
    Joseph Hamilton vs. Jack & McCallister.
    Hjectment. Sheriff's Deed. Possession of defendant. When a presumption of title. Where a plaintiff in ejectment relies upon a sheriff’s deed, founded upon a judgment and execution against the execution debtor in possession, under which a sale was properly made, he must show that the defendant Was in the actual possession of the land sued for at the time of the levy and sale. 3 Humph., 129. Ib., 16. 8 Humph., 689.
    PROM JEFFERSON.
    This action of ejectment was brought by Jack and McCallister, in the circuit court of Jefferson county, against Hamilton. The plaintiffs claimed nnder a sheriff’s deed founded upon a judgment and execution against Hamilton, which was levied upon the land in the possession of Hamilton, which was sold, at which sale Jack and McCallister became the purchasers. At the December Term, 1852, there was verdict for plaintiffs, and writ of possession awarded. The defendant moved for a new trial, which being refused, he appealed in error to this court. The error assigned is stated in the opinion.
    Croziee, for plaintiff in error.
    Caswell and Swann, , for defendants in error.
   By the Coubt.

The jury were instructed by the court below, “that a sheriff’s deed, founded upon judgment and execution, under which a sale was properly made, would entitle the plaintiff to recover, if the proof shows that the defendant Hamilton was in actual possession of the land sued for, at the coinmenaeiyimt of the present action.”

This instruction is erroneous. The cases referred to establish the principle, that in such case it must be shown, that the defendant was in possession at the time of the levy a/nd sale. Erom the fact of possession by the defendant in the execution at the time of the levy, the presumption of legal title in him to the land levied upon and sold is founded. But no such presumption can arise from the mere fact of his being in possession at the commencement of the action of ejectment for the recovery of the land sold. •

Let the judgment be reversed.  