#### DEN ON DEMISE OF JOHN C. BARNES *vs.*SPENCER M. MEEDS.

Where one purchases land at an execution sale at a great sacrifice, in consequence of a fraudulent combination between him. and the sheriff whs conducted the sale, as, by reason of this fraud, he obtained no title, so a *tones fide*purchaser from him, without notice of the fraud and for a valuable consideration, will likewise obtain no title.

Appeal from the Superior Court of Law of Pasquotank County, at the,Spring Term, 1848, his Honor Judge Settle presiding.

The premises mentioned in the declaration were sold by the Sheriff of Pasquotank, under a *fieri facias*against the present defendant, and were bid off by John J. Grandy, ■who took the Sheriff’s deed and recovered them in an action of ejectment against one Morris, who was at that time in possession under Meeds. The Sheriff went to the premises to execute the writ of possession, and, finding Meeds again in possession, he put him out, and delivered the possession to Grandy’s agent. Meeds then applied to the agent to allow him to stay there a short time, until he could get another place : and the agent assented, and the defendant returned into possession. Soon afterwards Grandy conveyed the premises to the lessor of the plaintiff; and he demanded possession from the defendant, and, upon his refusal, brought this suit.

In answer to the foregoing case, the defendant called as a witness the former Sheriff of Pasquotank, at whose sale Grandy purchased. He deposed that he levied the execution on two tracts of land, about half a mile apart, ©n one of which Meeds resided ; and that,.after due ad*293vertisement, he offered them separately for sale at the place of Meed’s residence, (under a Private Act for that County,) and Grandy became the purchaser of each at fifty cents, The witness further deposed, that the day of sale was very rainy, and that Meeds was from home, and no other person was present but Grandy and himself. And the witness further deposed, that he, the witness, and Grandy and some other persons were bound as sureties for Meeds for other debts, (not in execution,) and that it was their object to make Meeds’ property pay his debts, and it had been agreed, if it could not be sold under execution for its value and Grandy should become the purchaser, that he should re-sell it, and, if an advanced price could be got, it should be applied to the debts for which he, the Sheriff, Grandy, and the other persons were bound for Meeds.

The counsel for the defendant moved the Court to instruct the jury, that, if they believed that Grandy and the Sheriff combined to make a sale of the defendant’s land, so that Grandy could purchase at a great sacrifice, then the pretended purchase of Grandy was void, and the plaintiff could not recover. The Court refused to give the instruction ; and, on the contrary, directed the jury, that, if those persons did combine to sacrifice the land, it would not affect the right of the plaintiff in this action, if they believed the lessor of the plaintiff was not a party to the combination and had no notice of it, and was a *bona fide*purchaser for a valuable consideration. The jury found for the plaintiff, and he had judgment; and the defendant appealed,

*Iredell,*for the plaintiff.

*Heath,*for the defendant.

Ruffin, C. J.

There was no evidence of any price given by the lessor of the plaintiff to Grandy; much *294less, that it was a fair one, so as to make him a meritorious purchaser for a valuable consideration. It is error to leave it to the jury to find a fact, without any evidence tending to establish it; and therefore the judgment would be reversed, if the other and more important part of the instruction were right.

But the Court holds the residue of the instruction to be also- erroneous. The testimony of the Sheriff raised a strong suspicion of an illegal conspiracy and injurious practice between him and Grandy, to get the title of the defendant’s property vested in Grandy at a great undervalue, for their joint benefit, and to the prejudice of both the creditor and the debtor ,in the execution. Without leaving the inquiry of fact to the jury, but assuming it to be as alleged by the defendant, and impliedly admitting, that, by reason of the conspiracy and the low price of the land, Grandy got no title by his purchase, his Honor nevertheless held, that Grandy’s conveyance to the lessor of the plaintiff gave him a good title, if the latter had no notice of the fraud and paid a fair price. That seems to be against first principles ; for he, who has no title, can convey none. A bad title is not made good by the ignorance of the purchaser of its defects, or his want of knowledge of the better title, A purchase of the legal title for value, and without notice of an equity, may prevent the purchaser from being held to be a trustee. But in respect of legal estates the rule is, *caveat eviptor;*for the better title never can be destroyed by another’s want of knowledge of it.

An attempt was made, in the argument, to assimilate this to a purchase from a fraudulent grantee under *St.*27 *Eliz.*But the cases are not of the same kind. They áre, indeed, opposed to each other. The owner of the land, fraudulently sold, was not a party to the fraud, but the victim of it. Consequently he may aver the fraud and avoid the deed. But a fraudulent grantor is a party to the fraud, and he and all others are bound by his deed *295except subsequent purchasers from him. It has been held also that a purchaser from the fraudulent grantee shall hold; because the object of the act is to protect purchasers, and therefore it enures to the benefit of a purchaser from either the grantor or the grantee, provided he be the first purchaser. For the fraudulent grantee has a title, and consequently can convey; and in so doing he wrongs no one, there being then no second purchaser from the grantor. To make a case under the statute at all like the present, it should appear, that, after a conveyance by the grantor to a second purchaser, a vendor of the first fraudulent grantee would have a good title, merely because he was ignorant of the fraud in his vendor’s title and of the second conveyance of the original fraudulent grantor. But there is no such decision, and cannot be ; for it would be absurd to suppose, that, after a good title had been derived from either the fraudulent grantor or grantee, the other could in any manner make a good title to a third person. The doctrine laid down at the trial derives,then,no support from the rule respecting conveyances by fraudulent grantees; and it is in itself erroneous in affirming that one, who, bj’’ reason of his fraud on the owner, gets no title by the Sheriff’s deed, may yet convey a good legal title to another. This defect of title is like all others and must be attended by the like consequences. If for example, the Sheriff had no valid execution or conveyed without having made a public sale, his alienee would take nothing by the deed, and consequently he could convey no title. So it is in any other instance, in which one person undertakes to convey land, which belongs to another : the grantee gets nothing, and the title of the true owner continues.

Pint CuRiam. Judgment reversed and *venire de novo.*