delivered the opinion of the court.
1. The defendants rely on an adverse possession of such duration as gives them title against the plaintiff. There is nothing in the case which shows that they pretend to hold adversely to Carondelet. On the contrary, they look to her for a title; claim one from her as early as 1840, as appears from the face of the resolution passed during that year, and finally accept a deed from her. Now Carondelet owned the lot and retained the title until it was conveyed in May, 1835, to Wil*125liam Carr Lane, under whom the plaintiff claims. This suit was commenced January 30th, 1854. The statute then had not run against the title conveyed by Carondelet when this suit was instituted. The defendants accepted a title from Caron-delet and used the deed conveying that title in this suit. How was their possession, then, adverse to that of Carondelet ? Thus it would seem that both of the parties have, within a period short of the time necessary to create a bar by the statute of limitations, acknowledged Carondelet therightful owner of the lot in controversy. We do not hereby intend to convey the idea that the defendants are estopped by any thing that has been done from setting up a title adverse to Carondelet, but merely to express the opinion, that, as the matter appears to us from the record, had the question of adverse possession, as against Carondelet, been submitted to the jury, they would have been warranted in finding a verdict against the defendants on that ground. But take it that the defendants claim to hold adversely to the title of Carondelet, and there is nothing detailed in the evidence which would warrant an instruction that would defeat the plaintiff. This may be a hard case, but hard cases must not be made a pretext for breaking down those principles of law on which repose the rights of the great body of the community. No landholder would be safe if the facts given in evidence in this cause should be deemed sufficient to give a right against him under the statute of limitations. The interruption in the possession, from the year 1844 till 1851, was such as to take away the force of all possession prior to 1851. If one trespasses on the land of another and afterwards voluntarily leaves the possession, shall a claim of right, subsequently persisted in and only evidenced by oral declarations, be available, under the statute of limitations, to take away the right of the legal owner ?
2. As to the point that one new trial has been granted to the plaintiff, and that consequently, under the statute, he can not have another, reference is made to the case of Boyce’s adm’r v. Smith’s adm’r, (16 Mo. 317,) which maintains that, when a *126new trial has been refused, the Supreme Court, on appeal or writ of error, will look into the record, and if it finds that incorrect instructions have been given to the jury, will reverse the judgment and award a new trial, without regard to the number of new trials previously granted to the appellant or plaintiff in error.
3. In the case of Vaughn v. Tracy, (22 Mo. 415,) it was decided that the fact of possession by another was not, of itself, notice under our law concerning conveyances to a subsequent purchaser, of any prior unrecorded deed held by the tenant in possession ; that such possession, though not of itself evidence of a prior unrecorded deed, yet might go to the jury as evidence of the actual notice of such deed, required by the statute, in order to defeat a subsequent conveyance. Now the instruction given by the court, in relation to the mistake in the deeds, simply failed to apprise the jury that notice of such mistake must be in Harrison at the time he purchased at the sheriff’s sale, in order to defeat his right of recovery. It is by an equity set up in the answer that the defendants seek to prevent a recovery by Harrison. If Harrison was a bona fide purchaser for a valuable consideration, without notice, courts of equity will give no relief against him. The legal title to the lot was in Lane, by mistake, it is true; yet, if, whilst it.was in him, it was sold to a Iona fide purchaser, the mistake can not be corrected at the expense of that purchaser. If Lane, himself, had sold the lot in dispute to a bona fide purchaser, his title, beyond all controversy, would have passed. The fact that the sale was made by an officer deputed for that purpose by law, seems to make no difference. The cases of Ells v. Tousley, (1 Paige Ch. 280,) and Gouverneur v. Titus, (6 Paige Ch. 251,) clearly show that, if a purchaser at a sheriff’s saléis ignorant of the mistake in a deed of land conveyed to the debtor, he will take the title of the debtor, unaffected with the equity of the vendor to have the error corrected.
The judgment is reversed, and the cause remanded;
the other judges concur.