#### DEN. ex dem. HARDY AND BROTHER vs. SAMUEL SIMPSON.

A debtor, and those who by a fraudulent deed claim under him, after a sale by the sheriff under execution, do not hold possession adversely, so that a purchaser at the sale made by the sheriff, cannot transfer the estate, after he has the sheriff’s deed.

After one’s land has been sold for the payment of his debts, he is looked upon as a tenant at sufferance — a mere occupant, unless he is able to show, that for some cause or other, the sheriff’s sale did not pass his estate.

This was an action of ejectment, tried before Saunders, Judge, at Spring Term, 1853, of Chowan Superior Court.

The lessors of the plaintiff deduced title from one William R. Skinner, by sheriff’s deed, under executions against said Skinner. One Miles Wright had purchased at the sheriff’s sale, and had subsequently conveyed to the lessors. For the purpose of estop-ping the defendant from denying the title of William R. Skinner,) the lessors of the plaintiff gave in evidence a certified copy of a deed in trust from William R. Skinner to James C. Skinner, and also a deed from James C. Skinner to the defendant. “ The lessors of the plaintiff further proved, that at the time of executing the deed from Miles Wright to them, the lands in dispute were in possession of one Abram Bonner, who had been let into possession and held under James C. Skinner for that year; that previously thereto, the said William R. Skinner had left the premises, and surrendered them up to James C. Skinner the trustee, who had taken possession pursuant to the deed to him, and had put the’ said Bonner in possession as his tenant, and the said Bonner was then in actual possession.”

*326The defendant insisted that the plaintiff could not recover for several reasons, two of which only are material to be noticed here ; 1, because the deed from Miles Wright conveyed no title, for the reason that the lands were then in the adverse possession of Abram Bonner as tenant for James C. Skinner ; 2, because the legal title was in the defendant Simpson.

His Honor instructed the jury that the plaintiff was entitled to recover, unless the deed in trust was bona fide, and effectual to transfer the property to James C. Skinner ; that the said deed was, from its own provisions, fraudulent and void, unless the presumptions against it were expelled, and that no evidence had been offered to rebut the presumption of fraud.

The jury rendered a verdict for the plaintiff; the defendant moved for a new trial, which being refused, he appealed to the Supreme Court.

Heath, for the plaintiff.

As to the adverse possession of Bonner, it is submitted that the possession of a fraudulent vendee is not adverse to a purchaser clothed with a creditor’s rights, so as to prevent such purchaser from transferring his interest: the deed and the possession both are fraudulent and void, and cannot be set up to defeat the title conveyed by such purchaser. James C. Skinner was such a vendee. Bonner claimed under him, and showed no consideration. He is therefore in the same condition as Skinner the trustee, and his title and possession cannot be set up as bona fide, and for valuable consideration. If it be said the law implies he was to pay a reasonable rent, the answer is — the implication may be good between the parties ; as to creditors and purchasers, the consideration is matter of proof. Clayxoell v. Me Ginypsey, 4 Dev. 80.

W. N H Smith, contra,

Pearson, J.

The deed of trust from W. R. to James C. Skinner having been found to be fraudulent, James C. and his tenant Bonner stand in the shoes of the debtor William R. Skinner; and the question is, does the debtor, after a sale by the sheriff under execution, hold possession adversely, so that a purchaser at the sale made by the sheriff, cannot transfer the estate after he has the *327sheriff’s deed ? Is the debtor, or those who by a fraudulent deed claim under him, so in the adverse possession that the purchaser at the sheriff’s sale acquires a “bare right,” which he cannot transfer, because in the language of the statute of Hen. 8, he has hut a “ pretence of title?”

Such has never in this State been considered to be the relation of the parties. After a man’s land is sold for the payment of his debts, he is looked upon in the light of a tenant at sufferance, a mere occupant, unless he is able to shew that for some cause or other the sheriff’s sale did not pass his estate ; and the purchaser who has the sheriff’s deed is looked upon as the owner of the estate, as one who acquires not a mere right, but an estate in possession, which he can sell and dispose of by an ordinary deed without the formality of making an actual entry, as upon one who had committed an abatement, or disseisin, or an intrusion.

The other points need not be discussed ; in fact, they are given up.

Pee CuRiAM, Judgment affirmed.