Taylor brought his action against Stewart for breach of warranty contained in the deed of the latter to the former for certain land. The defendant pleaded the general issue, and specially that plaintiff had surrendered possession to a title not paramount. On the trial, plaintiff proved that when he bought there was a judgment against one White in favor of N. B. Green; that White was in possession of the premises after the judgment was obtained against him; that the execution which issued on the judgment had been levied on the land by the sheriff, sold by him, and that plaintiff had surrendered possession to the purchaser at sheriff’s sale. It appeared that the defendant in this action and the plaintiff had *83been in possession (after tacking the two possessions,) more than four years after the judgment against White was obtained. But it did not appear that defendant purchased from White. Under this proof, a verdict was rendered for the plaintiff, which, on motion, was set aside and the court granted a new trial. Did the court err in his judgment allowing the new trial ?
1. In Whatley vs. Newson, 10 Georgia, 74, it was held that “apurchaser at sheriff’s sale has only to show his deed, the ■execution under which the land was sold, and prove title in the defendant, or possession since the rendition of the judgment, and the onus probandi is cast upon the opposite party.” This case comes within the principle there maintained. If the purchaser at sheriff’s sale had brought ejectment against Taylor, the plaintiff, and had shown on the trial that Green, the defendant, in the execution under which he bought, was in possession of the land after the rendition of the judgment on which the execution was issued, and produced. the sheriff’s deed and the execution, the onus probandi would have bear cast on Taylor. Not wishing to contest a suit when all that could be proved, he surrendered possession to the purchaser. True, he did so at his peril, that is, if the title in fact was not in Green, or if the land was really not subject to the judgment, he could not recover against Stewart, his vendor on the warranty, for that vendor would have the right to defend himself'on all the grounds that could have been set up for Taylor had he refused to surrender to anything less than a judgment of ouster. As he did not choose to litigate with the purchaser, but yielded the possession, why should he not have the same rule administered to him in his suit against Stewart, that would have governed the case had that purchaser brought action against him? Had Taylor not bought from Stewart and the purchaser had sued the latter, that rule would have been the law of the case; and where the purchaser has proved what Taylor has now proved the onus would have been cast on Stewart. Why then is it not cast by the same proof in Taylor’s action for a breach of the warranty ? We *84repeat, it could only be prima fade proof in either case, and under our ruling, Stewart stands on the same law as to the rule of evidence that would have governed him in a contest over the title with the purchaser to whom Taylor gave up the possession.
2. As to the other point, it is clear that section 3583 of the Code only discharges land from the lien of judgments against the vendor, where it has been in the possession of a bona fide purchaser for four years. Such is the express provision of the section, and such has been the decision in several cases by this court. We think the court erred in granting the new trial.
Judgment reversed.