
    Ira Griffin, vs. Joseph Wardlaw.
    
      I( was proved on the part of the plaintiff that defendant went into possession of the land in dispute under I. P. by whom it had i>een mortgaged; that the mortgage was foreclosed in equity, the land sold under decree, and purchased by plaintiff: Held that plaintiff was not bound to shew a grant from the state, or any other title, as against defendant.
    
    
      It was incompetent for defendant, in this action, to shew that the mortgage on which the decree had been obtained wasfrau-■■dident.
    
    This was an action of trespass, 'to try title to a tract of land. The plaintiff produced the exemplification of proceedings in the court of equity, Elijah Foster, vs. John Foster, in which was a decree to foreclose a mortgage of the land in disi pute, made by John Foster to Elijah Foster, on 1st March, 1819; deed from Livingston, commissioner in equity, to plaintiff, dated GthMay, 1822. The bill was filed on the 10th January, 1822. Wm. B. Lewis then proved that John Foster was in possession •of the land up to January or February, 1822, when the defendant took possession; he understood from the defendant that lie entered under the authority of John Foster, who had been in possession from the latter part of 1818, or early in 1819; the annual rent worth about fifty dollars.
    Here a motion for nonsuit was made, on the ground that the plaintiff had not traced his title to any grant from the state; but overruled, because it having appeared that the defendant had gone into possession by the authority of John Foster, he was considered as his tenant, and could not be permitted to dispute the recovery under which the land had been sold. The defendant then attempted to shew a title in himself and produced—
    1st. A deed from J. Hamilton, Sheriff of Abbeville dis* trict, dated 8th May, 1822.
    2nd. A judgment, John T. Colernan vs., John- Foster} signed 1st April, 1819, and execution the same-day; levy (endorsed) GthMay, 1819; lánd sold on the 3rd January, 1820, by John Newby, Sheriff, to James Conn. It further appear-* ed that Foster had said that the mortgage on which the. decree of the court was founded, had been given to cover the property from creditors; that the records had been searched and ño incumbrance found; that Foster had also said that Couu had bought the land, and he had held it as his (Conn’s) tenant at will. Conn said he had bid in the land as the property of John Foster, and paid his own money for it; but that John Foster afterwards re-paid him his money. In reply to this, the plaintiff proved that a judgment had been recovered against John and Elijah Foster, on a note which they said had been given for the original purchase money of this land, and that Elijah had been arrested on a ca. sa. issued on that judgment, and had paid it, and was discharged by assigning the decree of the court of equity to the plaintiff, and" that both Elijah and -John had said that the mortgage was given by John to Elijah,, to counter secure him for being bis security on the note to Taylor.
    On this evidence, the jury found a verdict for the plaintiff, and the defendant now moved for a new trial on the grounds:
    1st. That it should have been left to the jury Iq decide Jiow the defendant’s possession commenced:
    2nd. That the plaintiff did not produce a sufficient title:
    3rd. That if plaintiff’s title was prime facie good, the defendant shewed a better.
   The opinion of the Court was delivered by

Mr. Justice Colcoch.

It appearing in proof that the defendant in this action was in possession by the authority of John Foster, it was sufficient for the plaintiff to shew a title from John Foster, it is wrell established that the defendant to a judgment or decree cannot hold against a purchaser under such judgment or decree; and the rule would be of little practical utility, if jt did not extend to one put in possession by him. The non-suit was then properly refused, and the defendant must rest on a title in himself, and disprove if he can that he went in under John Foster. I will pow enquire whether he has done so.

The deed produced by him is dated two days after the plaintiff’s deed; but it is said that.it is the deed of the Sheriff, Qtid it must have relation back to. the date of the judgment which operated as a lien on it. Now the objection to this is, that the defendent himself has shewn that the Sheriff had no legal authority to make the deed. Coun says he purchased the land for John Foster, as a friend, and paid the Sheriff the money, and that he was afterwards repaid by John Foster. The lien is then discharged, and it was not competent for Conn, after he was repaid, to authorise the Sheriff to make a title to tiro defendant. This would be a very convenient mode to cover property. The deed may be considered as a good deed from John Foster, by his agent, as of the date at which it was made, and as such, can have no operation or effect against the plaintiff’s title. It is contended however, on the part the defendant, that his deed must avail, because the mortgage from John to Elijah Foster was fraudulent. But to this conclusive objections are presented; first, that the judgment of a court of competent jurisdiction, upon a matter of which it has cognizance, cannot be impeached collaterally, but it stands firm until vacated or reversed, and binds not only parties but privies. 13 Johnson, Rep. 141 and 561, Halt vs. Salston & Schenck.

If this were not the case, there would be'no security to purchaser nor any end of litigation. Could the plaintiff in this case, have imagined that John Foster or any one claiming under him would be permitted to come in and say, this mortgage ivas fraudulent? Could he have been prepared for such an objection? Again, if John F oster could have contested this point, after the decree of the court of equity and while that was in force, when would it be settled? not by this decision. ' If the declarations of a defendant could be admitted to prove that a bond or note, on which a judgment had been obtained, was void, having been given for usury, illegal consideration or by duress, thus collaterally destroying the judgment, there would be no safety in purchasing at Sheriff’s sales. An unprincipled man or a disappointed debtor might be induced to make such declarations, and thus deter men from buying at a. Sheriff’s sale any of his property. If a solemn deed and a de¿ scree of a court are not estoppels, I am at a loss to conceive what .ar.e. But it is a waste of time to say more on. this point; the-authorities are clear as well as the principle. Sec Phillips on, Evidence, 226. But if it had been competent to assail the mortgage in this trial, the evidence offered did not prove that it was fraudulent. The declarations of the Fosters were proven to he different at different times; and the internal evidence offered by the circumstances of the case, preponderate in favor of the legality of the mortgage. The proof that John Foster was in embarrassed circumstances would readily induce a belief that security had been required of him by Taylor, when the land was sold: the subsequent arrest ofElijah on a ca. sa. and satisfaction of the debito Taylor by him, together with the execution of the mortgage and the decree thereon, irrcsistably lead to the conclusion that the mortgage was a real one. •'

But this is not all; if the deed to the defendant could be considered as a deed from the Sheriff! and could have relation back to the judgment, yet it would not avail the defendant, while the mortgage remains of force and the decree of the court unreversed; because the mortgage is prior in date to the judgment, and does not loose its binding efficacy as to a judgment, from its not being recorded; See 1st Bay, 304, and 2nd Bay, 80. But this ground may be considered as gratuitous, enough having been before determined. In every possible point of view, and giving the defendant the full benefit of Coun’s testimony, it is clear that the verdict is right, and the motion for the new trial is therefore»refused.

Richardson, Johnson, JYott, concurred.  