
    Rhodam Simson, ads. James Kennedy.
    
      The land in dispute had been sold to defendant by the Sheriff, under a judgment and execution against one Phillips., in 1813: Plaintiff relied on a recovery against Phillips, of the same land . in 1815; Held that the record of recovery was not conclusive against defendant, who might shew title in himself, and that the recovery was fraudulent.
    
    The location and trespass were admitted. The plaintiff exhibited his claim of title from Dorcb, the grantee, to' Kirkland, from him to Patton, and from him to the plaintiff.
    The defendant then .exhibited his claim of title from the same grantee down to Phillips, ¡and from the sheriff, (who sold WJ 1813, under a judgment of 15th December, 1812, and execution against Phillips) to Aaron Smith, the lessor of defendant.
    The plaintiff, at this stage, offered in evidence the record of a recovery against Phillips, in 1815, of the land claimed by defendant, to which the defendant objected, but the court overruled the objection and decided that the said recovery was.conclusive, and rejected evidence offered by defendant to prove his title, as well as fraud on the part of Phillips, in suffering the recovery.
    The jury, under the direction of the court, found a verdict for the plaintiff.
    The defendant moved for a new trial on the following grounds:
    1st. Because the-said record of recovery was incompetent testimony. 2nd. Because the said recovery was not conclusive evidence. 3rd. Because the evidence offered by defendant, to prove the fraud of Phillips and the defendant’s title, ought to have been allowed.
    
      Gregg and Hunter, for motion.
    , contra.
   The opinion of the court teas delivered by

Mr. Justice JYott.

It is a general rule of law that a record can be given in in evidence only between the parties or privies to a suit. The present defendant was no party to the record offered in evidence, and he stands in no such relation to Phillips, as to be bound by a recovery against him. The land was transferred to the defendant by an act of the law, and not by an act of Phillips. The plaintiff stood by and saw it advertised, day after day, as the property of Phillips; he permitted it to be sold as such, at public auction, without interposing his claim or giving any notice that he had any.

I think therefore, that the defendant ought to have been permitted to go into his title, and to impeach the title of the plaintiff on the ground of fraud.

The motion therefore, must be granted.

Huger, Johnson, and Gantt, Justices concurred»  