of the grantor or bargainor, in said deed or conveyance, and all deeds or convey- 19 May 1893 § 1. ances that may have been made and executed prior to the passage of this act, hav- P. L. 108. ing been duly proved and acknowledged as now directed by law, which shall not Deeds executed be recorded in the office for recording of deeds in the county where said lands and prior to act to be tenements and hereditaments are lying and being, within ninety days after the recorded within date of the passage of this act, shall be adjudged fraudulent, and void as to any subsequent purchaser(x) for a valid consideration, or mortgagee(y) or creditor of the grantor, or bargainor therein.(z)

102. All such deeds and conveyances which shall be made and executed out of

Ibid. § 2. this commonwealth after the passage of this act, and acknowledged and proved in Conveyances exemanner as directed by the laws for that purpose heretofore made, shall be re- cuted out of state corded in the office for the recording of deeds in the county where the lands and to be recorded hereditaments specified in such deed or deeds do lie, within the space of six within six months. months(a) from the execution thereof, (b) otherwise every such deed or conveyance shall be adjudged fraudulent and void against any subsequent purchaser or mortgagee for a valuable consideration, and against any creditor of the bargainor, or grantor, in such deed. (c)

103. Provided always, That this act shall not extend to any lease not exceeding 18 March 1775 § 8. twenty-one years, where the actual possession and occupation goeth along with the lease, anything in this act to the contrary notwithstanding.

104. It shall be the duty of all persons who claim any lands or tenements in this commonwealth, under or by virtue of any deeds or conveyances bearing date previously to the act of 18th of March, Anno Domini 1775, to which this is a Deeds prior in date supplement, to have the same recorded in the proper county, in the manner now to 18 March 1775 to provided by law, within two years from the date hereof.(d)

105. No such deed which shall remain unrecorded as aforesaid, for the said term

of two years, shall be permitted to be given in evidence in any of the courts of this Otherwise not to commonwealth, unless proven or acknowledged according to the act to which this is be given in ett a supplement, or unless proven in the manner in which other instruments of writ- dence unless duly ing are proven, by subscribing witnesses or proof of handwriting, or unless the proven, or accompanied by possesactual possession of the land has accompanied the said deed. sion.

106. All such deeds remaining unrecorded for the said term of two years as aforesaid, shall be adjudged fraudulent and void against any subsequent bonâ fide pur- To be void against chaser or mortgagee, for valuable consideration, without notice.

107. In all cases in which any of the former owners, or any other person or per- 1 April 1868 § 1. sons shall have in his or their possession, any bargains of sales, deeds, conveyances or other instruments in writing concerning any lands, tenements or hereditaments Parties having in this commonwealth, he or they shall, upon six months' notice being given to him possession of deeds or them by the present owner of such premises, or by any other person or persons on six months' in any manner interested in any such bargains of sales, deeds, conveyances or other notice.

P. L. 183.

1 April 1863 § 1. instruments of writing, place the same upon record in the proper county, or deliver the same into the hands or possession of the present owner, if such application be made by him.

Ibid. § 2.

the recording of such deeds.

108. The courts of common pleas of this commonwealth shall have power, upon Courts may decree petition and affidavit, setting forth that the petitioner believes that any person or persons has in his or their possession, any such bargains of sale, deeds, conveyances or other instruments of writing, that the petitioner is the present owner of the premises, or that he is interested in such bargains of sales, deeds, conveyances or other instruments of writing, and that six months' notice has been given to the defendant, or person or persons in whose possession the same is or are alleged to be, to deliver up or record the same, to grant a rule upon such person or persons, to show cause why the same should not be delivered up or recorded; upon the hearing of said rule, unless the defendant or defendants in the same show, to the satisfaction of the court, why the same should not be delivered up or recorded, the said court are hereby authorized and required to decree and direct the said defendant or defendants to deliver up or record such bargain of sale, deeds or conveyances, or other instruments in said petition described; which decree shall be enforced by attachment.

Ibid. § 8.

By whom costs to be paid.

25 May 1878 § 1. P. L. 151.

109. The court may, in their discretion, order the costs of recording such deeds or other instruments of writing to be paid by the defendant, or by the party asking for such rule and decree, and make such further order, in regard to the costs of proceeding, as they may deem proper.

110. All deeds, conveyances and other instruments of writing, (e) wherein it shall be the intention of the parties executing the same, to grant, bargain, sell and convey, any lands, tenements or hereditaments, situate, lying and being in any city of the first class, in this commonwealth, upon being acknowledged by the parties executing the same, in the manner now provided by the laws of this commonwealth, chasers, from date shall be recorded in the office for recording of deeds, in the county where such lands,

In Philadelphia, deeds only to be valid as against subsequent pur

of record.

11 April 1848 § 6.

P. L. 536.

tenements and hereditaments are situate, lying and being; and every such deed, conveyance or other instrument of writing, which shall not be acknowledged, proved and recorded as aforesaid, shall be adjudged fraudulent and void, against any subsequent bonâ fide purchaser or mortgagee, unless such deed, conveyance or instrument of writing, shall be recorded as aforesaid, before the recording of the deed or conveyance under which such subsequent purchaser or mortgagee shall claim: Provided, however, That this act shall not take effect until the 1st day of July, Anno Domini 1878.

(8.) of deeds conveying the separate property of married women.

How deeds conveying the separate property of married women to be acknowledged.

111. Every species and description of property, whether consisting of real, personal or mixed, which may be owned by or belong to any single woman, shall continue to be the property of such woman as fully after her marriage as before; and all such property, of whatever name or kind, which shall accrue to any married woman during coverture, by will, descent, deed of conveyance or otherwise, shall be owned, used and enjoyed by such married woman, as her own separate property; (h) and the said property, whether owned by her before marriage, or which shall accrue to her afterwards, shall not be subject to levy and execution for the debts or liabilities of her husband, nor shall such property be sold, conveyed, mortgaged, transferred or in any manner incumbered by her husband, (i) without her written consent first had and obtained, and duly acknowledged before one of the judges of the courts of common pleas of this commonwealth,(k) that such consent was not the result of coercion on the part of her said husband, but that the same was voluntarily given and of her own free will:(1) Provided, That her said husband shall not be liable for the debts of the wife contracted before mar

(e) This act does not embrace sheriffs' deeds. Foulke v. Millard, 13 W. N. C. 94.

(h) This act enables a married woman to hold property, not as a feme sole, but as if it were settled to her use as a feme covert. Pettit v. Fretz's Executor, 33 P. S. 118. Bear's Administrator v. Bear, Ibid. 525. Walker v. Reamy, 36 Ibid. 410. See infra 110. (i) If husband and wife, by joint deed, convey the wife's separate real estate, and take a mortgage in their joint names, for a portion of the purchasemoney, the husband cannot release the mortgage without the wife's consent. Trimble v. Reis, 37 P. S. 448.

(k) This provision only applies to cases where the husband, by the wife's authority, undertakes to transfer or incumber her estate; it makes no change in the form of acknowledgment, where both join in the deed. Haines v. Ellis, 24 P. S. 253. Shinn v. Holmes, 25 Ibid. 142. See Lytle's Appeal, 36 Ibid. 131. Pennsylvania Co. v. Foster, 35 Ibid. 134.

(1) This act does not empower her to convey her real estate by a deed in which her husband has not joined. Peck v. Ward, 18 P. S. 506. Ulp v. Campbell, 19 Ibid. 361. Thorndell v. Morrison, 25 Ibid. 326. Stoops v. Blackford, 27 Ibid. 213. James v. Everly, 3 Gr. 150. Dunham v. Wright, 53 P. S. 167. A signing by the husband is essential. Miller v. Ruble, 15 W. N. C. 431. She has no capacity to contract for the sale of her land, or to convey it, except in the precise statutory mode. Glidden v. Strupler, 52 P. S. 400. A mortgage executed and acknowledged by a married woman, in blank, cannot afterwards be filled up so as to affect her real estate. Drury v. Foster, 2 Wall. 24. If, however, a mortgage given by a married woman be defectively acknowledged, but she and her husband, being served with a sci. fa., suffer judgment by default, on which execution issues, and the mortgaged premises are sold by the sheriff, she will be concluded by the judgment. Ross v. Lynch, 2 Pitts. 472.

P. L. 536.

riage: Provided, That nothing in this act shall be construed to protect the property 11 April 1848 § 6. of any such married woman from liability for debts contracted by herself, or in her name, by any person authorized so to do, or from levy and execution on any judgment that may be recovered against a husband for the torts of the wife; and in such cases, execution shall be first had against the property of the wife.

112. All deeds heretofore made and acknowledged by any married woman, since 9 April 1849 § 10. the act of the 11th of April 1848, shall be (valid) and effectual: Provided, The P. L. 526. same have been made and acknowledged according to the laws of this common- Deeds executed in wealth, which were in force previous to the act of the 11th of April 1848;(m) accordance with and all such deeds which may be hereafter executed and acknowledged according prior laws to be to the provisions of existing laws, previous to the passage of the act of 11th of April 1848, shall be deemed sufficiently executed and acknowledged, without further acknowledgment.

113. All deeds executed and acknowledged, or which may hereafter be executed Ibid. § 11. and acknowledged, by married women, out of this commonwealth, shall be deemed How such deeds to good and sufficient, if executed and acknowledged according to the requisitions of be executed out of acts of assembly in such case made and provided, in the same manner as if the act the state. of the 11th of April 1848 had not been passed.

114. In all cases of the sale, conveyance, mortgage or transfer of the property of Ibid. § 12. any married woman, or of any powers of attorney to make and execute such sale, By whom acknowlconveyance, mortgage or transfer, made and executed out of the United States, the edgments may be written consent of such married woman, as required by the act relating to the rights taken out of the of married women, may be acknowledged before any minister, ambassador, chargé d'affaires, consul or vice-consul of the United States; and such acknowledgment so made shall be equally valid as if made before a judge of a court of common pleas of this commonwealth.

United States.

States.

115. In all cases of the sale, conveyance, mortgage or transfer of any lands, 25 April 1850 § 87. tenements or hereditaments of any married woman, or of any interest of any mar- P. L. 575. ried woman in any lands, tenements or hereditaments in this commonwealth, and And in any other in all cases of any power or powers of attorney, to make and execute such sale, of the United conveyance, mortgage or transfer, made, or that may be made and executed by such married woman in any other of the United States, the acknowledgment or written consent of such married woman, as required by the act relating to the rights of married women, or any other law of this commonwealth, may be taken or acknowledged by or before any judge of any court of record in such state; and such acknowledgment so made, or to be made, shall be as valid and effectual as if made by said married woman before a judge of a court of common pleas of this commonwealth.

P. L. 315.

married women to

116. So much of the act relating to the right of married women, and for other 11 April 1856 § 1. purposes, passed the 11th of April 1848, as requires the consent of a married woman to be first had and obtained, or the acknowledgment of her deed or mort- How deeds conveygages, when conveying her own real estate, to be made differently from that which ing property of she is authorized to make when she joins her husband in conveying his real estate, be acknowledged. to bar her right of dower therein, is hereby repealed; and all deeds or mortgages of any married woman heretofore acknowledged jointly with her husband, so as to bar her right of dower or interest in her husband's lands, shall be effectual and valid to debar her in respect to her own real estate.

P. L. 533.

117. Where any estate in lands, tenements, hereditaments or any property, real 22 April 1863 § 1. or personal, has been heretofore, by any will or other instrument, taking effect subsequent to the 11th day of April 1848, devised, conveyed, given to or in Powers of married any way acquired by any married woman, to and for the separate use, or as her women over their separate estate, without the intervention of a trustee, and the same shall hereto- separate estates enlarged. fore have been conveyed or mortgaged by her, by any deed or instrument duly acknowledged by her before any officer having authority to take acknowledg ments of deeds and mortgages, and in which her husband has joined as a party, the said conveyance or mortgage, and the estates and interests thereby created shall be and be taken to be of like force and effect, in all respects, as if the same had been given and executed under and in the due exercise of a power authorizing such conveyance or mortgage, contained in the instrument by which the said separate estate of the said married woman was created: Provided, That this act shall not affect any case heretofore finally adjudicated by the supreme court.(n)

118. Nothing contained in the first section of the act to which this is a supple- 10 April 1867 § 1. ment, (o) shall be taken to affect or apply to the separate estate of a married

(m) This provision is re-enacted by act 18 April 1853, § 23, and extended to all deeds theretofore made by any married woman, either within or without the state. P. L. 573. And see infra 116.

(n) This act did not validate a conveyance by a married woman who had no power to convey in any mode; where a married woman has title and power to convey, but is restricted as to the manner, the legislature may remove the restriction, but not where there is an absence of power. Shonk v. Brown, 61

P. L. 67.

P. S. 320. In that case, the supreme court characterized this statute as an arbitrary and unjust exercise of power. Ibid. And in Geddes v. Brown, 5 Phila. 180, it was ruled by the district court, that a party who acts in accordance with the law as laid down by the supreme court, while it is law, is not to suffer, because it is subsequently set aside and another and inconsistent rule substituted for it. And see Menges v. Dentler, 33 P. S. 495.

(0) Supra 117.

P. L. 67.

10 April 1867 § 1. Woman, where the right to convey or incumber the same has been withheld in the will, deed or other instrument by which the said separate estate of the said married woman was created.

Not to enlarge

their powers in certain cases.

28 March 1786 § 2. 2 Sm. 875.

petition to supreme court.

(9.) of the proof of lost deeds.

119. Where any person or persons have lost(p) their deed or deeds, conveyances or writings, concerning their lands, tenements, hereditaments or possessions, or Party to apply by where the same are defaced or rendered illegible, in whole or in part, and if such person or persons shall be desirous to have the said defects and imperfections in their titles supplied, he, she or they may apply to the justices of the supreme court, (q) or any two of them, by bill or petition, therein setting forth the case and the circumstances thereof; which said court, affidavit being made of the material Subpoena to issue. facts, may and they are hereby authorized and empowered to issue a subpoena for any person or persons who may appear to be interested in the matters contained in the said bill or petition, if residing within this state; and if without the same, the said court may direct and order an advertisement to be published for three. How notice to be weeks or more, [in some of the public newspapers in the city of Philadelphia] (r) given to persons giving notice of the said application, and requiring all persons whom it may conresiding out of the cern to appear in court, in term time or before the justices thereof, or any two of state. them, in the vacation, at a certain place and time, to make their answer upon oath or affirmation to the said bill or petition: and when the answer is filed, or in case the parties subpoenaed, or any others, do not attend or answer, in either case, the said court in term time, or the justices thereof, or any two of them, in the vacation, may and shall examine any witness or witnesses who may be produced, or cause their depositions to be taken before some person or persons, by them authorized and appointed to take the same, by commission or order, respecting the facts alleged in the said bill and petition, and have such other proceedings in the summary way, to ascertain and establish the said facts, to make such order and decree in the premises, as to justice and equity shall appertain.

Depositions of witnesses to be taken.

Ibid. § 3.

Copy of record to be evidence.

Ibid. § 4.

How expenses to be paid.

19 Jan. 1793 § 2. 8 Sm. 88.

the same power.

120. The record and proceedings made and had in manner aforesaid, or a copy thereof, authenticated under the hand of the prothonotary and seal of the said court, may and shall, at all times thereafter, be read upon any trial or controversy respecting the lands, tenements, hereditaments or possessions, described or mentioned in such bill or petition, and shall be taken and allowed as good and sufficient evidence of the facts so decreed and established. (s)

121. All and singular the proceedings so to be had in the said supreme court, shall be at the expense of the party or parties exhibiting the bill or petition; and the costs in such case shall be taxed by the said court, or one of the justices thereof, as nearly agreeable to the fees allowed for the like services in other actions, amicable or adversary, as circumstances will admit.

122. The judges of the several courts of common pleas within this commonwealth, shall have, use and exercise, within their respective counties, all and every Courts of common the powers, which in the said recited act were vested, and by this act are revived, pleas to exercise in the justices of the supreme court, and shall, in all respects, proceed in a like manner touching the same; excepting only that the advertisements of notice, in any such proceedings before any of the said courts of common pleas, shall be in such public newspaper as may be published nearest to the court-house of such county, [as well as in some of the public newspapers of the city of Philadelphia;](t) and that the costs in such proceedings shall be taxed by the said court, or one of the judges thereof, agreeably to the rate of fees, allowed for similar services in the same court, or as nearly so as circumstances will admit.

Ibid. § 3. Copy of record to be evidence.

9 March 1847 § 3. P. L. 278.

123. The records and proceedings made and had in the court of common pleas aforesaid, or a copy thereof, authenticated under the hand of the prothonotary and the seal of the court, may and shall, at all times thereafter, be read upon any trial or controversy respecting the lands, tenements, hereditaments or possessions described or mentioned in such bill or petition, and shall be taken and allowed as good and sufficient evidence of the facts so decreed and established.(u)

124. So much of the act of 28th March 1786, and the supplement thereto, passed 19th January 1793, entitled "An act to empower the justices of the supreme Advertisements in Court to supply defects in titles to lands, &c.," as requires an advertisement to be published for three weeks or more in some of the public newspapers of the city of Philadelphia, be and the same is hereby repealed."

Philadelphia dispensed with.

16 Feb. 1866 § 1. P. L. 50.

125. The act of the 19th day of January 1793, entitled "An act to revive certain powers in the justices of the supreme court, and to vest similar powers in the Act of 1876 made judges of the several courts of common pleas in this commonwealth," reviving the act therein recited of the 28th day of March 1786, shall be taken to have been a perpetual act, and is hereby declared so to be; and the perpetuation of

perpetual.

(p) This act is made perpetual by act 16 February 1866, infra 125.

(q) Or of the common pleas; see infra 122. (r) See infra 124.

(s) Evidence cannot be received of the contents of

a lost deed, which might have been proved under this act. Hamilton v. Van Swearinger, Add. 48. Smith v. Bonsall, 5 R. 88.

(t) See infra 124.

(u) See supra, note s.

the evidence of lost deeds thereunder, duly made in conformity with said act and 16 Feb. 1866 § 1. supplement thereto, is hereby declared valid.(v)

(10.) Authentication of records.

P. L. 50.

P. L. 160.

126. In all cases where the term of the recorder of deeds and mortgages in the 24 June 1885 §1. several counties of this commonwealth has terminated by death, resignation or expiration of the term for which he was elected, and by reason of his having failed Recorder to or neglected to authenticate the record of any deed, mortgage or other instrument authenticate the of writing entered on the record, by adding thereto the proper certificate or his record of deeds. signature, his successor in office shall certify or sign the same.

127. In case of the certificate being wanting, the same shall be added in the following form: "I, A. B., do certify that the foregoing deed [or mortgage, as the case may be], was duly recorded in volume page -, during the official term -, my predecessor in office, which said instrument was left for record, on the day of A.D. and having been uncertified, is now certified, as required by law.

of

[Signed],

A. B.,

Recorder."

Ibid. § 2.

Form of certificate.

Ibid. §3.

128. In case of the omission of the signature, the authentication shall be in the following form: "The above deed [or mortgage, as the case may be], having been Form of authentiduly recorded in volume page, and certified during the term of

-, my predecessor in office, and left unsigned, is hereby signed by me as required by law.

[Signed],

A. B.,

Recorder."

cation.

Ibid. § 4.

Validity of such

129. The records of such deed, mortgage or other instrument of writing, thus authenticated, shall be taken and deemed to be as good and valid to all intents and purposes, as if the same had been certified to and signed by the proper recorder, authentication. during his term of office.(w)

II. Mortgages.

(1.) Validity of mortgages.

8 June 1881.

P. L. 84.

130. No defeasance to any deed for real estate regular and absolute upon its face, made after the passage of this act, shall have the effect of reducing it to a mortgage, unless the said defeasance is made at the time the deed is made and is Defeasances to be in writing, signed, sealed, acknowledged and delivered by the grantee in the deed in writing. to the grantor, and is recorded in the office for the recording of deeds and mortgages in the county wherein the lands are situated, within sixty days from the execution thereof; and such defeasances shall be recorded and indexed as mortgages by the recorder.(x)

(2.) Of the recording of mortgages.

1 Sm. 95.

Mortgages to be

131. No deed or mortgage, or defeasible deed in the nature of mortgages, (y) 28 May 1715 § 8. hereafter to be made, shall be good or sufficient to convey or pass any freehold or inheritance, or to grant any estate therein for life or years, unless such deed be acknowledged or proved, (2) and recorded (a) [within six months after the date recorded within thereof,](b) where such lands lie, as hereinbefore directed for other deeds.

(v) See act 13 March 1850, for supplying the loss of sheriffs' and treasurers' deeds in Carbon county. P. L. 178. And act 15 March 1867, as to lost deeds and records in Franklin county. P. L. 472.

(w) The 5th section of this act as to the fees of the recorder was held to be unconstitutional. Pierie v. City, 27 W. N. C. 285.

(2) This act is not in violation of Art. 1, § 10, of the Constitution of the United States forbidding laws

impairing the obligation of contracts. Felt's Appeal, 1 Mona. 282. A deed made prior to this act may be proved by parol to have been intended as a mortgage. Hartley's Appeal, 103 P. S. 23. Umbenhower v. Miller, 101 P. S. 73. Null v. Fries, 110 P. S. 521. The defeasance must be signed, sealed, acknowledged, delivered and recorded. Sankey v. Hawley, 118 P. S. 30. The act, however, applies only to real estate. Brown v. Beecher, 120 P. S. 590. The grantor cannot evade this act by bringing his action against the grantee for a breach of his parol contract to reconvey. Molly v. Ulrich, 133 P. S. 41. The surrender of an unrecorded deed made before the passage of this act, by the grantee to the grantor, will divest the lien of the grantee where the deed was originally given as collateral. Bank's Appeal, 101 P. S. 436. See note in 13 W. N. C. 117.

(y) This section relates solely to mortgages, and defeasible deeds in the nature of mortgages. Burke v. Allen, 3 Y. 355.

six months.

(z) See Angier v. Schieffelin, 72 P. S. 106.

(a) A mortgage, in order to secure its lien, must be recorded in the proper mortgage-book. Luch's Appeal, 44 P. S. 519. But a separate defeasance may be recorded in any book kept in the office. Paige v. Wheeler, 92 P. S. 282. But see act 8 June 1881, P. L. 84, which requires them to be recorded and indexed as mortgages. The lien of a mortgage commences from the time it is left for record; and is not affected by a clerical error in recording the acknowledgment. Brooke's Appeal, 64 P. S. 127. An unrecorded mortgage is postponed to a subsequent judgment. Burke v. Allen, 3 Y. 359. Semple v. Burd, 7 S. & R. 290. Friedley v. Hamilton, 17 Ibid. 70. Jaques v. Weeks, 7 W. 261. Hulings v. Guthrie, 4 P. S. 123. Lahr's Appeal, 90 Ibid. 507. It is good, however, against the mortgagor, and subsequent lien-creditors, with notice. Levinz v. Will, 1 Dall. 430. Stroud v. Lockart, 4 Ibid. 153. Burke v. Allen, 3 Y. 351. Jaques v. Weeks, 7 W. 283. Manufacturers' & Mechanics' Bank v. Bank of Pennsylvania, 7 W. & S. 335. Britton's Appeal, 45 P. S. 172. Speer v. Evans, 47 Ibid. 141. Nice's Appeal, 54 Ibid. 200. And against the heirs of the mortgagor. McLaughlin v. Ihmsen, 85 Ibid. 364. purchaser at sheriff's sale, under a judgment subsequent in date to an unrecorded mortgage, with or without notice, takes the lands discharged of the mortgage: it is otherwise, however, where the mortgage is one that would not be affected by the sale; in

But a