33 Tenn. 81 | Tenn. | 1853
The jury were instructed by the court below, “that a sheriff’s deed, founded upon judgment and execution, under which a sale was properly made, would entitle the plaintiff to recover, if the proof shows that the defendant Hamilton was in actual possession of the land sued for, at the coinmenaeiyimt of the present action.”
This instruction is erroneous. The cases referred to establish the principle, that in such case it must be shown, that the defendant was in possession at the time of the levy a/nd sale. Erom the fact of possession by the defendant in the execution at the time of the levy, the presumption of legal title in him to the land levied upon and sold is founded. But no such presumption can arise from the mere fact of his being in possession at the commencement of the action of ejectment for the recovery of the land sold. •
Let the judgment be reversed.