Randolph v. Carlton. subsequent to the levy of the attachment, ceased to be operative as against the defendant, after the sale under Wren's judgment. 3. It is a general rule that the payment of rent, is an acknowlegement of tenancy, and that the tenant cannot dispute the title of his landlord; but if the jury believe the lands in question to be the same that were levied on by the attachment, that they were sold by the sheriff under that levy, that the plaintiff was present at that sale, making no effort to buy in the outstanding title, then the defendant had the right to purchase the land, and the title of the latter would be upheld, even against the plaintiff. 4. That the payment of rent by the defendant, in April, 1842, for the entire year 1841, does not deprive him of the right of controverting the plaintiff's title. 5. The levy of the attachment was not void for uncertainty, but if the proof showed that the lands in question answer to the description given in the levy, that Beverly had no other lands than these, in the same locality, then the levy was sufficiently certain, and would operate a lien from its date. That if the levy was upon the land, the plaintiff's purchase, with a knowedge of the fact, could not prevail against the levy, or the defendant's purchase under it. 6. If the proof did not show the identity of the lands in question with those levied on, then it was competent for them to inquire, whether the deed from Beverly to the plaintiff was fraudulent; if it was, and not a real transaction, or made with intent to delay, hinder or defraud Wren of his just demand; if the plaintiff had notice of such intention by Beverly, and yet bought the land, he acquired no title that could prevail over the defendant's purchase. But unless the deed to the plaintiff was fraudulent, it must prevail over defendant's purchase, (because of a prior date,) if the levy was incurably defective. The plaintiff then prayed the Court to instruct the jury to the following effect: 1. The levy of an ancillary attachment upon lands operated no lien thereon, and that the defendant having entered under the plaintiff, cannot set up the title he acquired under the levy and sale. 2. That the levy of the attachment in favor of Wren, was void for uncertainty. 3. That it is not competent in this case to inquire, whether the deed from Beverly to the plaintiff, was fraudulent. 4. That the payment of rent by Carlton to Randolph, after Carlton's purchase, and which accrued thereafter, though by virtue of a previous contract, estopped him Randolph v. Carlton. from denying Randolph's title, or setting up one adverse to it. These several charges were refused. B. F. PORTER, for the plaintiff in error, made the following points: 1. The judgment produced by the defendant to sustain his title, did not follow the process and declaration, in describing the parties to the action, nor did the execution conform to the judgment. 2. The Court permitted the defendant to identify by parol proof the lands levied on, with those the subject of the action. 3. So the defendant was allowed to offer proof, that though the plaintiff had given his note for the land, he had paid no part of the purchase money, and that the sale was made to hinder and delay creditors. In the admission of all this evidence, it is insisted that the Circuit Court erred. But the most important inquiry is, whether the defendant is not to be regarded as the plaintiff's tenant, and thus considered, can he dispute the title of his landlord? By paying the rent accruing in 1841, the defendant recognized his tenancy as late as April, 1842, although he purchased in August, 1841. If this be not so, then the purchase of the defendant made him a trespasser, as he thereby disclaimed to hold under the plaintiff, and the action is maintainable. [3 Peters' Rep. 49; 6 Id. 382; 13 Id. 1; 14 Id. 102; 7 Johns. Rep. 188, and note 1.] The defendant cannot be permitted to set up a title adverse to plaintiff, if (as is insisted) he is his tenant. By admitting title in another, a party will not be permitted to set up title in himself, under a deed held when the admission was made. [12 Wend. Rep. 57.] If one enters under A, and afterwards takes a release from B, in an ejectment against him by one holding under A, he cannot deny the title of A. and set up B's as the elder and better title. [10 Johns. Rep. 292; 6 Cow. Rep. 751; 6 Johns. Rep. 34; 7 Id. 157; 1 Caine's Rep. 444; 2 Id. 215; 7 Johns. Rep. 186.] If the transaction between Beverly and the plaintiff was fraudulent, the fraud could not be inquired into at law. [Davis v. McKinney, 5 Ala. Rep. 728.] And if it could, the charge of the Court was too broad, and calculated to mislead. The motive makes the fraud, and not the mere act of purchase. The case in 22 Wend. Rep. 122-3, relied on by the defendant, is not opposed to the view taken; it merely determines that the lessee may de Randolph v. Carlton. fend himself by showing the lessor has conveyed away, or lost title during the existence of the lease. J. ERWIN and J. B. CLARK, for the defendant. The defendant does not set up an outstanding title in a third person, or rely upon the purchase of such a title ; but he insists that the plaintiff cannot recover because his title was determined, or extinguished, during the continuance of the lease from the plaintiff to him. That the title of the defendant is superior to, in fact destructive of that on which the plaintiff relies. There was no reason why the defendant should not have been permitted to protect his tenancy, by purchasing the land at the sale of the sheriff. The plaintiff's purchase must have been made subject to the attachment, and as it is the policy of the law to encourage competition at judicial sales, the defendant should have been allowed to bid. The general rule, that a tenant cannot dispute the title of his landlord is not denied, but it does not obtain universally. Here the plaintiff's title, (which never was good against purchasers and creditors,) expired, or was put an end to, by the sale to satisfy the lien that had attached, before his deed was executed, and such case forms an exception to the rule. [2 B. Monr. Rep. 234; 6 Wend. Rep. 666; 5 Wend. Rep. 44; 21 Wend Rep. 121; 1 A. K. Marsh. Rep. 99; Com. Land. & Ten. 520-3; Cro. Eliz. Rep. 398; 5 Cow. Rep. 123, 134-5; 4 Term Rep. 681.] And the tenant may set up the expiration of the landlord's title, although the latter had done no wrongful act, but had been entirely passive. [Com. Land. & Ten. 521.] COLLIER, C. J.-1. The eighth section of the act of 1837, [Clay's Dig. 61, § 24,] authorizes the plaintiff in a suit at law, commenced in the Circuit or County Court, to cause an attachment to be issued against the defendant's estate, where he absconds or secretes himself, or shall remove, or be about to remove out of this State, or shall be about to remove his property out of this State, or be about to dispose of his property fraudulently, with intent to avoid the payment of the debt sued for. It also provides that the plaintiff shall make oath to the truth of the particular ground upon which the attachment issues, and that the same "shall be issued, executed and returned as near as may be in the same manner as original attachments, and the said affidavit, and bond, and at Randolph v. Carlton. tachment, when returned, shall be filed with the papers in the original suit, and shall constitute a part thereof, and the plaintiff in said suit, may proceed to judgment as in other cases." By the first section of the same statute it is enacted, "Whenever an original attachment shall be issued for, or upon any of the causes now provided by law, it shall be lawful to levy the same upon any land belonging to the defendant in such attachment, by the officer whose duty it may be to levy or execute the same, in the same manner that attachments are or may by law authorized to be levied on goods, chattels, or effects." [Clay's Dig. 60, § 29.] The 9th section provides that any property which may be attached under the provisions of the eighth section, may be replevied, as in other cases of attachment, and after judgment shall be rendered and execution issued against the defendant, if any property replevied shall not be delivered to the sheriff or his deputy, holding such execution, within ten days after the demand thereof, &c., it shall be the duty of the sheriff, &c. to certify the fact to the clerk issuing the same; whereupon the replevin bond shall be deemed forfeited, and it shall be the duty of the clerk forthwith to issue an execution, against the principal and sureties therein, for the amount of the plaintiff's judgment, with costs: Further, when judgment shall be rendered, execution may issue in the usual way, which shall first be levied on the property attached, if to be had, and then upon any other property of the defendant, until a sufficient amount shall be levied on to satisfy the execution in full. [Ciay's Dig. 62, § 35.] In McRae v. McLean, 3 Porter's Rep. 138, it was decided, that an attachment created a lien in favor of an attaching creditor, which cannot be divested by the replevying of the property; and that when attached, it was in the custody of the law, to abide the judgment of the Court. So in Pond v. Griffin, 1 Ala. Rep. 678, N. S., a case which arose subsequent to the passage of the act of 1837, it was held that an attachment levied on slaves created a lien which could not be divested by writs of fieri facias, placed in the sheriff's hands afterwards, but on the same day. [See Dore v. Dawson, 6 Ala. Rep. 712.] It is perfectly clear from the act and the cases cited, that the ancillary attachment which is provided for, by the eighth section, may be levied on land, and that the lien in such case, and in respect to such property, is a necessary consequence of the levy. This Randolph v. Carlton. conclusion is so obvious, from these citations, as to require neither argument or illustration. 2. In Webb v. Bumpass, 9 Porter's Rep. 201, which was an action by a purchaser at a sheriff's sale, to recover the possession of land, the levy of the fieri facias was indorsed thus :" Levied on a tract of land, upon which Gabriel Bumpass now lives, in Lauderdale county, adjoining Richard Baugh and —, supposed to contain eighty acres," &c. We said, “It was certainly no objection to the execution offered in evidence, that the sheriff's return does not describe with more particularity, the land levied on. There is no statute imposing upon the sheriff the duty of making a more particular description." Benjamin v. Smith, [4 Wend. Rep. 462,] is there cited, in which the Court said it was not necessary in a return to an execution, by virtue of which lands have been sold, to describe the land with particularity, but it was competent to show its identity with that levied on by parol proof. [See also, Boylston v. Carver, 11 Mass. Rep. 515; Hedge v. Drew, 12 Pick. Rep. 141; Hubbert v. McCollum, 6 Ala. Rep. 221.] In the case before us, the attachment was returned levied "on one tract of land adjoining the lands of Ira Carlton, Mrs. Gray, and others, containing two hundred acres, more or less." This is sufficiently certain, and the precise location of the land may be shown by extrinsic proof. It is not necessary that the return should have affirmed that the defendant in attachment was the proprietor of the land; this will be intended even where the regularity of the levy is drawn in question by a direct proceeding. The sheriff, it must be supposed, did his duty, and as he was commanded to attach the defendant's estate, it will not be presumed that he levied upon the property of another person. [Bickerstaff v. Patterson, 8 Porter's Rep. 245; Kirksey, et al. v. Bates, 1 Ala. Rep. N. S. 303; Miller, et al. v. McMillan, et al. 4 Ala. Rep. 527.] 3. It is said a tenant cannot deny the title of his landlord, under which he entered; yet he may show that it has terminated, either by its original limitation, or by conveyance, or by the judgment and operation of law. [Jackson v. Davis, 5 Cow. Rep. 123-134.] In Jackson v. Rowland, 6 Wend. Rep. 666, 671, the defendant, who was the tenant of the lessor of the plaintiff, set up a title acquired by a third person, as a purchaser under execution, issued on judgments against the lessor. In answer to the ar |