#### John Doe ex dem. of Richard C. Rhodes v. John Brown.

From Robeson.

June, 1829.

Possession by one having only an equity in land, is considered as the possession of him who created Unit * quily.

Hence where a vendee under articles for a purchase, was in possession, claiming for himself, lus possession enures to ripen the defective colorable title oí the vendor&emdash;md a .subsequent purchaser of the legal estate from the vendor, c..u recover in ejectment against the vendee.

EjectmeNT, fried oh the last Spring Circuit before bis honor Judge Daniejl. The lessor of the Plaintiff produced a grant to one Thomas Filman, of the premises in dispute, dated November, A. I). 1779, and a deed of bargain and sale from Thomas Pitman the grantee, to Isham Pitman for the same land, dated in 1792. He then offered in evidence a deed of bargain for the land from one Jesse Lee to William Brown, dated October 26, 1814, a judgment and execution thereon against William Brown, together with a Sheriff’s deed to Jacob Rhodes, and the will of Rhodes, whereby the land was devised to him.

The Defendant contended, that Isham Pitman had a better title to the land than the lessor of the Plaintiff. To establisii this, and to rebut the possession under Bee’s deed to William Brown, by evidence of a possession in himself adverse to the latter, be, proved that on the 23d of October, A.. D. 1821, William Brown by a written agreement not under seal, sold the land to him $ since which time William Brown has had no possession of the land, except as a member of bis family, in the capacity of a day labourer.

The Plaintiff proved that seven years continued possession, adverse to Isham Pitman's title had existed, before the judgment against William Brown and the Sheriff’s deed to Jacob Rhodes ; but this possession of seven years was composed of the possession of William Brown foe *196{ivp, 01- six years, and for the residue, of that of the De-fondant since the date of the agreement between him and William Brown.

1ÍÍ.S Honor charged the jury, that if there had been a continued possession held under the deed from Jesse Lee, for the space of seven years before the. judgment was rendered against William Brown, then the tille of Isham ritman was destroyed, and his right of entry taken away by the act of 1715. That if they believed the Defendant claimed the possession under the deed from Jesse Lee to William Brown, that deed was color of title for those who claimed under it. That the fact that the Defendant, after the date of his agreement with William Brown, set up a title adverse to the latter, made no difference ; if his possession was consistent with the possession of those Who claimed under Lee’s deed to William Brown. That if the possession under his deed ivas for seven years held adverse to Pitman’s title, although part of that time might be made up of the Defendant’s possession, then Pitman’s right of enlry was lost. And as the Defendant had no conveyance of the legal estate, his possession enured to confirm the legal title, which being in William Brown, was at law subject to be sold under an execution against: him, and that the Defendant’s title was purely equitable, and could not avail him as a de-fence to this action.

A verdict was returned for the lessor of the Plaintiff, and .the Defendant appealed.

The case was submitted without argument, by Gaston, for the lessor of the Plaintiff, and by for the Defendant.

Hall, Judge.

Whatever title William Brown had to the land in dispute has been transferred to the lessors of the Plaintiff, and on that title he rests his right to recover in the present action. That title is thus deduced.

*197In the year 1779, a grant issued from the State to Thomas I’itman for the land in dispute. Jesse Lee, by , -, , , deoil bearing date in 1314, conveyed the samo'laúd to William Drown, who had an uninterrupted possession of the land for seven years under that convey anee, before it was levied upon and sold to Jacob Rhodes. Jacob Rhodes, the purchaser, devised it to the lessor of the Plaintiff, and his title must be good, unless it has been weakened or destroyed by the claim set up by the Defendant.

If William Brown, had conveyed the legal title in the land To the Defendant in 1821, and they had both remained in possession so langas to make an uninterrupted possession of seven years from the time William Brown first took possession under" the deed from Lee, the title of the land would be in the Defendant ; for he and William would have had an uninterrupted possession for seven years under color of title.

But it appears that the legal title liad not been conveyed to the Defendant; that he had an equitable claim to the land under an agreement with William Brown, which is not made part of this case, and that he and William remained in possession of the land, as before stated. As the Defendant has no title which can bo noticed in a Court of Law, his title avails nothing, as being adverse to William, but must be taken to enure to William Brown’s color of title ; for in truth what equitable claim the Defendant had, would Lave availed nothing without it.

I therefore think, as William Brown had seven year’s possession under color of title, that his title is sufficient to enable the lessor of the Plaintiff to recover, having been transferred to him. The ride for a new trial should be discharged. If Rhodes, the purchaser, had notice of the Defendant’s equitable title, a Court of Equity will consider him as a trustee for Defendant.

Per Curiam. — Let the judgment be affirmed.