Pittsburg,
September 11, 1827.]
LODGE and others against BERRIER.
in error.
The minute of the prothonotary of the acknowledgment of a deed by the sheriff, is not evidence to prove the deed, if the non-production of it is in no way accounted for.
Error to the Court of Common Pleas of Mercer county.
Ejectment brought by George Lodge and others, heirs of Benjamin Lodge, deceased, the plaintiffs below and plaintiffs in error, for two hundred and fifty acres of land in Salem township.
The plaintiffs gave in evidence, on the trial, William Barker’s application for four hundred acres and patent, dated the 25th of March, 1820, to John Walker and John Hummel for the same:— record of the Court of Common Pleas of Mercer county, John G. Fry and others, administrators of J. M. Fry, deceased, against John Walker, surviving partner of Brobst and Lodge, to February 7th, 1817, and judgment for five thousand dollars: — record of the Supreme Court of Pennsylvania in same cause, showing that the said judgment was reversed on the 25th of September, 1821:— record of the-Court of Common Pleas of Mercer county, Same v. Same. Venditioni exponas to.- May Term, 1818, returned two hundred and fifty acres sold to Jacob Fry for fifty dollars.
The plaintiffs then offered in evidence as follows: — record of the Court of Common Pleas of Mercer county, showing an entry by the prothonotary, dated the 24th of November, 181S, that the sheriff had acknowledged a deed to Jacob Fry for the said two hundred and fifty acres. The defendant objected. By the court__ The plaintiffs do not offer to follow this with the sheriff’s deed, nor to show its loss, nor any attempt to procure it. This entry by the prothonotary is secondary evidence, and is therefore rejected. To which opinion of the court the plaintiffs’ counsel excepted.
The plaintiffs further offer to give in evidence as follows: — February, 1823, warrant of restitution issued by the. Court of Common Pleas of Mercer county, in pursuance of the decree of the Supreme Court in the aforesaid suit of Fry and others, executors of Fry, deceased, v. John Walker and others, to which the de*298fendant objected: whereupon the plaintiffs offered to'follow the said testimony, by showing a writ of restitution, No. 43, August Term, 1823 — W. Scott and J. Christy, executors of John Walker, deceased, surviving partner of J. Brobst and B. Lodge, v. John George Fry and John Michael Fry, administrators of John Michael Fry, deceased, upon which the land for which this ejectr ment was brought, is levied on and condemned. Also, a venditioni exponas in same case, No. 39, November, 1823, showing the sale of the same land to Joseph, Lyons, who purchased in trust for the heirs of Benjamin Lodge, and a deed from A. Bunn, esq., sheriff to Joseph Lyons for the said land; and to follow it by testimony, that this land that appears by the record, (the rejected record,) to have been purchased by Jacob Fry, was paid for to the sheriff by the administrators of John Michael Fry, deceased. To which evidence the defendant objected. The court rejected the évidence, and by request of the plaintiffs’ counsel sealed a second bill of exceptions.
On this record, the counsel of the plaintiffs in error assigned the following errors:—
1st. The court below erred, in not permitting the record of the Court of Common Pleas of Mercer county, showing an entry by the prothonotary, that the sheriff had acknowledged a deed to Jacob Fry for the two hundred and fifty acres, the land in dispute, to be read in evidence to the jury.
2d. The court below erred; in not permitting the warrant of restitution, No. 43, August Term, 1823, to be read in eyidence to the jury,'and in rejecting the evidence offered.
Bredin and S. Foster, for the plaintiffs in error.
Isi Error. — In rejecting the entry on record, of the acknowledgment of the sheriff’s deed. The record is as good evidence as the original: it is not secondary evidence. In Krider’s Lessee v. Nargong, 1 Dall. 268, a sheriff’s deed, acknowledged in court, was .held admissible in evidence. By M‘Kean, C. J., the registering in the office of the prothonotary is a sufficient recording within the act. Per Yeates, J., a deed registered in court, (a sheriff’s deed,) is equal to recording. They also cited, M‘Cormick v. Mason, 1 Serg. & Rawle, 92. When once the deed is acknowledged by the sheriff, the title passes to the purchaser. The entry of the deed on the record of the Court of Common Pleas, is equal to recording in the office of the recorder of deeds.
2d Error.- — In rejecting the evidence of the warrant of restitution. • This writ was a record, and ought to have been received, accompanied with the other evidence offered by us.
Banks, for the defendant in error.
1st Error. — The evidence of the entry of the sheriff’s acknowledgment was not evidence at common law, or by the act of assembly. In the cases cited, the deed itself was produced. The entry on the record is but an abstract, not a copy of the deed.
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2d Error. — It was necessary to prove some title in Fry’s executors. Some title must be shown in the person, as whose property the land is sold, before the sheriff’s deed to him- can be given in evidence. Kennedy v. Bogart, 7 Serg. & Rawle, 98. Hoge v. Long, 10 Serg. & Rawle, 10. The plaintiffs neither proved title, nor offered to prove title, in the administrators of Fry.
Reply.
The evidence of the entry of the sheriff’s deed was rejected,- solely on the ground of being secondary evidence. There is no act of assembly permitting a sheriff’s deed, acknoivledged in court, to be recorded in the recorder’s office, in the case of Krider’s Lessee v. Nargong, 1 Dall, 268, M ‘Kean, C. J., said, that the registering of the deed in the office of the prothonotary, is a sufficient recording within the act.
The opinion of the court was delivered by
Rogers, J.
This is an action of ejectment, brought to recover two hundred and fifty acres of land, purchased for the use of the plaintiffs at a sheriff’s sale. In the trial of the cause, it became necessary to prove some title in the person, as whose property the land was sold, according to the authority of the case of Kennedy v. Bogart, 7 Serg. Rawle, 98. For this purpose, the plaintiffs offered in evidence, the record of the Court of Common Pleas of Mercer county, showing an entry by the prothonotary, dated the 24th of November, ISIS, that the sheriff had acknowledged a deed to Jacob Fry, for two hundred and fifty acres of land, the property in dispute, without any, offer to show , the deed of the sheriff, its loss, or any attempt to procure the deed: -
An acknowledgment by the sheriff in open court, and a minute of this on the record, with the production of the deed itself, is a sufficient recording of the deed. 1 Serg. & Rawle, 96. The minute on the record is a mere abstract of the deed, and not a copy, and the non-produetion of the original, without some account of its loss, or some pains taken to procure it, is a circumstance of suspicion. It does not necessarily follow, that, because it has been acknowledged, and a minute made of it, that the deed has been delivered to the purchaser. It d.oes sometimes happen, that he will not, or cannot comply with the terms of sale; in which case, it is retained or placed in the hands of a stranger as an escrow, until the money be paid. Whether that was the .case here, does not appear. The deed was'neither produced, nor was its non-production accounted for; and without this, the minute on the record is but secondary evidence, which ought not to be received.
The errrors assigned are so blended, that the decision of the one necessarily disposes of the other. Without showing an interest in the executors of Fry, as whose property the land in dispute, was sold, (which can only be done by showing the deed to Fry,) this suit cannot be sustained.
Judgment affirmed.