16 June 1836 § 76. or personal estate, (u) which (writ) shall be made returnable into the court from which it shall issue. P. L. 775. Ibid. § 77. testatum writs 119. If the estate of the defendant in the county in which a testatum writ of fieri Alias and pluries facias shall first be issued, be insufficient to satisfy the judgment, it shall be lawful for the plaintiff to have, in like manner, an alias or pluries writs of fieri facias, in succession, into any other county in which the defendant may also have real or personal estate, until such judgment shall be fully satisfied. may issue. Ibid. § 78. Sheriff to deliver writ to prothono tary. Ibid. § 79. Who shall enter 120. It shall be the duty of every sheriff and coroner, on receiving a testatum writ of fieri facias, immediately to deliver the same to the prothonotary of the court of common pleas of his proper county. 121. It shall be the duty of every prothonotary to whom any testatum writ of fieri facias shall be delivered, as aforesaid, forthwith to enter the same of record the saine of record, on a docket to be provided for that purpose, and as of the preceding term, stating particularly the amount of the debt or damages and costs, indorsed upon such writ, and thereupon he shall redeliver the said writ to the sheriff or coroner, to be by him executed. Ibid. § 80. 122. Every testatum writ of fieri facias shall be a lien upon the real estate of To be a lien, during the defendants named in such writ, within the county where it shall be so entered of record, during five years from the date of such entry, unless the debt or damages and costs be sooner paid.(v) five years. Ibid. § 81. sa. to issue. 123. If the defendant in any judgment as aforesaid shall have no real or personal estate within the commonwealth, and if the defendant cannot be found within When testatum ca. the county where such judgment may be, it shall be lawful for the plaintiff, if he shall make affidavit of the fact, to the best of his knowledge and belief, to have, upon his own suggestion, and without any previous writ, a testatum writ, or at the same time, several testatum writs of capias ad satisfaciendum into any other county or counties, (w) which writs shall be made returnable to the court from which they shall issue: Provided, That the plaintiff shall not be allowed the costs of more than one of several such writs, unless the court shall be satisfied that the plaintiff had sufficient cause for issuing the same. Ibid. § 82. Penalty for neg lecting to execute testatum writ. 1 April 1823 § 1. 8 Sm. 175. Plaintiff to enter satisfaction. Ibid. § 2. Fees of prothonotary. 124. If any sheriff or coroner to whom any testatum writ of execution shall be directed and delivered, as aforesaid, shall neglect or refuse to execute and return the same, according to the exigency thereof, he shall be amerced in the court where he ought to return it, and also be liable to the action of the party aggrieved.(x) 125. The plaintiff or plaintiffs in any such testatum fieri facias, upon the amount thereof being discharged, shall enter satisfaction therefor, in the same manner and under the same penalties that satisfaction is now required to be entered on judgments.(y) 126. The prothonotaries of the several counties within this commonwealth shall be entitled to receive the sum of fifty cents for entering each testatum fieri facias made in pursuance of this act. XV. Proceedings where lands are purchased by a lien-creditor. 20 April 1846 § 1. P. L. 411. On purchase by a lien-creditor, sherceipt in payment. iff to take his re Sheriff may de 127. Whenever the purchaser or purchasers of real estate, at orphans' court or sheriff's sale, shall appear from the proper record to be entitled, as a lien-creditor,(z) to receive the whole or any portion of the proceeds of said sale, it shall be the duty of the sheriff, administrator, executor or other person making such sale, to receive the receipt of such purchaser or purchasers for the amount which he or they would appear, from the record as aforesaid, to be entitled to receive: Provided, That this section shall not be so construed as to prevent the right of mand a sufficient said sheriff, administrator, executor or other person aforesaid, to demand and receive, at the time of sale, a sum sufficient to cover all legal costs entitled to be paid out of the proceeds of said sale: And provided further, That before any purchaser or purchasers shall receive the benefit of this section, he or they shall produce to the sheriff, or other person so making said sale, a duly certified statement from the proper records, under the hand and official seal of the proper officer, showing that he is a lien-creditor, entitled to receive any part of the proceeds of the sale as aforesaid. sum of money to cover all costs. Purchaser to produce a certified copy of record. Ibid. § 2. 128. It shall be the duty of the said sheriff, executor, administrator or other (u) Such writ should issue, where a county has been divided. King v. Cartee, 1 P. S. 147-54. (v) See Neil v. Colwell, 66 P. S. 216. Wood's Executor v. Colwell, 34 Ibid. 92. (w) See tit. Actions Personal." A sheriff who arrests a defendant on a testatum ca. sa. must commit him to the jail of his own county. Avery v. Seely, 3 W. & S. 494. (x) The court of the county to which a testatum fi. fa. is directed has no control over it; the process is under the control of the court from whence it issues, for every purpose. Commonwealth v. Smith, 4 Phila. (y) See Cowden v. Brady, 8 S. & R. 505. The omitted part of this section is supplied by act 16 June 1836, §§ 78, 79, 80; supra 120-2. (2) The act only applies to liens on the land, as distinguished from a right in or title to the land itself. Gault v. Tilford, 5 Phila. 6. Brinkley. Wagner, Ibid. 452. Where the execution-creditor purchases the property and franchise of a corporation, a subsequent judgment-creditor to the mortgage, upon which the execution was issued, has no standing to except to the sheriff's return. Mellon v. Shenango Natural Ges Co., 157 P. S. 627. P. L. 411. person making sale as aforesaid, in all cases when he or they shall receive the 20 April 1846 § 2. receipt of the purchaser as aforesaid, to state the fact in the return of the proceedings of said sale, and attach thereto a list of the liens upon the property sold, How sheriff to which said return shall be read in open court, on some day during the term, make return. to be fixed by the order of court; and if the right of said purchaser or purchasers, When purchaser's to the money mentioned in said return, shall be questioned or disputed by any is denied, an audiright to the money person interested, (a) the court shall thereupon appoint an auditor, who, after due tor to be appointed. notice given to the persons interested, in such manner as the court may direct, Or an issue shall make a report, distributing the proceeds of such sale, with the facts and awarded. reasons upon which such distribution is made, to be approved by the court; (b) or to direct an issue to determine the validity of said lien, and all further proceedings shall be stayed until the said issue shall be decided. (c) And in case it If determined shall be determined that the said purchaser or purchasers were not entitled to re- against the purceive said money, it shall be the duty of the proper court to set aside the sale, and her, ale to be set aside, unless direct the real estate to be resold, unless the money is paid to the sheriff or other the money be paid within ten days. person making the sale, within ten days thereafter: Provided, That nothing in this act shall be so construed as to prevent the purchaser or purchasers, in case the said real estate, upon the second or subsequent sale, does not bring a sum In case of second sale, purchaser to equal to the amount bid by him or them, from being liable for such deficiency: be liable for deflProvided, That before an issue shall be directed upon the distribution of money ciency. arising from sales under execution, or orphans' court sales, the applicant for such Proceeding to obissue shall make affidavit that there are material facts in dispute therein, and shall tain an issue. set forth the nature and character thereof; (d) upon which affidavit the court shall determine whether such issue shall be granted, subject to a writ of error or allowed. appeal by such applicant, if the issue be refused, in like manner as in other cases in which such writ now lies. (e) Writ of error Ibid. § 3. 129. Upon granting any such issue, it shall be discretionary with the court, so soon as the money arising from such sale shall have been paid into court, upon the Disposition of the application of the party or parties appearing, by the record, primâ facie entitled to fund, when issue the said fund, to order the same to be invested, pendente lite, in the debt of the is awarded. United States, or some other sufficient security, subject to the decree of the court. XVI. Distribution of proceeds of sheriffs' sales.(g) P. L. 777. 130. In all cases of sale upon execution, as aforesaid, (h) where there shall be 16 June 1886 § 86. disputes concerning the distribution of the money arising therefrom, the court from which the execution shall have issued, (i) shall have power, after reasonable Court to award notice given, either personally or by advertisement, to hear and determine the distribution, on same according to law and equity.(k) (a) The defendant in the execution is not a person interested. Shaw's Appeal, 46 P. S. 407. Brinkle v. Wagner, 5 Phila. 452. Nor is the heir at law of a mortgagor. Housekeeper's Appeal, 49 P. S. 141. A special return of a sale to a lien-creditor must be allowed, though a suit be pending in another court to determine the amount of his lien. Building Association v. Steel, 38 L. I. 102. But the purchaser is not entitled to a special return, unless the searches show that he is entitled to some portion of the fund. Furbush v. Brown, 39 L. I. 52. (b) If the auditor report the creditor's exceptions to be unfounded, he may be directed to pay the costs of the audit, unless he had probable cause to object to the return. Larimer's Appeal, 22 P. S. 41. (c) Upon a special return under this act that the purchaser is a lien-creditor, the disputing party may either have an auditor appointed or an issue; he is not entitled to both. Bank v. Coal Co., 140 P. S. 628. See page 854, note (?). (2) If the exceptants have complied with the terms of the law, by setting out material facts to be in dispute, and stating their nature and character, the court have no power to refuse an issue. Lippincott v. Lippincott, 1 Phila. 396. But the question whether the case shall be sent, in the first instance, to an auditor or to a jury, must be decided by the court, subject to the right of the parties to take the whole matter, subsequently, on cause shown, from the hands of the auditor, and bring it before a jury. White v. Lucas, 4 Phila. 30. (e) It is sufficient, that exceptions to the return be filed within the time prescribed by the rule of court; the affidavit may be subsequently added. Thompson v. Martin, 11 W. N. C. 481. See Smith's Appeal, Ibid. 378. (g) A sheriff may himself distribute the proceeds of a sale on execution, but at his own risk. Wortman v. Conyngham, Pet. C. C. 243. Mather v. MeMichael, 13 P. S. 303. Ex parte Bastian, 90 Ibid. notice. 472. Franklin Township v. Osler, 91 Ibid. 160. And if such payment be procured by misrepresentation as to the state of the liens, the amount may be recovered back by the sheriff; it is not an official payment by which the parties would be bound. McDonald v. Todd, 1 Gr. 17. See Lewis v. Rogers, 16 P. S. 18. Where a sheriff's vendee pays part of the purchasemoney, and in default of payment of the residue, a re-sale is had, if the loss on the re-sale exceed the sum so paid by the first vendee, the same may be distributed as part of the proceeds of sale. Wright's Appeal, 25 P. S. 373. The date of the sheriff's sale is the time to which all liens, entitled to payment out of the proceeds, are to be computed. Walton v. West, 4 Wh. 221. And see Ramsey's Appeal, 4 W. 73. Bachdell's Appeal, 56 P. S. 386. O'Hara's Estate, 4 Leg. Gaz. 130. On a sale under a junior lien, the sheriff's costs are payable out of the proceeds, though insufficient for the payment of prior liens. Shelly's Appeal, 38 P. S. 210. Strohecker v. Buffington, 1 Pears. 124. McDannel's Estate, 1 Chest. Co. R. 494. Otherwise, if the costs of a judgment, not reached in distribution. Graham v. Machine Co., 35 L. I. 70. Grayson v. Hangstorfer, 9 W. N. C. 333. (h) The act 14 April 1827 contains provisions precisely similar to those in the text, with the single exception that it extends to "all cases of sheriffs' or coroners' sales." 9 Sm. 433. (i) See act 13 April 1843, supra 118, for a provision in case of a sheriff's sale of a debtor's real estate in several counties, and where one or more liens are claimed to exist against the same. Where land is sold on a testatum execution, and the sheriff elects to acknowledge the deed in the court of his own county, that court acquires jurisdiction over the distribution of the proceeds of sale. Bordin's Appeal, 9 W. N. C. 545. Commonwealth v. Walter, 11 Ibid. 141. (k) Where partnership property has been sold on several executions against the members of the firm, for the separate debts of the partners, the court may 16 June 1836 § 87. P. L. 777. Issue to be 131. If any fact connected with such distribution shall be in dispute, the court shall,() at the request, in writing, (m) of any person interested, (n) direct an issue awarded to try dis- to try the same; (6) and the judgment upon such issue shall be subject to a writ of error, in like manner as other cases wherein writs of error now lie.(p) puted facts. 20 April 1846 § 2. P. L. 411. Proceedings to obtain an issue. Ibid. § 3. Disposition of the fund when issue is awarded. Ibid. § 88. Proceedings on writ of error. Ibid. § 89. Appeal from de cree. 132. Provided, That before an issue shall be directed upon the distribution of money arising from sales under execution, (q) or orphans' court sales, (r) the applicant for such issue shall make affidavit that there are material facts in dispute therein, (s) and shall set forth the nature and character thereof;(t) upon which affidavit the court shall determine whether such issue shall be granted, subject to a writ of error or appeal by such applicant, if the issue be refused, in like manner as in other cases in which such writ now lies.(u) 133. Upon granting any such issue, it shall be discretionary with the court, so soon as the money arising from such sale shall have been paid into court, upon the application of the party or parties appearing, by the record, primâ facie entitled to the said fund, to order the same to be invested, pendente lite, in the debt of the United States, or some other sufficient security, subject to the decree of the court. 134. Upon a writ of error issued as aforesaid, the whole record shall be returned, and it shall be competent for any person aggrieved by the decree of distribution, to take exceptions thereto, if the judgment upon such issue should be affirmed. 135. Any person aggrieved by the decree of the court, in any case of distribution made without the intervention of a jury, may, at any time within twenty days thereafter, (v) appeal from the same to the supreme court.(w) direct an account to ascertain the respective rights of the partners to the proceeds in dispute. Kelly's Appeal 16 P. S. 59. And see Overholt's Appeal, 12 Ibid. 222. Vandike's Appeal, 17 Ibid. 271. Sandback v. Quigley, 8 W. 464. Flanagan v. McAffee, 1 Phila. 75. The decree is conclusive, unless appealed from. Noble v. Cope's Administrators, 50 P. S. 17. Barrett's Appeal, 71 Ibid. 317. (1) A lien-creditor, in such case, has a right to an issue, of which the court cannot deprive him Reigart's Appeal, 7 W. & S. 267. Bichal v. Rank, 5 W. 140. Biddle v. King, 1 Phila. 394. Downer v. Brown, 72 P. S. 404. But he must set out the specific facts in dispute, on which he bases his claim to an issue. Dickerson's Appeal, 7 P. S. 258. Robinson v. Vandiver, 2 Pears. 95. If no ground be laid for an issue, it would be irregular to award it. Gregg v. Patterson, 9 W. & S. 107. Overholt's Appeal, 12 P. S. 224. It would be error to award an issue, not to determine any particular fact in dispute, but to try the right of the plaintiff to a portion of the proceeds of the sale. The act vests in the court the authority to hear and determine all such cases. Shertzer's Executors v. Herr, 19 P. S. 36-7. Knight's Appeal, Ibid. 494. Upon the affidavit of a subsequent lien-creditor that prior judgments are without consideration and for the purpose of hindering, delaying and defrauding creditors, the court, under this act and the act 20 April 1846 (supra pl. 128), have no discretion but to award an issue. Schwartz's Appeal, 21 W. N. C. 246. (m) Such request may be made after all the evidence has been heard, and the case argued before the court. Trimble's Appeal, 6 W. 133. But it is too late, after decree for distribution. Myers's Appeal, 2 P. S. 463. And see Seip's Appeal, 26 Ibid. 176. Robinson v. Vandiver, 2 Pears. 95. (n) No person can intervene on a question of distribution, who has no claim upon the fund. Weiss's Appeal, 5 W. N. C. 423. A creditor whose claim is not secured by lien or judgment is not a party interested. Smith v. Reiff, 20 P. S. 364. It seems, that the affidavit of the party's agent or attorney, would not be sufficient. Seip's Appeal, 26 P. S. 176-7. A liencreditor may, at his option, omit to claim out of the fund, and come in upon the proceeds of the sale of other property, unless the equities of prior incumbrancers take the case out of the rule. Horning's Appeal, 90 P. S. 388. Building Association's Appeal, 92 Ibid. 200. (0) The court is not required to grant an issue, if the record show that it must necessarily prove unavailing. Benson's Appeal, 48 P. S. 160. Martin's Appeal, 97 Ibid. 85. But in a proper case, an issue is of right. Souder's Appeal, 57 P. S. 498. Reigle's Appeal, 13 L. Bar 22. Where an issue is directed, the court should order who are to be the parties plaintiff and defendant, and the cause should be put in form, by filing a declaration, plea and joinder in issue. Muhlenberg v. Brock, 25 P. S. 517. And see Ringwalt v. Ahl, 36 Ibid. 336. The issue to be formed must be restricted specially to the ascertainment of the particular matter in dispute; the whole subject of the distribution is not to be comprised within the issue. McDaniel v. Haley, 1 M. 353. And nothing found by such issue will avail any other than the parties to it. Schultze's Appeal, 1 P. S. 251. Schick's Appeal, 49 Ibid. 380. Schick v. Pharo, Ibid. 384. Brown v. Parkinson, 56 Ibid. 336. Thompson's Appeal, 57 Ibid. 175. (p) A writ of error will lie; but the better practice is, to bring up the whole record, by appeal, after decree of distribution. Brown's Appeal, 26 P. S. 490. Brown v. Parkinson, 56 Ibid. 336. The practice of suing out writs of error, before final decree, is to be discouraged, as productive of protracted litigation. Christophers v. Selden, 28 P. S. 165. (7) See Biddle v. King, 1 Phila. 394. Hallman's Appeal, 18 P. S. 310. (r) See Bacon's Estate, 2 Phila. 376. (s) An issue to try the right to money in court, without specifying any particular matter in dispute, is irregular. Russel v. Reed, 27 P. S. 166. Whether a judgment be a lien on the fund, is a question of law, unless it depend upon some disputed fact; in which case, such controverted fact must be stated, without which it is error to award an issue. Christophers v. Selden, 28 P. S. 165. See Association v. MeDonald, 5 Phila. 442. (t) It is not enough, to allege that there is a dispute about certain facts, or that there are certain facts in dispute; the party should, at least, to the best of his knowledge and belief, allege the existence of certain facts material to the question, and that the truth of those facts is disputed by other persons; or that certain facts are alleged by the other party, which, to the best of his knowledge and belief, do not exist, and are disputed by him. Brinton v. Perry, 1 Phila. 436. Battin v. Meyer, 5 Ibid. 73. Christophers v. Selden, 28 P. S. 165. Robinson's Appeal, 36 Ibid. 81. A fact is properly said to be in dispute, when it is alleged by one party and denied by the other, and by both with some show of reason. A mere naked allegation, without evidence, or against the evidence, cannot create a dispute within the meaning of the law. Knight's Appeal, 19 P. S. 494. (u) See Reed's Appeal, 71 P. S. 378. A writ of error for refusal to grant an issue must be taken within twenty days of the final decree. Providence Steam Co. v. Chase, 108 P. S. 319. (v) Driebilbe's Appeal, 38 L. I. 386. The twenty days allowed for an appeal begin to run from the entry of the decree, although entered in vacation; notice having been given to the party's counsel. Dawson's Appeal, 15 P. S. 480. The court below may review their decision and grant relief, after the expiration of the twenty days. Beek's Appeal, 15 P. S. 406. See Ross's Estate, 9 Ibid. 17. (w) On an appeal, the court will not take notice of the rejected claim of a third party who neglects to EXECUTION. P. L. 777. 136. Provided, That if a writ of error, or an appeal, shall not be taken within 16 June 1836 § 90. twenty days from the decree of distribution, the court may order the money to be paid, according to such decree. Limitation. Proceedings to ob 137. Every person who shall sue out a writ of error, or shall appeal to the supreme court, upon any proceeding as aforesaid, shall make oath or affirmation that his writ of error or appeal is not intended for delay, and he shall, to make it tain writ of error a supersedeas, also give security, by recognizance, with sufficient surety, in the or appeal. court in which the proceeding was had, or before one of the judges thereof, to prosecute his appeal or writ of error with effect, and to pay all costs that shall be adjudged against him. Ibid. § 92. Disposition of the 138. It shall be lawful for the court into which any money arising from a sheriff's sale shall be paid, in case of a writ of error, or appeal from any decree as aforesaid, to order the investment of the fund in the debt of this commonwealth, fund in case of writ or of the United States, or upon real security, or it shall be lawful for such court of error or appeal. to order the payment of the money according to the decree of distribution, if the distributees shall give sufficient real security to refund the same with the interest thereon, or as much thereof as shall be required by the court, if such decree shall be reversed or altered; and in such case, the order of restitution may be enforced by a writ of fieri facias, or otherwise. Ibid. § 98. 139. Whenever the proceeds of a sale upon execution as aforesaid, shall be more than sufficient to satisfy the liens upon the property sold, the officer making Surplus to be paid such sale, or receiving such proceeds, shall pay the surplus to the debtor(x) unless to defendant. the fund shall have been paid into court, and then, and not before, such officer shall be discharged thereof upon record, in the court to which he shall make return of his proceedings concerning such execution.(y) P. L. 364. thereon. 140. When real estate shall be sold, by virtue of any writ of execution issued 10 April 1862 § 1. Allegheny. from any court in the county of Allegheny, it shall be lawful for the sheriff to report to said court a schedule of distribution of the proceeds of said sale, accord- Sheriff to report ing to the list of liens on the property sold, as certified to him from the record by distribution, in the proper officers, which schedule and list of liens he shall attach to his return of said writ: whereupon, the said return shall be read in open court, on some day during the term, to be fixed by order of the court; and if the said distribution Proceedings shall not be questioned or disputed within such reasonable time, as may be fixed by the court, it shall be final and conclusive, and the sheriff shall proceed to pay out, in accordance therewith, the money mentioned in his return; but if exception to the sheriff's return be made by any person interested therein, within such time, the court shall proceed to hear and determine the same, as now provided by law in case of disputes as to the distribution of the proceeds of sheriff's sales.(z) P. L. 1876. 141. It shall be lawful for any court in this commonwealth to decree the dis- 28 June 1871 § 1. tribution of any funds raised by sheriff's sales of real and personal property, or when expedient, to appoint auditors to make distribution, in all cases in which Distribution, withthe parties in interest shall assent to such decree or appointment, notwithstanding out payment into that the proceeds of such sales shall not have been paid into court. (a) XVII. Of sheriffs' deeds. court. P. L. 778. 142. The officer making sale of any real estate under execution, as aforesaid, 16 June 1836 § 94. shall make return thereof, indorsed or annexed to such writ, and give the buyer a deed, duly executed and acknowledged(b) in court, for what is sold, in the Sheriff to execute manner hitherto practised in case of the sale of lands by sheriffs, upon exe- deed. cution. The party agappeal, although such party be clearly entitled to the fund. Cash's Appeal, 1 P. S. 166. grieved may bring up the record by appeal or certiorari, though the issuing of a certiorari is unnecessary. Tryon v. Cadwalader, 3 Luz. L. Obs. 226. (r) Or to his executors or administrators, on their giving security for the legal distribution of the fund; such money to be distributed as real estate. See tit." DeSee Morrison's Case, 9 W. & S. 116. cedents' Estates." (y) See tit. "Wages," as to the priority of wages in case of execution, &c. (z) Extended to Lehigh county, by act 24 May 1871, P. L. 1117. And see act 13 April 1868, for a similar enactment for Schuylkill county. P. L. 959. (a) The law was otherwise, before the passage of and acknowledge (b) The acknowledgment of the deed by the sheriff is a judicial act of the court, which can only be established by the record. Bellas v. McCarty, 10 W. 13. But the certificate of Patterson v. Stewart, Ibid. 472. the prothonotary is admissible for that purpose; infra 140. Its effect is to cure all defects of the process, or Thompson v. Phillips, Bald. 246. in its execution. Hull, 95 Ibid. 497. By the purchase, the sheriff's McLaughlin v. McLaughlin, 85 P. S. 317. Steele v. vendee acquires an interest in the land, although the deed may not have been acknowledged; which deBellas v. McCarty, 10 W. 21. The court may set aside scends to his heirs, and may be taken in execution. a sheriff's sale, for adequate cause, notwithstanding the acknowledgment of the deed, if it has not been Vanernan v. Cooper, 4 And see delivered to the purchaser. Clark 371. Jackson v. Morter, 82 P. S. 291. Braddee v. Brownfield, 2 Ibid. 271. Shields v. McCullock's Case, 1 Y. 40. Smull v. Jones, 1 W. & S. Ibid. 509. Chadwick v. Patterson, 2 Phila. 275. It Miltenberger, 14 P. S. 76. Cummings's Appeal, 23 has no such power after the delivery of the deed. Evans v. Mawry, 112 P. S. 300. 128. 16 June 1836 § 95. P. L. 778. Judgment and 143. It shall be lawful for the purchaser of any real estate at a sheriff's sale, to cause the judgment, and all and singular the process issued thereon, under which such estate may have been seized and sold, together with all and singular the returns of such process, made by the officer executing the same, to be recited and set, forth fully and at large, in the deed to be executed by him therefor, by the sheriff as aforesaid; (c) and if the prothonotary or clerk of the said court shall, by And such deed to order thereof, certify and attest, under the seal of the said court, that such judg process may be recited in deed. be evidence thereof. Ibid. § 96. How acknowledged. In case execution from supreme court. In case of testatum execution. Ibid. § 97. Acknowledgment to be made at a on notice. ment and process are recited and contained in the said deed, truly, fully and entire, as the same remain in his office, such deed shall be good evidence of such judgment and process, upon any trial at law, wherein the said real estate may be in controversy, in the same manner as the original records would be, if produced and offered in evidence.(d) 144. The acknowledgment of real estate, sold upon execution, shall be made as follows: I. In the case of executions from the supreme court, the acknowledgment shall be made by the officer who executed the deed, before the said court in banc, sitting within the respective district, (e) or before one of the judges of the said court, sitting at nisi prius, within the county in which such real estate may be, or before the court of common pleas of the county, or the district court of the city and county in which such real estate may be. II. In case of testatum writs of execution, the acknowledgment may be made as aforesaid, in the court of common pleas of the county, or district court of the city and county in which such real estate may be.(g) III. In all other cases the acknowledgment, as aforesaid, shall be made in the court from which the execution issued.(h) 145. But no such acknowledgment shall be allowed, unless the same shall be made upon public proclamation, (i) in open court, at a time appointed by the court for the purpose, or notice shall have been previously affixed in the office of time appointed, or the prothonotary, specifying the names of the parties to the execution, and the name of the purchaser of such real estate, and the time at which the acknowledgment is intended to be made, at least one week after the return-day of the writ How notice given, of execution; nor in case of acknowledgment made in any court, except that from which the execution issued, unless notice shall appear to have been given to the parties to the execution, in the manner provided for the service of a writ of summons in a personal action.(k) when acknowledged in another court. Ibid. § 98. At what time in another court. Ibid. § 99. Process, in such 146. Whenever the acknowledgment shall be made as aforesaid, in any other court than that from which the process shall have issued, the same shall be good, notwithstanding the same may have been made before the return-day of the exe cution. 147. It shall be the duty of the sheriff acknowledging any deed as aforesaid, in any other court than that from which the process issued, upon which the sale case, to be returned shall have been made, immediately thereafter, to return the same into the office of the prothonotary or clerk of the court from which the same shall have been issued. to the proper court. Ibid. § 100. Powers of court to is made to take 148. When application shall have been made to any court, to take the acknowl edgment of a deed for real estate, sold upon the process issued by any other which application court, the court to which such application shall be made, shall have power to examine the regularity and validity of such sale, and set the same aside, if there acknowledgment. be cause. And if the proceeds of such sale shall be paid into the said court, they may order the distribution thereof, in like manner as if such sale had been made by virtue of process issued from such court. Ibid. § 101. Proceedings where sheriff dies, resigns, or is removed. 149. If the officer by whom any real estate shall have been taken in execution, shall die, resign, be removed from office, or if his term of office shall expire before sale thereof, the proceedings upon such execution shall be continued and completed by his successor in office; and all other necessary and proper writs and process in such case shall be directed to such successor, and be executed by him, (c) An omission to return the writ will not invalidate this sale, but may be supplied by the recitals in the deed. Gibson v. Winslow, 38 P. Š. 49. (d) The acknowledgment of a sheriff's deed, and the registering it in the prothonotary's office, is a sufficent recording. Shrider v. Nargan, 1 Dall. 68. McCormick v. Meason, 1 S. & R. 96. Naglee v. Albright, 4 Wh. 298. Seechrist v. Baskin, 7 W. & S. 403. But the minute of the prothonotary of the acknowledgment, is not evidence of title, if the nonproduction of the deed be in no way accounted for. Lodge v. Berrier, 16 S. & R. 297. (e) See Chambers v. Carson, 2 Wh. 437. (g) Where lands are sold under a testatum execution, an acknowledgment of the deed before the court of the county where the lands are situated, after the court whence the process issued has granted a rule to show cause why the sale should not be set aside, is irregular; and if the rule be made absolute, the pur chaser acquires no title. McKeown v. Craig, 20 P. S. 170. But the sheriff may make such acknowledgment, before returning the writ. Bollin's Appeal, 9 W. N. C. 545. (h) A deed acknowledged in a district court, for land sold under process from the common pleas, will confer no title. Dehaven's Appeal, 38 P. S. 373. (i) After acknowledgment, it will be presumed the directions of the act have been complied with. Stroble v. Smith, 8 W. 280. (k) When the acknowledgment of a sheriff's deed is to be made in one court, under an execution issued from another, the proper practice is, for the sheriff to apply to the former court, by petition, informing them of the fact of the sale under the execution of the other court, and praying for leave to acknowl edge, on a day certain, so far in advance, that he may be able to give the required notice. Weygand v. Matthews, 1 T. & H. Pr. § 1287. |