12 SUPREME COURT [Freeman v. Caldwell.] [Sunbury lish case in which a sheriff's return to an execution has not been allowed to have that indisputable verity attributed by Lord Coke to every record without exception? Like every other record, it may be amended to make it conform to the truth; but to expunge it would be to corrupt it, and to abuse that discretionary power which has been given to the courts for tried the cause before us, rested it on authorities which show that better purpose. The judge who in a plea of former levy, the property is laid to have been in the defendant. Taking the practice to be so, is not the sheriff's return, which is of such high regard as to admit of no averment against it, conclusive evidence that the fact was so? It is this principle of conclusiveness which originally made execution of the body satisfaction of the debt; which still makes a return of levied to the value, a discharge of the judgment; and which lies at the root of every such matter. It is because the record of a judicial act can not be unravelled to let in subsequent matter, that this is so at the common law; and it is for the same reason, that before the 32 Hen. VIII, there was no re-extent upon an eviction of a tenant by elegit. "Nota," says Lord Coke, 1 Inst. 190, a, "it appears by the preamble of the said act, and by divers books, that after a full and perfect execution had by elegit returned and of record, there never shall be any re-extent on any eviction, but if the extent be insufficient at law, there may go out a new extent." Here then is distinctly announced the common law principle which rules the case; and though it has been abrogated in England, so far as regards land, there is no statute on the subject in Pennsylvania. The silence of the repealing act as to chattels, was imputed by Mr Justice Woodbury, in Whiting v. Bradley, to a supposition that creditors could, even then, have a new execution of every thing but land; but it is plain, from the special provision of the statute in that case, that the legislature of his own state thought otherwise. Indeed, the statute Westm. 2, which gave the writ of elegit, had put land and chattels on a footing in all respects, except the relative quantity which might be levied of each, and the manner of its application to purposes of satisfaction; and it is probable, the reason why the latter were not included in the 32 Hen. VIII, was that the progress of trade had not involved the title to things personal, so frequently in complication and doubt, as to cause much inconvenience from it. therefore, a difference of construction in regard to the point before Under the statute, Westm. 2, us, could not have arisen from the circumstance suggested, that an extent must always be returned to found the title of the tenant; for though an inquisition need be returned under that statute only in the case of land, yet when it is actually returned, as it must be when requested, it is equally parcel of the record. As we determined, in Gratz v. The Lancaster Bank, 17 Serg. & Rawle 278, the distribution of money brought into court, is a judicial act, and the foundation of it is consequently matter of record. Without power derived from a statute, therefore, I take it that [Freeman v. Caldwell.] execution can not be repeated; and though this clear common law principle may be violated, it can not be evaded. It is among the worst symptoms of the judicial epidemic of our day, that the bent of the professional mind is towards oral testimony in preference to record and written proofs. What motive could there be, were it allowable on principle, to overturn the record in this instance? The plaintiff's case may be thought a hard one; but it is not more so than would be the case of a stranger, and to say that every sheriff's vendee who is deprived of the property by title paramount, shall have his money again, would destroy all confidence in the stability of judicial sales. He takes upon him a risk which may lead to his disadvantage; but he does so at the premium of a reduced price. Were it not for this risk, a plaintiff might safely depreciate the defendant's title, and buy it in at a sacrifice. If it proved good, he would have it at an undervalue; but if bad, he would be only where he began. His interest, instead of being promoted by a sale for an outside price, would be to have the property sacrificed; and it is impolitic to encourage a principle which would make him a speculator. In this respect, an advantage over the other creditors would be, not only unjust as to them, but ruinous to the debtor. On grounds of reason and authority, therefore, he ought to stand as any other purchaser. Judgment reversed. Bellas against M'Carty. The acknowledgment of a sheriff's deed is a judicial act of the court, which can only be established by the production of the record of it. In a collateral proceeding parol evidence of an acknowledgment is inadmissible, either by witnesses present in court when it was acknowledged, or who saw the entry of the acknowledgment on the deed. So the deed itself is inadmissible, though it may have a certificate of acknowledgment on the back of it, if no registry has been made of it in court. A bona fide purchaser of an estate, either legal or equitable, without actual or constructive notice, who duly recorded his deed, and in other respects pursued his claim with diligence, is to be preferred to a previous purchaser claiming under a sheriff's deed, the acknowledgment of which has never been registered. In Pennsylvania the recording acts are applicable equally to legal and equita ble titles. ERROR to the common pleas of Northumberland county. Each 10w 13 164 365 [Bellas v. M'Carty.] party claimed under the same original title, and under George Derk; the plaintiff by a conveyance from Derk, and the defendants by a sale of the land, as the property of Derk, by the sheriff of Northumberland county upon a testatum venditioni exponas from Union county. George Derk had an equitable title to the land, having held the same upon articles of agreement, upon which part of the purchase money had been paid. When the land was sold as the property of Derk, it was purchased by John Spees, the plaintiff in the judgment; and in order to establish this sale, the defendants gave in evidence the judgments and executions and returns of the sale to John Spees, and then offered to prove that the deed was lost and its contents; the defendants objected to this on the ground that it did not appear that the deed had ever been acknowledged, and that the defendants do not propose to show any record of such acknowledgment. The court overruled the objection and sealed a bill of exception. By the agreement between the plaintiff by his agent and George Derk, the consideration of the purchase was 300 dollars, 50 of which was to be paid absolutely, and was paid when the deed was given, and the payment of the residue was to depend upon the contingency of the plaintiff being able to keep the title; but this was in reference to another supposed outstanding title than that of which the defendants claimed under their deed from the sheriff. And these facts gave rise to these questions: First, Whether the plaintiff was a bona fide purchaser without notice, such as would be protected in his title, under the circumstances? Secondly, Whether a sheriff's deed has any validity without an acknowledgment in court and registry thereof? Thirdly, Whether the fact of an acknowledgment and registry can be established by parol evidence, or in any other way but by the inspection of the record itself? Fourthly, Whether the recording acts are applicable to equitable as well as legal titles? The particular facts of the case are so fully stated in the opinions delivered by the Judges, that it is not deemed necessary to state them more fully here. The court below was of opinion that the recording acts were not applicable to equitable titles; that the registry of the sheriff's acknowledgment was not essential to the validity of the deed; and that the fact of acknowledgment might be established by parol. Bellas and Hepburn, for plaintiff in error, on the subject of the necessity for an acknowledgment of a sheriff's deed in court, cited Purd. Dig. tit. Execution, sect. 7; 2 Binn. 218; 1 Serg. & Rawle 92; 2 Serg. & Rawle 426; 5 Serg. & Rawle 157; 1 Penn. Rep. 402; 2 Rawle 276; 2 Whart. 453, 468; 3 Whart. 363; 2 Yeates 454; 2 Watts 75; 6 Watts 288; 3 Whart. 424, 440; 2 Conn. Rep. 527; 3 Conn. Rep. 406. The acknowledgment of a sheriff's deed is a judicial act of the court and must therefore be recorded. 2 Binn. 218; 1 Serg. & Rawle 192; 16 Serg. & Rawle [Bellas v. M'Carty.] 299; 4 Whart. 291; 13 Serg. & Rawle 335; 1 Stark. Ev. 169; Gressly Ev. 107-9. The imperfect minutes of the clerk are not the records of the court, nor are the evidence of it. 9 Johns. 287; 1 Bay 256; 1 Watts 426; 1 Phil. Ev. 218; 16 Johns. 265; 3 Whart. 251; 8 Watts 156. The recording acts were intended to remedy an evil which existed in regard to equitable as well as legal titles. Purd. Dig. 198, act of 1715; act of 1775, sect. 6; 3 Serg. & Rawle 429; 4 Rawle 444. One who has an equitable title may dispose of it and convey it, so as to entitle his vendee to demand the legal title. 2 Yeates 259; 2 Binn. 40. A purchaser at sheriff's sale is protected by the recording acts. 1 Rawle 325; 3 Yeates 126. 351; 2 Binn. 455; 2 Serg. & Rawle 44; 3 Serg. & Rawle 433; 6 Binn. 118; 5 Serg. & Rawle 257; 1 Story's Eq. 390; 1 Johns. 398; 2 Johns. 510; 13 Johns. 371; 2 Cains 61; 6 Johns. Chan. 417; 4 Cowan 599; 1 Page Chan. 263; 1 Peters 244. On the subject of notice, 2 Watts 79; 4 Kent. Com. 172; 8 Serg. & Rawle 484. Donnel and Greenough, for defendants in error, contended, that there was no act of assembly requiring that the acknowledgment of a sheriff's deed should be recorded. They cited the act of 1705, Purd. Dig. 290; 13 Serg. & Rawle 335; 1 Dall. 69; 2 Yeates 455; 6 Binn. 255; 2 Penns. Rep. 231; 3 Whart. 25; 7 Watts 438; 5 Watts 77. 221. The plaintiff was not a bona fide purchaser without notice, 8 Watts 374; 3 Serg. & Rawle 423; 11 Serg. & Rawle 392; 2 Watts 459; New. on Con. 405; 2 Mad. Chan. 323; 2 Story's Eq. 716, sect. 1502; 4 Watts 362; 1 Story's Eq. 75, sect. 57. 525, sect. 630; Sug. Vend. 530. The opinion of the court was delivered by ROGERS, J.-This was an action to recover the undivided threefourths part of a tract of land in Coal township, in the county of Northumberland. The title of the plaintiff commences with a patent to Samuel Clarke, dated the 11th of April, 1776, from whom he deduces his title, thus: Deed, Clarke to T. Johnson:-Articles of agreement between Johnson and Abraham Cherry, and an assignment by Abraham Cherry to John Cherry:-28th April 1813, articles of agreement between John Cherry and George Derk, recorded 26th Aug. 1814: -17th April 1815, Saxton and Wolverton, administrators of John Cherry, conveyed the same property to George Derk, under an order of the Orphans' Court:-22d December 1829, articles of agreement between George Derk and Christian Bower, acknowledged 24th December 1829, and on the same day-deed, George Derk to Christian Bower, recorded the 24th December 1829:-28th December 1829, Christian Bower conveyed the property to the plaintiff, Hugh Bellas, which was recorded the same day. [Bellas v. M'Carty.] The defendant commences his title with George Derk, under whom both parties claim. To the May term 1820, Peter Richter, who was the assignee of John Spees, obtained a judgment in the common pleas of Union county, against George Derk for 540 dollars. This judgment was entered the 3d April 1820. The 25th December 1820, testatum was issued to Northumberland county, return tarde venit, and on the 25th May 1821, the land in controversy was levied by the sheriff of Northumberland county, inquisition held and condemned. A testatum venditioni exponas issued, which was returned unsold, and an alias testatum venditioni exponas to the 22d February 1822, was returned sold to John Spees; viz. 100 acres, more or less, for 67 dollars. This is all that appears on the record in reference to the sale. It is alleged, and proof has been given, that James R. Shannon, who was at that time the sheriff of Northumberland county, gave a deed for the premises to the purchaser, but there is no record of the acknowledgment of the deed either on the record of Union or Northumberland county. It is also alleged, and proof has been given, that John Spees assigned the premises to P. Moore, on the back of the deed. The deed has been lost in some way, and parol proof has been given of the deed and the assignment. The defendant farther gave in evidence a judgment of the executors of George Moore against the executors of P. Moore. On the judgment a testatum was issued 1st February 1828, and the lands in dispute were levied on, and on the 3d May 1829, were sold to Samuel Siegfried for 100 dollars. On the 17th August 1829 the sheriff gave a deed for the premises to Siegfried, which, with the testatum fieri facias, &c., was duly recorded in the county of Northumberland. The 4th February 1830, deed from Siegfried to A. Jordan, for the undivided half of the property sold to Siegfried as the property of Moore, for the consideration of 50 dollars, with special warranty: recorded 15th June 1830, 50 dollars paid. The 5th January 1831, deed, Alexander Jordan and wife to Wm M'Carty et al. for the same property, consideration 500 dollars, with special warranty. The 29th January 1831, Peter Lazarus, who was the administrator of Samuel Siegfried, petitioned for leave to sell the remaining undivided half part of this tract, which was ordered by the orphans' court. The property was sold by the administrator, and purchased by Wm M'Carty for 565 dollars, and on the 28th April 1832, the sale was confirmed. The 15th March 1833, Peter Lazarus executed a deed to Wm M'Carty. The 25th April 1832, Roger Wolverton, who was the administrator of John Cherry, made a deed to Wm M'Carty and Alexander Jordan for the undivided half of the tract, containing 50 acres, consideration 150 dollars; and on the same day, and for the same consideration, Wolverton, administrator as aforesaid, conveyed the other undivided moiety to Wm M'Carty. By these conveyances, Wm M'Carty became entitled |