dissenting. — It is with great reluctance,and certainly not without some feeling of diffidence, that I undertake to express my dissent to the decision of some of the points which have been mentioned, as arising in this cause, in the very lucid and able opinion of the court, delivered by Mr Justice Rogers. Believing, however, that the rules of property will be materially affected thereby, and changed from what they have ever been considered as being, according to the plain meaning and spirit of the several legislative enactments, which have reference thereto, as also the various adjudications of this court in relation to the same, I feel myself constrained by ásense of duty, as long as I cannot yield my assent to the opinion of the court on the points alluded to, to declare my own, in regard to them, with some of the reasons; which appear, in my humble view, to be sufficient for its support. The first matter, in which I must beg leave to differ from the opinion of the majority of my brethren, is, as to the nature and character of the acknowledgment, directed by law to be made of a sheriff’s deed, conveying lands sold by him under judicial process of the court, and the effect of the want of such acknowledgment under certain circumstances. From the first settlement of the state, even as a province, lauds were held liable to the payment of the debts of their respective owners. By the 14th of the fundamental laws, agreed upon in England, the 25th of April 1682, between William Penn, governor and chief proprietary, then of Pennsylvania, and the freemen and planters of the said province, it was agreed, “ That all lands and goods should be liable to pay debts, except where there is legal issue, and then all goods, and one-third of the lands only.” Miller’s Prov. Laws, Appendix I. And by the legislature of the province, at their meeting held at Chester or Upland, in the latter end of the same year, the liability of lands to pay debts, in cases of lawful issue, was extended to the one-half thereof, instead of one-third, where the lands were purchased before the debts were contracted. Ibid. 4, sect. 51. And in 1688, in further *32explanation and alteration of the law on this subject, it was enacted, “ Thall all lands whatsoever and houses should be liable to sale upon judgment and execution obtained against the defendant, his heirs, executors, or administrators, with this proviso, that the messuage and plantation, with its appurtenances, upon which the defendant was chiefly seated, might not be exposed to sale, till the expiration of one year after the judgment obtained, to the intent that the owner, or any one on his behalf, might endeavour the redemption of the same; and before such sale should be made, the appraisement thereof should be by twelve honest and discreet men of the neighbourhood; and that after such sale and appraisement as aforesaid, the lands should be and remain as a free and clear estate to the purchaser or creditor, his heirs and assigns for ever, as it was to the debtor.” Ibid. 6. This appears to have been the first act which made all the lands of the debtor liable, in every instance, to the payment of his debts; and for this purpose directed that they, after being appraised, should be liable to be sold upon judgment and execution, which was never before directed expressly. Anterior to the passage of this act, the practice had been to take first one-half of the lands of the debtor, under a writ of elegit, issued upon the judgment for that purpose, and to deliver the same by metes and bounds to the creditor or plaintiff, at an appraised value thereof, made by twelve men, towards payment of his claim. Then after this, where the debt was contracted subsequently to the purchase of the land by the debtor, and the moiety thereof delivered to the plaintiff proved insufficient to satisfy it, a second writ of elegit was sued out, and the remaining moiety of the lands taken and delivered in like manner to the creditor, if the debtor happened to have no legal issue. The writs, thus issued and executed, were returned by the sheriff and filed in the prothonotary’s office, whereby the creditor became invested with such right and title to the land as the debtor had, without any action or decision of the court thereon whatever. And the land being thus transferred, under the authority of judicial process, sued out of a court of record, was deemed such a conveyance thereof, as every person was bound to take no-' tice of; so that no one thereafter could become a purchaser of it from the defendant, named in the process, without being affected with notice of the prior transfer made of it, as it were, by operation of law. This act of 1688 was limited in its duration to one year, and until twenty days after the rising of the next general assembly, but was continued in force by subsequent acts till 1695, when the legislature passed a new act in the same words, excepting that it was without limitation. Miller's Laws, Appendix, p. 10. The practice of the sheriff’s selling lands, taken in execution by him, and of making deeds conveying the same to purchasers, seems to have commenced with the operation of the act of 1688, though nothing is mentioned therein of his making a deed of conveyance for the purpose of perfecting his sale of the land. The first act that we *33have on the subject, expressly directing it, is that of 1700, whereby it is enacted, “That all lands and houses, within this government, shall be liable to sale, upon judgment and execution obtained against the defendant, the owner, his heirs, executors or administrators, where no sufficient personal estate is to be found; with this proviso, that the messuage and plantation, with its appurtenances, upon which the defendant is chiefly seated, shall not be exposed to sale before the expiration of one whole year after judgment is obtained, to the intent that the defendant, or any other on his behalf, may endeavour the redemption of the same; and before any such lands, messuages or houses, or any other lands or houses whatsoever, taken in execution, shall be sold, they shall be duly appraised by twelve honest and discreet men of the neighbourhood; and then it shall and may be lawful for the sheriff to make sale of, a-nd convey the same under his hand and seal; after which sale and appraisement, made as aforesaid, such land and houses shall be and remain a free and clear estate to the purchaser or creditor, to whom the same are so made over or sold, his heirs and assigns for ever, as fully and amply as ever they were to the debtor.” But still, notwithstanding the sheriff is here directed to make a deed perfecting the sale, yet he is neither required nor directed to acknowledge it in court or elsewhere. And, I presume, it will scarcely be denied, that the court, from which the process issued authorizing the sale, might have set it aside at that day as well as at the present, if any irregularity had been shown to have been committed by the sheriff in making it. The practice, however, mentioned above, of sheriff’s making deeds confirming their sales of lands taken in execution, commenced under the act of 1688, and continued to prevail down to the passage of the act of 1700. And without any direction given, by any act to sheriffs to make deeds for such purpose, or to acknowledge them in court when executed, deeds were made and acknowledged by sheriffs in court, in some instances, and perhaps in the majority of cases where sales were made of lands taken in execution; but certainly not in all, as would appear from the records of the courts at that time. The practice of acknowledging the deeds at this early period by sheriffs, was possibly borrowed from the practice which had obtained previously of acknowledging private deeds conveying land, under the act of 1683, (Miller's Laws, Appendix, pp. 5,6,) entitled, “Forms of grants of estates of inheritance for life, lives or years.” By this act it was enacted, “ that for avoiding long and tedious conveyances, and the many contentions which may arise about the variety of estates, all grants of estates shall be, either of the inheritance, or for life or lives, or for years, any number not exceeding fifty years, which grants shall be thus contracted in these words: “ A B, the &c., day of &c., in the year (according to the English account) 16 &c., from him, and his heirs and assigns, grants his, (describe the bounds,) with all its appurtenances, lying in the county of-, containing •- *34acres, or thereabouts, to C D, and his heirs, (in fee,) or E F, for his life, (if for lives,) or to G H for one hundred years, if I K L M N 0 shall so long live, or to P Q for fifty years, for the consideration of - pounds in money paid, and of the yearly rent to be paid to A B, and his heirs and assigns, upon the &c., day of &c. In witness whereof he sets his hand and seal. Sealed and delivered in presence of R S T. Acknowledged in open court, and certified under the clerk’s hand and court seal, the day of &c., 16 &c., and registered the &c., day of &c., 16 &c.” It is perfectly clear, from the tenor of this act, that it did not embrace, and moreover that it was not intended to have any bearing whatever on sheriffs’ deeds. The form of deed furnished by it could not be made to suit that of the sheriffs. And from the whole tenor and scope of it, it is difficult, if not impossible, to conceive that it was the design of the legislature to prohibit the use of other forms, previously in use, in making deeds of conveyance for purposes similar to those indicated by the act, and to render them void if they were not made in conformity to the form thereby given, and acknowledged and registered as thereby directed. This act, at most, can only be considered as directory, since it contains no prohibition as to using other forms in making deeds thereafter; nor declaration that they shall be void, if not acknowledged in court and registered, nor that they shall be of no force until so acknowledged and registered. Doubtless many deeds were made after the passage of this act, of a different form, without being either acknowledged or registered in court, which were nevertheless received and considered effectual and valid. And certainly much less could it be pretended that a sheriff’s deed could be affected, or considered of no effect for want of such acknowledgment and registry: Because in no case was such a thing contemplated or directed by the legislature to be done, with a view to its being considered a judicial act by the court, in order to give it validity and efficacy thereafter. It was directed merely for the purpose of authenticating the execution of the deed so acknowledged and registered, that it might be rendered admissible in evidence thereafter, without making farther proof of its execution, according to the rule of the common law. That such acknowledgment, made at that early day, of a sheriff’s deed in open court, was considered as being done merely for the purpose of having its execution authenticated, by a certificate of the clerk of the court, under his hand and the seal of the court, so that it might be recorded, in the recorders office of the county, or the rolls office, either for preservation, or for being given in evidence at any time thereafter, if called for, without further or other proof being given of its execution, is evidenced in some degree by the practice which then prevailed of having them so recorded, as also by the form of the certificate given by the clerk of the court. In order to show what the certificate was like, I will here add a transcript, taken from two or three deeds of that day, which has been most kindly furnished by a friend. John White, *35sheriff of the county of Philadelphia, in the province of Pennsylvania, having seized and taken in execution a house and lot of ground situate in the city of Philadelphia, under a writ of fieri facias, upon a judgment at the suit of Griffith Jones against Samuel Jobson,sold and by his deed conveyed the same to the plaintiff; and at the foot of the deed is a certificate, intended no doubt to be one, of the ac_knowledgment of its execution in the following terms. “ Acknowledged in open court, held at Philadelphia, on the 7th first month 1693. Witness Wm. Markham, clerk, court and county seal,” [l. s.] This deed appears to have been recorded afterwards on the 4th of the third month, in the same year, in the office for recording of deeds in the city and county of Philadelphia, in Book E 2, vol. v, p. 256. Also to a deed executed by John Claypole, sheriff of Philadelphia county, to Daniel Giffin, for a messuage and lot of land, taken in execution, and sold by the former as sheriff to the latter, is subjoined a certificate of acknowledgment in the following words: “ Acknowledged in open court, held at Philadelphia the 7th day of December 1697, as witness my hand and county (not court) seal. John Clay-pole, sheriff, [l. s.]” This deed also appears to have been recorded the 15th of the first month, 1697-8, in the office for recording of deeds. Again, to a deed from Thomas Farmer, sheriff of Philadelphia county, to Jacob Reginer, for a lot of ground lying in the city of Philadelphia, is underwritten a certificate of acknowledgment, in the following words: “ Acknowledged in the court of common pleas, at Philadelphia, the 9th September 1703, certified under my hand .and county (not court) seal. Robt. C. Asheten.” This last deed, it will be perceived, is certified by Robert C. Asheten, under his hand, without any indication of what he is, and under the county seal, as is also the one immediately preceding; and appears to have been recorded in the office for recording of deeds, on the 11th of the ninth month, in the following year, 1704. Now, if the acknowledgments of these deeds in the court had been considered or looked on as judicial acts of the court, can it be believed that they would not have been certified as such, in the usual form of certifying a record of the court — for instance, in the conclusion thereof: thus, “ as appears by the records of the said court. Witness my band and the seal of the said court. R. C. A. clerk.” Thus this latter form, or one of similar import, would have been adopted and observed, had the acknowledgment been considered as judicial, I think can not well be doubted; but being viewed as a certificate merely of the fact, that the sheriff had appeared in court and acknowledged that the deed, which he produced and held in. his hand, was his deed, a matter which required no action of the court, and with which the court certainly, at that day, never supposed it had any thing to do, unless the sale was objected to, on account .of its having been unfairly or irregularly made; the object being to have the deed authenticated, so that it should carry evidence on it of its execution, it was deemed sufficient for the clerk of the court to certify the fact of the sheriff’s *36having acknowledged it in court, without more. And here permit me to say, that down to the present day this is the practice, and all that is certified: and that such certificate of the acknowledgment of the deed, subjoined thereto, has ever been received as satisfactory evidence thereof, whether an entry of the acknowledgment was to be found upon the records of the court or not. Anterior to the passage of the act of 1705, entitled “ An Act for taking lands in execution for payment of debts,” 1 Dall. Stat. Laws 67; 1 Smith 57, no direction was contained in any act, that the sheriff should acknowledge his deed in court or elsewhere, though it had been a common practice to do so: and that it was so, would seem to be recognized in that act, in the direction therein contained to “ give the buyer a deed; duly executed and acknowledged in court, for what is sold, as has heretofore been used, upon the sale of lands.” But if the acknowledgment usually made by a sheriff theretofore, of his deed in court, upon his sale of land, was not considered, as I think I have shown it was not, a judicial act, then certainly there is nothing in this last act making it so. But further, it seems to be admitted that the practice of acknowledging sheriffs’ deeds in court, for the sale of lands, as there was no act of the legislature directing it, must have commenced out of courtesy to the practice which obtained under the act of 16S3, recited above, giving a form for private deeds conveying lands, and directing them to be acknowledged in court and registered. But surely it will not be pretended, that an acknowledgment made in court, under that act, of a private deed, by a grant- or of his own land, could be construed into a judicial act, even by the utmost stretch of ingenuity itself. By that act, no power whatever is bestowed upon the court over the acknowledging of the deeds thereby directed to be acknowledged in court; so that it is utterly impossible, as it seems to me, to hold that acknowledgments made under it were judicial acts, when the court had no power whatever given to it to interfere with or control the acknowledgment so directed to be made. The court was completely passive in the matter, excepting as to giving the certificate of its having been done in court, which may perhaps be regarded as the act of the court, but certainly not as one of a judicial character, requiring the exercise of any discretion or judgment. Seeing, then, that the practice of acknowledging sheriffs’ deeds in court is derived from the practice that obtained previously, in regard to private deeds, under the act of 1683, without any legislative direction, or requisition on the subject, it is difficult, if not altogether impossible, to make the acknowledgment of a sheriff’s deed amount to more in its nature than that of a private deed under the act of 16S3, from which it was at first borrowed. Then, it being thus shown that the nature and effect of acknowledging a sheriff’s deed in court, before the act of 1705, could not be deemed a judicial act, and as it is clear that that act made no alteration or change whatever in its nature, but simply directed it to be done “as had been theretofore used,” it must still *37be considered the same, and nothing more than it was before the passage of that act. That act, in this respect, is clearly directory only, and does not declare the deed void or ineffectual, unless acknowledged in court: so that if the execution of the deed be established, by proof made according to the rule of the common law, and no valid objection can be made to the sale, it ought to be considered valid and available; and especially where the purchaser at sheriff’s sale, or party claiming under him, is in the possession of the land, as in this case; and the sheriff dead, who executed the deed, so that he can not be had to acknowledge it in court. But further, every subsequent act of the legislature, relating to the acknowledgment of 'sheriffs’ deeds,until after the deed in question was executed, goes to show, very clearly that the acknowledgment, though directed to be made in court, was not considered a judicial act, nor as requiring the exercise of any discretion and judgment of the court in regard to it. Under the act of 1705, it was ever considered that the deed of the sheriff was thereby directed to be acknowledged in the court, from which the process authorizing the sale of the land issued. M’Cormick v. Mason, 1 Serg. & Rawle 99, 101; Thompson v. Phillips, 1 Bald. 272. And that is the court also to which the sheriff, by the terms of the process, is required to make return of the same, and what he has done thereon. This is so even in testatum executions. And it may be that this has given rise to a notion entertained by some of the profession, and also by some judges, that the acknowledgment of the deed in court is necessary to show that there has been a confirmation or approval of the sale on the part of the court, in order to make it valid and effectual; and, therefore, must be held to be a judicial act. But this is clearly a misapprehension of the matter; for under the eleventh section of the act of the 13th of April 1791, 3 Dall. Laws 95; 3 Smith 31, entitled “An Act to establish the judical courts of this commonwealth,” &c., the sheriff, when he sells land by virtue of a testatum, execution, is authorized expressly to acknowledge his deed, perfecting the sale, in the court of common pleas of the county wherein the sale is made, and the land lies, and yet, until the passage of the act of the 16th of June 1836, this court, in which the deed is thus directed to be acknowledged, by the act of 1761, never had any power over the sale whatever; it could neither affirm nor set it aside, but was authorized by the act of 1791 barely to take the acknowledgment of the deed, and to certify it, which demonstrates that such acknowledgment could not have been deemed a judicial act, as is alleged. Before the act of 1836 came into operation, the court alone, from which the testatum process issued, in case of a sale of land being irregularly made under it, had the power to set such sale aside, so that the deed might have been acknowledged in the court of the county, wherein the sale was made, which, according to the express terms of the act of 1791, shall be as valid and effectual, as if acknowledged in the court of the county from which the process issued; and yet this latter court *38might have set the sale aside, after the deed had been acknowledged in the. former; which shows that the acknowledgment of the deed could not be considered as a judicial confirmation of the sale. It can not be supposed that the provision of the act of 1791 arose from any want of advertence or proper apprehension on the part of the legislature as to the real nature and design of the acknowledgment, because being, as the legislature rightly considered it, and intended it should be, a mere authentication of the execution of the deed by the sheriff, and not a judicial confirmation of the sale, further than it was regular and duly made, it was authorized to be done in the county where the sale was made, in order to meet the convenience of the sheriff and save expense to the parties, by rendering it unnecessary for him to go to, possibly, the extreme end of the .state for the purpose of acknowledging the deed in the court whence the process issued. It would also seem that, whenever the legislature deemed it requisite that the judicial interposition of the court should be had for the purpose of perfecting a sheriff’s sale, as in the case of a sheriff dying or going out of office, after having made a sale of land, but without having executed a deed to the purchaser, they have required that the court, from which the process issued, upon application, shall examine the matter, and thereupon make an order, authorizing the sheriff for the time to make a deed perfecting the sale of his predecessor, which order when made shall be entered on the records of the court. Section second of the act of the 23d of March 1764, 1 Dall. Laws 440; 1 Smith 263. Thus it would appear, when they intended that any thing should be entered on the .records of the court in regard to a sheriff’s deed, they expressly directed that it should be so, in order to render it available. But no entry- of the sheriff’s deed, or the acknowledgment of it by the sheriff, is directed, either by the act of 1700 or 1705, to be made on the records of the court. So it would seem to be fairly inferrible from other acts on the subject of selling lands for paying the debts of the owners thereof, that if the legislature had intended that every sale, made by a sheriff, of land taken in execution, should be approved of first by the court, before it should be considered valid, they would have said so in express terms; for they did so in the law of 1693, Miller’s Law, Appendix 9, entitled, “The Law about Testate and Intestates,” by enacting, “ that all real estates and lands, tenements and hereditaments, and all personal estates which any person hath in this province, at the time of his decease, shall be liable, either by conveyance or bill of sale, duly executed by the lawful executor or administrator of such deceased, and approved and acknowledged in open court, according to law, or by judgment and order of the respective courts of record, upon due procedure therein had, to be seized and sold for payment of the decedent’s just debts, so far as the same estate shall extend in due order of law.” But again, can it be supposed that if the law had been such in 1764, when the legislature acted upon this subject, as *39that a sheriff’s sale of land, taken in execution, could not be hoi den good until it was either expressly approved by the court from which the process issued, or at least was impliedly so; as is contended here, it must be by an acknowledgment of the deed, and an entry thereof made on the records of the court, that they would not have provided also for the case of a sheriff’s dying after he had made a sale and deed perfecting the same, but without having acknowledged it in court, by authorizing the court to make an order, directing the sheriff for the time being in office, to execute and acknowledge a new deed; but this, in their view was unnecessary, and could only have been so for one reason, which is, that a deed made by a sheriff, who died or went out of office, without having acknowledged it, was good and effectual without it. Adams v. Thomas, 6 Binn. 254; Woods v. Lane, 2 Serg. & Rawle 53. And indeed never was there any act passed authorizing the court to make an order of any kind in such case, until 1836, when, by the act of the 16th of June in that year, the courts, perhaps, would seem to have that authority given them. This, most probably, was thought advisable on account of the conflicting opinions, which seemed to be growing up in regard to the necessity or expediency of it. Supposing then the sale, in such case, to have been regularly made, before the act of 1836, under judicial process; and the purchaser to have paid the purchase-money to the sheriff, which he was bound to do immediately upon the land being struck down to him, Scott v. Greenough, 7 Serg. & Rawle 199, Negley v. Stewart, 10 Serg. & Rawle 207, and the sheriff to have paid it over to the lien creditors, who were entitled thereto, and after having executed a deed to the purchaser of the land, to have died without acknowledging it in court, what was the purchaser to do for want of his deed not having been so acknowledged? Will it be said, or can it be, that under the then existing state of the law, he could not have recovered the possession of the land from the defendant, as whose property it was held? notwithstanding the purchaser had paid the purchase-money, and the defendant had received the full benefit of it in the payment of his debts? If the purchaser could not have recovered the land, it is very clear that he could not have recovered back his money, because it had gone into the pockets of those who were justly entitled to receive it. Neither could he have proceeded so as to have the land sold a second time, because, as long as the first sale stood, no process could be issued authorizing a second; but the first being perfectly regular, the court could not interpose and set it aside. If the law was so, the situation of the purchaser in such case, must be most deplorable indeed. He was induced, upon the faith of the law that he would get the land, to part with his money, but it seems that through the visitation of God, in removing the sheriff from existence, the law was unable to do this; and hence, without any default whatever upon his part, he is so *40fixed that he can neither get the land nor his money back again. He is placed so, that he can neither move forwards nor backwards, tip nor down. It is almost impossible to believe, that the law ever could have been such as to have worked such flagrant and outrageous injustice. But even ifit be, that the acknowledgment by the sheriff of his deed in court, were only required in order to show at all times thereafter, that the court in permitting him to do so, had approved of the sale, and therefore it was to be regarded as valid, why, in case of the sheriff’s death, when his appearance in court for this purpose has become impossible, could not the court on the trial of the ejectment, either brought by the purchaser to recover the possession of the land, or against him, if he has peaceably and fairly obtained it, examine into the regularity of the sale, and after having heard all that can be adduced for and against if, pronounce it either good or bad, according to what shall have been shown? Under any possible view, as it appears to me, that can be taken of the act of 1705, more than this, at the very utmost could not be required; but dearly the most rational construction of it is, that it is directory only, so far as regards the acknowledgment of the deed by the sheriff, and the want thereof does not therefore render the deed ineffectual. And such was the view which the conrt took of it in Moorhead v. Pearce, 2 Yeates 256, where the deed had never been acknowledged in court by the sheriff, but the execution of it by him proved on the trial of the cause, by one of the subscribing witnesses thereto. So in Duncan v. Robeson, 2 Yeates 454, a deed acknowledged in court by the sheriff, as such, some twenty-five or six years after he was out of office, and four after the plaintiff, who claimed under it, had commenced his action, was received in evidence, on the ground that the acknowledgment of the deed was sufficient evidence of its execution, and nothing more; because the defendant was allowed to show, if he could, that the sale was not made according to the requirements of the law. As to this, the court said, “ the defendant is at liberty to go into every objection against the sale, which might have been made, if the deed was now offered for acknowledgment, as in common cases.” See also Stroeble v. Smith, 8 Watts 280, where the act of 1836, which is much more particular and apparently preremptory in its direction for the acknowledgment of sheriff’s deeds, was held to be directory only in relation thereto. And in the late case of Steever v. Rice, 3 Whart. 21, it was held, that a purchaser of a messuage and lot of ground, situate in the city of Philadelphia, sold by the sheriff to him, under a writ of levari facias, issued upon a judgment obtained in a scire facias on a mortgage, wherein the purchaser was the mortgagee, and the money arising from the sale coming to him, acquired such a right, and interest by his purchase in the property, of which he had taken the possession, without even having obtained a deed from the sheriff, as would enable him to defend against a subsequent purchaser, who had got a deed duly *41acknowledged in court, upon a sale made by the sheriff of the same property under an execution, sued out upon a judgment, at the suit of another person against the mortgagor. This was certainly going much further than the court below went in this case, for it was protecting the defendant in the possession of his purchase, without his having any deed at all; but here the defendant had a deed founded upon a sale, to which no objection has been made. That a purchaser at sheriff’s sale, of land, acquires an interest thereby, before he obtains a deed from the sheriff for it, has been settled and recognized in several cases. In Morrison v. Wurtz, 7 Watts 437, it was ruled, that a purchaser at sheriff’s sale of land, before he obtained a deed for it from the sheriff acknowledged in court, had an inceptive interest therein by the contract, which would become bound by a judgment entered against him, at any time after the land was struck down to him. And in Hartman v. Stohl, 2 Penn. Rep. 231-2, this principle is still carried further. There it is laid down by Mr Justice Rogers, that by payment of a large portion, such, for instance, as three-fourths of the purchase-money, and the delivery of the possession, the sheriff’s vendee of land acquires an interest therein, which, although if may not amount to a legal title, is such as may be taken in execution and sold, and that the purchaser thereof may recover the possession from one who shows no title.
Then as to the manner in which sheriffs usually acknowledged their deeds before the act of 1836; there was certainly nothing therein which would have led any one to believe, or even to suspect, that the court, in g-iving their attention to the sheriff while he acknowledged his deeds, were pronouncing a judgment, approving and confirming the sales mentioned therein. In the courts held in and for the city and county of Philadelphia, from the time of the earliest recollection of the oldest gentleman of the bar there, the practice of the sheriff, until the act of 1836 came into operation, was to appear in court, with all the deeds in his hand, which he had to execute for sales of lands, made under writs returnable to that or any preceding term, and even in the midst of the trial of a cause by a jury, or other business going on in the court, to watch the presiding judge of the court until he caught his eye, and then to raise his hand, in which he held his deeds, repeating, “ I acknowledge the deeds which I now hold in my hand,” or other words of similar import, without attempting to designate them by any thing whatever contained within them: and then hand them over immediately to the clerk of the court, who without a word being uttered by the court, made a brief memorandum generally of the acknowledgment from which he was enabled afterwards, when he could attend to it, to make a certificate of the fact at the foot, or on some part of the deed itself, under his hand and the seal of the court, pretty much in the form of those previously given. And instances have occurred, and it is believed not a few, of deeds being *42taken from the clerk’s office, after being acknowledged in the manner mentioned, without any such certificate being entered upon them, or entry of the acknowledgment made on the records of the court, or registry of the deed itself. Now to pronounce such a procedure a solemn adjudication of the court, approving and confirming the various sales mentioned in the several deeds so acknowledged, without the court’s knowing or being informed what they were, or even attempting to make the inquiry, would seem to be, as it appears to me, any thing but a judicial act of the court. . In truth it seems to be even worse than mockery to call it so. We have cases, however, iu which it must be admitted, that the acknowledgment of the deed by the sheriff in open court has been spoken of as an indispensable requisite or judgment of the court, in order to give the deed validity, but certainly in no case does it appear to have been decided, that a sheriff’s deed, founded upon a sale of land made by him under proper authority, and in due conformity to every requirement of the law, could not avail the purchaser or give him title to the land, without its being acknowledged in court, when the death of the sheriff, as is admitted to be the fact in this case, has rendered this impracticable. The reason given by Chief Justice M’Kean in Shrider’s Lessee v. Nargan, 1 Dall. 68-9; for its being unnecessary to have a sheriff’s deed “recorded in the rolls’ office according to the act of assembly of 1774,” as it is mentioned in the book, buf I take it as it must have been meant, “in the office of the county for recording deeds, according to the act of 1775.” It was there objected that a sheriff’s deed, not recorded, could not be read in evidence. “ Sed non allocatur, because it was (as is said) acknowledged in court, and the registering of it in the prothonotary’s office (as is always done) is a sufficient recording within the act.” It was also ruled in that case, that every deed under seal, when proved, wight be read in evidence. Surely this would apply to a sheriff’s deed as well as that of any other person, and support the reading of thé sheriff’s deed in evidence, as was done in this case, in the court below, because it was proved to have been executed by the sheriff before it was read in evidence, and was directly pertinent to the issue in this cause, which seems to be a qualification that ought to have been annexed to this broad rule, as laid down by the court in that case, according to what is said in the cases of Peters v. Condron, 2 Serg. & Rawle 84, and Faulkner v. Eddy, 1 Binn. 188. The decision of the court on the first point in Shrider v. Nargan, was correct enough, that is, in admitting the sheriff’s deed to be read in evidence, though it was not recorded in conformity to the act of 1775. But the reason assigned for it was clearly erroneous. The reason assigned does not meet, what would appear to have been one of the chief objects which the legislature had in view in passing the act of 1775, which was that of causing every deed, passing or affecting the title to lands, to be recorded in the office, established within the county for *43the recording of deeds, where the lands were situated. Now, admitting that it was the praclice, in every case of a sheriff’s deed, for the sheriff to acknowledge it in court, and for the prothonotary to make a record of the acknowledgment and a registry of the deed; still before the passage of the act of the 13th of April, 1791, this could only be done in the court of the county, from which the process authorizing the sale issued. So that there could and was not any record made of the acknowledgment of the deed, or registry of the deed itself, in the county where the lands were situate, when sold under testatum process, which was frequently the case. This, if done at all, could only be done legally in the court of the county from which the testatum process issued. Hence it was evidently incorrect to say, that the acknowledgment of a sheriff’s deed, founded upon a sale of land made under testatum process, was a sufficient recording within the act of 1775: it can not be likened in any respect to a recording of the deed in the county where the land lies. The reason therefore assigned by the court, for their decision on the first point in Shrider v. Nargan, may be regarded as given hastily, and looked on as a slip in the hurry of business, as Chief Justice Tiighman said, in 2 Serg. & Rawle 83, their decision on the second point has been considered. The decision itself, however, was right enough, but the reason given in support of it is wrong. The court, as it appears to me, ought to have said, that the deed being a sheriff’s deed, conveying land, regularly taken in execution and sold by him, did not come within either the letter or spirit of the recording act of 1775, or of any other recording act. It being a sale founded upon a judgment had in a court of record, and made publicly by an officer of the law under and by virtue of judicial process, sued out and directed to him for that purpose, it was deemed by the legislature unnecessary to require that it should be recorded in the office for recording deeds in the county where the land lay, within six months after the execution thereof, or within any other period, otherwise the deed should “be adjudged fraudulent and void as against any subsequent purchaser or mortgagee, for valuable consideration,” which are the words of the recording act. It will scarcely be denied, I think, that previously to the act of the first of April, 1823, every person would have been bound, at his peril, to have taken notice of a seizure of land under a testatum fieri facias, and condemnation of it to sale, as also of a subsequent sale thereof under a testatum venditioni exponas, though no entry should have been made of such testatum fieri facias on the records of the court, in which the land was situate, nor deed acknowledged by the sheriff therein, within six months after the return day of the writ of venditioni exponas, under which the sale was made, in imitation of the six months allowed for recording of private deeds under the recording act of 1775. Indeed it frequently happened after the passage of the act of the 20th of March, 1799, enabling the justices of the supreme court to hold circuit courts in the several *44counties of the slate, as often as causes should be removed into the same, and be at issue, that deeds of sheriffs’ grounded upon sales made under testatum process from the supreme court or some .of the circuit courts, were not acknowledged for a year or two, or even longer in some instances after the sales, on account of no circuit court being held in the county where the lands lay, in which the sheriff, by:the express terms of that act, was authorized to acknowledge his deeds executed upon such sales; yet no man ever supposed that, during such interim, if any person purchased the land of the defendant in thé execution, though bona fide, for a valuable consideration, and without actual notice of the sheriff’s seizure and sale, he could hold it against the purchaser at the sheriff’s sale. Judicial sales are not only founded upon the judgments and decrees of courts of record, of which every one is bound to take notice, but made publicly in pursuance of process issued thereon, after actual notice given to the party, as whose estate the land is about to be sold, and to the public, by advertising them in the newspapers published within the county, and by means of handbills set up in different parts thereof, some three weeks previously, of the time and place, "when and where the sale shall be made. Public convenience, as also public policy, therefore requires, that all shall be held bound to take notice of judicial sales or transfers of real estate. Such also is the law as to personal'estate, so that there need be no actual and visible change in regard to the possession of it, corresponding to the transfer made thereof by the sale, as there must be when private sales are made of it. Accordingly in Myers v. Harvey, 2 Penn. Rep. 478, it was held that the purchaser of personal property at sheriff’s sale, was protected in his right, which he thereby acquired to the same, against the claims of the creditors of the debtor against it while it remained in the possession of the debtor under a lease from the purchaser. So for the same reason lands taken in execution and delivered to a judgment creditor, upon a writ of liberari facias, in satisfaction of his judgment, is such a transfer of the right to the possession thereof, as every one is bound to notice; and should.any person subsequently buy the land of the defendant in the judgment, he will be affected with notice, whether he had actual notice of the previous transfer under the judicial process or not. So every one is bound to take notice of the assignment, which an insolvent debtor is required by law, to make of his property and effects, before he can obtain the relief that is provided for him in such case. Accordingly in Ruby v. Glenn, 5 Watts 77, it was held, that the recording acts did not apply to such assignments; and that'a sale therefore, by the insolvent after he obtained his discharge, of lands lying in a county distant from that in which he got his discharge, was invalid, though the purchaser bona fide paid a valuable consideration therefor, without any actual notice of the discharge or of the assignment. And previously in the case of Wickersham v. Nicholson, 14 Serg. & Rawle 118, it was held that *45the property of an insolvent debtor passed to his trustee immediately on his assignment, and that all the toorld was bound to lake notice of it; and that on payment, therefore, to the insolvent afterwards, of a debt owing to him, which was embraced in the assignment, by one who had no notice in fact of his creditor’s discharge under the insolvent laws, was not good. So the real estate of an intestatp may be passed by a decree of the orphans’ court of the county in which it lies, to one of the heirs, when it can not be divided among them, without impairing the value thereof, though there be any number of them interested in it as owners by descent. The transfer is effected by a decree of the court, founded upon a proceeding had therein, of which every body is presumed to be conusant: and hence should any person thereafter purchase of one or more of the heirs, whose interests in the estate have been so transferred, he will be affected with notice, though in point of fact he had none. Or where no one or more of the heirs will agree to take the estate at the appraisement made thereof, under the writ awarded by the court for that purchase, the court may, at the instance of any one of the heirs, make an order directing the administratorsof the intestate to sell the estate by auction, after public notice given of the time and place appointed for that purpose; which when done the purchaser receives a deed of conveyance from the administrators, and thus'becomes invested with the title to the estate, without the deed’s being acknowledged in court; and of such sale everyone will be held bound to take notice, without any registry or record of the deed being made, because it. is made under and in pursuance of a decree of the court. These cases all go to show most clearly the total insufficiency, as also inaptitude of the reason given by Chief Justice M’Kean in Shrider v. Nargan, for its being unnecessary to have a sheriff’s deed recorded in the recorder’s office, established for recording deeds; and that the registry of such deed, in order to render it valid or effectual, could never have been considered necessary by the legislature. And under this conviction, resting .at all times upon their minds, no act was ever passed requiring it either expressly or impliedly to be done; or declaring if it were not, that the sale or the deed should be void in any caso whatever. The direction given in the act of 1705, for the acknowledgment of the deed, is the only thing, from which it is attempted to draw any conclusion of the kind; but I conceive, I have shown, that the act in that particular, is at most only to be considered as directory,-and not as avoiding or rendering either the sale or the deed ineffectual for want of the acknowledgment. And again from the variousracts of the legislature on the subject, that it never was designed that the acknowledgment itself should be considered a judicial act. lint if the acknowledgment, in court, of a sheriff’s deed be held indispensably necessary to entitle it to be read in evidence, and that such acknowledgment can only be made to appear by a record thereof, *46made in the court in which it has been acknowledged, then, I would ask, is it not practicable to have all this supplied? Yet in the present case, under the provisions contained in the act of the 16th of June, 1S36, entitled, “ An act relating to executors,” the only formidable objection to this being done, seems to arise from this act being entirely prospective in its terms, and therefore not applicable to cases which occurred before its passage, as this case did. The 103d section of the act, Pamph. L. 780, provides for the case of a sheriff’s dying after he has made a sale of land, without having executed and acknowledged a deed therefor, by authorizing the supreme court, or the court in which th.e judgment was obtained, under which the sale was effected, upon the petition of the plaintiff in such judgment, or the purchaser of the land, to make an order to be entered upon their records, directing the sheriff for the time being, to execute a deed. But seeing the sale in this case was made before the passage of this act, I confess, that I am inclined to believe, that it can not be brought within its provision. If the language of the act were such, as to include and provide for cases happening before as well as after its passage, I do not consider that the length of time, which has elapsed here, since the sheriff made the sale and executed the deed, would be any objection whatever to the want of the record of the acknowledgment being supplied now. In M’Cormack v. Meason, it was done before the second trial came on, under the venire facias de novo, which was awarded by this court, upon their reversal of the judgment rendered on the first trial of the cause in the court below, which was twenty-six or seven years after the deed had been executed by the sheriff; and the defect being thus supplied, the defendant succeeded again on the second trial in obtaining a verdict and judgment in his favor, which terminated the contest. And in Duncan v. Robeson, 2 Yeates 454, the acknowledgment of the deed was wanting until the eve of the coming on of the trial of the cause, when it was supplied by getting the person, who had been sheriff when he executed the deed, to come into court and acknowledge it, upwards of twenty-seven years after it had been executed. As long as the person who had been sheriff, when he executed the deed, was in being, it was well enough to have the deed acknowledged by him in court, but where his death has rendered that impracticable, proof made according to the rule of the common law, of the execution of the deed by him, as sheriff, when he was fully authorized to do so, ought to be considered sufficient, as I think I have already shown, to enable the party claiming under it to read it in evidence.
The next point passed on by the opinion of the court, in this case, from which I must beg leave to differ is, that Mr Bellas, the plaintiff, is to be regarded, from the evidence, as a bona fide purchaser, for a valuable consideration without notice. In the first place, it is sufficient to observe that I have shown most clearly, that all the world is bound to take notice of a sheriff’s sale, and that *47consequently Mr Bellas, being thus affected with notice, can not be considered such a purchaser.
But in the next place, even if it were otherwise, he could only, according to the principle settled in regard to this point by this court, in Youst v. Martin, 3 Serg. & Rawle 423, claim the land in question as a security for what he has actually paid of the consideration money mentioned in the deed made to him: 300 dollars is the consideration mentioned therein, and it was agreed in writing, that this sum should be all paid, provided Mr Bellas should be able to hold the land under his- purchase; 50 only of it, however; have been paid. Thus it appears by the written agreement of the parties, that only one-sixth part of the consideration money, mentioned in the deed, was paid; but it - is said that the 50 dollars, which were paid by Mr Bellas, before it is shown that he had actual notice of the sheriff’s sale, under which the defendants claim, was in fact all the consideration money that was to be paid absolutely; and that the remaining 250 dollars of the 300 mentioned as the consideration in the deed of conveyance, were only to be paid on a future contingency; but then that contingency must be regarded as the first and great object of the purchase by Mr Bellas, which is, that he should forever continue to hold the land under the conveyance made of it to him. And if he did, can it be denied that the remaining 250 dollars were not only a part, but almost the whole and only consideration that he was to pay for what he wished to obtain. And.certainly nothing can be clearer than that the party, George Derk, of whom Mr Bellas purchased by means of his agent, Christian Bower, would not have sold or parted with his right absolutely for the 50 dollars without more. And I must say further, that it does seem to me unaccountable that he should have agreed to sell his right even for 300 dollars,, when he had George Dunkelberger, a responsible man, bound to pay him nearly 800 dollars for it beyond 100 received. It is said Derk found himself unable to make to Dunkelberger a title, such as he had agreed to make for the land, and therefore could not enforce the execution of the agreement against Dunkelberger; but it would seem from the evidence to have been otherwise. The legal title to the land then was in Col. Johnson, or his heirs, from whom Derk derived his claim to it, and who, it seems, were willing to make the title to Derk or any other, who could show himself entitled to it, as the assignee of Abraham Cherry, to whom Col. Johnson, by his written agreement, had agreed to convey the land upon being paid the consideration money therein mentioned. And it is certain that the representatives of Col. Johnson did convey the land afterwards, upon being applied to to do so, and receiving 81 dollars, which they claimed as a balance of the purchase-money cpming from Abraham Cherry upon his agreement for the purchase of the land. It is not easy, therefore, to say why Derk sold the land to Mr Bellas upon the terms that he did, unless the sheriff’s sale of the land, *48.under which the defendants claim it, is brought into view. Be that, however, as iunay, Mr Bellas could not be considered, according to the English doctrine, a purchaser bona fide for a valuable consideration without notice, unless he had received a deed of conveyance for the land, and paid the whole of the consideration money mentioned therein, before he received notice of the claim adverse to his purchase. This rule appears to be established fully by the following cases, which show, also, that an execution and delivery of the deed of conveyance to the purchaser, and security given by. him for the payment of the purchase-money, will not constitute here such a purchaser; nothing short of an actual payment of the whole of it will answer this purpose. Tourville v. Naish, 3 P. Wms. 307; Story v. Lord Windsor, 2 Atk. 630; Hardingham v. Nicholson, 3 Atk. 304; Moore v. Mayhone, 1 Ch. Ca. 34; 2 Freem. 175, pt. 235; Jones v. Stanley, 2 Eq. Ca. Ab. 685, pl. 9; Hoover v. Donnelly, 3 Hen. & Mund. 316; Wigg v. Wigg, 1 Atk. 284; Wilcox v. Gallaway, 1 Wash. Rep. 41. Sug. on Vend. 274, where the rule on this subject is laid down as above, and the cases referred to which go to support it fully. It is true, however, that in England, inadequacy of price has been ruled to be no objection to a purchaser without notice, being considered bona fide, unless the consideration be such as would be deemed fraudulent under the statute of 27 Eliz.; because, say the chancellors, it would be turning a purchase into a security, which is not warranted by any decree to be found. Bullock v. Sadlier, Amb. 766; Basset v. Nasworthy, Finch. Rep. 103,cited Amb. 766; Mildmay v. Mildmay,cited Amb. 767. But in this respect we have departed from the chancery rule in England, and adopted a different one, as settled first in Youst v. Martin, 3 Serg. & Rawle 423, and followed since that in subsequent cases. This court there, after reviewing the English cases, held that a subsequent purchaser, who had paid a portion of .the purchase-money before notice of the plaintiff’s claim, was entitled to hold the land as a security for the repayment of the money so paid by him on the purchase of the land. The justice and equity of this principle is so obvious, that it appears to me it cannot be objected to on any rational ground; and it is somewhat surprising that it was not at first adopted by the courts of chancery in England, which would seem to be the chief, if not the only reason why it was hot acted upon afterwards. Bullock v. Sadlier, Amb 766. If the operation of this rule, as established in Pennsylvania, ■were to be held to be evaded by such an agreement for the purchase of the land, and the payment of so small a portion of the consideration money mentioned in the deed, as was made and paid in this case, it would tend greatly to encourage speculations, oftentimes of a very unfair and fraudulent character, in buying and selling lands. Because no man who has a defective, or perhaps no .title at all to land, though he may think his title is good, and be .willing to warrant it as such, for a certain price to be paid by in*49sfalments, at subsequent and different periods, will object to selling and conveying it, if he can be assured that his price will be paid him at such subsequent periods, notwithstanding it should be upon condition that the purchaser continues to hold the land. But if the vendor in such case entertains any doubt of the goodness of his title, he would of course be particularly solicitous to adopt that mode of selling it, as it would tend to improve, if not make his title perfect, and therefore enhance the price which he might obtain for it; indeed it is manifest, that by such a manoeuvre, he would be likely to obtain a much larger price than he could do by stipulating for whatever sum it was agreed should be paid, that it should be paid absolutely, though it be made payable in instalments. And as to the purchaser, it is also equally obvious, that he would be more likely to obtain his object by making his contract in that way; because if he be ignorant of what does exist against the title he is about to buy, which will be removed by his purchasing without notice in fact of it, it is securing to him at once, by the payment of a very small sum of money, not more than one-sixth part of the price, the object of'his purchase forever. But supposing him to be conusant of the defect, the stipulation cannot operate against, but may operate in his favour, and therefore he will not object to it. Such a device, I apprehend, would not be permitted to avail even in England, according to the rule established there, because the money to be paid conditionally cannot be considered any thing else than part of the purchase or consideration money, and without payment of the whole of that before notice, the purchaser will be affected with notice in the same manner as if he had paid no part of it whatever. But here such a contrivance cannot be countenanced,without a most palpable subversion of the rule as laid down and established in Youst v. Martin. Agreeably to that rule, the most that the plaintiff here- could claim, would be to recover the land only as a security for being reimbursed the SO dollars, with interest thereon from the time he paid it.
I concur fully in the opinion expressed by the court, provided Mr Bellas could be considered a purchaser without notice, that the mere circumstance of his having bought an equitable claim or title to the land, would not preclude him from claiming the benefit of the rule, because an equitable estate comes within the language and design of the recording acts, as fully as a legal estate. The injury to the purchaser might be the same in either case, if he were to lose the object of his purchase. Equitable estates are embraced by the statute against frauds and perjuries; and are as much the subjects of transfer as legal estates, and therefore the purchasers of them are entitled to the same rule of protection; unless where it appears on the face of the title to the equitable estate, that there is a legal title to which it may be subservient, as would seem to have been the case here in regard to the legal title,' which was invested in the heirs of Col. Francis Johnson, when the plaintiff purchased *50the equitable interest derived from that source, by means of an agreement made with Col. Johnson, in his lifetime, by Abraham Cherry, for the purchase of the legal estate in the land. In equity, the court will consider an equitable purchase as a legal purchase. Nosworthy’s case, cited in Bullock v. Sadlier, Amb. 767. And so it has been ruled, that although a purchaser has notice of an equitable claim, by which his conscience is affected, yet a person purchasing of him bona fide, and without notice of the right, will not be bound by it. Ferrars v. Cherry, 2 Vern.; Merlins v. Joliffe, Amb. 313; Demerest v. Wincoop, 3 Johns. Ch. Rep. 147; Sugd. Vend. 274; so on the other hand, a person with notice of an equitable claim, may safely buy of a person who purchased bona fide and Avithout notice of it. Harrison v. Forth, Pre. Chan. 51; 1 Eq. Ca. Abr. 331, pl. 6; Brondling v. Ord, 1 Atk. 571; Sweet v. Southcote, 2 Bro. C. C. 66; Dick. 671; Louther v. Carlton, 2 Atk. 242; Andrew v. Wrigley, 4 Bro. C. C. 125, 136; because, if a different rule were to prevail,' such purchaser, though his right be good, might not be able to sell the estate.
I have only to add now in conclusion, if it be that a balance of the purchase-money, which Abraham Cherry agreed to pay Col. Johnson, in his lifetime, for the land, still remained unpaid at the time the plaintiff purchased; and was paid afterwards by M’Carty, one of the defendants, who, in consideration thereof, obtained an investiture of the legal title, the plaintiff under no circumstances can recover the land until he pays this balance, whatever it may be. Eighty-one dollars appears to be the sum, which M’Carty paid, that was claimed as such balance; if this be correct, then Mr Bellas would have to pay this sum, with interest thereon, from the time it was paid by Mr M’Carty. Both plaintiff and defendant bought subject to this balance, if it was really .due; and therefore neither can claim to hold the land Avithout paying it, if he has not already done so.
Huston, J. dissented also on the same grounds.Judgment reversed, and a venire facias de novo awarded.