Sharp v. Baird

By the Court,

Crockett, J.: It was admitted on the trial that on the 5th day of Rovember, 1855, Sanders and Brenham, under whom both parties claim, were the ■ owners in fee, and entitled to the possession of the demanded premises; and the case shows that on that day several attachments were issued against [578]them, which the plaintiff claims were duly levied on this property. It further appears that the attachment suits soon afterwards ripened into judgments, on which executions subsequently issued, under which the property was purchased by the plaintiff at Sheriff’s sale, and for which, in due time, he obtained the Sheriff’s deed. This is the plaintiff’s title.

But it further appears that on the same day on which the attachments are alleged to have been levied, Brenham commenced an action against Sanders for the dissolution of their copartnership, alleging that the firm was insolvent, and praying for a settlement of its affairs, the appointment of a Receiver, and the application of the partnership property towards the payment of the partnership debts.

■On the same day Sanders filed his answer, admitting the allegations of the complaint, and consenting to a decree as prayed for. Thereupon the Oourt, on the same day, appointed Bernhard Peyton, Receiver, and entered an order directing Sanders and Brenham to convey and deliver to the Receiver all their partnership property of every description.

In obedience to this order Sanders and Brenham, on the same day, by a deed in due form, conveyed to Peyton, as Receiver, all the real estate of the firm, including these premises.

Peyton afterwards resigned his trust as Receiver, and conveyed the property to his successor; and the defendant Baird, who is the. present Receiver, now holds this title in his capacity of Receiver, the action of Brenham v. Sanders being still pending. The present action is ejectment, and the plaintiff cannot recover unless he holds the legal title.

The deed from Sanders and Brenham to Peyton was long prior in date to the Sheriff’s deed, under which the plaintiff" claims. But the plaintiff contends that the Sheriff’s deed took effect by relation, as of the date at which the attachments were levied, and, therefore, overreaches the deed to [579]