
    
      The Bank of the State of South Carolina v. The S. C. Manufacturing Company.
    
    The action of trespass to try title cannot be sustained on a sheriff’s deed bearing date subsequent to the commencement of the action, although the sale had been made previous to that period.
    In the action of trespass to try title, as well as in other actions, the question always is, had the plaintiff a cause of action when the suit was commenced'?
    
      .Before Frost, J. at Spartanburgh, Fall Term, 1848.
    This was an action of trespass to try title. The plaintiff produced a grant for 457 acres, dated 3d Nov. 1788, to Abraham Markley; a judgment of the Bank of the State against Markley for $15,000, entered up 22d June, 1822. — A revival of that judgment by sci.fa. against C. M. Furman, administrator cum testamento annexo de bonis non of Abraham Markley, entered up 29th June, 1845, for $28,000. Kfi.fa., 3d December, 1845, and a conveyance by the sheriff of the land in dispute, dated 14th October, 1847. The grant was located. The agent of the plaintiff described the tract as the Gibbes land, and pointed out the Gibbes old field, which is laid down on the platt. The plaintiff also gave in evidence a deed from B. A. Markley, executor of A. Markley, to the defendant, dated 9lh November, 1836, of the land in dispute. The writ in this case was issued .in October, 1846. A motion was made for a non-suit, on the ground that the plaintiff had no title to the land when the action was commenced. The excention was waived and defendant proceeded to establish a titlev by possession. One witness testified that he had .known the land upwards of forty years. He was a chain carrier on a survey made by Gibbes when he entered on the t land. Gibbes cleared a field of 15 to 20 acres; lived on the tract 12 to 16 years, and died there. His wife continued on the land, and died there, about a year after her husband. The land was always called the Gibbes’ land, and never heard it called the Markley land until within a year past. Another witness testified that 50 years ago he moved into that settlement and found Gibbes in possession of the tract and cultivating the field. He lived near Gibbes two years; went to North Carolina, staid one year, came back and remained a year, and Gibbes was in possession; the witness moved again, and returning after a year found Gibbes dead. It was further proved that the defendants gave permission to some persons to put up a school house on the tract. — This was put up in the summer of 1836. In the fall, after crops were laid by, they began to clear a field, which has been cultivated every year since. In the argument of the case the defendant’s counsel claimed that when he waived the non-suit, it. was with the reservation of all the advantages of his plea of adverse possession, which should be computed to the 14th October, 1847, when the plaintiff could properly bring his action. It being affirmed by the Court that the plaintiff’s title must be referred to the date of the sheriff’s conveyance, and that the action was brought before plaintiff had title, a non-suit was taken.
    jjojmegTRio. Master^ X Rich- Eq. R. 340‘
    x Rich E R 340. ’
    The plaintiff moved the Court of Appeals to set aside the non-suit.
    Because, although the sheriff’s deed bore date subsequent to the commencement of the action, the sale was made before the issuing of the writ.
   Evans, J.

delivered the opinion of the Court.

The plaintiffs purchased the land at sheriff’s sale in October, 1846. They sued out- their writ in trespass to try titles against the defendants immediately after. The sheriff’s deed, made in consequence of the sale, was dated 14th October, 1847, about a year after the commencement of the action. The question is, can the action be sustained ? In the action of trespass to try title, as well as in other actions, the question always is — had the plaintiff a cause of action when the suit was commenced ? — No action lies except for some infraction of legal right or the omission of some legal duty; and how can it be said, in the usual language of the writ, that the defendant with force and arms entered the close of the plaintiff and him therefrom did eject, &c., when the plaintiff was not at that time the owner of the land? unless the sheriff’s sale, without a deed, will operate to transfer to the purchaser the legal estate in the land. In Holmes v. McMaster, the Court of Equity decided that the title of a purchaser at sheriff’s sale should be Referred to the date of his conveyance and not (to the day of sale. This seems to me to be an inevitable conclusion from legal principles. Until the deed is made, the title is inchoate. 'It is merely executory. No legal estate passes. It is at best but an equitable title, and I presume it has never been supposed that a possessory action could be brought on a mere equitable title. By the 45th sec. of the Act of 1785, it is enacted that “no conveyance of any lands, tenements or, hereditaments within this State shall pass, alter or change from one person to another, any estate of inheritance, in fee simple, &c., unless the same be in writing, signed, sealed and recorded.” This Act must apply as well to transfers of real estate made by the sheriff as to other conveyances. The sheriff is the agent appointed by law to sell and transfer the legal estate from the debtor to the purchaser. In investigating a title derived from the sheriff it is the daily practice to refer to the levy and sale book, not as constituting the title to the land, but to ascertain whether the sheriff has conveyed the land he levied on and sold. For the same purpose, in a case where the deed was made under a power of attorney, we would look to the power to know if the agent had authority to convey the land in dispute. But it is supposed this case is settled by the case of McCall v. Campbell, and the case of Kingman v. Glover. In these cases the question was whether a purchaser at sheriff’s sale, who paid the purchase money and went into possession, but received no title until after he was sued, was liable for mesne profits. A question very different from that which this case presents. In the case of McCall v. Campbell it is said that when the successor of the sheriff who sold the land and received the purchase money, made the title, it should have relation to the time when the title should have been executed. This dictum was true so far as it applied to the question then before the Court. It should have relation back so as to protect Campbell from any liability for mesne profits ; but that is very far from deciding that Campbell could have brought an action to recover the land before he had any legal conveyance of the estate. In every action the question is, whether the plaintiff has such an interest as entitles him to recover when the suit was commenced. No plaintiff can recover without shewing this. Were the plaintiffs the legal owners of this land, when they sued out the writ? I think it very clear they were not; and of course they could not maintain the action. If they had gone into possession under the equitable title acquired by the sale, and the license which that gave them, and the heirs of Mark-ley had sued them, before the sheriff’s title was made, then they would have been protected from any liability for mesne profits, on the authority of the cases above cited; but they could not, as plaintiffs, demand the possession of the land until they were invested with the legal estate, which can be done only by a conveyance in writing, signed, sealed and delivered by the owner, or some one authorized by law to con-' vey. I think, therefore, the nonsuit was properly ordered, and the motion to set it aside is dismissed.

7 Stat. 232.

9th vol. MS. Deeis. 117. 3 Rich. 27.

The whole Court concurred.

Motion ref used.  