
    Bliss, Administrator of Lewis v. Smith, Administrator of Yancey.
    1. By the statute of uses, the possession of tho vendor is transferred to, and bo-eomes the possesion of the vendee, co-intanti with the execution of the deed oí conveyance.
    2. It is no defence to an action on a note given for the price of land sold, and con. veyed with covenants of warranty, that the vendor died in possession of the land, and that the legal title to it was in another person, at the time of the sale.
    3. So long as the conveyance exists, and the vendee is not evicted from the lands conveyed, he is precluded, in the absence of fraud, from disputing the title of the vendor.
    Writ of error to the Circuit Court of.Sumter county.
    ACTION of assumpsit, to recover thea'mount of a promissory note. No plea appears in the transcript of the record; but the cause was tried by a jury, as on issue joined. Verdict and judgment for the plaintiff.
    The defendant gave in evidence, a deed from John Yancey, the plaintiff’s intestate, to Moses Lewis, the defendant’s intestate, John C. Whitselt, Daniel Green, and Christopher C. Scott, for the south half of the S. W. quarter of section 20, in township ten north, of range eighteen east, with covenants of warranty, dated 30th July, 1835; also, a patent for the same, to one Nock-ae-tubba, dated 3d November, 1837: thus showing paramount title in him. Evidence was also given, tending to show, that the note sued on, was given by Lewis to Yancey, in consideration of the purchase of the said land; and that Yancey died in possession of it.
    On this state of facts, the Circuit Court instructed the jury, that the failure ot title under the deed, was not a defence to the action, under the circumstances stated, there being covenants of warranty. To these instructions, the defendant excepted, and assigned for error, that the Circuit Court erred, in giving this charge to the jury.
    
      Erwin, for the plaintiff in error
    — insisted that there was no title whatever in the vendor, and therefore, there was a total failure of the consideration for which the note was given: thi» was more especially the case, as the possession was never given to the vendee; but remained in the vendor, at the time he died. He cited, and relied on, Christian v. Scott, (1 Stewart 490r) Peden v. Moore: (t Stewart & Porter, 71:} and Watson v Jordam, (3 ibid. 92.)
    Murphy, contra.
   GOLDTHWAITE, J.

This being the operation of the statute, the entire argument fails; for the authorities ci-ted, are conclusive to show, that the want of title is- no defence, where the possession remains with the vendee.

But the defence’ attempted in this case, does not make out a failure of title. The patent may have been issued to Nock-aetubba, and yet no covenant of Yancey be broken: Nock-ae-tubba may have conveyed to Yancey, with covenants of warranty, in which event, the former would be estopped by his deed, from disputing the title of the latter.

We consider it as clearly settled, that a- vendee, who is not evicted from the lands-sold, cannot dispute the title of his vendor, in any case, where he claims under an executed conveyance, in the absence of fraud.

The reason of this rule is founded in the obvious policy, of not permitting, one, at pleasure, to disavow a title which he has admitted, by receiving a conveyance founded upon it; and beeause a court of law, cannot place the parties in the condition they were in, when the conveyance was executed.

Let the judgment be affirmed.  