delivered the opinion of the Court:
The decree in this case must be affirmed. The complainant, Morris, shows a clear title to lot 102, and Carbine fails to show any valid claim against this property. The record fails to show that there was really any judgment in favor of Good-willie and King, and against O’Brien. The recitals of the certificate of purchase in the sheriff’s deed are not competent evidence to establish the judgment, and a judgment is a necessary foundation to the efficiency of such a deed. There is no intimation in the record as to the time when the supposed judgment was rendered, or became a lien upon the property of O’Brien. If there was a valid judgment, and it was rendered after the original contract of October 18, 1866, between Hull and O’Brien had been canceled, and the contract in relation to lot 102 was made between Hull and William C. Morris, it is evident that O’Brien had ceased to have any interest of any kind in that lot, and there was nothing upon which the judgment could become a lien, or upon which the sheriff’s deed could have any effect.
Even if a valid judgment were shown to have existed prior to the cancelling of the original contract between Hull and O’Brien, the purchaser at sheriff’s sale would in such case, by the sheriff’s deed, have taken the same right and interest (and no more) that O’Brien then held in the property. That right (if any existed) consisted in the right of O’Brien to demand of Hull a conveyance of both lots 101 and 102, upon the payment of the unpaid instalment of the purchase money.
Whether the terms of the contract were such that O’Brien at that time could have compelled a specific performance of that contract by Hull, does not appear. But assuming that Hull had waived the delay in payment, and that O’Brien at that time, December 20, 1870, (in the absence of the new arrangement made between Hull, O’Brien and Morris,) might have compelled a specific performance by Hull, this could only have been done by a bill, supported by proof, stating specifically the terms of the contract, and offering to pay to Hull the unpaid part of the purchase money.
In the most favorable view of the case Carbine simply acquired this right of O’Brien, and was thereby placed in his shoes, and to maintain a defence to this suit it was necessary for him in this case to set up in answer, and establish by proof, a case which would have enabled him to have maintained a bill for specific performance against Hull on the 26th of May, 1876. This he utterly failed to do.
Thé decree of the circuit court upon this record was right, and must be affirmed.
Decree affirmed.