#### Doe on the demise of PHAROAH RICHARDSON v. YOUNG N. THORNTON.

Where a. purchaser, under execution, takes immediate possession after the sale, there is no reason why the sheriff’s deed, afterwards made him, should not relate to the time of the sale, so as to annex the title to the possession as against any transfer subsequent to the sale.

The obligee in a bond to make title-to land, who. goes into possession under-a parol agreement,, that he is to. occupy the premises till the money become-due, is but a tenant at will to the obligor, and* cannot maintain- ejectment or trespass against the latter, or. one taking title from him.

This was an action of ejectment, tried1 before SauNders, J.,„ at the last Spring Term of Johnston Superior Court.

Eolh parties admitted that the title to-the premises was fa *459one Calvin Simpkins. On the 27th of January, 1855, be entered into a contract, in writing, to convey the same to one Richard Hamlet, on the payment of the’ last of five certain bonds of $600 each, given for the purchase-money, which would fall due on the 1st of January, 1860. It was verbally agreed between the parties that Hamlet should immediately take possession and have the occupation of the premises on the execution of the bonds for the price: He did áccordingly take possession and remained therein, carrying on the business of hotel-keeping for fourteen months, when he leased the premises back to Simpkins for the residue of the yea® 1856.

Sometime in August, 1856, the property was sold by virtue-of a judgment and execution against Simpkins and purchased by the defendant, Thornton, who was then in possession of it as the servant of Simpkins. Thornton, from this time, carried on the business in his own name-, Simpkins also remaining on the premises. On 28 th of August, 185T, Thornton took a deed from the sheriff, and continued such occupation until this suit was brought in September, 1857. Simpkins.left in April, 1857.

On 16th of February, 1857, Ilamlet, for value, assigned to the lessor of the plaintiff all his right, title, claim, and interest in and to the said bond. And it was contended- that the defendant having entered into the premises a-s a servant under Hamlet’s lessee, Simpkins, he was estopped to- deny the title of the landlord to which he succeeded.

It was contended by the* defendant that Richardson got nothing by his purchase in February, 185-7, for that defendant’s title and possession went back to- August, 1856, the time he purchased the property. On tins state of facts, which was agreed, it was submitted to the judgment of his Honor, whether the plaintiff was entitled to recover. He decided against the plaintiff, whereupon he took a nonsuit and- appealed.

B. F. Moore, for the- plaintiff.'

Miller, Dortch and G. W. Maywood, for the defendant.

*460Battle, J.

It has long been a settled rule that a deed executed by a sheriff for land, sold by him under execution, relates to the time of the sale, and operates from that time against any subsequent transfer, whether made by the party himself or by the sheriff under an execution of a later teste against the party; Dobson v. Murphy, 1 Dev. and Bat. Rep. 586; Festerman v. Poe, 2 Dev. and Bat. Rep. 103. It cannot, indeed, so operate as to support an action of ejectment, or of trespass quare clausum fregit commenced before the purchaser, who is not in possession, was taken his deed from the sheriff; Davis v. Evans, 5 Ire. Rep. 525; Presnell v. Ramsour, 8 Ire. Rep. 505. But where the purchaser, under execution, takes possession immediately after the sale, we can perceive no reason why the sheriff’s deed, afterwards made to him, should .not relate to the time of the sale, so as to annex the title to his possession from the time as against any transfer subsequent to such sale.

Seeing the strength of this position, the lessor of the plaintiff has sought to assail it, bj' contending that Hamlet, to whose rights under the contract of purchase from Simpkins he suceeded, acquired the possession of the land as a lessee by a parol agreement with the latter, until the time when the last bond, for the purchase-money, should be paid, which possession he had the right to regain from the defendant in the present action. To this, the counsel for the defendant, makes the unanswerable reply, that whatever may have been the equitable rights of Hamlet, or of the plaintiff’s lessor as his assignee, each was, in law, but the tenant at will of the vendor, Simpkins, and as such, could not maintain ejectment against bimor against the present defendant, who became invested with all his legal rights by his purchase under an execution against him; Love v. Gates, 1 Ire. Rep. 152. The idea that Hamlet, by parol agreement with Simpkins, became more than a tenant at will, to wit, a tenant for five years from 1855, when his contract of purchase was made, until 1860, when the last bond of the purchase-money became due, cansaot prevail, because such contract, if made, was void and of *461no effect, under the statute of frauds, Bevised Code, chapter 50, section 11.

Concurring in the opinion given by his Honor in the Court below, that the action cannot be maintained, we must direct-the j udgment of nonsuit to be affirmed.

Pee CueiaM,

Judgment affirmed.