The opinion of the court was delivered by the Chief Justice.

This cause was tried before Mr. Justice Ford, at the Somerset circuit, in October, 1832. The lessor of the plaintiff claimed title, under a sheriff s deed, made to him as purchaser, bearing date the 2d February, 1832. The execution under which the sheriff sold the premises to the lessor of the plaintiff, was founded on a judgment entered against Winans, the defendant, in the Common Pleas of Somerset county, on the 6th October, 1831, and was returnable to January term, 1832, of that court. The defendant was in possession of the premises in question at the time of the levy and sale; and had been so for several years previous thereto, as owner in fee simple, at least until the month of March, 1831.

The plaintiff having proved these matters, rested the cause; whereupon the defendant by way of shewing title out of the lessor of the plaintiff, ordered to prove, that one P. P. Winans had obtained a prior judgment against him, to wit: on the 16th *6March, 1831; on which an execution had been issued, and the premises levied upon and sold as the property of the defendant, to Isaac Ruckman, to whom the sheriff had given a deed, bearing date the 20th of October, 1831; which deed had been duly recorded. The defendant further offered to prove, that Ruckman the purchaser had executed to him a lease of the premises, dated the 10th March, 1832, for one year from the first day of April, 1832, under and by virtue of which he then held the possession.

The whole of this defence was overruled by the judge, and the evidence rejected; whereupon the jury rendered a verdict for the plaintiff.

A motion is now made to set aside the verdict and grant a new trial, on the ground that the judge committed an error in. overruling the defence set up by the defendant, and whether any such error was committed, is the question now to be considered.

By the 12th section of the act, making lands liable to be sold for the payment of debts, Rev. Laws, 433, it is enacted, that the-sheriff’s deed shall transfer to and vest in the purchaser, as good and perfect an estate to the premises, as the person against whom the execution was issued, was seized of, or entitled to, at or before the judgment; and as fully to all intents and purposes, as if the defendant in execution had sold the lands to the purchaser, received the consideration money, and signed, sealed and delivered the deed himself.

A sheriff’s deed, regularly made, may therefore fairly be considered under our statute, at least, as between the defendant and the purchaser, as the defendant’s own deed, made by the sheriff as his legally constituted agent for that purpose, since-by the very terms of the statute, it is to have to all intents and purposes the very same effect, as if made by the defendant himself.

If then on the 2d February, 1832, the defendant had sold and conveyed the premises in question to the lessor of the plaintiff, he could not in an action of ejectment, founded on that deed,be permitted to show a title out of himself at the time of making the deed—to suffer him to do so, would be to violate, what is justly stated by the late Justice Washington, to be a principle, an element of the law, viz.: that a man cannot recover in ejectment, or defend himself, against his own covenant or grant. *7Lessee of Cooper v. Galbraith, 3 Wash. Rep. 546 ; and see Den ex dem. Burhans v. Vanness, 5 Halst. Rep. 102, and cases there cited.

This view of the subject, would seem to be sufficient to settle the question, without having recourse to the doctrine of quasi tenant, which has been resorted to in the State of New York, in oases of this kind. The statute of that state does not direct a deed to be made by the sheriff, and of course does not declare what shall be the operation and effect of such a deed, nor was it until the case of Simonds v. Catlin, 2 Caines Rep. 62, that a deed from the sheriff was held to be necessary. But before that decision and as far back as 1799, in the case of Jackson ex dem. Kane, and al. v. Sternbergh, 1 John. Cas. 153, the Supreme Court of New York, with great- propriety, in my opinion, considered the defendant in execution, if in possession of the promises,- quasi tenant at will, to the purchaser; and then applying the rule, that a tenant shall not controvert the title of his landlord, held that the defendant in execution, should not be permitted to deny the purchaser’s title. This decision was followed in the case of Jackson ex dem. Klein v. Graham, 3 Caines Rep. 188. Graham, who was the defendant in execution, offered to prove, that he and his wife had by deed duly executed by them, sold and conveyed the premises in question to one Ira Day, before the judgment and execution under which Kline had purchased ; that he, Graham, at the time of the levy and sale, disclaimed all right and title, and that Day at the time of the sale, had given notice of his title, and publicly forbade the sheriff’s sale. But the judge at the circuit rejected the evidence, and the whole court at bar approved of the decision.

So far as I can learn, this principle has been recognized and acted upon ever since 1799, in the State of New York; and none of the cases cited by the defendant’s counsel, are in opposition Iso the rule.

But in my opinion, and especially under the provisions of our statute, it is not necessary to resort to the doctrine of a constructive tenancy; all the legal rights and interest of Winans the defendant, were sold to, and purchased by the plaintiff, and a possession is a legal right. In the case of Jackson v. Scott, 18 *8Johns. Rep. 94, it was held that a person, in possession of land, under a contract for a purchase, has an interest that may be sold on execution; not that a mere equitable interest may be levied upon and sold, but if connected with the possession of the land, the legal interest, of which the possession is evidence, may be sold by the sheriff.- Whether a court of equity will enforce an equitable interest which the debtor had in the land, at the instance of the purchaser, is another question ; but a court of law will not inquire what title or estate the defendant, under such circumstances, has ; and he is precluded from making the objection, that he has no title.

The lease set up between the defendant and Ruckman, cannot affect the rights of the plaintiff, for it was made on the 10th March, 1832; which was after the plaintiff’s title accrued. Besides, if such lease existed, Winans ought to have given notice to Ruckman his landlord; and we are to presume he did so. Ruckman then as landlord might have made himself defendant, or co-defendant in this cause, and thus have asserted his rights, and given the lessor of the plaintiff, an opportunity of controverting the validity of his title. As he did not do so, the court cannot look after his rights; nor suffer the defendant standing in the relation he does to the lessor of the plaintiff, to set them up for him. This would be to give Ruckman the benefit of a trial, and of the judgment of this court, if favorable to him, without his incurring the risk and responsibilities of a party on the record, or being bound by our decision if adverse to his claim.

Let the rule to shew cause, be discharged, with costs.

Cited in Hyatt v. Ackerson, 2 Gr. 567 ; Den v. Green et al., Spencer, 172 ; Leport v. Todd, 3 Vr. 133.