
    Arthur Ingram ads. John Weaver.
    The defendant, in an action of trespass to try title, cannot protect himself under a deed made by the sheriff to a third person pendente lite.
    
    But the sheriff’s deed would be admissible to show at what time the title went out of the plaintiff; because after that period damages could not be recovered. If defendant had shown a title in himself, the Court would not have granted a habere facias possessionem, though the plaintiff would have been entitled to his damages, 
    
    This was an action of trespass to try title to a tract of land.
    The cause was tried before Mr. Justice Nott, at Lancaster Court House, Spring Term, 1818.
    Defendant’s grant called for a BlachjacJc tree, in Walker’s line, but upon a resurvey, a Blackjack, supposed to be the corner mentioned, was found somewhat *sbort °f Walker’s line; and the only question as to the location was, whether his line should stop at this Blackjack, or be extended to Walker’s line.
    The surveyors both agreed that if Walker’s land had not been called for, that corner would have been sufficiently identified to have established the boundary of defendant’s land; and one of them thought the line ought to stop there ; but the other thought it ought to extend to Walker’s line.
    Other witnesses were called to identify or disprove this tree ; and the jury were instructed by the Court, that if they were of opinion that this Blackjack was the corner called for in defendant’s grant, he must be stopped there, and the plaintiff would be entitled to recover; but if they were not satisfied that it was so, they must extend his line to Walker’s land, and in that ease they must find for the defendant.
    In the progress of the trial, defendant offered a deed in evidence to show that, since the commencement of the action and shortly before the trial, plaintiff’s land had been sold under execution, and that he was, therefore, divested of his title, if he had one before. But this evidence was rejected by the Oourt, and the jury found a verdict for the plaintiff.
    There was a motion for a new trial on two grounds :
    1. Because the verdict was contrary to evidence.
    2. Because the sheriff’s deed ought to have been received, to show the title out of the plaintiff.
    
      
       2 Bail. 476.
    
   The opinion of the Oourt was delivered by

Nott, J.

The first ground taken for a new trial in this case was a mere question of fact for the consideration of the jury; and the Court is satisfied that the evidence authorized the verdict which they have found, and that it ought not to be set aside on that ground.

The second ground furnishes a question of more difficulty. It is a general rule, that a plaintiff in ejectment must recover on the strength of his own title; but it is by no means an universal one. A mortgagor *sliall not be permitted to set up a title of a third person against Ms mortgagee; nor shall a tenant who has paid rent, and acted as such be suffered to set up a title in a third person against his lessor. 1 D. & E., 758, Bristow v. Pegge, in note.

In the case of Jackson v. Harder, 4 Johns. 211, the doctrine is carried still farther. It is there laid down, that a mere intruder shall not be permitted to protect his intrusion under an outstanding title in a stranger.

All general rules are subject to such exceptions as are calculated to effect the object for which this rule itself was intended. For what purpose should the title offered in this case be admitted ? Not to protect real owner of the land in Ms possession, but to drive Mm to another action, to gain the very object which may be attained by this. The recovery of the plaintiff in this action, will be a recovery for the benefit of the purchaser at sheriff’s sale, if that has been regular and fair; if it is not, the plaintiff ought not to be defeated by it.

But, in any event, the plaintiff would have been entitled to such damages as he had sustained before the sale by the sheriff, and that is all he has recovered. So that the verdict in either case would have been the same. If a term expires pending an action, the party shall not have possession, but he may have his damages. 2 Bacon, 431, tit. Ejectment, F. (Yerdict and Judgment.) This case is precisely the same in principle, so far as regards the damages. If the defendant had shown a -title in himself, the case would have been different. For although, even in that case, the plaintiff would have been entitled to his damages, the Court would not have granted him a habere facias possessionem, to turn the defendant out.

In one point of view, the deed might have been received in evidence. The plaintiff was not entitled to damages after the title was out of him. If, therefore, he had pressed for damages, up to the time of the verdict, the deed ought to have been permitted to be given in evidence, to show at what time he became divested of his title. But as no damages have been given* for the occupation, the rejection of it can furnish no ground for a new trial.

Stark, Solicitor, for the motion. Blanding, contra.

The motion therefore, must be rejected.

Grimke, Colcock, Cheyes and Johnson, concurred.  