delivered the opinion of the court on a rehearing.
The admitted facts are these : Defendant, in September, 1875, being owner in fee of the premises, executed a deed of trust in the nature of a mortgage to secure certain notes. There was a default in the payment of the notes ; and, by agreement, with the holder of them, defendant remained in possession as her tenant, paying rent to her, and, after her death, to her executor. The deed of trust was then foreclosed, and Mr. Holmes, on December 6, 1880, purchased at the foreclosure sale, and received a deed from the trustee. Defendant then attorned to Holmes, and was still in possession as tenant of Holmes at the date of this suit and of the judgment in the cause. Before this foreclosure, an action was begun under the back-tax law, for back taxes on this property. To this suit defendant and the trustee in the deed of trust were made parties; but the cestui que trust in that deed of trust had no notice of the back-tax suit, and was not made a party to it. Judgment in the tax-suit was rendered in November, 1879, and the premises were sold in April, 1880, under special execution issued on this judgment, and were purchased by plaintiff, who received •a sheriff’s deed. The circuit court sustained the de*504murrer of the plaintiff to the answer in which these facts were set up as a defence.
We held that the tax-sale did not affect the interest of the mortgagee, and that only such interest as defendant Kreidler, the mortgageor, had in the land when the tax-suit was begun, passed by the sheriff’s deed. This was the question which was decisive of the real interest of the parties, and the one to which we particularly directed our attention. We nevertheless affirmed the judgment, on the-ground that Kreidler, the mortgageor, the defendant in this action, could not set up title in Holmes ; that the purchaser at the tax-sale acquired all Kreidler’s rights ; and that the plaintiff, in obtaining judgment for possession in the suit at bar, would have come into exactly such estate as Kreidler had, and, if it was a tenancy, plaintiff would be tenant also, and estopped, in a suit by the landlord, from disputing his right. Appellant moved for a rehearing, and that the judgment be modified so as to affirm the judgment for damages and costs only. The cause was ordered for reargument on the question whether Kreidler, who, at the time that Gritchell purchased at the execution sale, was mortgageor in possession, having an equity of redemption in the premises, which, together with all rights of Kreidler to the property and possession, passed to plaintiff Gritchell at the execution sale, could setup as a defence to this action that, six months after the purchase by Gritchell, the mortgage had been foreclosed, and Kreidler had attorned to, and was now in possession as tenant of, the purchaser at the foreclosure sale, who acquired six months after the commencement of thé present action of ejectment.
It is not disputed that in an action brought by a purchaser at a sheriff’s sale against the defendant in the execution, the defendant, while still in possession, cannot resist upon the ground that he has a better title. Yet it would seem that this is what the defendant in the present *505case does by his answer. He claims under a demise from Holmes, whose title, he says, is better than that of plaintiff. ■ Whatever possession defendant in the execution had was purchased by the plaintiff, and he is entitled to recover it in this possessory action. We do not see how the case differs from that of Lyerly v. Wheeler (11 Ired. 22), on this point. There the plaintiff in ejectment claimed under a decree in equity on which execution was issued, and plaintiff had purchased at the sheriff ’s sale under that execution. Defendant offered to show that, before the date of this decree, he had conveyed the land in dispute to one Locke, in trust to secure a debt; that this trustee sold and conveyed the premises to one Chaffin, who leased the premises to defendant, and that defendant held under Chaffin at the date of the trial. This evidence was rejected on the grounds just stated.
We are.referred to the statutory provision (Eev. Stats., sect. 2253), that, “ if the right of the plaintiff to the possession of the premises expires after the commencement of the suit, and before the trial, verdict shall be returned according to the fact, and judgment shall be entered only for damages and costs.” But we do not see that that section applies to this case. As plaintiff had purchased, at a sale under execution against defendant, all the rights of possession of defendant in the property, it does not appear how plaintiff’s right of possession could have expired whilst defendant continued to have such right.
The contention of appellant is that, as plaintiff purchased only the equity of redemption wüich defendant had at the time of the execution sale, and as that was lost to defendant by the foreclosure, plaintiff, at that foreclosure, lost all rights to the property, and to possession. On this theory, if the purchaser at the foreclosure sale had at once conveyed the property back to the defendant, he might have set up the foreclosure as a complete defence to the present proceeding of plaintiff against him in ejectment. If de*506fendant could not do this in the case of a grant, we do not see how he can do it in case of a demise. It is against the policy of the law to allow the defendant in the execution to set up against the purchaser a right of possession acquired by him between the date of the execution sale and the judgment in ejectment.
The case of Boyd v. Jones (49 Mo. 202) seems to be in point. There the plaintiff in ejectment had purchased the land in question in November, 1865, under judgments rendered in 1864 against Jones, the defendant in ejectment. Jones was mortgageor in possession. He had executed a deed of trust on the property, and was in possession at the date of these judgments. He testified that the year the lands were sold under execution, and before their sale to plaintiff, which was in November, his (defendant’.s) son Thomas had cultivated the farm, hired hands, and disposed of the crops; that he (defendant) resided on the farm with his son, but was absent most of the time ; and that, in the latter part of 1865, his son moved away, and defendant held possession for his son up to the date of the ejectment suit, by the acquiescence of the cestuis que trust and trustee of the deed of trust formerly executed by defendant. The deed of trust was foreclosed before the trial, and Thomas Jones, the son, purchased at that sale. The supreme court held that both this deed of trust and the deed of foreclosure to the defendant’s son, were properly rejected on the trial; that, as the possession of the son was obtained from the defendant, his father, there was no change of possession to affect plaintiff; that defendant continued in possession as he had been before; and that neither Jones, the original defendant, nor his son (who had been made co-defendant), could show an outstanding title to defeat a recovery by the purchaser at the execution sale ; but that, to assert his title, the son who purchased at the foreclosure must yield up the possession acquired from the defendant in the execution, and then bring his action of ejectment.
*507We are therefore of the opinion that the judgment heretofore rendered in this cause by us ought to stand. It is so ordered.
All the judges concur.