#### DEN ON DEM. OF ROBERT LOVE vs. SILAS GATES et. al.

The defendant in ejectment is generally permitted to shew a better title than that of the lessor of the plaintiff, in a third person. But where both parties claim title under the same person, it is not competent to either, as such claimants, to deny that such person had title; and though the defendant, in such case, may still shew that he had in himself a better title than that of the piaintiff’s lessor, yet he cannot set up a title in a third person.

A sheriff’s deed for land sold for taxes is not of itself sufficient to deprive the owner of his land — there must be further evidence that the taxes were due for which the land was sold by the sheriff.

Ejectment, tried at Buncombe, on the last circuit, before his honor Judge PeausoN.

On the trial, the lessor of the plaintiff produced and read in evidence a grant to one Z. Candler, for the land in dis*364pute, dated, in the year 1829, and then shewed a regular judgment and execution against Candler, and a sheriff’s deed to himself, dated in the year 1831. He then shewed anoth-judgment and execution against Candler, and proved that the sheriff levied on the same land as the property of Candler, after the date of the deed to him, the plaintiff’s lessor, and sold it as Candler’s property, when the defendant Gates became the purchaser, and took a deed from the sheriff for the same, dated in the year 1834. The defendants relied upon shewing title out of the plaintiff’s lessor, and for that purpose offered to read in evidence a patent to one Blount, dated in 1794. This evidence was objected to upon the ground that the defendants were estopped from denying the title of Candler, under whom both parties claimed; but the objection was overruled and the evidence admitted. The lessor of the plaintiff then contended that the whole of the land covered by Blount’s patent had been sold for taxes and passed to the State, and thereby had again become vacant, and was subject to entry at the time when Candler took out his grant; and for this purpose he produced a sheriff’s deed for the land, but was unable to shew that the taxes were due from Blount at the date of the sheriff’s deed. His Honor thought that the deed from the sheriff was not of itself sufficient to shew that Blount’s title had been divested; and the plaintiff’s lessor in submission to this opinion was nonsuited, and appealed.

Dec. 1839

No counsel appeared for the plaintiff’s lessor in this Court.

Hoke for the defendants.

Daniel, Judge,

after stating the case as above, proceeded as follows: As the party in possession of land is presumed to be the owner until the contrary appears, the claimant in ejectment must shew a good title in himself; he cannot found his claim upon the weakness of that of the defendant; for possession gives the defendant a right against every man who cannot establish a good title in himself against every body. The defendant, therefore, generally is permitted to shew a better title than the plaintiffs in a third person. But it has been decided in this State, that where both parties claim title under the same person, it is not competent to either, as suck *365claimants, to deny that such person had title. Den ex dem. Ives v. Sawyer, Ante 51—Murphy v. Barnett, 1 Car. Law Repos. 105. In this case, both of the parties ed under Candler. The defendant, although not estopped to shew that he he had in himself a better title than plaintiff, as for instance that Candler had again acquired title before the date of the sheriff’s deed to him, or that title was always better than even that of Candler’s; still we think, according to the above authorities, he was precluded setting up any title in Blount. The admission in evidence of Blount’s grant, was therefore erroneous. We have decided at this term that the sheriff’s deed only for lands sold for taxes, was not evidence sufficient in law to deprive a man of the title to his lands. It must also be shewn that the taxes were due, to authorise the sheriff to sell the land and make a deed. There must be a new trial.

Thg Ives vs. .^Bar-i Car.

. Per Curiam. Judgment reversed.