
    
      DEN ex dem. FALKENBURGH against CAMP.
    In ejectment by purchaser at sheriff’s sale a tenant who was the defendant in the execution, may prove that he had no title at the time of sale.
    This was an ejectment for lands in Cape May, and [*] tried before Eossedl, J., at the Cape May circuit, in May, 1810. On the trial, the plaintiff gave in evidence a record of a judgment of the Common Pleas of [584] Cape May, against the defendant, Camp, in favor of the lessor of the plaintiff, for five hundred dollars; a fieri facias issued thereon, returnable to February Term, 1807; a levy on the lands in question by the sheriff; a sale by the sheriff to the lessor of the plaintiff, by deed, dated in June, 1808. The plaintiff then proved, that at time of the render of the judgment, and when the execution was levied, and ever since, up to the time of trial, the defendant had been in possession of the premises in question; and rested his cause.
    The defendant then offered to prove, that the title to the lands in question, had never been in him; that he was a tenant at will only. This testimony was objected to by the counsel for the plaintiff. The judge overruled the objection, and admitted the testimony; but, at the request of the plaintiff’s counsel, reserved the point. The admission of a will in evidence, was also objected to as not being regularly proved. The jury found a verdict for the defendant; and on the coming in of the postea, the plaintiff-moved for a new trial, on the ground of the judge’s admitting illegal testimony.
    
      White, for the plaintiff.
    It is not competent for the defendant to set up in his own defense, a right in a third person; and more especially, in the case of a defendant in possession of lands sold at sheriff’s sale, on an execution against himself. This principle has been settled in the Supreme Court of the State of New York; 3 New York Term Rep. 188; 1 Johns, 44; 1 New York Cases in Error, 58.
    
    
      Ch'ane, contra.
    The plaintiff in ejectment must show a title in his lessor. If it is in a third person, he cannot prevail. He admitted that the New York case [*] was against him, but could not be law. Peake’s L. Em. 314; Bul. 110.
    
    
      Hunter, on the same side.
    It is always competent for the defendant in ejectment, to show an actual outstanding title in a third person. It was proved on the trial, that the son of the defendant, in whom the title is, was jointly possessed with the father; we therefore, not only show an outstanding title in a third person, but an actual possession accompanying that title. In New York, an action of ejectment is more strictly a possessory action than in this State; as, in that State, the writ of right is in practice; but not so here.
    
      White, in reply.
    The defendant gave in evidence, his own deed to his son. If this can be done, perpetual frauds will be the consequence. The principle the plaintiff goes on is, that he has a right to all the title of the defendant, of whatever quality or nature it may be; if it is only a possessory right, still it is a right, and the plaintiff is entitled to it; at least, the defendant [585] himself cannot set up a title which he himself made to another, he still holding the possession himself, and that too against the purchaser of his right at sheriff’s sale.
   Kirkpatrick, C. J.

The purchaser of lands at sheriff’s sale, comes into the place of the defendant. He holds as if by deed from the defendant himself; the sheriff being merely the channel of conveyance; the law’s agent to transfer the title. This being the case, the defendant cannot setup title against such purchaser, either in himself or another; and especially under a secret deed from himself to the other. If this could be made a sufficient defense, there would be an end to sheriff’s sales. I think, therefore, there must be a new trial.

Pennington, J.

A judgment was obtained against the defendant, execution thereon, and the land of which he was in possession, sold by the sheriff. The [*] purchaser at sheriff’s sale, brings this action to recover possession. At the trial the plaintiff proved the judgment, execution, sale, and conveyance to him by the sheriff, and the possession of the premises in question, by the defendant, as well at the time of rendering judgment, as at the time of sale and ejectment brought, and also at the time of trial. This, prima fade, was sufficient to maintain his action. In answer to this, the defendant offered to prove, that at the time the judgment was obtained, the land was not his, nor never had been since; that he had no title to, nor interest in the land, but that it was in another, to whom he was a mere tenant at will. This evidence was objected to, but admitted by the judge. The correctness of this determination is the subject of consideration.

It is unquestionably a general rule of law, that the plaintiff in ejectment must prevail by the strength of his own title, and not by the weakness of the defendant’s. But there are some exceptions to this rule; for instance, a tenant that has taken a lease under a mortgagor, will not be permitted to show the title of the mortgagee, to defeat an action brought by the mortgagor, to recover possession after the expiration of the lease. To support this equitable right of the mortgagor, the doctrine of estoppel is brought in. The tenant having admitted the right of the mortgagor by the lease, is estopped to deny it. An outstanding satisfied term will be presumed to have been surrendei’ed; by this presumption, the legal title in this case, is rexnoved out of the way. In a late case in England, the court [586] would not permit an outstandiixg term in a third person, created to secure a small annuity on a large estate, to defeat the action of the heir at law, who agx'eed to take, subject to the charge of the annuity. This determination has, however, been very much shaken by a subsequent case. These cases [*] all go on tite ground that the lessor of the plaintiff has a beneficial interest in the land, and that his possession can do no injury to the person in whom the legal title is; and, as I apprehend, do not x’each this case.

It is, however contended, on the part of the plaintiff, that all the right of the defendant to the land, was conveyed to the plaintiff by the sheriff’s deed; that possession is a right, and the plaintiff, having acquired this right, must x-ecover in a possessory action that purchasers at sheriff’s sales, acquix’ing the right of the defendant, become quasi tenants to the x’eal owner of the land, who cannot suffer an injury by a mere change of tenants. The case cited from New York, cex’tainly goes a great way in support of the argument. But as much as I respect the judges who determined that case, I cannot accox’d in their opinion.

A tenant at will has no certain estate; nothing that can be assigned by him, % Blac. Com. 11¡5. The very act of changing the tenant, would destroy the tenanti-y. The possession of the tenant is the possession of the landlord. Shall the real owner of the land he turned out of possession, put to his action, and made to prove his title, merely from his humanity in affording shelter to a poor man? The point in controversy was, what title the lessor of the plaintiff acquired by the purchase at sheriff’s sale. True, he made out a title prima facie. But I can see no reason why this presumptive title might not be rebutted by positive testimony, by written deeds showing the title in another. The sheriff’s deed did not create an estoppel on the part of the defendant; although the sheriff’s deed conveyed to the lessor of the plaintiff, all the right of the defendant to the premises; yet it was no act of his; it did not estop him from alleging the truth, that he had no title; and of consequence, the lessor of the plaintiff derived none from the sheriff’s deed; if the fact was so, still if the plaintiff could have shown that the defendant, at the time of the sale, had a beneficial [*] interest in the land, and had a right to the possession, notwithstanding the fee might have been in another, he would have been entitled to a verdict. I apprehend that the whole of the difficulty has arisen on this subject, from a presumption of fraud arising out of the peculiar circumstances of this case; but as fraud is not to be presumed by [587] this court, but found by a jury, I cannot perceive why the question of fraud cannot as well be tried in one ejectment as another. I am, for these reasons, of opinion, that the judge did right in admitting the testimony.

There was another objection taken at the trial; that the judge permitted a will to be given in evidence, which had not on it, the register’s certificate of proof. I do not conceive that this was necessary; it might be proved by witnesses ; and probably the real objection is that it was not proved at all. The case is not explicit enough on this point to bring up any question that ought to endanger a verdict. It appears from the date, that it was an ancient will; and it might have accompanied the possession. It is also impossible to discover, from any thing in the case, the bearing this will had on the issue; or even that it had any. As it is now presented to my mind, it does not afford sufficient matter to authorize the court to disturb the verdict. I am, on the whole, of opinion, the rule for a new trial must be refused.

Rossell, J.

I cannot perceive any reason for altering the opinion delivered on the trial. I think the question of fraud, can as well be tried in one ejectment as in another.

Rule for a new trial refused.

Cited in Hyatt v. Ackerson, 2 Gr. 564 
      
      
        Bristow v. Pegg, 1 Term Pep. 785.
      
     
      
      
         Doe v. Staple, 2 Term Rep. 684.
      
     