Opinion by
Mr. Justice Williams,
The situation of the land described in the writ and the contention of the respective parties to this litigation will be readily understood by a glance at the accompanying diagram. It is not drawn to a scale and does not undertake to show the relative size of the several tracts appearing on it, but it illustrates the claims of both plaintiffs and defendant, and the question on which the case turned at the trial.
The tracts numbered 1540, 1541, 1542 and 76 are part of a block of donation warrants surveyed in 1785. The land south of No. 1541 and west of No. 76 was not included in the donation *516surveys but was open to settlement under the land laws of tbe commonwealth. So much of this land as lay between No. 1541
and French creek and extending easterly to No. 76 was acquired by McArthur by virtue of a settlement made in 1818. His tract *517called for No. 1541 as its northern adjoiner and the south line of No. 1541 was therefore his north line. His contention is that this line is an extension westwardly of the boundary line between No. 1542 and 76. The defendant and his predecessors in title to tract No. 1541 contend that the southern line is about ninety rods further south than the location given it by the plaintiffs and that for this distance it adjoins No. 76 as shown by the dotted line on the diagram. An action of ejectment brought to settle this question was tried as early as 1848 and resulted in a verdict in favor of the northern line. A second action of ejectment involving the same question was tried in 1873 and resulted in a verdict in favor of the southern line ; the plaintiff in that case took possession under his verdict and has remained in possession down to the present time. A third action was brought in 1891 for the recovery of the land between these lines which is the action now before us. On the trial the defendant set up two independent lines of defense. He contended that the lower line was the true southern boundary of No. 1541; but he also contended that however the jury might find upon this question the plaintiffs could not recover because they did not hold the title to the land lying between the two lines. The jury found against him on the first question. The second question was held by the court to be one of law, upon all the evidence, and was reserved at the trial. Subsequently the learned judge entered judgment on the reserved question in favor of the defendant, non obstante veredicto. The only question presented on this record is whether the question reserved was a question of fact that should have gone to the jury, or was, as the court below regarded it, a question of law that could properly be reserved. The facts upon which it was presented were as follows: Cyrus Kitchen who was the plaintiff in the action tried in 1873, was then the owner of No. 1541. The result of the trial was to determine that the southern line was the true boundary between McArthur and his tract; soon after he was put in possession of the land he had recovered, he sold his entire tract by a description that included the land down to the southern line to Sherwood, who went immediately into possession of his purchase.
Some time in 1878, the McArthur tract was sold at sheriff’s sale and bought by D. C. Brawley. The tract was described *518by the sheriff as bounded on the north by Sherwood. Sherwood was in possession and claiming the title under his purchase from Kitchen down to the lower of the two lines. His title was defeasible only by the bringing of a third action of ejectment and a recovery therein against him. But subject to the possibility of such future litigation within the statutory period he was the owner in fee simple and in possession as such. The description in the levy and sheriff’s deed embraced the whole of the McArthur tract, for it extended on all sides to its adjoiners. . There was no more reason for affirming that the lien of the judgment fell short of Sherwood’s land on the north, than that it fell short of the adjoiners on the east or west. It seems evident therefore that Brawley acquired by his purchase whatever title McArthur had between French creek on the south and Sherwood’s land on the north; this included the land which was in McArthur’s possession within the boundaries of the settlement tract, and the right to bring a third action of ejectment in order to change, if able to do so, his northern boundary. McArthur’s right and title to the land whether in possession or in action passed to the sheriff’s vendee. The learned judge, understanding the facts bearing upon the question to be in no controversy whatever, drew the attention of plaintiff’s counsel to them, and said to them if he was mistaken in thinking the facts to be conceded he wished them to say so at once, as otherwise he would reserve the consideration of their legal effect as a -question of law. Counsel remained silent. The question was reserved. It was subsequently decided as a question of law, and the complaint now made is that it was a question of fact.
We do not think counsel ought to raise this question after what transpired at the trial; but treating it as properly raised, we are not satisfied that the learned judge erred in his view of the question. The question was over the extent of the levy and sale. It was in express terms from French creek on the south to Sherwood’s on the north. Sherwood owned No. 1541. The line of No. 1541 as fixed by the last verdict was the southernmost line of the two. There was no doubt about either of these facts. Their effect was to be decided by the court. There was no conflicting testimony, no room for diverse inferences of fact, no open question for settlement. The question reduced to *519its lowest terms is whether the right to bring the third action of ejectment passed to the sheriff’s vendee under a description that covered the whole of the McArthur tract, and of McArthur’s title thereto, or whether it survived in the original owner notwithstanding the sale by the sheriff. We concur with the learned judge, not only in regarding the question as one of law, but in the conclusion that upon the evidence the plaintiff cannot recover because he does not appear to have any title to the land in controversy.
The assignments of error are overruled and the judgment is affirmed.