NaptonJ J.,
delivered the opinion of the Court.
This was an action of ejectment by Hill to recover the possession of about six acres of land lying near §t. Louis. The plaintiff, Hill, obtained a verdict and judgment in the Court of Common Pleas.
The title of the plaintiff was derived from three judgments, under which the property in dispute was sold by the sheriff, and conveyed to the plaintiff as the purchaser at the sale.
[157]*1571. A scire facias on a builder’s lien was sued out by Hill from the St. Louis Circuit Court on the 29th September, 1842, against John Calvert. The judgment therein was rendered in St. Charles (the venue having been changed) on the 11thMay, 1845, against Calvert for $296 83 debt, and $47 75 interest and costs, and execution awarded against such proportion of the property described in the scire facias as $296 83 bears to $915 12 1-2. The property was described in the execution as “a house which is situated in the county of St. Louis, in the township of St. Louis, about two and a half miles from the St. Louis court house, on the south side of the road leading from St. Louis to St. Charles, upon the following described piece or parcel of land, to-wit: Beginning at a stone in the middle of the main road leading from St. Louis to St. Charles, thence north, 45 degrees 30 minutes west, 7 chains 97 links, running with said road to a stake; thence south, 14 degrees 15 minutes west, 2 chains 80 links to a stake; thence south, 86 degrees east, 8 chains 42 links to a stake; thence due north 5 chains 51 links to the beginning— being part of Martin Coontz’s survey, and sold by said Coontz to Chancellor Lewis, and sold by said Lewis to said Calvert; containing six acres and thirty-four hundredths of an acre, as laid down by W. H. Cozzens for said Calvert, August 13, 1843, as will appear by a plat of that date, which said land is enclosed with a board fence. The house is a frame building, fronting on the south side of the St. Charles road, about 24 feet by about 26 feet deep, two stories high, with a two story porch in front. Adjoining, on the back end, is an ell building about 48 feet long by about 16 feet wide, one and a half stories high, with an one story porch in front, and a cellar under the back end, which said house is now in possession and occupied by Lucy Maria Scott.” The sheriff’s advertisement under the execution offers for sale, “ fifty-nine thousand three hundred and sixty-six one hundred and eighty-three thousand and twenty fifths, (59366-183025) parts of the above described property.
2. A scire facias on a mechanic’s lien, sued out by Thompson against Calvert in St. Louis Circuit Court, and judgment rendered by the Circuit Court of St. Charles, (the venue having been changed) against Calvert for $567 20, and an execution was awarded against the same property above described, or rather such portion of it as $509 27 bears to $915 12 1-2. The advertisement of 'the sheriff was for the sale of the one hundred and one thousand eight hundred and fifty-four one hundred and eighty-three thousand and twenty fifth (101854-183025) part of the above described property. The return and deed describes the same fraction.
[158]*1583. A suit of Bates by scire facias on a lien against John Calvert and Lucy M. Scott. The judgment in this case was for $109 02 1-2 debt and $17 00 damages, in St. Louis Circuit Court, and execution was awarded against the proportion of the property described in the judgment as ueight hundred and forty-eight hundredths of one hundredth of the whole amount of liens charged upon the property.” The execution upon this judgment was against the “eleven hundredths and ninety-one parts of one hundredth of said property.
The sheriff’s deed to Hill for the proportion stated in his judgment was executed 15th July, 1845, the sale having been on the 7th of that month. The sheriff’s deed to Hill under the judgment and execution in the case of Bates, was executed the same day for the proportion of property described therein, being “the eleven hundredths and ninety one parts of one hundredth of said property.” Also sheriff’s deed to Erskine under Thompson’s judgment, and Erskine’s deed to Hill, executed 14th August, 1845, were read.
The plaintiff also introduced oral testimony, showing, that on the 15th September, 1842, Francis Page was in possession of the property in dispute, that Lucy M. Scott went into possession on 28th September, 1842, Calvert having been shortly before in possession; that Scott remained in possession until Page entered. Calvert, who was examined as a witness stated, that the property was in the possession of Scott in the spring of 1842, she having gotten possession from him; that the house was built in the summer of 1842 by the carpenter Thompson; that it was built at witness’ request; that he made a deed to Scott in the spring of 1842, and that she was in possession at the time the contract for building was made by him. The deed was made the last of March or first of April, and she selected the site for the house. When he sold to her, he agreed to have the house built. That she then left St. Louis and was absent some time, and on her return said she had lost the deed, and he made her another for the same property. Calvert stated further, that he claimed the land under C. Lewis, who lives in Louisiana, and that he considered himself in possession two or three years before his sale to Scott, but had no inclosure until then, and the land was uninclosed and the people got wood there.
The defendant relied on the following title:
1. New Madrid certificate No. 145, authorizing Martin Coontz or his legal representatives to locate 640 acres of land, dated September 18, 11816..
2. Location of McKnight and Brady ofthe same, claiming tobe “legal representatives” of said Coontz, dated May 29, 1818.
[159]*1593. Survey and plat returned by Sur. Gen. to Recorder, July, 1818.
4. Patent certificate, dated November 17, 1822.
5. Deed of Martin Coontz and wife to James Tanner, dated 27th May, 1816, conveying in fee the tract of 640 acres of land lying in New Madrid county3 on which the New Madrid certificate afterwards issued. This deed recites that the land was injured by earthquakes, and it authorizes Tanner to avail himself of the act of Congress of 17th February, 1815, and locate any quantity of land thereunder which the grantors of said deed might have, been entitled to, for his own use and for his heirs and assigns forever, and to sell, transfer and convey the same to any person, and authorizes him to sell and convey'to the United States, the said injured tract of land, &c., also gives him power to substitute others. This deed was acknowledged in Kentucky before a justice of the peace, whose official character was authenticated under the seal of a court by the clerk, and was recorded in New Madrid county on the 28th June, 1816„
6. Deed from Tanner to McKnight and Brady, dated 8th November, 1816. This deed conveys 640 acres of land, with the rijjht and privilege of locating the same, according to the provisions of said act of Congress. “The said right and claim of land hereby conveyed being 640 acres of land originally claimed by and confirmed to Martin Coontz, and conveyed by said Coontz and his wife to the said James Tanner, as being situate on the waters of the Bayou St. John, in said late county of New Madrid; and the said James Tanner as the legal representative of the said Martin Coontz and wife, has accepted the relief offered by the aforesaid act of Congress, and procured from the recorder of land titles, a certificate No. 145, authorizing said Martin Coontz or his legal representativés to locate the said 640 acres of land on any of the public lands of the said territory, &c.; and the said James Tanner representative of the said Martin Coontz, does hereby authorize and empower the said McKnight and Brady to locate the said 640 acres of land accordingly.” Then follows a covenant of warranty by said Tanner for himself, heirs, &c., to McKnight and Brady, their heirs and assigns “of the right and title of the said 640 acres of land wheresoever the same may be located as aforesaid, according to the lines and boundaries thereof, as the same may be established by final survey.” This deed was acknowledged on the day of its date and recorded 15th January, 1817, in St. Louis sounty.
7. Deed of James Tanner to the legal representatives of McKnight and Brady, dated 26th June, 1843, reciting the former deed to McKnight and Brady, and the location of the 640 acres and survey thereof, and then [160]*160conveying to their legal representatives the land so located. This deed was acknowledged 3d July, 1843, and recorded on the 12th July, 1843.
It was admitted that Daniel D. Page, father of defendant, acquired by sheriff’s sale and by partition made in 1829 in St. Louis Circuit Court, all McKnight and Brady’s interest in 214 acres, parcel of said 640 acres, and in which portion the lot of land in controversy is located.
The plaintiff by way of rebuttal gave in evidence:
1. Deed of Martin Coontz and wife to Chancey Lewis, dated 26th October, 1840, conveying all the land located for him in his name under certificate aforesaid No. 145. The consideration expressed in this deed was $1000, and no warranty was given except against claims of the grantors and their heirs. For a particular description of the land located reference was made to the records in the office of the Recorder and Surveyor General in St. Louis, and in the General Land Office at Washington City. The said certificate was stated in the deed to be, “located in T. 45, north R. 7 east, in the county of St. Louis.” This deed was recorded 7th November, 1840.
2. Deed from Lewis to John Calvert, dated 16th November, 1841, conveying to Cah ert three portions of the land conveyed to Lewis by Coontz and wife, describing them by metes and bounds, containing together 117.53 acres. This deed was recorded November 16, 1841.
3. Deed of John Calvert to Lucy M. Scott, dated 13th September^ 1842, and recorded the following day, conveying 6 34-100th acres by-metes and bounds as follows: “Beginning at the stone in the middle of the road leading from the city of St. Louis to St. Charles; thence north 45 deg., 30 min., 7 chains, 97 links, and running with said road to a stake; thence south 14 deg., 15 min., w. 10 chains, 80 links, to a stake; thence south 86 deg., east 8 chains, 42 links, to a stake; thence due north 5 ch., 51 links, to the beginning, being part of Martin Coontz’s survey, &c.
4. Deed of Calvert and L.’ M. Scott to L. A. Benoist without date; conveying in fee simple all their right and interest in the tract conveyed by Martin Coontz to Lewis, &c., and in the house in dispute. This deed was acknowledged on the 8th April, 1845.
The plaintiff also called John Calvert as a witness, who stated that defendant was in possession under Daniel D. Page; that he was present when said premises were delivered up to said Page; that a deed of said Scott and himself was first made out to D. D. Page, who returned it and said, he wanted it made to Benoist, and it was so made; that Page paid the consideration of the deed so made to Benoist; that Page was at liberty to resist said liens. About the time witness commenced said house, Page [161]*161came there and notified witness that he claimed the land, and Page’s title under Tanner became generally known and was much canvassed.
The court gave the following instruction, at the plaintiff’s instance:
“The deed from Martin Coontz to James Tanner, dated in 1816, and given in evidence in this suit does not rebut the prima facie evidence of title of Martin Coontz in the land located by virtue of certificate No. 145.”
The court also instructed the jury on behalf of defendant, that, “there can be no recovery in this action by plaintiff, unless the jury believe from the evidence that the house in question is situate on the tract of land described in the declaration.”
The court refused to give the following instructions, asked by defendant:
1. That no title passed in the house in question by the sheriff’s sale and deed under the judgment and execution in the case of Bates against Scott and Calvert.
2. That no title passed in the house in' question by the sheriff’s sale and deed under the judgment of D. B. Hill against Calvert, given in evidence, if the jury believe from the evidence that Calvert was not the owner or possessor of the land on which the said house was built, at anytime during the progress of its erection, or at the time when the contract was made with Hill for the materials furnished by him.
3. That no title in the house in question passed by the sheriff’s sale and deed under the judgment and execution of Thompson against Calvert given in evidence, if the jury believe from the evidence that Calvert was not the owner or possessor of the land on which the said house was built at any time during the erection of said building, or at the time when the contract was made with said Thompson for the erection of the same.
4. If the jury believe from the evidence that Martin Coontz had no interest in the injured land (on which certificate No. 145, read to the jury, issued) at the time said certificate issued, and that the same then belonged to James Tanner, and that said Tanner conveyed his right of location thereunder to McKnight and Brady, and that they located the same, and that the patent certificate given in evidence issued on said location, then the jury are bound to find for the defendant.
The first point which arises on this record, is the position taken by the plaintiff (below,) which denies to the defendant the right to set up the outstanding title of D. D. Page under Martin Coontz. This position is based upon the principle, that a defendant in an execution, and those acquiring possession under him, cannot defeat the recovery of the pur[162]*162chaser at the sheriff’s sale, by setting up an outstanding title. The principle is not denied, hut its applicability to this case is denied by the defendant.
The reason of this rule when applied to the defendant in the execution is obvious enough. The purchaser buys the possession, if nothing more, and the defendant must give up that possession. If there be an outstanding title better than that of the defendant in the execution, the proprietor of that title is in no worse condition by reason of this rule. It is as convenient for him to bring his ejectment against the purchaser as against the defendant in the execution. A person holding under the defendant in the execution, or getting possession from him stands in no better attitude than the defendant himself. He of course holds without title from the defendant, because the defendant could make no title after the judgment which would affect the purchaser under the execution. If he has purchased a better title than the defendants since the tenancy commenced, he cannot avail himself of this title in a suit against him by the purchaser under the execution, because he cannot deny the title of his landlord: and therefore cannot deny that title when the process of law has transferred it to another.
In this case the judgments upon which the executions issued under which the plaintiff purchased, were against John Calvert. The judgment and execution in the case of Bates against Calvert and Scott, were clearly void, because, neither the execution nor sheriff’s deed conveyed any intelligible proportion of the property. The judgment was for “eight hundred and forty-eight hundredths of one hundredth of the whole amount of liens charged upon the property.” The execution was against the “eleven hundredths and ninety-one parts of one hundredth of said property.” The sherifi’s deed conveyed the proportion of property described in the execution. Besides the fact, that the execution does not describe the proportion of property specified in the judgment, it does not give any description which can be comprehended. The purchaser, therefore, took nothing under the execution in favor of Bates.
The whole question then depends upon the fact, whether Calvert was in possession at the time these liens attached upon the property. If he was not in possession, the mechanics who filed the liens, and those deriving title under their judgments, hare no right to the benefit of the rule, which precludes every one holding under the defendant in an execution from setting up an outstanding title. The reason of the rule does not apply. They have only acquired the title which Calvert had, and they must resort to the same measures to' get the possession, which Calvert [163]*163must have used, if he had the right of possession only. But if Calvert had the actual possession, either by himself or his tenant, then a person acquiring the possession either from Calvert or his tenant, must yield that.possession to the purchaser under the executions against Calvert, although he may have purchased a better title from some other source or may be able to show that better title outstanding.
The question then recurs, was Calvert in possession of this land when these liens attached? Calvert was not in possession himself, but Scott was in possession. The plaintiff, however, insists that Scott’s possession was that of amere tenant under Calvert, because the deed from Scott to Calvert was never recorded, and was therefore void against the holders of the liens, and those who purchased under their judgments. This is no doubt true, so far as any title, under that deed is concerned. The deed from Calvert to Scott, could not be available against the mechanics and material men, and those purchasing under their judgments, because it was not recorded before the liens attached, and the statute expressly declares that an unrecorded deed shall be void as to all the world, except the parties to it, and those having actual notice of its existence, But here we must keep in view the distinction made by the act. Though the deed from Calvert to Scott was void as to, Hill and Thompson, and would constitute no obstacle to the consummation of their titles by judgments and sales, and could not be given in evidence to defeat such title, yet the deed was good between Calvert and Scott. The deed, it will be observed, wag made before the creation of the liens. What was the effect of the deed, at the time it was made? Did the deed and the transfer of possession which accompanied it, make Scott a tenant of Calvert? Certainly not. The deed conveyed the fee simple title to Scott, and she was forthwith put in possession. Her possession under that deed was therefore adverse to Calvert, as it was to that of the rest of the world. Scott was at liberty to dispute Calvert’s title, and of course, any one purchasing from her could do the same. This was the condition of the land, and the relations of the parties at the time these liens were created. The execution and judgments relate back to this period of time, and the rights of the purchasers, under these executions, must he determined by the character of Scott’s possession at that time. If her possession at this period was not that of a tenant under Calvert, but as a claimant of the land in fee simple adversely to Calvert, then Calvert was not in possession, and the plaintiff bought at the sale under the executions only Calvert’s right of possession; a right which Calvert himself could not have [164]*164asserted against his deed, but which the plaintiff may assert, because that deed was not recorded.
Let us substitute for the mechanic’s lien an ordinary mortgage, and the distinction already adverted to will be equally obvious. Suppose that Calvert, instead of contracting liens by causing buildings to be erected upon the premises, had morgaged the property to Hill and Thompson. Previous to the mortgage, he executes an unrecorded deed to Scott, and puts her in possession under the deed. The mortgages are foreclosed, and Page becomes the purchaser under the judgments and sales, and brings his ejectment against Scott. The deed from Calvert to Scott is insufficient to protect her possession, because it is void as to the mortgages, and those purchasing under the judgments of foreclosure. Brat the deed from Calvert to Scott is good to show an adverse possession in Scott at the time the mortgages were executed, and consequently enables her, as an adverse claimant of the title, to protect her possession by an outstanding title.
If the deed from Calvert to Scott, had been executed after the liens attached, the rule, I apprehend, would have been different. Calvert) being in possession by his tenant, at the time of the liens (whether they be mortgages, judgments or builders’ liens) could not, by executing a deed to his tenant, convert that tenancy into an adverse possession. If the rule could be evaded in this way, it would be worthless. The relation of the parties at the time of the judgment or the lien, must control their rights and regulate their defences in the ejectment suit which may he instituted upon the title springing out of the judgment or the lien.
I have not adverted to the fact, that the deed from Calvert and Scott was made to Benoist, and not to D. D. Page, because I consider it entirely immaterial. That title, whether made to Page or Benoist, could not defeat the purchaser under the liens. It has no connexion with the question now under consideration, which relates exclusively to the possession, and is only important in determining whether the present defendant occupies a position in relation to the possession, which prevents him from defending his possession by a title under Martin Coontz, not derived through Calvert, or must give up that possession under a rule of law governing the action of ejectment, and assert that title in the character of plaintiff. Whether the deed was made to Benoist or D. D. Page, it is clear that the possession of F. Page, the defendant, was derived from Scott, and if the judgments, under which the plaintiff claims title, had been against Scott, the plaintiff would have been entitled to the benefit of the rule which has been invoked in his favor. As these judgments [165]*165were against Calvert alone, who was not in possession when the liens attached, he loses this advantage.
The principle question in this case, is in relation to the comparative value of the two titles derived from Martin Coontz. This seems to have been the only point controverted in the Circuit Court, and the only one upon which that court gave any opinion. All the instructions, both the one given and those refused, are upon this point. The Circuit Court declared Page’s title insufficient to rebut the title of Calvert, derived through Lewis from Coontz. It may be well to recur to the facts.
In May, 1816, Coontz executed his deed to Tanner, conveying 640 acres in New Madrid injured by earthquakes, and authorizing Tanner to avail himself of the act of February 17, 1815, for the use of himself and his assigns. This deed was not recorded; for the record in New Madrid, upon an insufficient acknowledgment, was a mere nullity. In September following, Tanner procured from the Recorder certificate No. 145, authorizing Martin Coontz or his legal representatives to locate 640 acres of land. In November of the same year, Tanner conveyed to McKnight and Brady, and authorized them to locate the 640 acres, reciting the previous deed from Coontz to himself, and that he had accepted the relief offered by the act of Congress and procured the certificate No. 145. In 1818, McKnight and Brady made the location as legal representatives of Martin Coontz. Page, has the title of McKnight and Brady. In 1840, Coontz conveyed to Chancey Lewis all the land located'for him under New Madrid certificate No. 145, and Calvert procured Lewis’ title to so much of this land as is now in controversy.
What then would be the condition of the title, if we leave out of view the deed from Coontz to Lewis in 1840? According to the decision in the case of the heirs of Kirk vs. heirs of Greene, (10 Mo. R., 252,) where the owner of the land in New Madrid has aliened it before the certificate issued, the certificate and location under it vest the title in such alienee as the legal representative. It can make no difference in determining this point, whether the deed from Coontz to Tanner was recorded or not, if it was effectual to pass the title to the 640 acres in New Madrid, in lieu of which this certificate issued. That this deed was void as between Coontz and Tanner, whether recorded or unrecorded, cannot be disputed. The location, then, under certificate No. 145, vested in McKnight & Brady, the assignees of Tanner, who had purchased the land in New Madrid from Coontz, and had conveyed it to McKnight & Brady, and empowered them to make the location. When the location was made, the title to the injured lands passed to the United States,
[166]*166But Coontz, in 1840, makes a second deed, attempting to convey the Located land in St. Louis county. His deed does not convey or purport to convey the same land, which he had previously conveyed to Tanner by an unrecorded deed, but the land which had been located in lieu of it under the New Madrid certificate 145. Now, according to the decision in Kirk vs. Greene, the title to the land in St. Louis county had in 1818 passed to McKnight and Brady, and never vested in Martin Coontz. How ean the conveyance from Coontz of the land in St. Louis county, to which he never had any title, affect his previous conveyance to Tanner of the land in New Madrid?
Had the conveyance from Coontz to Lewis been of the land in New Madrid, it is not clear that the title of McKnight and Brady would have been affected. For the act of 1815, declares that the location shall ipso facto operate as a relinquishment to the United States of the injured land. The question of title would then be between the United States and Lewis, and if the title of the United States should be considered as avoided by the deed to Lewis, such a result might be held to avoid the location, which was based upon it, but could not have the effect of transfering to Lewis the benefit of such location. But it is obvious, that in a controversy between McKnight & Brady and Lewis, the validity of the location could not be questioned.
The whole question then in relation to the two titles under Martin Coontz, seems to have been determined by the case of Kirk vs. Greene. For all the arguments urged in support of the title of Lewis or Calvert, are based upon the premise, that Coontz had at some period of time, the title to the located lands. Upon this assumption is based the reasoning by which the deed to Lewis is contended to have the effect of making him the legal representative of Coontz, notwithstanding the previous unrecorded deed to Tanner. The premises failing, by holding that the located lands passed to the legal representatives of Coontz in 1818, apd not to Coontz himself, the argument must fall with them.
The other Judges concurring,
the judgment is reversed and the cause remanded.