
    
      Nathaniel Gist et al. vs. Abram McJunkin and James McJunkin.
    
    1. Plaintiffs purchased'the land in dispute at sheriff’s sale, under an execution against John T. McJunkin, on the first Monday in September, 1837, the land at that time being in the possession of the defendant, Abram McJunkin. It had been sold on the 4th of March, 1838, as the property of John T. McJunkin, under a judgment of the Ordinary against him, and ptu-chased by Wm. M. Thompson, to whom the sheriff conveyed. The same land had also been sold under a judgment of Malone vs. J. T. McJwikin, and purchased by the defendant, to whom the sheriff conveyed on the 11th Deeemher, 1833. For the purpose of showing that the execution of the Ordinary vs. J. T. McJwnltin was fully paid and satisfied before the sheriff’s sale, the plaintiffs proposed to give in evidence a recovery of the Treasurers vs. Boies, sheriff of Union, subsequent to the sale at which Thompson purchased, in which they alleged the amount of the case of the Ordinary vs. McJwnMn had been recovered against him.
    
      2. The recovery of the Treasurers vs. Boies, was hdld inadmissible in evidence, as being res inter alios acta, and would conclude nothing against the defendant.
    
      Before O’Neall, J., at Union, Fall Term, 1842.
    This was an action of trespass to try title to a tract of land in the defendant’s possession. The land was sold at sheriff’s sale, under an execution of Gist, administrator of Dugan vs. John T. McJunkin, and purchased by the plaintiffs for $16, on the first Monday in September, 1837. The land at that time was in the possession of the defendant, Abram McJunkin. The whole question was, whether John T. McJunkin had title at the time the plaintiffs bought'? It was very abundantly shown that, on the 4th March, 1828, the land was sold as the property of John T. McJunkin, under the judgment of the Ordinary vs. J. T. McJunkin, and purchased by William M. Thomson, to whom the sheriff, conveyed. So, too, under the judgment •of Malone vs. J. T. McJunkin, the land was sold by the sheriff as the property of John T. McJunkin, and purchased by the defendant, to whom the sheriff conveyed on the 11th December, 1833. The plaintiffs alleged, first, that the execution of the Ordinary vs. J. T. McJunkin was fully paid and satisfied before the sheriff’s sale. They proposed to give in evidence the recovery of the Treasurers vs. Bates, sheriff of Union, in which they alleged the whole amount of the case of the Ordinary vs. J. T. McJunkin had been recovered against him. The presiding Judge thought it could not be received. It was res inter alios acta, and would therefore conclude nothing against the defendant. So, too, although the case of the Ordinary might be included in the case vs. Bates, sheriff, it did not by any means prove a payment in fact, which was necessary to defeat the sale under that execution. William M. Thomson was sworn, and proved that, before he bought the land under the execution of the Ordinary, he went into the sheriff’s office, and made a calculation of the debt, interest, and costs, and the payments, and was.satisfied that there was a small balance due on the Ordinary’s execution. He also proved that the defendant, Abraham McJunkin, told him before he bought, that the execution was satisfied. The plaintiffs would have proved that the real plaintiffs in the case of the Ordinary vs. McJunkin had, in the case of the Treasurers, recovered against Bates the full amount of the case of the Ordinary vs. McJunkin. If the record,, which had been previously excluded, was not admissible,, much less could this parol proof be. The plaintiffs, in the second place, alleged that the sale under the Malone execution was fraudulent. John Rogers was the clerk of Union; he endorsed on the execution the order to proceed. The defendant, on the day of sale, applied to him to buy it for him. Col. Thomas came with a view of buying, went to Rogers as his friend, and asked his advice, as such, whether he could buy safely'? Rogers told him there would be a difficulty, and he did not bid. Joseph A. Mc-Junkin proved that he had a claim to the land, he had paid his money for it. The defendant advised him to forbid the sale under the Malone judgment, and told him if he would, he would buy the land at the sheriff’s sale, and give him $1,200 for it. His father, J. T. McJunkin, was then in possession of the land. He did forbid the sale. Rogers made the only bid. The defendant never paid him any thing, either in money or notes. The defendant went into possession in 1834, when his father moved away. This witness’s character Avas assailed, and it Avas abundantly shown that he Avas utterly unworthy of credit. When the plaintiffs bought, Joseph A. McJunkin was absent from this State. Mr. Jeter, one of the plaintiffs, in a conversation with George Vance, said, if “he (Joseph A.) could be got to swear, so that the land could be gained, any man should have $500.”
    The case was fully submitted to the jury as one of fact merely, on the two questions: 1st, was the execution of the Ordinary vs. J. T. McJunkin satisfied before the sale to Thomson'? 2d, was the sale under the Malone judgment fraudulent'? His Honor said to the jury that, before there could be a fraud to affect Me Junkin’s creditors, in that sale, there must be something to show a fraudulent combination between Abram and J. T., by which the latter was to bo benefitted and the creditors injured. The presiding Judge also said to the jury, if the defendant constituted Rogers his agent merely to buy, that then such a conversation as that between him and Gol. Thomas ought not to affect the defendant.
    The jury found for the defendant.
    The plaintiffs appealed, on the annexed grounds:
    1. Because the Court refused to permit the plaintiffs to give in evidence the record of recovery in the case of the Treasurers vs. John Bates and his sureties, in which the judgment and execution of the Ordinary vs. John T. Mc-Jankin, was included.
    2. Because the Court refused to the plaintiffs permission to offer parol proof to establish the fact that the real plaintiffs in the case of the Ordinary vs. John T. McJunkin had recovered the full amount of their execution against Bates and his sureties,- the predecessor of John Anderson.
    3. Because the Court charged the jury that the creditors of J. T, McJunkin could not complain of any fraud which might have been committed at the sale under the Malone execution, unless by proving that John T. McJunkin and Abram McJunkin had combined together to get the land.
    4. Because the Court charged the jury that, if Abram McJunkin only constituted John Rogers his agent to buy the land, any representations or acts of Rogers, which might have prevented a fair competition in bidding, could not affect Abram McJunkin. .
    Thomson and Dawkins for the motion:; Herndon, contra.
   Curia, per

O’Neall, J.

The only point in this case which requires any further answer than that given'by the report, is that made by the first ground. The rule is very well stated in 2d Saund. on Plead, and Evidence, 611, that “ transactions between two parties in a suit are not binding upon a third, and therefore the judgment of a Court on facts found, although evidence against the parties, and all claiming under them, will not be generally admissible against strangers.” There was nothing in .this case to show that either of the defendants was connected, in any way, with the case of the Treasurers vs. Bates. It is true that Thomson, whose title was relied upon, bought at sheriff’s .sale in the case of the Ordinary vs. McJunkin, and the allegation was, that the amount of that case was included in the recovery vs. Bates; but this recoverj was long subsequent to the sheriff’s sale under which Thompson bought, and hence, therefore, as to him, or those claiming under him, it was res inter alios acta.

Perhaps, however, the most satisfactory view which can be taken of this point is, that the judgment between the Ordinary and Bates did not prove the fact of payment before Thomson bought; for it might be that that judgment was recovered from the neglect of Bates to enforce the execution. It could not, therefore, be received to prove a fact which did not necessarily follow from it. The motion is dismissed.

Richardson, Evans, Earle, Butler, and Wardlaw, JJ., concurred.  