¶1In the action of ejectment it is essential to plaintiff’s case that he show such a right as is necessary to a recovery under our law. A defendant in possession may rest upon that alone until the plaintiff' exhibits a better title.
¶2Laying aside any consideration of the effect of a purchase at the sheriff ’ s sale of only a fractional part of the land in dispute, it is clear that in any view of the case plaintiff ’ s evidence established no greater title in Henry A. Forgey, at or after the time of that sale, than arises from mere possession under claim of ownership.
¶3In the absence of explanation, possession of realty is evidence of ownership, and, where no better title than possession is shown, he who is prior in time is prior in right.
¶4Henry A. Forgey, in the present case, could not-deprive plaintiff of the benefit of his purchase by any • abandonment of his possession to another after the lien of the judgment had attached.
¶5But if, as defendant asserted, and his evidence tended to prove, Henry A. Forgey neither claimed ownership nor' possession otherwise than as agent for Thos. *193J. Forgey, when the judgment was obtained or after-wards, that fact would constitute a good defense to plaintiff ’ s recovery in this action.
¶6The possession of the agent would be that of his principal. Nothing would pass to a purchaser by a sale under a judgment against the agent as against the rights of the principal.
¶7The case in the trial court turned on the nature of Henry Forgey’s possession, whether it was in his own right as claimant of ownership, or as agent for his father, Thos. J. Forgey. But the court, in its instructions, did not deñne that issue of fact with sufficient distinctness. It appeared to intimate that mere possession by Henry A. Forgey was conclusive against defendant. The instruction giv4en for plaintiff is susceptible of that construction. The instruction by the court of its own motion did not correct it. The latter should, at least, have been given as requested by defendant, without the amendment it received from the court.
¶8For these reasons the judgment is reversed, and the cause remanded,