¶1dissenting. The action is for partition, plaintiffs claiming in right of heirs of Charles Holley. G. 0. Walker *145was made defendant for the purpose of extinguishing a claim to the land made by him. The plaintiffs were nonsuited, from which the present appeal is taken.
¶2The land originally belonged to Alfred Holley, a son of Charles. Charles bought the property at Sheriff’s sale, under an execution by Malone and Gary against Alfred, and took a Sheriff’s deed for the same. This Sheriff’s deed was never recorded.
¶3Nothwithstanding the Sheriff’s conveyance to Charles, Alfred continued in actual possession. It was not shown in behalf of the plaintiff that Charles ever took or held possession of the lands in question; but on the contrary it appears from the plaintiff’s witnesses that Alfred continued in possession until the commencement of the suit. Certain statements are in proof as made by Alfred, to the effect that his title was imperfect; but these are fully explained by his embarrassed condition and fear of his creditors.
¶4The defendant, Walker, became the purchaser of the land in question at a Sheriff’s sale under an execution against Alfred, and took a deed from the Sheriff bearing date March 2, 1874. This deed was recorded April 21, 1875.
¶5The only ground of title on the part of the plaintiffs is the Sheriff’s deed in 1843; but this not being recorded is void as against subsequent purchasers. The defendant, Walker, had no actual notice of the prior intended deed, and is entitled to take advantage of the want of record.
¶6An attempt was made on the part of the plaintiffs to make title through adverse possession. They contend that from the death of Charles, Alfred held the land in question as one of the heirs of Charles; that his interest as such heir is all that can be affected by the execution and deed to the defendant, Walker. They seek to base a claim to hold by adverse possession on the possession of Alfred, with whom they claim to be tenants in common. It will not be necessary to examine their line of argument in detail, as the fundamental fact is wanting, namely, proof that actual possession was taken under the Sheriff’s deed to Charles. The plaintiffs show-no title except through the Sheriff’s deed to Charles, and that must fail for want of record. In my opinion, the appeal should be dismissed.