#### JOHN DEN ON THE DEMISE OF POLLY DUNCAN vs. ROLAND DUNCAN.

June 1843

Ejectment cannot be maintained in this State upon a naked possession, once had, where there is no presumption of a convyance of the legal title, hut it appears affirmatively to,he in another person.

The purchaser at an execution sale need only shew, as against the defendant in the execution, the judgment, execution, sale and sheriff’s deed.

The cases of Sheppard v Sheppard, No. Ca. Term Rep. 108. Murphey v Barnett, 1 Law Rep. 106, and Gorham, v Brenon, 2 Dev. 174, cited and approved.

Appeal from the Superior Court of Law of Burke County, at Spring Term, 1843, his Honor Judge Nash presiding.

The lessor of the plaintiff had made a contract for the purchase of the land in controversy in this' suit — had given her obligation for the purchase money, and had been in possession since the date of the purchase; but had received no deed. The purchase money was not paid and is not yet paid, and when the obligation came to maturity, she was sued by the obligee, her vendor, and a judgment obtained. An execution issued and was levied upon the land, and at the sale Mr. McKesson became the purchaser, who took a deed from the sheriff, and subsequently sold the land to the defendant, the brother of the lessor of the plaintiff. The lessor of the plaintiff was in possession of the land, when the defendant, by his servants, entered and forcibly turned out her servants, who were ploughing the field, and took possession ; leaving her in possession of the house, where she still is, and defendant in possession of the field, for which *318this action is brought. The Court instructed the jury that the lessor of the plaiutiiF had no such interest in the land as was the subject of a legal execution — that her interest could not rightfully be so sold — and what cannot rightfully be sold by execution cannot by such sale be rightfully acquired, and of course the purchaser could transfer no title to another. In this case McKesson acquired nothing, and transferred nothing to his alienee, the defendant, who was therefore a mere intruder, against whom the law would protect the .possession of .the lessor of the plaintiff, and she was entitled to a verdict. Judgment having been rendered pursuant to this verdict, the defendant appealed.

Qal&well for the plaintiff.

Alexander for the defendant.

Ruffin, C. J.

If the defendant were a mere stranger and a wrong doer, as supposed by the Judge below, it cannot be held in this State, that ejectment can be maintained upon a naked possession, once had, when there is no presumption of a conveyance of the legal title, but it appears affirmatively to be in another person. Allen v Riving ton, 2 Saund. 111, Serg’t Williams’ note a. Sheppard v Sheppard, No. Ca. Term Rep. 108.

But the defendant is not a stranger. It has long been held, that, as against the defendant in the execution, the purchaser need shew only the judgment, execution, sale and sheriff’s deed. Murphey v Barnett, 1 Car. Law Rep. 106. Gorham v Brenon, 2 Dev. 174. Such is the .case when the purchaser brings ejectment against the defendant in execution; and it proceeds upon the principle, that whatever the debtor had passed under the execution sale, and that, as it had been sold for his debts, he ought not, for the purpose of defeating the purchaser, to say he had nothing in the premises. That principle is equally applicable to an action, brought against the purchaser by the defendant in the execution. If the debtor had any estate, the purchaser, of *319course, acquired it, aud for that reason is entitled' to If the debtor had no estate in the land, then that person cannot maintain ejectment; for in that action the plaintiff must recover upon the strength of his own title, cither as being, in itself, good against all the world, or good, by way of estop-pel, against the defendant. Here it is admitted, that the lessor of the plaintiff had'not the title; and it is equally clear that there is nothing to raise an estoppel in her favor. In fine the action rests upon two inconsistent propositions : that nothing passed to the purchaser, because the lessor of the plaintiff had nothing in the premises ; and yet, that she had an interest and estate at the sale, and, notwithstanding the' •salé, still has, which entitles herto recover.

Rer, Curiam. Judgment reversed and'new." trial a-warded..