#### GILBERT PRESNELL *vs.*JACOB RAMSOUR.

Where a man, who purchases land at an execution sale, enters upon the premises, the original owner being in possession, he cannot justify this trespass, on the mere ground that he was the purchaser at the sale, when he had not received the sheriff’s deed till after the time of the alleged trespass.

The sheriff’s deed has relation back to the time of the sale, as to the title, but not as to the action of trespass founded on possession.

The cases of *McMillan*v. *Hajley,*2 Car. L. R. 89, *Davis*v. *Evans, 5*Ire. 525, *Davidson*v. *Frew,*3 Dev. 3, *Picket v. Picket,*3 Dev. 6, and *Dobson*v. *Murphey,*1 Dev. & Bat. 586, cited and approved.

Appeal • from the Superior Court of Law of Lincoln County, at the Fall Term, 1847, his Honor Judge Pearson presiding.

This was an action of trespass *quare clausum fregit,*commenced in the County Court of Lincoln, at the December Term, 1846 of which the defendant appeared and pleaded not guilty ; and afterwards, upon the trial of the *506issue, the defendant obtained a verdict and judgment, and the plaintiff appealed to the Superior Court. In that Court the case came on for trial, at the Fall Term 1847, when the plaintiff proved, that in August 1846, he was in possession of a house and a lot, into the latter of which the defendant entered, drove out the plaintiff’s stock and fastened up the gate.

“The defendant then introduced testimony on his part to show, that the house and lot once belonged to a man named Moornean against whom a judgment was obtained, and, upon an execution ¡issuing thereon, the sheriff sold the house and lot in June 1846, when the defendant became the purchaser, but did not take a deed from the sheriff until July 1847.

The defendant contended that the title to the house and lot passed to him by the sheriff’s sale, in June 1846, and the deed was a mere authentication of the fact, but that at all events, the deed, executed in July 1847, related back to the sale, so as to enable him to justify the trespass. A verdict was taken for the plaintiff, subject to the opinion of the Court, upon the question, as to the effect of the sheriff’s sale, and relation of the deed. The Court being of opinion, in favor of the plaintiff, upon the question, gave judgment on verdict, and the defendan t appealed.

*Guión,*for the plaintiff.

*Thompson,*for the defendant.

Battle, J.

The opinion given by the Judge in the Court below is fully sustained by the cases *McMillan*v. *Hafley, 2*Cr. L. Rp. 89 and *Davis*v. Evans, 5 Ire. Rp. *525,*cited by the plaintiff’s counsel. In the first of these cases, the defendant claimed from the defendant in the execution, under which the plaintiff purchased, and committed the trespass complained of, between the time of the sheriff’s sale and his execution of a deed to the plaintiff. The Court held, *507that as the plaintiff was not in actual possession and had no title in law, at the time of the commission oí the trespass, he could not be considered as having a constructive possession, and consequently could not maintain the action. It is true that the correctness of this decision was doubted by Hbxdekson, Chief Justice, in *Davidson*v. *Frew,*3 Dev. Rep. 3, but he expressly declined to overrule it. The cases of *Davidson*v. *Frew, Picket*v. *Picket,*3 Dev. Rep. 6 and *Dobson*v. *Murphy,*1 Dev. and Bat. Rep. 586, referred to and relied upon by the defendant’s counsel, all shew that a sheriff’s deed,awhen fairly executed at any time after the sale, has relation to it and operates to pass the title from that time. But in neither of them is it held, that this relation will have the effect of giving the purchaser such a constructive possession, as will enable him to maintain the action of trespass for an act committed before he has taken actual possession, or obtained a deed. And we may infer from the case of *Davis*v. *Evans,*5 Ired. Rep, 529, that such relation would certainly not be allowed to sustain an action com-, menced before the deed was executed. In that case, which was an action of ejectment, it was said expressly, that “ whatever relation to the time of the sale a conveyance.from the sheriff may have for some purposes, it cannot be carried to the unreasonable extreme of proving the title in an action, that was brought before the deed was executed.”

If that be so in the action of ejectment which is founded on title, it is certainly so in the action of trespass, which is founded on possession; and the same principle will apply *e converso,*when the purchaser is sued for a trespass and pleads not guilty or *liberum tenementum,*before he has taken the deed. It cannot have the effect to put him into constructive possession, by relation, so as to enable him to support his plea. The judgment must be affirmed.

Pbr Curiam. Judgment affirmed.