are both correct, and the doctrine of relation here, instead of destroying the vested rights, confirmed them. There was no intermediate rights acquired in the case.
    Scott’s deed of 1809 not being acknowledged, did not pass the title to him until proved, but when acknowledged it passed, and by relation vested the interest from the date of his deed to him or the person who had the best right to his title; instead of destroying a right it confirmed aright.
    Now if there had been a levy and sale of the property, as Campbell’s and Bayles’s, or if there had been a purchase from them without notice, and the court had decreed that the acknowledgment of 1820 related back and vested the title in Scott,, as against them, then the point would have been decided. But the relation here confirmed Scott’s title for the benefit of such persons as should be entitled to it; no person in the meantime having acquired any right from Campbell and Bayles, from w^om Scott derived his title. The court correctly decided that as between Campbell and Bayles and Scott, the doctrine of relation would apply and vest the title in Scott, from the date of his deed. The court do not pretend to say that such would be the case if creditors of Campbell and Bayles had levied and sold in the meantime. The title then being in Scott by relation, from 1809, the next question was who was entitled to it, (that is to Scott’s title,) the plaintiff, who claimed by a deed from Scott dated in April, 1814, and acknowledged the May following; or the defendant, who claimed under a sheriff’s deed, and dated in March, 1814, upon a sale made in 1810.
    The court then decided, that the deed of the sheriff related to the sale. True; but did they decide that it would have related if the defendant’s title had been acquired after the sale and before the sheriff’s deed was executed? (the deed being executed more than a year after the sale.) They did not: the question was not presented, for the plaintiff’s deed or purchase was in April, a month after the sheriff’s deed was executed; then his right was acquired not in the intermediate time, but after the defendant’s title was complete. If he had acquired his right before the execution of the sheriff’s deed, and the sheriff’s deed was executed more than a year after the sale, then the case would be in point. When the sheriff’s deed was executed, no right had accrued; Scott had sold to nobody; nor did any creditor buy and sell. The court then wisely decided the general rule, that it would relate as between the parties. This point was so expressly ruled in Den vs. Steelman, 5 Halsled, 192. Vide, 5 Am. Digest, 190, PI. 87.
    4th. If the deed is not executed within this time, it shall not relate as to strangers, but will take effect only from acknowledgment, by the act of 1806. Revised Laws, 62: 3 Hawks, 118: Sullivan vs. Robertson, 2 Yerger’s Rep. 91.
    
      
      F. B. Fogg and John Hall, contra, argued at considerable length; the notes of their arguments have been lost or mislaid.
   Catron, Ch. J.

delivered the opinion of the court.

John P. Thomas was the owner of the land in fee. He leased it to William Dickinson for twenty years, commencing the first of January 1819. This lease is evidenced by a deed, which was proved by James Winchester, one of the subscribing witnesses, who also proved the hand writing of the other; but no reason is given why he was not present. On this probate it was put on the register’s book.

On the first of February 1820, Dickinson conveyed the lease to Alexander Bowling.

The deed from Dickinson to Bowling was supposed to be fraudulent, and void as to the creditors of Dickinson. Smith and Turner caused an execution to be levied upon the land, as the property of Dickinson, and on the eleventh of August 1831, the leasehold estate was sold to David Thomas for fifty dollars.

On the twenty-ninth of August 1831, Bowling also conveyed to Thomas. Neither the deed of assignment from Dickinson to Bowling, or the one from Bowling to Thomas, was proved and registered, but given in evidence on proof of their execution to the jury.

The deed and transfer from Dickinson to Bowling was proved to be fraudulent and void as to the creditors of Dickinson.

This suit was brought in 1S26. In 1828, Blackemore recovered a judgment against Dickinson, and on the 8th of September caused the land to be again sold as his property, became the first purchaser, and took no deed from the sheriff.

Can an interest in land for a term of years be created or assigned, except by deed or writing, and that registered?

^ur registry acts are all grounded upon that of 1715, ch. 38. The lapse of more than a century since the old English modes of conveyance have been abolished, has formed a common law on the subject among ourselves, that cannot be disregarded. The statute of 1715 has received a construction, (challenged by the argument on part of the plaintiff in error,) to wit, that a term for years 'may be created, or assigned, by a writing either with or without seal, of which no registry is necessary to pass the title. Most of the leases in this state have been for. three, five, and seven years. They have -been continually given in evidence in the courts without having been registered, nor has any one supposed it necessary. Parol leases for one year are common; and for three years, and other short terms, no doubt would be just as common, were they not prohibited by the statute of frauds of 1801, ch. 25.

Previous to the 29th Car, II., parol leases in England were good. By that act, those for three years and under, are still valid, but for more than three years are prohibited. 2 Black. Com. 317: 2 Shep. T. S. ch. 14.

Has our practice under the act of 1715, been in accordance with its meaning; or, is a lease for a term of years void unless proved and registered, in' manner of deeds in fee.

The act (sec. 5) tells us, “That no conveyance or bill of sale for lands, shall be good and available in law, unless proved and registered: And that all deeds so done ' and executed, shall be valid, and pass estate in land, or right to other estate, without livery of seizin, attornment or other ceremony in the law whatsoever.”

The English modes of conveyance were inapplicable to the province, where the lands were in the forest. By the common law, in practice and use when the colony of Carolina was settled, when lands were conveyed in fee-simple, a mere deed executed and delivered bjr the grantor to the grantee, did not pass the title. To perfect it, there remained a very material ceremony to be performed, called livery ol seizen, without which the feoffee had a mere estate at will. This was the actual delivery of possession to the vendee of the land. 2 Bl. 311-12. The parties by themselves or agents went to the granted premises, and the feoffor delivered to the feoffee, all other persons being out of the ground, a clod or turf, or a twig or bough there growing, with words to this effect: ££I deliver these to you in the name of seizen of all the lands and tenements contained in this deed.” 2 Black. 315. But if livery was made of a house, the feoffor took the ring or latch of the door, the house being quite empty, and delivered it to the feoffee, in the same form, who entered the house alone, then opened it, and let in others. 2nd. The livery was endorsed on the deed, specifying the manner, place and time of making it, together with the names of the witnesses. 2 Blackstone, 316.

Thus livery of seizen was absolutely necessary to vest title. As a substitute, registration by the act of 1715 was required. Until registered, the deed does not vest title.

The next embarrassment to alienations in the colony, was, that to make a good feoffment, attornment of the tenants, not of one, but every one on the land conveyed, was necesssary. The proprietory lands had on them many tenants for terms.

Time had so obscrued the meaning of the word attorn, that its influence, in the construction of the act of 1715, has been overlooked in the argument made by most able counsel. In feudal times, the tenant could not assign the lease without the assent of his feudal lord. The tenant was a man at arms, and the condition of bis tenantry, that he be ready as a soldier when called on by his superior. He could not substitute a woman, boy, or enemy from the next clans. 2 Blackstone, 388. Neither could the lord, without the tenant’s consent, impose on him as a superior, his enemy, one who might destroy him. This right of the tenant did not pass away with feudal ° , . . . . , , , tenures. Common sense and justice maintained the rule that a tenant should not have his contract violated. He undertook to be tenant to A, who could not transfer him to B, as a serf, with the soil. Oppression might be the consequence. The-landlord could not enter upon the premises, and make livery, without the tenant’s consent; this consent was expressed by what was called attorning; by which he agreed to become tenant of the new lord; and which doctrine of attornment was extended to all lessees for years. 2 Blackstone’s Com. 288. The doctrine of attornments, Blackstone tells us, (290,) continued later than other classes to alienations, though many methods were invented to evade them, and became extremely troublesome, till at last they were declared no longer necessary to complete the conveyance, by the statute of 4th and 5th Ann. c. 16, 1704. The policy of the mother country was soon followed by the lords proprietors of the colony — attornment superseded by the act of 1715, and registration substituted. But the class of livery of seizen, and attornment, did not embarrass the transfer, or assignment of terms for years.

In leases for years, an actual entry was, and is now necessary to vest the term in the lessee; before, he is not in fact or law, tenant. 2 Blackstone, 514. This entry and actual holding possession served the purpose of notoriety as well as livery of seizen could have done; “which (says Blackstone) it would have been improper to have given in this case, because that solemnity is appropriated to the conveyance of a freehold.” Ib.

Attornment of a tenant for years, to another tenant for years, is unheard of: the doctrine only applies between the ' landlord holding the fees and the tenure. He is actually in possession, goes out, and puts the sub-lessee, in.

It follows, that a lease, before the passage of the act of 1715, was, and since is, valid, and passes the title to me estate ior years, without registration.

But it is urged to our consideration, that leases may be made for a thousand years, and the registry acts avoided by such a doctrine. The last clause of the fifth section of the act of 1715, says, “all deeds executed and registered as prescribed, shall be valid, and pass estates in land, or right to other estate, without other ceremony,” &c.

This latter clause has received the sanction of the community, to a considerable extent, in favour of the construction contended for; that the deed creating the term, if executed, proved and registered, is evidence of title, without further proof of its execution. Most of the registry acts cover such a construction. The sixth section of the act of 1715, is evidence that the legislature intended to authorize the registry of leasehold estates, because it recognizes as valid, deeds for chattels theretofore registered. It might well be, that as to leases valid before the act, and such as were made afterwards and not affected by it, the evidence of title might be perpetuated by registration. But as to deeds in fee, their legal existence rests on registration. To give effect to the informal deeds common in the colony, without livery and attornment, was certainly the main object of the act, though not the only one.

No deed or registration • being necessary to pass the title to a chattel interest of this kind, the sheriff might levy upon and sell it, and his return on the execution would be evidence of the sale and purchase, if descriptive of the premises. Is the return sufficient? He says, “sold all the right, title, claim and interest, William Dickinson had to 308 acres of land, lying on Espie’s creek, whereon Alexander Bowling now lives, after giving lawful notice, for $50, to David Thomas, he being the highest bidder. The 14th of August 1821. C. M. Sh’ff.”' In Muldon’s case, (Cro. E. 33,) it is adjudged, that if one saith to me, “you shall have a lease of my lands in D, lor twenty-one years, paying tberetor ten shillings per annum: make a lease in writing, and I will sign it;” this is a good lease by parol, although no writing be made of it; for the intent-of the lessor is sufficiently expressed, and the making of it in writing is but further assurance.

This case is quoted with approbation by Bacon, in his treatise on leases and terms for years, (4 vol. 163,) and which is pronounced high authority by Blackstone and Butler. 2 Com. 325, n: Co. Litt. 45, a, note 5.

The description by the sheriff of Sumner, is equal to the one cited; had he made a deed it would only have been further assurance. The one made on the trial, did neither good or harm; the plaintiff was clearly entitled to a verdict without its introduction, and which verdict ought not to be disturbed.

Judgment affirmed.  