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Lessee of Boyd v. Longworth.

Without reference further, we suppose the purchaser's rights to the property commenced with the day of sale, and the deed relates, when executed, back to that period. He is entitled to rents 245] from that period, and bound for all assessments for *public purposes, accruing thereon after that time; and from that period the property will be bound for his debts.

It is manifest there can be but one subsisting legal estate in fee simple, and that there can be but one available legal title thereto. It is also equally manifest that this legal available title must vest in some person, natural or artificial, and can not be in nubibus, nor in abeyance. It must rest somewhere. If we find it in one, and then in another, there must be some precise time of its transition. Some period when the property ceases to be legal estate of the one, and becomes that of the other. Some period when the legal title is in the one, and then in the other. In this instance there is a precise point at which the legal title passed from the judgment debtor to the purchaser on the execution. That point is at the delivery of the deed by the sheriff, or at the day of sale. If at the delivery of the deed, then the lands, after sale, and before the delivery of the deed, would be subject to levy, as the property of the judgment debtor, and the surplus of the sale would, if any, be applicable thereto; whereas, the money in the bands of the sheriff would not be, if the title passed, at this point in the judicial proceedings, by relation. 1 Ohio, 275. In case of reversal, the law, as we have seen, restores the purchase money with interest from the day of sale. If that be so, the emblements from that time belong to the purchaser. The pernancy of the rents must be his, because it would be against reason and justice to permit the judgment debtor to enjoy the estate lawfully up to the delivery of the deed by the sheriff, and, upon reversal, to recover interest on the sale while he is in the enjoyment of the thing sold. Il, in such a case, the interest on the sale money would be bis from the day of sale, the rents or profits of the estate sold should not be, and must pass to the purchaser.

In this view of the case the deed to Morgan, of March 3, 1835, operated back, so as to vest him with the title at the time of the sale; if not, it did not vest till the day of the delivery. If it operated back to the day of sale, then it inures to give title 246] to the plaintiff, and we are thrown upon the *defensive. If

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Lessee of Boyd v. Longworth.

it did not, then the plaintiff makes no title under it, and has established no claim to the judgment of the court.

3. We bave said that if the deed of March 3, 1835, relates back so as to pass the title on the day of sale, the plaintiff makes a case for relief unless we can show a better title; and this brings us to our third position, which is, that if the deed of March 3, 1835, or that of October 4, 1825, immaterial which, relate back to the day of sale, then the deed of March 9, 1825, under which we claim, divested Morgan of all title, and he had no estate to convey, by the deed, to the lessor of the plaintiff, in February, 1835. The deed executed by the sheriff, or by the party through the sheriff, has the same force as if executed by himself. 9 Ohio, 186; 15 Wend. 596. Morgan is the common source of title to both parties, and it is not competent for either party to deny his right. 5 Ohio, 107. Indeed they can not, because their right depend upon it. If, then, both parties are precluded from denying Morgan's title, and the sheriff's deed, under which we claim, has tho same operation it would have if executed by Morgan himself, the whole matter is settled by the priority of our deed over that of the lessor of the plaintiff. If, then, the deed of March 3, 1835, operates to pass the title as of the day of sale, it inures to confirm our title, and we are entitled to judgment, because we have the senior, and therefore better title.

4. Here, probably, it might be sufficient for us to rest. But there is another view of this case, to which we will now direct the attention of the court. It will be perceived that when the levy was made, under which we claim title, Morgan was in possession under bis purchase at sheriff's sale, with a deed in confirmation thereof, though detective, for the reasons above assigned, and that he so continued in possession until after che sale to Schooley, on November 19, 1824. We claim that this possession alone constituted an interest in Morgan, which was subject to levy and sale; and when the sheriff's deed emanated, in 1835, or the coroner's, in 1825, it ir ured, also, to the purchaser at sheriff's sale, Morgan, against *the purchaser, could not assert title; he could not [2:47 set up title in another, nor could any one, claiming title under him. 10 Obio, 70, 403; 2 Ib, 221; 5 Ib. 55; 7 Ib. 228; 8 Ib. 23; 4 Cow. 601; 18 Johns. 94; 15 Wend. 593; Wright, 117.

We grant that a mere equity in lands can not be sold on an execution at law; but if it be connected with the possession, as to

Lessee of Boyd v. Longworth.

reason.

all the world, except the holder of the paper legal title, the equity is merged or drowned by the legal title growing out of the possession, and, in legal contemplation, has no existence, Courts of law look alone to the legal right. Possession is evidence of legal title. It is, in fact, a legal title. 7 Johns. 206 ; 18 Johns. 94; 1 Ohio, 314, 257, 281 ; 2 Ohio, 244 ; 10 Ohio, 70, 403. It is transmitted by descent. 1 Marsh. 4, 62; 2 Marsh. 620; Wrigbt, 216; 5 Ohio, 198; 3 Cond. Pet. 216, 570; 3 Wash. C. C. 475; 4 Des. 562; and may pass by grant or will. It is true that it is the lowest grade of legal title, but it is impregnable to the holder, except against the paper title, and in the run of time will drown it. Possession, under a contract executed, is a defense against the vendor in ejectment. 14 Wend. 227; 9 Obio, 249. Why? Because the possessor has the better legal title. He is no trespasser. He is in lawfully, and must be in default before he can be diepossessed. He never can be evicted, unless he is a wrong-doer in legal contemplation. So, a decree against the holder of the legal paper title, barred by possession, is inoperative for the same

10 Ohio, 69; 5 Ohio, 194. Possession gives title, and it becomes so strong by time and age, that nothing can overcome it. So, also, an adversary possessory title that bars a legal paper title, bars all equities connected with, and springing out of, the legal paper title that is overcome by it. 10 Ohio, 104, 26; 9 Pet. 413; 2 Merv. 356; 2 Sch. & Lef. 628, 630, 636; 3 Serg. & Rawle, 310; 3 Johns. Ch. 216, 217; ? Cond. Eng. Ch. 188; 7 Johns. Ch. 126. This shows the power and strength of a mere possessory right 248] from its very inception. *It is strong in fact and in law. But one right can overcome it. All others fall before it.

I have said that a court of law looks alone to the legal rights of the parties, and can take no notice of matters in equity; when it finds a party in possession of land, it holds him to be there by right. If he be there under a contract executed, he has the legal title against all the world, except the vendor; who can not evict him, nor transfer the legal title to another who can, because his possession is notice to the world that he is in lawfully. 5 Johns. Ch. 29; 4 Johns. Ch. 47; 3 Paige, 421; 3 Pick. 149; 6 Paige, 387.

His equitable title under the contract has become united to his legal possessory title, and except for the single purpose, if tho contract be executory, of securing the vendor's lien, the equitable title has become merged in the legal title.

Lessee of Bord v. Longworth.

Whenever a greater and a less estate unite in the same person, the latter merges or sinks into the former; and whenever an equitable and legal title meet, immaterial what may be the grade of the latter, in one person, in the same right, the former merges. It is true, in both cases, that equity prevents the merger, and preserves the estates distinct, for special purposes; but, other. wise, the merger takes place, and the distinction is lost. 3 Johns. Ch. 56; 6 Johns. Ch. 393, 417; 5 Jobns. Ch. 35, 214; 2 Thomas' Coke, 556, 557, dote K; 2 Atk. 67; 9 Ves. Jr. 509; 3 Ves. Jr. 126, 339.

No man can be a trustee for himself. Take the case in its strongest aspect, and the principle seems to me to be tested. A. sells to B. a tract of land, receives payment in full, gives him a title bond, and puts him in possession. The legal paper title is in A., but the possession is in B. For whose use does B. hold the land ? He does not hold it for A., because he has parted with his right to the possession and to the usufruct, as well as emblements. B., then, if he bolds to a use, must have a cestui que trust for whom the use exists. If there be no cestui que trust, or use, there is no use as independent of the possession, and B. holds in his own right. It then follows that there *is no independ- (249 ont equity, and a transfer of the possessory right must pass with it all equities connected with, or growing out of it, or upon which it is based.

Take a very familiar caso. A mortgagor is in possession, and condition broken. Against the mortgagee he has a mere equity, and against everybody else he has the legal title. While in possession, the land may be sold on execution as his, because of his possession ; but if the mortgagee has possession, then it can not be sold, because he has a mere equity. If it be sold while be is in possession, and the mortgage debt paid, the title of the purchaser is perfect. If the mortgageo buy the land, the mortgage merges, and the legal title prevails. If the land be sold on execution afterward, as the property of the mortgagee, he can not set up the mortgage.

6 Johns. Ch. 417. Now upon what basis does all this rest? It is upon the merger of the equitable into the legal title when they unite in the same person.

No man can be a trustee for himself, nor can he be a creditor or debtor to himself. Whenever therefore, an equitable title unites in him with a legal title, so far as he is concerned, and so far as the whole world is concerned, except he who is interested in preserving the estates distinct, the former is

Lessee of Boyd v. Longworth.

gone, and he is held and treated as the legal owner of the estate. The law considers him in his best position, and as holding the estate in the manner and under the title conducing to his highest interest. The law always places a man “with his right foot foremost.”

In 10 Ohio, 404, this court seem to consider this was a question of the gravest character, and incumbered with great difficulties." It may, therefore, be excusable in me to prosecute the inquiry somewhat further. The difficulty in the case seems to be, to determine in what way the purchaser under the execution is to be substituted to the rights of the vendee under the contract. He is substituted, I think, by the operation of the law working necessarily upon the case, as it does in all cases when it acts coercively. Suppose the vendee, after his purchase by deed, conveys the land without any reference to the contract, then it is clear, I apprehend, the pur250] chaser *is substituted to his rights, and can compel a deed to him from the vendor, and the vendor may convey to him in affirmance of the contract without danger to or from the vendee. If, in such a state of case, the vendee should take a deed from the vendor, after his sale and conveyance, he would be estopped by Lis deed. He would not be permitted to say that he had no title, and in accordance with one of the positions above assumed, his deed would relate back to the date of his contract, so as to protect the intermediate purchaser.

Such, then, would be the result where the vendee, in or out of possession, sells. We bave seen that a judicial sale is as operative as a voluntary sale by the party. 15 Wend. 596; 9 Ohio, 186. But a judicial sale can only take place where the vendee is in possession. It passes to the purcbaser of the property sold (8 Ohio, 21), to hold at law as the vendee or judgment debtor held it. 5 Ohio, 55; 9 Ohio, 186. That is the operation of a voluntary deed, and if a deed under a judicial sale is to have the like operation with a voluntary deed, the purchaser under the one should in all respects occupy as good a position in the law as the purchaser under the other, and should in the like manner receive the same protection. If, then, the vendee would be estopped by his deed, he must be by the judicial deed. Why? Because the deeds in both cases pass the property and his legal right to the property, and that drowns and swallows up all his equities thereto. The possession gave a legal title. The acquisition of the legal paper title goes to confirm

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