#### DOE ON THE DEMISE OF JOSEPH, JAMES AND W. R. FEIMSTER v. THOMAS McRORIE.

Where both parties in an action of ejectment claim under the same person, neither can deny the title of him under whom they both claim.

This rule is not excluded because one of the parties claims by sheriff’s deed.

(Gilliam v. Bird, 8 He. 3G3; Murphy v. Barnett, 2 Murp. 251; S. C. Car. L. Hep. 105 ; Love v. Gates, 4 Dev. and Bat. 353 ; Copeland v. Sauls, ante. 70 ; « Johnson v. Watts, ante. 22S, cited.)

*548ACTION of Ejectment, tried before his Honor Judge Settle, at Spring Term, 1854, of Iredell Superior Court.

The plaintiff’s declaration contained two counts, one on the demise of Joseph James, and the other on the demise of Win. R. Feimster, each of which counts alleged the demise of two tracts of land, the one of one hundred and thirty-five acres, and the other of fifty-one acres. A deed in trust for the land in question, from James K. Feimster to W. R. Feimster, one of the lessors of the plaintiff, was offered in evidence, in behalf of the plaintiff, dated 17th of February, 1849. The plaintiff further offered in evidence a sheriff’s deedfor the same land, dated in August 1849, conveying the interest of James K. Feimster to the defendant, and showed that, at the time of bringing this action, the defendant was in possession.

The defendant assailed the deed in trust, as being fraudulent and void as to the creditors of the bargainor. He showed that he had obtained a judgment for a debt which J. K. Feimster owed him, at the date of the deed in trust; a levy, which was, however, after the date of the trust; a regular order of sale; a *venditioni exponas,*and a sale to himself.

To show that some of the debts mentioned in the deed in trust were fairly due and owing, a deed was produced in behalf of the plaintiff, from Joseph James, one of the lessors of the plaintiff, to J. K. Feimster, for the larger tract of land, and was offered for no other purpose. This deed, for the want of the words necessary to create ■ a larger estate, conveyed but a life estate to the bargainee, and it was admitted that, before the suit was begun, he was dead.

It was Insisted in behalf of the plaintiff, that the defendant, having taken the sheriff’s deed for the land in question, as the property of J. K. Feimster, and showing no other title to it, he was estopped to deny it in this action.

For the defendant, it was contended, that the deed from James to J. K. Feimster, which had been put in by the plaintiff, showed the title out of the lessor of plaintiff, Wm. R. Feimster, the bargainor’s life estate having ended before the deed in trust *549was made. And he further contended, that, as to the other lessor, James, he must trace his title back, and show it out of the State.

His Honor reserved the question, whether the deed from J ames to J. K. Feimster was entitled to have the effect in law contended for by the defendant.

The other points in the case were disposed of without exception.

The jury, under the instruction of the Court, found a verdict for the plaintiff, and afterwards, his Honor, upon consideration of the point reserve d, being of opinion with the plaintiff, gave judgment for him accordingly, and the defendant appealed to this Court.

Guión, for the plaintiff.

*Boyden*and Mitchell, for the defendant.

Battle, J.

We understand the defendant’s counsel to admit the general rule, that, when parties in an action of ejectment claim under the same person, neither can deny the title of him under whom they both claim. But they contend, 1st. That the rule does not extend to a defendant who claims as a purchaser at sheriff’s sale; and, 2dly. That at least it does not apply where the plaintiff’s lessor shows, himself, that the title is in a third person. We are not aware of any principle upon which the first objection can be sustained, and it is directly opposed by the case of Gilliam v. Bird, 8 Ired. Rep. 280, where the defendant claimed from a purchaser at sheriff’s sale, and yet it was not pretended that the rule was excluded on that account.

The second objection is equally unsustained by principle and opposed by authority. In Murphy v. Barnett, 2 Murp. Rep. 251, (S. C. 1 Car. Law. Rep. 105,) which is the first reported case in which the doctrine was judicially settled, this very objection was raised and overruled. The subject has been so often discussed in several recent cases, that it is unnecessary for us to add anything more than the following extract from the *550opinion in Johnson v. Watts, decided at the last December Term, in Raleigh, and reported, ante. 228. That case is very much like this, so far as'the objection under consideration is concerned, and it needs only the change of names to make the extract fit the case now before us: “ The defendant, in a case like the present, can defend himself only by showing that ho has a better title in himself than that of the plaintiff's lessor, derived either from the person under whom they both claim, or from some other person who had such better title. Love v. Gates, 4 Dev. and Bat. 363, and Copeland v. Sauls, decided at the present term, (ante. 70.) It is not a case strictly of estoppel, but one founded in justice and convenience. Nor is the present a case of landlord and tenant, as the defendant’s counsel has contended, where the landlord’s title has expired, but depends upon the just and convenient principle above stated. As both parties derived title under William Mackey, who was once in possession claiming the fee, neither is at liberty to show that such title is not a good and subsisting one. Unless the defendant can show that he has in himself the outstanding title of Cherry’s heirs, the lessor of the plaintiff must recover.” (See also Thomas v. Kelly, decided at last term at Raleigh, and not yet reported, ante. 375.) Here the defendant has offered no such proof, and the judgment in favor of the plaintiff must be affirmed.

Pee. Cueiam. Judgment affirmed. »