
    Frances Ann Leger vs. Daniel Kennedy Doyle.
    
      Sheriff- — Sheriff’s Sale— Gonveyance — Registry—Recording— Gases approved.
    
    Sale by a sheriff in 1826 under a levy of land made four years before by his predecessor, sustained.
    An ex-sheriff may buy land sold under a levy which he made when he was in office.
    The declarations of a person in possession of- lands, made during his possession and before controversy, are admissible to shew that his possession was not adverse: — and the want of adverse character in the possession, both prevents his acquisition of title under the statute of limitations and rebuts presumptions of title, which lapse of time might have raised in his favor.
    When a sheriff sells land under fi. fa., his deed of conveyance and not the contract made by the bidding, transfers the debtor’s title, and no relation back will be had to give priority to the conveyance.
    A previous conveyance of the land, not registered within the prescribed time, but registered in the interval between a sheriff’s sale and his conveyance, will not under the Registry Acts be postponed to the sheriff’s conveyance.
    The lapse of twenty years between the date of the previous conveyance and its _ registration, where the debtor has remained in possession acknowledging the rights of others under the conveyance, will not of itself make the conveyance fraudulent, or ineffectual either against the* debtor himself, or against a purchaser at sheriff’s sale, whose conveyance was executed after the registration of the previous conveyance, although the sheriff’s sale preceded the registration.
    Under Steel vs. Mansell, 6 Rich. 437, the registration of a conveyance registered after six months, has no relation back in determining the order of priority under the Registry Acts, but takes affect from the date of the registration to defeat all subsequent conveyances.
    BEFORE WITHERS, J„ AT DARLINGTON, FALL TERM, 1857.
    Tbe report of bis Honor, tbe presiding Judge, is as follows:
    
      , “ Tbe action was trespass to try title. The plaintiff claimed under a deed from the sheriff, made and delivered in 1850, but the sale, in pursuance of which the deed was executed, was made by the sheriff in 1848. After the sale and before the conveyance to the plaintiff, about a year, to wit: in 1849, the defendant’s deed- was recorded; and I supposed that Steel and Mansell made this recording sufficient notice of a prior conveyance, and so held. The prior conveyance thus recorded in 1849, was dated in 1829, and was one from the then sheriff, Ingram, to Peter C. Coggeshall, for a portion of the land now in dispute, not all, nor (I believe) the major part; and the said deed was made to Coggeshall by Ingram, in virtue of a sale by him to Coggeshall in 1826, and that sale was in pursuance of a levy by Samuel Bacot, sheriff, made in 1822, under which Ingram sold to Coggeshall. Another parcel of the same land, now in dispute, was levied on at the same time by Bacot, and sold by Ingram, sheriff, in 1826, to Samuel Bacot, conveyed to him in 1882, and that conveyance was recorded within six months. All the sales were made under executions against Daniel Doyle, whose title each party claimed.
    
      “ Overruling the propositions for the plaintiff, arising out of these facts, I held: 1st. That the levy by Bacot superseded the necessity to return the fi.fa. as the law stood before 1827. and was good authority for his successor, Ingram, to sell. 2nd. That Bacot, though he had made the levy in 1822, as sheriff, could lawfully buy from Ingram, sheriff, in 1826. So much for the 1st, 3rd and 4th grounds of appeal.
    “ I shall have to make a laborious statement to render intelligible the other grounds of appeal.
    “Daniel Doyle lived and died on the land in dispute. He resided there forty or forty-five years, within the memory of witnesses. Notwithstanding the sales by Ingram, he continued to reside there. Kennedy Doyle, the defendant, lived there also with his father from his birth to the present day, except that he made a crop one season with a neighbor, still visiting on leisure days the homestead. While a minor, Daniel, the father, sometimes rented a portion of the land to others, and the rent, in kind, was rendered by leaving it as his crib, or the one he used. The defendant cultivated the land from year to year, unless that be excepted in which, as already stated, he made a crop with a neighbor. Daniel, the father, and Kennedy, the son, seemed to treat the land as common property, so far as the observation of others went. Kennedy sometimes rented some of it. ■ He was of age some twenty years ago. It was at a point of -the trial, showing this state of things (described to be sure in very general terms,) that the plaintiff sought to prove declarations of Daniel Doyle in favor of his title, on the grounds that he had been long in possession, apparently absolute owner: that the presumption, quoad Kennedy, the defendant, arose, that his possession was under his father, in subordination to his title. With hesitation, and overruling the defendant’s objection, I indulged the plaintiff in that course of testimony.
    “ When the defendant’s case was heard, it appeared that Coggeshall had conveyed the land he bought to Kuffin in 1832, and Kuffin, in the same year, to this defendant and two of his brothers; neither of which deeds were recorded : that in 1838, a case was pending against Daniel Doyle by the heirs at law of Samuel Bacot, involving the portion of the land bought by Bacot in his lifetime, and in that year a paper was executed between King, son-in-law and administrator of Bacot, and Daniel Doyle, whereby Doyle engaged to pay, on or before a .day in 1841, a sum certain to the heirs of Baeot, or to King for their use, and on the payment of the money King agreed to convey the land to James P. Doyle, and this defendant: Daniel Doyle stipulated that he had no title to the land, except what was expected to be derived from that contract. Upon the execution of that contract, the action pending was to be dropped. Some payments have been made by the defendant under and by virtue of tbis agreement.
    “ The plaintiff contended that Daniel Doyle had reacquired title as against both purchasers from Ingram by adverse possession, and she relied on his declarations and acts of dominion to maintain that ground, as well as upon certain declarations, on three occasions, by this defendant, once saying that the land was his father’s; again, that the line of Railroad divided his father’s from a neighbor’s land; and a third time, (when he and his father had fallen out and the latter had offered violence,) that he had cloaked that property long enough. On the other hand many declarations of Daniel were introduced in evidence denying title to the land in himself, or claim of title.
    “ As arising out of such developments, I held that Daniel’s declarations, verbal and in writing, were receivable in reply to such as plaintiff had adduced; that they were legitimate upon the question of adverse possession: that while this plaintiff might cover herself with the rights of creditors of Daniel, yet that if Daniel acknowledged himself to hold, not for himself but in subordination to another’s title, that the plaintiff, a purchaser at sheriff's sale, and all other creditors were properly confronted with such evidence when they set up adverse possession. The question of adverse possession, by Daniel Doyle, was submitted to the jury with such instructions as are not excepted to. I presume it would be difficult to make that point for the plaintiff or any other creditor, after what Doyle did and said in 1838, in his transactions with King. Doyle was greatly embarrassed by executions all the time, and it was not difficult to see that while he wished to remain on the premises, he did not wisn to have any such interest in them, as the sheriff could sell.
    “ The plaintiff obtained her judgment against Doyle, on a note given by her mother for two hundred dollars to her, while the mother was feme sole: she afterwards married Doyle — they lived a short time together, and the plaintiff sued mother and husband, obtained ber judgment, and bought the land at a sale under her own execution, there being ■various other judgments against Doyle at the same time. The jury found for the defendant.”
    The plaintiff appealed, and now moved this Court for a new trial, on the grounds:
    1. Because, it is respectfully submitted, his Honor erred in holding that the recording of the deed of sheriff Ingram to Coggeshall, after the sale of the land in dispute by sheriff Huggins, was notice to plaintiff of said deed, and that therefore the case of Steel vs. Mansell, 6 Bich. 437, was conclusive on that point against the plaintiffs claim in this ease.
    2. Because the declarations of Daniel Doyle should not have been received in evidence in favor of the defendant, said Doyle having never relinquished possession, and judgments and executions all the while hanging over him, he receiving the rents and profits, and because such declarations of said Doyle, were not in reply to any declarations of said Doyle, brought out by the plaintiff.
    3. Because the sale to Bacot by sheriff Ingram, under a levy made by said Bacot as sheriff, was void, and therefore sheriff DuBose’s deed should have been excluded.
    4. Because both sales by sheriff Ingram were void, being made without lawful authority.
    5. Because the paper signed by James King and Daniel Doyle should have been excluded, but being admitted, the' jury should have been instructed that such a transaction was a fraud per se on Daniel Doyle’s creditors, and further 'that Daniel Doyle under its terms, being tenant of James King and those whom be represented, tbe payments of money by defendant thereunder to King, was a distinct recognition of the tenancy of his father, which estopped him from denying that the said Daniel Doyle was his landlord, without first surrendering to the plaintiff the possession of the premises, the heirs of Bacot not having come in to defend under the rule of Court.
    6. Because, in addition to the above, the uncontradicted disclaimers by defendant of title in himself, (except by the declarations of Daniel Doyle) and of his own repeated declarations of title in his father, estopped defendant from proving title out of his father, and that therefore his Honor erred in holding that paper title in any body other than Daniel Doyle was enough to defeat plaintiff’s action.
    7. Because the transaction between King and Daniel Doyle though it may have been good as between them, did not affect the rights of creditors, prior or subsequent, who had no actual notice thereof, of which there was not a pretence in this case, and that therefore Daniel Doyle’s adverse possession, prior to the date of that transaction, retained its character as to the plaintiff" and other judgment creditors, and that therefore his Honor erred in ruling that Daniel Doyle’s possession lost its adverse character by the said transaction.
    8. Because, in a case like this, a purchaser at sheriff’s sale acquires the rights of any creditor, to whose execution the sheriff’s authority may be referred. Notice of defendant’s rights had by the plaintiff, is of no consequence, if she or any other creditor, at the time of extending the credit to Daniel Doyle had not such notice.
    9. Because, even if the recording of the deed of Ingram to Coggesball should be beld as notice to plaintiff, it can be beld to extend. only to that deed, and not to the deed of Coggesball to Puffin, and of the latter to the three sons of Daniel Doyle, which have never been recorded; hence Daniel Doyle’s possession from date of Ingram’s deed, so far as creditors are concerned, must be regarded as adverse, as against Coggeshall, and of course against those claiming under him.
    
      Spain, Norwood, for appellant.
    
      Moses, Inglis, contra.
   The opinion of the Court was delivered by

Wardlaw, J.

This Court approves the Circuit decisions, which have been brought under review here.

The sale by Ingram, sheriff under a levy made four years before by Bacot, his predecessor in office, is sustained by the authority of the case of Gassoway vs. Hall, 3 Hill, 289.

The purchase by Bacot after the expiration of his term of office, from sheriff Ingram, of land sold under a levy which Bacot, when sheriff, had made, was not contrary to the letter or the reason of any statute which has been passed in this State to prevent a sheriff from buying directly, or indirectly, at his own sale. See Act of 1839; 11 Stat. 38, sec. 59; Act of 1823, 6 Stat. 213; Act of 1791, 7 Stat. 263, sec. 8.

The regular turning over of the execution by Bacot to his successor, and the regular sale by Ingram at a proper time and place, will, in the absence of proof-to the contrary, be presumed.

The declarations of Daniel Doyle, made during his possession and before controversy, were admissible to show the character of his possession, upon the question whether it was adverse. As to actual fraud, which has been imputed, the verdict affords patent contradiction; but it is not unimportant to remark that tbe old executions against Daniel Doyle, which existed in 1826, may all, in the absence of any opposing evidence, be presumed to have been satisfied, before the plaintiff obtained her judgment against him in 1849; and that no execution against him between these old ones and the plaintiff’s was shown. Concerning the presumption of a conveyance from Coggeshall, or some person claiming under Coggeshall, to Daniel Doyle, which the lapse of twenty years, between the date of the conveyance to Coggeshall and - the time of its registration has been thought to raise, it may be remarked that the same want of adverse character in Daniel Doyle’s possession, which prevented his acquisition of a title by the statute of limitations, also rebutted presumptions of title in him. The plaintiff claims under him, and can have no rights superior to those he had.

The main- question in the case is that which relates to the registration of the deed of conveyance from sheriff Ingram to Coggeshall, and this question affects only a portion of the land sued for.

Bacot, sheriff, levied in 1822; under this levy Ingram sheriff sold to Coggeshall in 1826; and under this sale a sheriff’s title was executed and delivered to Coggeshall in 1829.

The plaintiff obtained her judgment in 1849; under it sheriff Huggins, after levy sold to the plaintiff Nov., 1829, and executed to her a sheriff’s title in Eeb., 1850. Between the sale to the plaintiff and the execution of the conveyance to her, to wit, December 17, 1849, the old conveyance to Coggeshall was registered. If that conveyance is valid, it shows a title out of the plaintiff, although subsequent conveyances under it have never been registered; and the plaintiff contends that, if all other objections to this old conveyance shall prove unavailing, the registry Acts will make it inefficient against her, a subsequent innocent purchaser without notice.

The questions thus presented under these Acts are almost identical with those that were considered in the case of Steel vs. Mansell, 6 Rich. 437, which was decided in the Court' of Errors, and which we will suppose the readers of the remarks now to be subjoined have carefully examined. The distinctions between that case and this are, first, that there the older deed was registered within four years from its date, here after twenty years from its date: second, that there the registration of the older deed preceded the sheriff’s sale under which the junior deed was made, though it followed the judgment under which that sale was made; but here the registration of the older deed was subsequent to the sheriff’s sale, at which the plaintiff purchased, although it preceded the execution of the conveyance to her.

The first distinction we dismiss by simply suggesting, in addition to what has been before said about fraud and presumptions, the inquiry whether Daniel Doyle could, under the circumstances that existed, have resisted the deed to Coggeshall, as obsolete, fraudulent, or otherwise void. If he could not, that deed, even without registration, was valid against him and all the world, except such creditors and purchasers as are protected by the registry Acts; and when registered, was not afterwards liable to be defeated, for previous neglect of any prescribed time, by rights subsequently acquired by a purchaser.

The other distinction may seem at first to be more important. It is asked, shall a purchaser at a sheriff’s sale be defrauded by an old conveyance, of which he had no means of notice at the time of his purchase? And it is said, if the contract to buy had been made with a private individual, a defect of title subsequently discovered might have been urged against the completion of the contract; but under the rule of caveat emptor, applicable to sheriff’s sales, the purchaser at sucb a sale is obliged to pay his bid, and should be saved from the unjust defeat of his expectations by matter supervening his contract.

It might be answered that where the purchaser at a sheriff’s sale is the plaintiff in execution to whom the proceeds of sale are payable, and the defendant in execution has contributed to the perpetuation of an actual fraud, by concealment of papers or other means, the purchaser would not be bound to give the defendant the benefit of the fraud by completing the bargain, which was made by his bid, (See Minter vs. Dent, 3 Rich. 207; Herbemont vs. Sharp, 2 McC. 264; Towles vs. Turner, 3 Hill, 182.) But here actual fraud has not been found, and the bargain of the purchaser having been completed she claims to have acquired a paramount title. By the sale, as it is called, she acquired no legal title, but only such equitable interest as exists under every contract to buy. The subsequent conveyance made to her by the sheriff would, if she had gone into possession before it, have shielded her from responsibility for mesne profits, by relation back to the sale: (Kingman vs. Glover, 3 Rich. 36.) for such would be the effect of any contract to buy, under which possession was held, where there was a right to claim immediate execution of the contract, and execution followed. But up to the very time when a conveyance is delivered by the sheriff to one who has purchased land at a sheriff’s sale, the title, which the defendant in execution had at the sale, remains in such defendant, the power to convey which the law vests in the sheriff being yet unexecuted. ( The Bank vs. S. C. Man. Co., 3 Strob. 192.) The registry Acts embrace deeds and conveyances, not parol contracts to buy, written or unwritten: and a sheriff’s conveyance is subject to the provisions of those Acts in like manner as a conveyance from a private individual. (Massey vs. Thompson, 2 N. & McC., 105.) If an honest conveyance, made by a debtor before judgment against him, should be registered at some time within six months from its delivery, in vain would a subsequent purchaser oppose to it his rights as purchaser without notice, even although he had purchased at sheriff’s sale under a judgment obtained after its delivery, and the conveyance to him, as well as the sale, had preceded its registration. The registration in such case would, under the Act of 1785, relate back to the day of delivery, because it was made within the prescribed time. The registration of the old deed now in question, not having been made within the prescribed time, can have no relation back; but taking effect only at the time it was made, it then became notice, and gives to the deed priority over all conveyances subsequently made.

If the plaintiff had paid her bid, by giving a receipt to the sheriff or otherwise, and had taken the conveyance from him on the day of sale, she could not have been hurt by the registration within six months thereafter, of any conveyance not executed within the six months next preceding, provided the conveyance to herself had been duly registered within six months. To her own tardiness, rather than to the slowly exerted diligence of somebody claiming under the conveyance to Coggeshall, is to be ascribed the priority which that conveyance has obtained. The law contemplates the sale by the sheriff' the payment of the purchase money, and the conveyance to the purchaser as one continuous transaction: — interruption and delay cause embarrassment and irregularity, but they are so frequent that various special provisions have been made to meet them. This case, however, illustrates forcibly the danger to a purchaser which attends them. The same result might possibly have happened if the delay had been only for an hour: — so any subsequent conveyance might possibly be defeated by a prior one registered within six months from its execution and within an hour intervening between a search in the register’s office and the execution of the subsequent one: — or, in any case, where the order of precedence is fixed in conformity with, the order of registration, a very short interval of time might be decisive of conflicting rights: but in every case the risk is increased in proportion as the time is extended. Here the plaintiff delayed only six weeks: but if that comparatively short interval between the sheriff’s sale and his conveyance shall be disregarded, and the plaintiff be protected against occurrences of the meantime, what shall be the limit of the like indulgence in other cases ? The legislature has allowed sheriffs, and their successors, for an indefinite time, to complete the contracts made at their sales. If we do not invariably look to the conveyance and that only as the transfer of title, without regard to the time of the contract, we' will in effect enact that the conveyance is only formal, and that all its important uses may be served before it is made. The motion is dismissed.

O’Neall, Withers, WhitNer, G-lover and MüNro, JJ., concurred.

Motion dismissed.  