
    Supreme Court of Errors and Appeals. Columbia,
    September Term, 1822.
    GARNER’S LESSEE v. JOHNSTON.
    Ejectment. In Error.
    Possession alone is a good title against all except the person having the superior title, and will, in ejectment, authorize the person in possession to show title out of the plaintiff. [Overruling McAlister v.. Williams, 1 Tenn. 107, and Perryman’s Lessee v. Gallison, 1 Tenn. 515, and settling the law as it has since been followed in this State. Williams v. Seawell, 1 Y. 85, citing this case. See, also, Sims v. Love, 9 Wheat. 515.]
    By 1806, 49, 3, a registered deed, in the absence of proof of its execution as at common law, relates only to the date of its acknowledgment for registration in conveying the legal i. title. [Acc. Robertson v. Sullivan, 2 Y. 93, citing this case. But see Code 2071, 2075 for the present law.]
    The plaintiff in ejectment who introduces a sheriff’s deed to the defendant, in order to show that he claims title under the same person, cannot afterwards, it seems, object that the judgment, under which the execution sale was made, has not been produced. [And see Rochell v. Benson, Meigs, 3, as to whether a subsequent purchaser from execution debtor can dispute the debtor's title.]
    A sheriff’s deed relates to the sale, and, for some purposes, to the judgment. [Acc. Porter v. Cocke, Peck, 39 $ Wood v. Turner, 7 Hum. 517. Or levy, Parker v. Swan, 1 Hum. 80.] A title acquired after the execution sale by the person under whom the execution debtor claims, will, by relation, pass to the purchaser at the salé instead of a subsequent purchaser from the debtor. [But see Henderson v. Overton, 2 Y. 397, where it was held that a sheriff’s deed conveys only the debtor’s legal title without warranty, and that title by relation, which is an incident of express warranty, does not apply to it. See, also, Hamlin v. Berry, 1 Tenn. 39. In Greenway v. Cannon, 3 Hum. 177, it was held that title acquired between the levy and sale will pass to the purchaser. While in Pratt v. Phillips, 1 Sn. 543, the exact contrary was ruled, without referring to either of the foregoing cases, or any authority whatever.]
    Parol evidence is admissible in ejectment, to show that a deed was executed at a time long subsequent to its date. [Acc. Reid v. Dodson, 1 Tenn. 395, 401. But see Pratt v. Phillips, 1 Sn. 543, contra, without citing this or any other case. See, also, Rogers’ Lessee v. Cawood, 1 Sw. 147, Trousdale v. Campbell, 3 Y. 160; 5 Hay. 101; 5 Hum. 352; 8 Hum. 551.]
    Action commenced the 21st of October, 1819.
    It appears from the bill of exceptions that the plaintiff produced on the trial the following title. A grant from the State of Tennessee to Robert Hill, 13th February, 1808; deed from Hill to Campbell and Bayles the 2d of January, 1809; acknowledged, November, 1820; deed from Campbell and Bayles to Jacob Scott, the 2d of May, 1809 ; acknowledged, May 5th, 1814, and a deed from Scott to the plaintiff the 28th of April, 1814; acknowledged 4th May, 1814; and proved the defendant in possession of the land covered by the grant at the time of executing the writ.
    The defendant then introduced proof that the deed from Hill to Campbell and Bayles, which purports to have been made in 1809, was in fact made in 1820, shortly before acknowledged. Hill, the bargainor, was called, and proved the fact to be so. Objection was taken to the evidence on the ground that the defendant had shown no title, but the objection was overruled. Hill, on his cross-examination, proved that the deed was made in the place of one which had been destroyed, dated in 1809.
    The plaintiff then produced a deed from the sheriff of the county where the land was situated, to Johnston, dated- 12th of March, 1814, which purported to convey all the interest of Scott, Spencer Griffin, and Robert Hill to the land in question. This deed was introduced with a view only to show that Johnston claimed under the same title. This closed the testimony.
    The Court was called upon to charge the jury, that as the plaintiff had shown a title fair upon its face, and the defendant had shown no title, that it was not competent for the defendant, being a mere trespasser, to impeach the deed from Hill to Campbell and Bayles; or, if defendant held under the sheriff’s deed, neither was it competent to object to the title, as it was derived from the same source.
    But the Court charged the jury that it was necessary for the plaintiff to show a good title in himself, else he could not recover, even though the defendant had no title; that the parol testimony had been well received to show when the deed from Hill to Campbell and Baj'les had been delivered. If the jury believed it had been delivered in 1820, after bringing this action, even though made in place of one which had been destroyed in 1809, the plaintiff would not be entitled to recover.
    The deed, by the*Act of 1806, would only take effect from the time of acknowledgment.
    After the charge of the Court, the plaintiff moved to add a new demise in the name of Robert Hill, alleging surprise by the opinion of the Court. The Court refused the amendment.
    A verdict was rendered for the defendant, and a new trial moved for, which was refused.
   Peck, judge,

delivered the opinion of the Court.

The parol testimony touching the execution of the deed Hill to Bayles, was properly admitted.

The defendant’s possession alone was a good title against all but the person having the superior title, and to her it was certainly competent to show that the superior title did not rest in the plaintiff at the time of bringing this action, but in another for whom the law supposes she was holding. This Court does not admit the cases referred to in Tennessee reports, — McCallister’s Lessee v. Williams, and Perryman’s Lessee v. Callison, — to be law. These cases are not in accordance with the English authorities, and are not believed to be founded in reason.

They sanction a doctrine that will let in with impunity the worst of frauds, and even forgeries. Tenants in the absence of landlords having the superior title, are liable to be turned out of possession, and the landlord put to his action to be repossessed.

In this case, however, the plaintiff had shown such a title for the defendant as authorized, even according to the doctrine contained in those cases, the defendant to assail the plaintiff’s title. It is true, the judgment on which theji.fa. mentioned in the sheriff’s deed was founded is not shown, yet that objection did not lie with the plaintiff after he had produced the deed.

Then, as the plaintiff could not object to this deed passing some title to the defendant, it becomes an important inquiry how far the deed from Hill to Campbell and Bayles, though executed in 1820, will, by relation, vest the legal title in the defendant.

The sheriff’s deed .was in March, 1814, and recites a sale made in 1810. This deed must have relation to the sale; 12th Johnson’s Rep. 304; and to some .purposes even to the time of rendering the judgment. Scott conveys to the plaintiff in April, 1814; after his right had been sold and transferred by operation of law to Johnson, then the deed which comes in 1820, though made to bear date in 1809, will, by relation, take effect to pass the title to the next purchaser subsequent to Scott, who is the defendant; 4th Wheaton, 213; 12th Johnson, 201; 13th Johnston, 1st Johnston’s Cases, 90.

The amendment was properly denied. To amend at bar and change the parties after the whole case had been submitted and charge of the Court heard, is believed to be contrary to all precedent.

Believing the justice of the case with the defendant, and that a new trial could not have availed the plaintiff anything, he not having the better title, there is no error in the Court having refused it.

Upon the whole case, the merits have been attained, and though deduced from premises different from those assumed in this Court, yet the result is the same.

Judgment affirmed.

Okioixal Note. — The case of Cheek v. Evans’s Lessee was determined at Rogers-ville, in accordance with the principle settled in the first point in the case Gamer’s Lessee v. Johnston.

The record presented this case; Evans, the plaintiff below, produced a grant from the State of Tennessee to himself, and proved Cheek in possession.

Cheek, in defence, introduced a grant from North Carolina, of course of elder date, to John Bristow for the same land. Bristow had departed this life, leaving heirs, before Cheek’s entry into possession.

Bristow’s widow had conveyed to Shelton, who was also dead, leaving heirs; the widow of Shelton had conveyed to Cheek, the defendant.

The circuit judge rejected the evidence, and the jury found for the plaintiff.

In argument in the Supreme Court, two points were made:—

1st. That Cheek was in possession by the consent of those having the superior title.

2d. That having shown a better outstanding title, he ought not to be disturbed in his possession.

And of that opinion was the Court,

Judgment reversed. 
      
       Original Note. — See note to Robertson v. Campbell, 3 Wheat. Rep. 224.
     