#### Benjamin Briley & another ex’rs of Joseph Briley, v. John Cherry.

From Pitt.

Privies in estate are those who succeed only to the rights ©f their ven-

dor. A purchaser at a Sheriff’s sale, is not privy to the Defendant in the execution, as he suceeds also to the rights of the Plaintiff, Where pending an action of detinue for a slave,- that slave was sold at execution sale as (he property of the Defendant&emdash;a subsequent recovery in that action is not tvidence of title in another, brought against the purchaser at Sheriff’s sales.

What is the effect of a judgment in detinue. Quere ?

Detinue for a slave, and on the trial the Defendant set up title in one Jackson, against whom lie produced a judgment rendered before a single Magistrate, with au execution thereon, and a bill of sale for the slave in rjues*3tion, made by the Constable to whom the execution was directed.

Dec. 1828.

The Plaintiff then produced the record of a recovery made by them as executors, in an action of detinue brought for the same slave against Jackson, under u horn the Defendant claimed, and proved that the sale to the Defendant was made during the pendency of that suit.

His honor Judge Dahiei, instructed the Jury, that the record produced by the Plaintiff, of the verdict and judgment obtained by them against Jackson, for the negro in controversy, was not any evidence to impair the title of the Defendant to the slave, as the latter was neither party nor privy to that record ; and that the fact that the action against Jackson was pending at the time of the Defendant’s purchase of the slave, vet the judgment therein did not make the Defendant such a privy under Jackson as estopped him from showing that tiie Plaintiffs testator had no title to the slave, but that the Defendant was at liberty to show that the title to the slave was in Jackson at the time of the purchase made by him.

A verdict being returned for the Defendant, the Plaintiff appealed.

Gaston, for the Plaintiff,

insisted upon the authority of Blackstone, (3 Com. 412, 413) that if a scire fadas had been brought upon the judgment in detinue recovered by the Plaintiffs against Jackson, the Defendant would be estopped to deny their title; arid contended that •wherever a judgment is conclusive as to the property in one form of action, it is so in all others — for this lie cited Hoyt v. Gelson, (13 John. Rep. 56t) Rex v. Mayor of Fork, (5 Term Rep. 72) Cooke v. Sholl, (Do. 255).

JDevereux, on the other side,

admitted that if the Plaintiffs had sued out a sdrefacias on the judgment recovered by them against Jackson, the Defendant coming in pendente lite, could not resist that process; but he con*4tended that an action of detinue brought, by the present Defendant, after a judgment ou the scire facias, would not be barred by that judgment. The scire facias being a rPnle(jy provided against one who intermeddled with the property during the litigation, was intended only to give the Plaintiffs the fruit of their former judgment— And he insisted as the Plaintiffs had waived that remedy and had brought their action, the Defendant being neither party nor privy, was not bound by the judgment against Jackson.

He also contended, that a judgment in detinue was no evidence of title, and that the authorities cited on the other side, were instances of judgments in rent, for this was cited, 1 Starkie’s Evidence, 258. Murrel v. Johnson, (1 Hen. & Mum. 450) and Wethers v. Wethers, (6 Mumford, 10).

Henderson, Judge.

A verdict and judgment in an action of detinue, are conclusive as to the title between the parties and their privies. And I think that the action of detinue is an affirmance of a continuing title td the thing detained, and. that the Plaintiff does not, as he does in an action of trover, disaffirm a continuance of title in himself, but may sustain an action for the same chattel against a third person, or even against the same party, although he may have obtained a judgment for it before, provided that judgment has not been satisfied, and I am at a loss to understand the case of Wethers v. Wethers, cited at the bar, where the executor of a former Plaintiff brought an action of detinue against the executor of a former Defendant, in which the Plaintiff had recovered the same slave, and offered that verdict and judgment as evidence of title, which was reiccted; because, as is said by the Court, it was not declared on. 1 think that it was evidence of title as much as a bill of sale. And a Plaintiff in such case, and in fact in every other, declares not upon the evidence, but upon the fact.

*5privies in estate are those who comein under the owner, and the eslate stands burfhened in their hands with those incumbrances created by him, before he parted with it. Therefore, if a suit was pending against him for the property when he parted with it, in which there after-wards was a judgment, that judgment relates to the commencement of the suit, and binds subsequent purchasers.

But one who comes in under a Sheriff’s sale at execution, cannot be called a privj, for be is not only clothed with the title of the Defendant in the execution, but also with the rights of the creditor, w hich may be paramount to those of the debtor quoad the. thing sold. It is to his rights also that such purchaser succeeds, and therefore he is not privy in estate to the former owner. The verdict and judgment in this case therefore, are not evidence against the Defendant.

Hall, Judge.

I do not consider that the Defendant is a privy under Jackson. He claims under a sale made .by a Constable. When the title was acquired by him .under the execution, there was no judgment against Jackson, and his purchase did not make the Defendant a party to the suit depending against Jackson; he ought not therefore to be bound by its determination. It may be that the rights of creditors to the negro in question are superior to that of the Plaintiff, although the Plaintiffs title be better than that of Jacks'vn.

Suppose the Plaintiffs had a bill of sale from Jackson, hut upon a consideration, quite inadequate, they might recover against him, but a bonajide creditor of bis may have an execution levied upon the property conveyed by the bill of sale, and thereby establish a right to it, which would be superior to that of the vendor or vendee, when at the same time, a subsequent vendee of Jackson had no better claim than Jackson himself.

Suppose again, that after the Plaintiffs had sued Jackson in detinue, the present Defendant had also brought *6an action of <b tino' for the same property, and had recovered a judgment and taken possession under if, of the property sued for, and then the Plaintiff had obtained a jlK|gmeil(; against Jackson for the same property ; would it be thought for a moment, that in a third suit, by the Plaintiffs against the Defendant, the Plaintiffs judgment against Jackson would be conclusive evidence against the Defendant ? It certainly would be considered as a proceeding to which the Defendant was not a party, and by which of course he ought not to be bound.

In the present case, the Defendant does not claim under a judgment in an action of detinue, but he claims under a judgment rendered against Jackson in inviium, and an execution which issued upon it.

I think that the charge of the Judge below was right, and that the rule for a new trial should be discharged.

Per Curiam. — Let the judgment below be affirmed.