The opinion of the court was delivered,
by Agnew, J.The first and fourth assignments of error may be considered together. Both relate to the right of the plaintiff to sue upon a mortgage not in actual custody, and the effect of the registry of the instrument. There is no doubt that the scire facias on a mortgage is founded on the instrument itself, and not upon the record made of it. Such is the necessary effect of it as a mere deed and of the proceeding upon it authorized by the Act of 1705, § 6. Hence the proper plea in denial of the instrument is nonest faetum and not nultiel record: Roberts v. Halstead, 9 Barr 34. But in the trial of the scire facias an exemplification of the record of the mortgage is as good evidence as the instrument itself. This is the express provision of the 5th section of the Act of 28th May, 1715, Brightly’s Dig. 321, pl. 74, and is sanctioned by judicial decision: Curry v. Raymond, 4 Casey 144. See also the Act of 21st of February 1834, § 1, Brightly’s Digest 425, pl. 24. It is therefore clear that the exemplification was proper evidence without producing the original mortgage, or accounting for its non-production. Of course if the original be needed by the defendant as evidence, he has the power to compel its production. Nor is the actual custody or manual possession of the mortgage essential to issuing of a scire facias upon it. The right of a party to issue his scire facias, and to proceed to trial on the mortgage without its actual custody, or when satisfaction appears to have been entered on the record, is distinguishable from the effect of non-production, or of such an entry as evidence in the trial of the cause. Otherwise the door would be shut against the mortgagee when he has been deprived- of his paper by wrong, or has been the victim of fraud or forgery. As evidence in the trial, the possession of the mortgage by the attorney and confidential agent of Mrs. Maloney was a strong circumstance, and went to the jury; but we cannot say that this circumstance was a barrier to bringing suit, or to the exemplification as evidence for the plaintiff.
There is no weight in the second and third assignments of error. Though Mrs. Smith had been examined touching the power of attorney, and Mitchel] was called to contradict her, yet a denial of her statement as proved by Mitchell, was strictly in rebuttal of the particular fact stated by him; and it was at all events a question of order lying very much in the discretion of the court. The payment of interest to her by Cornman was given in evidence, not as a fact in itself to operate against Lancaster after he had *433received his deed, but as a corroborative circumstance of the fraud committed by Cornman upon herself.
The fifth, sixth and seventh assignments may be discussed together. The question whether Lancaster has a remedy against the recorder who attested the entry of satisfaction by Mr. Mitchell, as the attorney of Mrs. Malony, is not in the cause, and demands no expression of our opinion. The true question is, whether she can relieve herself from the'forged power of attorney under which Mitchell acted. Certainly she can unless she has done acts to mislead Lancaster, and has thereby equitably estopped herself from a recovery against him, or unléss the entry of satisfaction is of that official character which in itself protects him. In order to be estopped she must have done something upon the faith of which Lancaster accepted his deed, and which tended to mislead him. It is not pretended that she ever made any representation to him, or did any act herself which misled him. Even the pantomime, enigmatical as it was, which Cornman made her play before Joseph M. Paynter, was not, so far as it appears, communicated to Lancaster. In short, so far as Lancaster knew or acted, there was nothing in the evidence to estop her, except the fact of the entry of satisfaction under the, forged power. The confidential relations between Mrs. Malony and Cornman, and the fact that the mortgage had never been 'in her own custody, do not appear to have been known to Lancaster, or acted upon by him before he took the deed from Paynter and Cornman and paid his money. There is therefore nothing but the unauthorized entry of satisfaction on the record in the case. Now clearly Mrs. Malony is not estopped by the forged power of attorney, and the question turns wholly upon the entry of the satisfaction upon the record. The plaintiff in error contends that the official character of the recorder of deeds invests his act of attestation with a quality which will discharge the mortgage in favor of an innocent purchaser for value. In this he is met in part by his own statement that the scire facias is founded not on the record, but upon the mortgage itself; and therefore the act which affects or extinguishes it, is one to be done by the party to the instrument, and not by an officer. And following up this thought we find that satisfaction is the act of the party and not of the officer, as is shown by the 9th section of the Act of 28th of May 1715, Brightly’s Dig. 326, pi. 106. He must go to the record and enter it there, and if he do not he is liable to a penalty. The register or record so called is not one which imports absolute verity. .“A record it undoubtedly is (says Woodward, J.), but not a record to which the maxim applies, the proper application of which is to judicial records — those which are potentially, if not actually, made up under the eye of the judge in the presence of the parties, after hearing them — and these are kept by the cusios *434rotulorum, and not by the recorder:” Fleming v. Parry, 12 Harris 47. That is precisely the distinction between this case and Coyne v. Souther, 11 P. F. Smith 455, where the act of the prothonotary, being judicial in character, was held to conclude. The act of a recorder is held also to be conclusive where it is purely an official act required to be done by law; as where he makes the entry of the date of receiving a mortgage for record: Musser v. Hyde, 2 W. & S. 314. But in the case before us, it is the duty of the mortgagee to enter the satisfaction, and the recorder only receives and attests the act. Here then was an entry of satisfaction purporting upon its face to be done by an agent or attorney, and not by the party herself. That the agent made the entry is undeniable, for of this the official attestation of the recorder is evidence. But that the agent was authorized to make it depends on the power of attorney, and not on the attestation of the recorder. This brings us to face the true question, to wit, is the mortgagee bound by the unwarranted act of the agent, founded on a fraud and a forgery ? It is clear she is not, unless estopped by some act of her own, which gave it color and misled an innocent purchaser. The recorder’s attestation of the act of the agent has not therefore the conclusive effect the plaintiff in error attributes to it; nor the agent’s act the presumptive authority of that of an attorney at law, as in Thomas v. Jarden, 7 P. F. Smith 331, cited by the plaintiff in error.
The judgment is therefore affirmed.
Sharswood, J., dissented.