#### Doe on the demise of WILSON BROWN v. CALVIN E. SMITH.

Where land has been sold as the property of A, under execution, and he has received a portion of the sum raised, which was over and above the call of the execution, he cannot be a witness for the purchaser in an action for the recovery of the land.

Where both parties in an action of ejectment claim title under the same person, the defendant cannot defeat the action by showing title in a third person, unless he has acquired such outstanding title, or connects himself with it.

This was an action of ejectment, tried before Howard, J., at tlie last Term of Orange Superior Court.

The lessor claimed title under a deed from the sheriff, executed on 28th of October, 1858, by virtue of a sale under execution and judgment against one Turner, for a debt contracted by him in January, 1854. He then showed a deed for the same land, executed by Turner to the defendant, Smith, dated September, 1854, and then showed, by Turner, that the money, recited in such deed, as having been received by him, had, in fact, not been paid; that no money oí *332other thing of value had been given to him, by Smith, for the land in question ; that the deed had really been executed in August, 1855, during the session of Orange County Court, and was antedated in order to defeat a judgment (in a bastardy case) that was rendered in that Court on the day before. The defendant excepted to the competency of Turner, but the exception was over-ruled.

To prove title out of Turner at the date of the judgment and execution, under which the plaintiff claimed, the defendant showed that at a sale, under the judgment in the bastardy case, the land, in question, had been bought by one Miller, and a deed executed to him on the 26th of July, 1856 ; that at such sale the land brought more money than was necessary to satisfy the execution, and the overplus was paid by Miller to Turner, who gave a receipt for the money.

In reply to this, the plaintiff proved that Miller, at the sale above mentioned, had acted as the sheriff’s deputy, and had employed one McCauley to buy the land for him; that Mc-Cauley bid off the land accordingly, and assigned the bid to-Miller.

Elis Honor charged the jury, that the sale and purchase by Miller was, for the purpose of this action, a nullity, and that the admitted good character of Smith was not to be considered by them. Defendant excepted.

Yerdict and judgment for plaintiff. Appeal by defendant..

JPhiXUps, for the plaintiff.

Norwood,, for the defendant.

Pearson, C. J.

The exception to the competency of Turner as a witness on the side of the plaintiff, is well taken. The witness had a direct interest to support the title of Brown, because of his liability to him, in the event of his losing the-land by the provision of the statute, Revised Code, chap. 45, section 27. It does not appear from the case, as made out, that the deed of Turner to Smith, contained a warranty, and in the transfer of land, a warranty is-not implied; consequent*333ly, there was no corresponding liability of the witness to Smith, so as to bring the question within the rule of a witness having an interest on both sides. Eor this error, there will be a venire de novo, and we are not at liberty to enter upon the question, discussed at the bar, and on which the case seems to have turned, on the trial, in the Court below.

"We will suggest, however, that there seems to be nothing to prevent the application of the principle, that when both parties claim title under the same person, the defendant cannot defend an action by showing title in a third person, unless he has acquired such outstanding title, or connects himself with it. This suggestion seems called for to prevent a repetition of what has occurred at this term — a point is fully argued, and upon examination, the Court finds that is excluded by a preliminary matter.

Per Curiam,

Judgment reversed.