The opinion of the Court was delivered, by
Black, C. J.The defendant below had a small piece of land, supposed to contain about ten acres, which he held by improvement. The settlement had been made as early as 1814, and about three acres cleared on it very soon after. In 1830 the plaintiffs obtained a judgment against him, the lien of which was continued by revivals until 1841, when an execution was issued, and it was sold in 1842 to the plaintiffs, who brought this ejectment in 1847. The defence proposed was, that Dunlap, in 1841, moved to another part of his tract, within the same three acre clearing, and there built a new house — that this new house was within the lines of a survey owned by James P. Gregg, and that he took a lease from Gregg.
If Gregg’s survey and Dunlap’s improvement did really interfere with one another, it is not necessary for us to say which of the two is the best title; for that is not the question. But we can and do say that Dunlap had no right to set up Gregg’s title, whether good or bad, against the man who purchased his at sheriff’s sale. And it does not change the case that he accepted a lease from Gregg a short time before the sale, when the lien of the judgment was in full force. A surrender of his right under such circumstances to an adverse claimant is a fraud upon the lien creditor, which cannot avail him. The judge was right in rejecting the evidence, and the judgment is to be, affirmed.
Judgment affirmed.