Blackford, J.
There are two errors assigned for the reversal of this judgment; first, the refusal of the Court to instruct the jury as required; secondly, the omission in the judgment respecting the term. The declaration contains three several demises to the plaintiff below: one from Bingham; one from Johnson; and one from Wyatt and Howk. If any of these lessors had a right to make the lease at the date of his demise, and had a right of entry at the time this action was commenced, the plaintiff was entitled to recover; and the Court was right in [129] refusing to instruct the jury to find for the defendant. The premises in dispute were, in 1809, by general warranty deed, and for a valuable consideration, conveyed to Bingham, one of the lessors, by James Lemon, who was then in actual possession, and whose title is on all hands admitted. We are not informed who actually occupied the premises immediately after this bargain and sale; but the use passed by the deed to the bargainee, and the statute transferred to him the legal possession. That, by virtue of this conveyance, a good title was transferred to Bingham, is not questioned by either of the parties. It appears from the record that Bingham, in 1818,. sold and conveyed the premises to Johnson; and that Johnson, in 1819, sold and conveyed them to Wya.it and Howie. These deeds of conveyance, if not void on account of a prior-disseisin, sufficiently prove that neither Bingham nor Johnson had a subsisting title at the time this action was instituted; and that, of course, under neither of their demises could the plaintiff have judgment. The defendant, however, contends that he had an adverse possession of the premises at the date of those deeds, and that consequently they were null and void. We have no particular statute, prohibiting the buying and selling of pretended titles; and therefore reference must be had for the doctrine to the common law of England, which is adopted into our code. The statute of Hen. 8., on this subject, is said to have been enacted in affirmance of the common law; and to have made no alteration in it, except that of adding a new penalty. That statute, therefore, and the construction put upon it a few years after its enactment, in the case of Partridge v. Strange, Plowd. 77, furnish the necessary information. The law undoubtedly is, that if a person out of possession convey to a stranger land held at the time adversely by another, the conveyance is void as an act of maintenance. Co. Litt. 369. — 9 Johns. R. 55.
The defendant was in possession at the date of the deeds to Johnson and to Wyatt and Howie; but whether that possession was hostile to the title of the grantors, is the question upon which this part of the case depends. It is proper to premise, that an adverse possession must, in all cases, be strictly proved; for the-presumption always is, that the possession is in accordance with the regular title, until there is clear and positive evidence to the contrary. This remark is particularly applicable to the situation of the landed property, and the habits of the people, in a [130] newly settled country. If, after the execution of the deed' to Bingham in 1809, Lemon was permitted to continue in possession, it must have been as a tenant under his grantee; and, as there is no evidence to the contrary, the fee simple must be presumed to have continued in Bingham until his deed to Johnson in 1818. Fite, the defendant, entered into possession in 1813, under a contract with Lemon for the purchase; and so continued until January, 1819, when Lemon executed .to him a conveyance for the premises. During this period, the defendant, at most, was tenant at will to Lemon, supposing that Lemon could have created such a tenancy. But it was said at the bar, that the deed to Fite in 1819, Would relate back to the time of the contract in 1813." This however is a mistake, as to the extension of such relation to the injury of strangers, whatever the doctrine may be when confined to the same parties. Jackson v. Bard, 4 Johns. R. 230. At the date of the deed, therefore, from Bingham to Johnson, in 1818, the possession of Fite was only the possession of Lemon, who was hiipself nothing more than a tenant to Bingham; and, of course, that deed can in no way be rendered void by such a possession. As this conveyance from Bingham to Johnson is good, and was executed a considerable time before the levying of the attachment against Bingham, it follows that no claim from the sheriff’s sale of the premises under that attachment, can interfere with the plaintiff’s right to recover on the second or third counts of his declaration.
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Blackford, J.
There are two errors assigned for the reversal of this judgment; first, the refusal of the Court to instruct the jury as required; secondly, the omission in the judgment respecting the term. The declaration contains three several demises to the plaintiff below: one from Bingham; one from Johnson; and one from Wyatt and Howk. If any of these lessors had a right to make the lease at the date of his demise, and had a right of entry at the time this action was commenced, the plaintiff was entitled to recover; and the Court was right in [129] refusing to instruct the jury to find for the defendant. The premises in dispute were, in 1809, by general warranty deed, and for a valuable consideration, conveyed to Bingham, one of the lessors, by James Lemon, who was then in actual possession, and whose title is on all hands admitted. We are not informed who actually occupied the premises immediately after this bargain and sale; but the use passed by the deed to the bargainee, and the statute transferred to him the legal possession. That, by virtue of this conveyance, a good title was transferred to Bingham, is not questioned by either of the parties. It appears from the record that Bingham, in 1818,. sold and conveyed the premises to Johnson; and that Johnson, in 1819, sold and conveyed them to Wya.it and Howie. These deeds of conveyance, if not void on account of a prior-disseisin, sufficiently prove that neither Bingham nor Johnson had a subsisting title at the time this action was instituted; and that, of course, under neither of their demises could the plaintiff have judgment. The defendant, however, contends that he had an adverse possession of the premises at the date of those deeds, and that consequently they were null and void. We have no particular statute, prohibiting the buying and selling of pretended titles; and therefore reference must be had for the doctrine to the common law of England, which is adopted into our code. The statute of Hen. 8., on this subject, is said to have been enacted in affirmance of the common law; and to have made no alteration in it, except that of adding a new penalty. That statute, therefore, and the construction put upon it a few years after its enactment, in the case of Partridge v. Strange, Plowd. 77, furnish the necessary information. The law undoubtedly is, that if a person out of possession convey to a stranger land held at the time adversely by another, the conveyance is void as an act of maintenance. Co. Litt. 369. — 9 Johns. R. 55.
The defendant was in possession at the date of the deeds to Johnson and to Wyatt and Howie; but whether that possession was hostile to the title of the grantors, is the question upon which this part of the case depends. It is proper to premise, that an adverse possession must, in all cases, be strictly proved; for the-presumption always is, that the possession is in accordance with the regular title, until there is clear and positive evidence to the contrary. This remark is particularly applicable to the situation of the landed property, and the habits of the people, in a [130] newly settled country. If, after the execution of the deed' to Bingham in 1809, Lemon was permitted to continue in possession, it must have been as a tenant under his grantee; and, as there is no evidence to the contrary, the fee simple must be presumed to have continued in Bingham until his deed to Johnson in 1818. Fite, the defendant, entered into possession in 1813, under a contract with Lemon for the purchase; and so continued until January, 1819, when Lemon executed .to him a conveyance for the premises. During this period, the defendant, at most, was tenant at will to Lemon, supposing that Lemon could have created such a tenancy. But it was said at the bar, that the deed to Fite in 1819, Would relate back to the time of the contract in 1813." This however is a mistake, as to the extension of such relation to the injury of strangers, whatever the doctrine may be when confined to the same parties. Jackson v. Bard, 4 Johns. R. 230. At the date of the deed, therefore, from Bingham to Johnson, in 1818, the possession of Fite was only the possession of Lemon, who was hiipself nothing more than a tenant to Bingham; and, of course, that deed can in no way be rendered void by such a possession. As this conveyance from Bingham to Johnson is good, and was executed a considerable time before the levying of the attachment against Bingham, it follows that no claim from the sheriff’s sale of the premises under that attachment, can interfere with the plaintiff’s right to recover on the second or third counts of his declaration.
In April, 1819, Johnson conveyed to Wyalt and Howk: hut as Fite was then in possession, claiming as his own, Under a conveyance in fee simple from Lemon, it is contended that such possession was adverse to all the world; and that the'conveyance of the-premises by Johnson ivas, by the common law prohibiting the sale of pretended titles, necessarily void. It has been already observed, that if Lemon continued to occupy after he sold and conveyed to Bingham, it was as a tenant, and must have been for years, at will, or at sufferance. The time has been when such a t'ehant by a feoffment with livery of seisin, would have made his feoffee tenant of the freehold by disseisin; and as such a feoffee would have been a good tenant to a demandant’s praecipe, it follows that he would have had an adverse possession, Co. Litt. 330, b, note 1. But it may well be doubted, whether this doctrine has not passed away with the feudal times in which it originated. Taylor v. Horde, 1 Burr 60. — Doe v. Horde, Cowp. [131]*131689. At any rate, in the present case, where the conveyance of the tenant was by the common assurance of bargain and sale, without the solemnity and notoriety of the feudal investiture by livery of seisin, which-always accompanies a regular feoffment; and where, too, this conveyance of Lemon to Fite, was in direct opposition to his own deed to Bingham, previously executed and enrolled according to our statute, it seems to the Court, that, in this view of the case, the defendant could have had no just pre= tensions to a possession, adverse to the title of Johnson, the gran" tee of Bingham. Perhaps, however, as the record is silent, Lemon did not continue to occupy after the date of his deed to Bingham. That presumption will not vary the case. If Lemon -was not in as a particular tenant, he had no interest at all in the premises. He could not by a wrongful entry, and an actual ouster of the freehold, become a disseisor in spite of the owner;, because, by his own previous deed to Bingham, he was estopped from setting up any hostile claim to a title which he himself had lawfully made. Allegans- contraria non est audiendus. Co. Litt. 352, a. — 2 Bl. Comm. 299. — Cowp. 600. Fite, as the grantee of Lemon, is privy in estate; and, pretending to no other right of possession than that derived from Lemon, he is equally bound by the estoppel; and must, in this respect, stand-in the same situation with his grantor;, for not only parties; but privies, whether- in blood or in estate, are bound by estoppels. Co. Litt. 352. — 4 Co. R. 53. Thus, where the ancestor is estopped, the heir shall be estopped, for land in fee, if he claim from no other. 10 Vin. 478. An assignee of a lease by indenture, is estopped by the deed which estops his assignor. 2 Taunt. 278. So the vendee of land, claiming only under his vendor, must be bound by the estoppel of the latter. One reason for this is, that the grantee, having no title but that derived from his grantor, earn not stand in a better situation