Street against Sprout, 5 Watts 272

The opinion of the court was delivered by Huston, J. The plaintiff in ejectment, as in every other action, must recover by showing right in himself. If the defendant can show a valid subsisting right in a third person to the premises sued for, the plaintiff cannot recover.

This is a general rule; but if land in possession of a person be sold as the property of that person, and the purchaser brings ejectment, that person cannot set up title in a third person; this is also a general rule, because the purchaser has a right to all that the defendant whose land was sold had right to— that is, to the fee — or any less estate down to bare possession, according as the right of the debtor was whose title was sold.

The debtor may have a right for the life of another person or a lease for years, and on the death of that person, or expiration of the term for years, the right of the debtor is gone. The purchaser at sheriff’s sale gets all the right of the debtor, but gets no more, and, in the case put, his estate and right become extinct and gone on the death of the cestui que vie, or expiration of the term.

A mortgagor has the fee against all persons but the mortgagee, but the mortgagee may enter and take the possession into his own hands until his debt is paid by the receipt of the rents, or payment of the money; the mortgagor, as to him, is only tenant at will; on him the mortgagee may, as I have said, enter, at any time after any of the money is due, or bring ejectment, or sue out a scire facias and sell the property; and on a sale under a mortgage the purchaser becomes the owner in fee, clear of all judgments and every incumbrance, except a balance may be due for purchase money, to the state, or a prior mortgage, by a late act of assembly.

Dr Rose’s mortgage was the prior lien in this case, and Sprout, when he purchased at sheriff’s sale, got only the right of Street; that is, a right which would become a fee on payment of the amount due on the mortgage, bul until that was done, he stood exactly in the shoes of Street; as against Dr Rose he had only an estate at will, and at will strictly, according to the legal definition of such estate.

Rose could enter on him, or bring ejectment, without notice to quit, as would be necessary against a tenant at will, from year to year, or the mortgagee may determine the estate of the mortgagor, finally and conclusively, by a sale of the premises under a suit and sale on the mortgage.

The sale on the mortgage by Dr Rose determined the estate at will of Street and the equity of redemption also, and vested the full and complete title to the fee simple and to the possession, in the. purchaser at the sale on the mortgage; in this case, Dr Rose, the mortgagee, was the purchaser, and has the right to the fee and to the possession.

Sprout, after his purchase, had the right to redeem and pay off the mortgage, and he had the right to go into possession as tenant at will to Dr Rose; on him Df Rose could have entered or brought ejectment, and when Dr Rose determined the estate at willj his right of possession was gone. Dr Rose has determined it, and Sprout has now neither the right to the land nor to the possession, and cannot recover the possession in this suit; he must fail, because his right to the land and to the possession of the land are extinguished; but he had a right, subject to the mortgage, when he commenced his suit.

Street held him out wrongfully, and the plaintiff below had a right to the costs of suit, but cannot recover possession, for he has now no right to the possession or to the land. Judgment reversed, and a venire facias de novo awarded.