Defendant claimed the whole tract under a purchase made at a sheriff's sale by virtue of an execution, to which defendant was not a party, and on the trial produced in (347) evidence the sheriff's deed and the execution, but did not produce the judgment. It also appeared that to one-ninth part of the tract plaintiffs had a title not derived through the person against whom the execution had issued.

The judge charged that though plaintiffs had declared for the whole, yet they might recover an undivided third part; and that the defendant, claiming under a sheriff's deed, was bound to produce the judgment as well as the execution. Verdict for plaintiffs; new trial refused, and appeal. The case of Bryan v. Brown, ante, 343, settles this case. Rule for a new trial discharged.