#### C. C. WADE and NOAH SMITHERMAN v. AARON SANDERS and others.

A purchaser at a Sheriffs sale, as against the defendant in the execution who withholds possession, is entitled to recover as of course; and the debtor cannot justify his act of refusing to give up the possession on the ground of the title’s being in a third person.

This is the same as the preceding case, in which the facts are fully stated. In the preceding, the appeal of the defendants is considered; this comes up upon the appeal of the plaintiffs.

*Battle ds Son,*for-appellants.

*Pemberton*and *Weill McKay,*eontra.

PeáRSON, C. J.

*Appeal by plaintiffs.*An action 'is instituted by a purchaser at Sheriff’s sale, against the defendant in the execution, to recover posession of the land and damages for withholding it. The right of the plaintiff, to have judgment, as a *matter of course,*had been long settled by the cases in this State. But notwithstanding this well established principle, the counsel of the defendant offered to read in evidence *a deed by which the debtor purported to convey the land to his *son Jesse A.*Sanders, prior to the sale made by the sheriff!

His Honor instead of rejecting the evidence and directing a verdict for the plaintiffs, as a matter of course, complicates the case, by a *suggestion,*that if the son was made a party the evidence would be admitted ; thereupon Jesse A. Sanders 'is made a party defendant, this was objected to on the part of the plaintiffs, but was allowed by his Honor, on what is, 'in the opinion of this Court, a misconception of the true meaning and purpose of sec. 61, C. C. P., to which he mates reference.

We can see nothing in that section which leads to the conclusion, that it means to expunge the well settled rule of our Courts “ a purchaser at sheriffs sale, *as against the defendant hi the execution who withholds possession*is entitled to recover *278
      *as of course,*and the debtor cannot justify bis act of refusing to give up the possession, on the ground of title in a third person.”'

It is true, the wording of this section is very broad, “ any person may be made a defeudent, who claims *om interest in the controversy,*adverse to the plaintiff.” We are of opinion his Honor erred in supposing these words to mean “ any person who claims an interest in *the thing*which is the subject of controversy. This distinction makes all the difference in the world, for *the controversy*between the plaintiffs and the original defendants Noah Sanders and his tenant Morton, was in regard to the posession of the land, and any claim which Jesse Sanders set up to the laud, was outside of this controversy, and could not in manner be effected by tTio judgment in this, case, under the maxim *lires inter alias acta.”*So, Jesse Sanders had no concern with this controversy, as constituted by the summons and complaint, and making him a defendant, resulted in a complication, not necessary for the determination of the controversy involved by the case as at first constituted. Had the complaint, used demanding judgment, for the possession of the land and damages for withholding it;, also, demanded judgment, that the deed by the debtor Aaron, to his son Jesse should be cancelled on the ground of its being a# cloud upon the title of the plaintiffs, then Jesse would have had an interest in the controversy and would have been a necessary party, but, as the action was on tlie part of a purchaser at sherihs sale against the defendant in the execution, to recover possession of the land, the construction of his Honor, on 61 section C. C. P„, that any outsider may be made a party defendant, and by force of his alleged claim of title, change the controversy made by the action, into another controversy, in regard to the *tona fieles*of a deed — is a latitude of construction for which we find no warrant in the books. The other clauses of sec, 61, are mere corrallarys of the first clause, and show our construction to he right, and the only one that can be made at all consistent with the due administration of justice.

*279The verdict, convicting Jesse A. Sanders of fraud, píos a *il*quietus” on him; and as might have been supposed on 'my person deriving title under him, but his Honor still leaningon sec. 61, C. C. P., refuses to give the plaintiffs judgment, except for the part of the land not conveyed by two deeds of Jesse to Romulus Sanders. That is one question.

We do no not concur in the ruling of his Honor, but we approve of his fairness, in stating the case so as to give the plaintiffs, a “status” or “stand point” upon which to *move*to modify the judgment.

We have not been able to perceive the *force*of his Honor’s reasoning in regard to the legal effect, of the two deeds, of Jesse to Romulus Sanders — or how the legal effect .of the d-'eds could he at all affected by the fact that the “ existence of this *prima facie*title, had been brought to the notice *of*the *Court*by the plaintiffs themselves.” Had the plaintiffs demanded judgment, that these two deeds be cancelled in order to remove a cloud from the title — then Romulus F. Sanders would have been a necessary party, and although the deed *from*Aaron to Jesse was deemed void still Romulus would be allowed to protect his title, by showing that he was a *bona fide*purchasin’, for valuable consideration, without notice of the fraud that vitiates the deed to Jesse, but the *onus probandi*would have been on him, and *prima facie*his title would be affected by the same infirmity. It is sufficient however to say, no such judgment was demanded, and the existence of these two deeds, whether brought to the notice of the Court, by the plaintiffs or in any other mode, cannot, have the legal effect to deprive the plaintiffs of their right to demand *judgment for the possession*of all of the land, leaving to Romulus the privilege of asserting his title, hereafter, uneffected by the judgment in this case.

The judgment will be modified so that the plaintiffs may have posession of all i-f the land embraced by the sheriff’s deed, and the plaintiff'will have judgment for costs.

Pee CukiaM. Judgment accordingly.