The opinion of the Court was delivered by
Kennedy, J.
In order to decide correctly upon the first error assigned, it may be proper to examine a little into the nature and effect of a judicial sale of real estate made by the sheriff; and to ascertain what it is that the purchaser requires under it. It may be considered a sale by operation of law, and at least as binding and conclusive upon the defendant in the execution, as if he had made it himself in person, or by his attorney duly authorized. “ The sheriff,” says Judge Washington, in Cooper v. Galbraith, 3 Wash. C. C. Rep. 550, “ is empowered by law to convey by deed to the purchaser, under an execution, all the right, title, interest and estate of [227]*227the defendant, as fully as the defendant himself, or an attorney empowered for that purpose by him, could have done.” The officer, in fact, acts as such attorney, appointed for that purpose by the law. The purchase-money is paid to the defendant in the execution, or is applied to his use, in discharge of his debt; between whom and the purchaser.the law raises a contract, in like manner as if the conveyance had been made by him. The operation of law is clearly to put the purchaser in the shoes of the defendant in the execution, at the time of the sale. Hence, if the defendant in the execution be in the possession of the property sold, the purchaser is entitled to take his place; and whether the defendant has a right to it.or not, he is estopped from saying afterwards that he had no right at the time of sale, and-therefore none passed by it. In an action of ejectment brought by the purchaser, the defendant cannot be permitted to set up an outstanding title or right to the possession in another, more than if he had made the sale himself; the plaintiff having purchased not only all the estate and the interest of the defendant in the premises, but likewise his possession, howsoever it may have been acquired, is entitled to recover it, and the defendant will be estopped from saying or showing that it was not founded in right, or was other than lawful. If the law were to be held otherwise, it is obvious that it would afford facility to the practice of fraud upon creditors. Policy, therefore, as well as the principles of justice, seem to unite in support of the doctrine here advanced. The same rules which obtain in the case of landlord and tenant, after the expiration of the lease, in respect to the landlord’s right to demand and recover from his tenant the possession of the leased premises, seem to be applicable to the case of a purchaser at sheriff’s sale, who seeks to recover the possession of the land from the defendant in the execution. Stahle v. Spohn, 8 Serg. & Rawle 326. In the lessee of Galloway v. Ogle, 2 Binn. 468, it was held that the tenant could not resist his landlord’s recovery in ejectment, by virtue of an adverse title, acquired during the lease. Cauffman v. The Congregation of the Cedar Spring, 6 Binn. 62; Dimond v. Enoch, Addis. 357; and Jackson v. M’Leod, 12 Johns. 182, are all to the same effect. And accordingly in Culbertson v. Martin, 2 Yeates 443, in an action of ejectment by the vendee of a sheriff, it being proved that at the time of the levy and sale the debtor was in peaceable possession of the premises, evidence of a different independent title on the part of the defendant, to whom the debtor had delivered his possession after the sale, was held inadmissible. Neither is it necessary that a purchaser at sheriff’s sale, in an action of ejectment brought by him against the person whose land was sold under the execution, or any other coming into possession under him, should show a title or right to have been in the defendant in the execution to the land ; it is sufficient for him to show the judgment and the execution, with all the proceedings thereon. If the suit, however, is against' a stranger, the title must be made out. Little v. Delany, 5 Binn. 270; Wilson [228]*228v. M’Vaigh, 2 Yeates 86; Cooper v. Galbraith, Wash. C. C. Rep. 346.
Although the rule seems to be general that the defendant in the execution, and ail those coming into possession under him, are estopped by the judgment from disputing the plaintiff’s right of possession, Eisenhart v. Slaymaker, 14 Serg. & Rawle 153, yet upon the ground of estoppel it must be considered subject to some qualification. It is laid down in Co. Litt. 45, a. that if any interest passes from the party there .shall be no estoppel: and recognized in Com. Dig. tit. Estoppel [E. 8] ; as if lessee for the life of B leases for twenty-one years, and afterwards purchases the fee, and B dies ; he shall avoid his lease for years, though it was by indenture ; because an interest passed by his lease for the life of B; Co. Litt. 47, c; Com. Dig. tit. Estoppel [E. 8]; Moore 20; so, also, where a man leased land for years, and his lessee, after having been in possession a considerable time, made an under lease; the under lessee, upon an ejectment brought by his immediate lessor, was allowed to show that the lease from the original lessor had expired, and thereby nonsuited the plaintiff. England d. Syburn v. Slade, 4 Term Rep. 682.
Now apply the same principles to a purchaser at sheriff’s sale of the interest of the defendant in the execution holding the land, and in possession of it under a lease for an unexpired term of years at the time of sale, who lies by until the lease has expired and the tenant has surrendered the possession to his landlord, and he cannot maintain an action to recover the possession from the landlord. But suppose that the landlord at the expiration of the lease, instead of turning the tenant actually out of the possession, gives him a new lease for another term : is not the tenant by this operation invested with the right of the landlord, so far as regards the possession during the continuance of the next term; and must not his situation, with respect to the purchaser at the sheriff’s sale, be precisely the same with that of the landlord, had he taken and retained the actual possession after the expiration of the first lease, or with that of any other tenant to whom the landlord might have leased it again, upon the surrender of the possession to him at the end of the term of the defendant in the execution. That it would be so according to reason and analogy, I think is clear. There can be no estoppel in such case; for an interest having passed to the purchaser at the sheriff’s sale, the tenant has, therefore, a right to show what it was; that it has expired by its own limitation, and that he is in possession under a right acquired since, by a subsequent contract, which the purchaser at sheriff’s sale cannot even be presumed to have bought or paid for. This doctrine seems to be perfectly consonant to the principles of sound policy as well as that of natural justice, because it tends to avoid circuity of action, and at the same time to secure to all the parties concerned their respective rights, according to the terms of their several contracts. The purchaser at sheriff’s sale has no cause of complaint; for he buys at his own risk, and is bound to [229]*229know the nature and extent of the interest or estate which the defendant in the execution has in the land : the maxim of caveat emptor applies with full force to him. Smith v. Painter, 5 Serg. & Rawle 223; Friedly v. Sheets, 9 Serg. & Rawle 156; Auwerter v. Mathiot, Ibid. 397;
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The opinion of the Court was delivered by
Kennedy, J.
In order to decide correctly upon the first error assigned, it may be proper to examine a little into the nature and effect of a judicial sale of real estate made by the sheriff; and to ascertain what it is that the purchaser requires under it. It may be considered a sale by operation of law, and at least as binding and conclusive upon the defendant in the execution, as if he had made it himself in person, or by his attorney duly authorized. “ The sheriff,” says Judge Washington, in Cooper v. Galbraith, 3 Wash. C. C. Rep. 550, “ is empowered by law to convey by deed to the purchaser, under an execution, all the right, title, interest and estate of [227]*227the defendant, as fully as the defendant himself, or an attorney empowered for that purpose by him, could have done.” The officer, in fact, acts as such attorney, appointed for that purpose by the law. The purchase-money is paid to the defendant in the execution, or is applied to his use, in discharge of his debt; between whom and the purchaser.the law raises a contract, in like manner as if the conveyance had been made by him. The operation of law is clearly to put the purchaser in the shoes of the defendant in the execution, at the time of the sale. Hence, if the defendant in the execution be in the possession of the property sold, the purchaser is entitled to take his place; and whether the defendant has a right to it.or not, he is estopped from saying afterwards that he had no right at the time of sale, and-therefore none passed by it. In an action of ejectment brought by the purchaser, the defendant cannot be permitted to set up an outstanding title or right to the possession in another, more than if he had made the sale himself; the plaintiff having purchased not only all the estate and the interest of the defendant in the premises, but likewise his possession, howsoever it may have been acquired, is entitled to recover it, and the defendant will be estopped from saying or showing that it was not founded in right, or was other than lawful. If the law were to be held otherwise, it is obvious that it would afford facility to the practice of fraud upon creditors. Policy, therefore, as well as the principles of justice, seem to unite in support of the doctrine here advanced. The same rules which obtain in the case of landlord and tenant, after the expiration of the lease, in respect to the landlord’s right to demand and recover from his tenant the possession of the leased premises, seem to be applicable to the case of a purchaser at sheriff’s sale, who seeks to recover the possession of the land from the defendant in the execution. Stahle v. Spohn, 8 Serg. & Rawle 326. In the lessee of Galloway v. Ogle, 2 Binn. 468, it was held that the tenant could not resist his landlord’s recovery in ejectment, by virtue of an adverse title, acquired during the lease. Cauffman v. The Congregation of the Cedar Spring, 6 Binn. 62; Dimond v. Enoch, Addis. 357; and Jackson v. M’Leod, 12 Johns. 182, are all to the same effect. And accordingly in Culbertson v. Martin, 2 Yeates 443, in an action of ejectment by the vendee of a sheriff, it being proved that at the time of the levy and sale the debtor was in peaceable possession of the premises, evidence of a different independent title on the part of the defendant, to whom the debtor had delivered his possession after the sale, was held inadmissible. Neither is it necessary that a purchaser at sheriff’s sale, in an action of ejectment brought by him against the person whose land was sold under the execution, or any other coming into possession under him, should show a title or right to have been in the defendant in the execution to the land ; it is sufficient for him to show the judgment and the execution, with all the proceedings thereon. If the suit, however, is against' a stranger, the title must be made out. Little v. Delany, 5 Binn. 270; Wilson [228]*228v. M’Vaigh, 2 Yeates 86; Cooper v. Galbraith, Wash. C. C. Rep. 346.
Although the rule seems to be general that the defendant in the execution, and ail those coming into possession under him, are estopped by the judgment from disputing the plaintiff’s right of possession, Eisenhart v. Slaymaker, 14 Serg. & Rawle 153, yet upon the ground of estoppel it must be considered subject to some qualification. It is laid down in Co. Litt. 45, a. that if any interest passes from the party there .shall be no estoppel: and recognized in Com. Dig. tit. Estoppel [E. 8] ; as if lessee for the life of B leases for twenty-one years, and afterwards purchases the fee, and B dies ; he shall avoid his lease for years, though it was by indenture ; because an interest passed by his lease for the life of B; Co. Litt. 47, c; Com. Dig. tit. Estoppel [E. 8]; Moore 20; so, also, where a man leased land for years, and his lessee, after having been in possession a considerable time, made an under lease; the under lessee, upon an ejectment brought by his immediate lessor, was allowed to show that the lease from the original lessor had expired, and thereby nonsuited the plaintiff. England d. Syburn v. Slade, 4 Term Rep. 682.
Now apply the same principles to a purchaser at sheriff’s sale of the interest of the defendant in the execution holding the land, and in possession of it under a lease for an unexpired term of years at the time of sale, who lies by until the lease has expired and the tenant has surrendered the possession to his landlord, and he cannot maintain an action to recover the possession from the landlord. But suppose that the landlord at the expiration of the lease, instead of turning the tenant actually out of the possession, gives him a new lease for another term : is not the tenant by this operation invested with the right of the landlord, so far as regards the possession during the continuance of the next term; and must not his situation, with respect to the purchaser at the sheriff’s sale, be precisely the same with that of the landlord, had he taken and retained the actual possession after the expiration of the first lease, or with that of any other tenant to whom the landlord might have leased it again, upon the surrender of the possession to him at the end of the term of the defendant in the execution. That it would be so according to reason and analogy, I think is clear. There can be no estoppel in such case; for an interest having passed to the purchaser at the sheriff’s sale, the tenant has, therefore, a right to show what it was; that it has expired by its own limitation, and that he is in possession under a right acquired since, by a subsequent contract, which the purchaser at sheriff’s sale cannot even be presumed to have bought or paid for. This doctrine seems to be perfectly consonant to the principles of sound policy as well as that of natural justice, because it tends to avoid circuity of action, and at the same time to secure to all the parties concerned their respective rights, according to the terms of their several contracts. The purchaser at sheriff’s sale has no cause of complaint; for he buys at his own risk, and is bound to [229]*229know the nature and extent of the interest or estate which the defendant in the execution has in the land : the maxim of caveat emptor applies with full force to him. Smith v. Painter, 5 Serg. & Rawle 223; Friedly v. Sheets, 9 Serg. & Rawle 156; Auwerter v. Mathiot, Ibid. 397; Weidler v. Farmers’ Bank, 11 Serg. & Rawle 134; Little v. Delany, 5 Binn. 270. And if, after having purchased a real subsisting interest, he chooses to let it expire without attempting to get the possession of it, the maxim of volenti non fit injuria will also apply. So in the case before us, Algeo must be presumed to have known the nature and duration of the interest he bought in the lot; and if he neglected to claim it afterwards until it had expired by its own limitation, there would be nothing for him to claim or recover. Although, by his purchase at the sheriff’s sale, he may be considered as having become vested with all the rights and privileges of th,e plaintiff in error under the articles of agreement, yet certainly nothing more can be claimed; and being invested with the rights of the plaintiff in error, he might have elected to extend the term from seven to eight years; and also as the assignee of the plaintiff in error might have availed himself of the right and privilege granted by the articles, to become the owner of the lot in fee, by paying to Aitkin within that time the sum of 2500 dollars : but if it were not paid or tendered during the eight years, at furthest, this right or privilege, as well as the term, together with all interest in the lot whatsoever, ceased and expired. Under this view of the subject, the evidence offered by the plaintiff in error, and rejected by the court, was admissible : and there was, therefore, error in rejecting it.
That part of the charge of the court to the jury, which is made the ground of the second error assigned, although I think the court were wrong, could not perhaps, by the verdict found in this case, which is a general one for the plaintiff below, produce any direct injury to the plaintiff in error: because under it he could only be removed from that part of the lot of which he had possession ; and as to the other persons in possession of the residue of the lot, they could not have been dispossessed under the judgment upon the verdict, not having been made parties to the suit.
Judgment reversed, and a venire de novo awarded.