Yost v. Brown

Pee Cueiam : We find no error in the charge of the court. It is doubtless true that if the defendant had been in possession at the time of the sheriff’s sale, he would be obliged to yield that possession [97] to the sheriff's vendee. There was, however, no evidence of such possession except what appears by the record, and that furnishes presumptions merely. The return to the writ of ejectment shows the defendant was in possession at the time of the service of said, writ, which was about two months after the sheriff’s sale. On the other hand, the defendant appears to have sold and conveyed the property to John Wyllis, some two years before the judgment in question was entered against him. The possession must be presumed to have accompanied the deed. The act of May 28, 1715, 1 Sm. L. 95, provides that “ All deeds and conveyances made or to be made, and proved or acknowledged, and recorded as aforesaid,.....shall be of the same force and effect here, for the giving possession and seisin, and making good the title and assurance of the said lands, tenements and hereditaments, as deeds of feoffment, with livery and seisin, or deeds enrolled, in any of the king’s courts of record at Westminster, are or shall be in the kingdom of Great Britain.” As before observed, we have nothing but presumptions in regard to the possession at the time of the sheriff’s sale, and the stronger presumption is with the defendant. Judgment affirmed.