The opinion of the court was delivered, January 9th 1872, by
Williams, J.This ease turns on the question whether the waiver of inquisition was a part of the judgment on which the land in controversy was sold. If it was, then the defendant, though a lunatic, was bound by it, and the plaintiffs, who are his committee, cannot question its validity in this action. But if it was no part of the judgment, the defendant, if he was so destitute of reason and understanding as to be incapable of assenting to it, was not hound by it, and the plaintiffs are not estopped from denying the validity of the purchaser’s title under it. A sale on a fi. fa. without waiver of inquisition is without authority and void: St. Bartholomew’s Church v. Wood, 11 P. F. Smith 96; and if so, a sale under a waiver to which the defendant was incapable of assenting, ought not to be regarded as valid if the purchaser was aware of his incapacity.
The act under which the judgment was entered provides that it shall be the duty of the prothonotary of any court of record, within the Commonwealth, on the application of any person being the original holder, or assignee of such holder, of a note, bond or other instrument of writing in which judgment is confessed, or containing a warrant for an attorney at law, or other person, to confess judgment, to enter judgment against the person or persons who executed the same, for the amount, which from the face of the instrument may appear to be due, without the agency of an attorney or declaration filed, with such stay of execution as may be therein mentioned, * * * particularly entering on his docket the date and tenor of the instrument of writing on Avhich the judgment may be founded, which shall have the same force and effect as if a declaration had been filed and judgment confessed by an attorney, or judgment obtained in open court and in term time.
The act, it will be seen, authorizes the prothonotary to enter judgment for the amount which, from the face -of the instrument, *234may appear to be due, with sucb stay of execution as may be therein mentioned; but it gives no authority to include anything else in the judgment. The direction particularly to enter on his docket the date and tenor of the instrument of writing on which the judgment may be founded, was not intended to enlarge the authority previously given, but to individuate and identify the instrument on which the judgment may be entered. He is not required to enter on his docket an exact copy of the transcript of the instrument; it is sufficient if he sets out its substance and import : Commonwealth v. Conard, 1 Rawle 252. The judgment is in strict conformity with the provisions of the act and the terms of the instrument on which it is entered. The docket-entry, after stating the names of the parties, is as follows: By virtue of a writing obligatory under seal, dated August 12th 1862, due one day after date, withywarrant of attorney annexed, I hereby enter judgment in favor of John Hamilton, plaintiff, and against Bich* ard Hope, defendant, for the sum of $76, with costs of suit and costs of attorney’s commissions and release of all errors, waiving the right of inquisition and benefit of exemption laws, &c.
The judgment is for the amount of the note, with costs of suit and costs of attorney’s commissions and release of all errors as authorized by the warrant of attorney; and the date and tenor or substance of the instrument are entered in due form on the docket. The phrase — “waiving the right of inquisition and benefit of exemption laws, Ac.,” is predicated not of the prothonotary, but of the defendant, and constitutes no part of the judgment. It was not intended as the language and act of the prothonotary, but as descriptive of the tenor of the defendant’s waiver as contained in the instrument on w'hich the judgment was entered. If it was intended as a part of the judgment, then it was not authorized by the Act of Assembly or by the warrant of attorney, and must be regarded as void for want .of authority. The warrant of attorney contains no delegation of authority to waive inquisition or to make the waiver any part of the judgment authorized to be confessed. The waiver of inquisition is the defendant’s own act and was clearly intended to be, and is no more a part of the warrant to confess judgment than if it had been written below it and separately signed. It is binding on the defendant if he was capable of executing it, but it is no part of the warrant of attorney or of the judgment entered in pursuance of it. Where stay of execution is provided for, it is properly a part of the judgment— otherwise execution thereon might be issued forthwith. But waiver of inquisition is not properly a part of the judgment. It is the act of the defendant, and not the sentence of the law as pronounced by the court. It does not operate on the judgment or modify its character. Its whole effect is to modify the proceedings under the execution, and to dispense with inquisition and condem*235nation where real estate is taken in execution to satisfy the judgment. If then, the defendant was incapable of executing a valid waiver, and if, as offered to be shown, the purchaser was aware of his incapacity, the plaintiffs were not estopped by the judgment from denying the validity of his title, and the evidence offered by them for the purpose of establishing these facts should have been received. The record of the inquisition and proceedings under the commission in lunacy, finding that he had been a lunatic without lucid intervals for about twenty years, was primfi facie evidence of" his incapacity to execute the waiver of inquisition under which his property was sold, and ought to have been admitted: Hutchinson v. Sandt, 4 Rawle 234; Rogers v. Walker, 6 Barr 371; Willis v. Willis’s Administrator, 2 Jones 159; In re Gangwere’s estate, 2 Harris 417. The purchaser knew, or ought to have known, that a sale on the fi. fa. without waiver of inquisition would convey no title; and if he knew that the defendant was so destitute of understanding as to be incapable of assenting to a waiver, it was his own folly to purchase on the faith of it. But the facts offered to be shown should be clearly established by the evidence before his title is declared void. Where all the forms of law have been observed in making judicial sales, titles should not be set aside except on clear proof of such facts as should avoid the sale.
Judgment reversed, and a venire facias de novo awarded.
Agnew, J., dissented.