
    
      J. N. McElwee, Jr. vs. Joseph Beason.
    
    In trespass to try titles, a defendant cannot set up a paramount title in another, to defeat the purchaser, at sheriff’s sale, of his own title.
    
      Before Richardson, J. at York, Spring Term, 1845.
    Trespass to try titles. The land in dispute was purchased by the plaintiff, as the property of the defendant, at sheriff’s sale. The defendant offered in evidence a deed, by which the land had been conveyed to a trustee, for the use of the defendant’s wife for life. The presiding Judge charged that the plaintiff was entitled to a verdict; that the sheriff’s deed operated as. an estoppel, and precluded the defendant from shewing title in another. The jury, however, found . for the defendant.
    The plaintiff appealed.
    
      Williams, for the motion.
    
      Witherspoon, contra.
   Curia, per O’Neall, J.

In this case, according to-well settled principles, the plaintiff, as against the defendant, was entitled to recover; for, according to O’Neall vs. Duncan, 4 McC. 246, and many cases since, it is clear that a purchaser at sheriff’s sale is entitled to recover against the person whose title he has bought. The reason is an obvious one. The sheriff, by law, is made the agent of the defendant-in execution in selling his land to pay his debt, and hence the sheriff’s deed operates very much as his own.

It may be, and I think it very possible, that if the trustee of the wife be made a party to the record, as is directed in Crosby vs. Floyd, 2 Bail. 116, he may defeat this recovery ; and a feeling of that kind has made me struggle to sustain the verdict. But it is too clear to be questioned, that this defendant cannot set up a paramount title in ano- ' ther to defeat the purchaser of ■ his own title.

The motion for a new trial is, therefore, granted.

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