
    M‘Cormick junior against Meason.
    In Error.
    THIS was a writ of error to the Common Pleas of Fayette county.
    ; The plaintiff, MiCormick junior, brought an ejectment againt the defendant to recover a tract of land in Fayette county; and by the bill of exceptions returned with the record, and the opinion of the Court in writing filed, the case appeared to be as follows:
    The title to the tract in dispute was vested in Colonel William Crawford, who bequeathed it on the 16th May, 1782, to his widow for life, remainder to his son for life, remainder over. The widow and son, on the 20th December, 178S, conveyed it to William MiCormick, who, on the 16th September, 1811, conveyed'to William MiCormick junior, the plaintiff in this suit, who claimed the estate for the lives of the widow and son."
    The defendant claimed under the following proceedings : 'Alexander Bowling obtained judgment de bonis, at April Term, 1786, in the Court of Common Pleas of Westmoreland county, against Hannah Crazvford executrix, and John Stephenson executor, of William Crawford, and John Mintur administrator of Valentine Crawford, deceased. On this judgment a fieri facias was sued out returnable to January Tenn, 1787, which was returned N. E. I. A testatum fieri facias was then issued returnable to July, 1787. These writs commanded the sheriff to levy on the goods and chattels of Hannah Crawford executrix, and John Stevenson executor of, William Crawford, and John Mintur administrator óf Valentine Crawford, deceased. The testatum was returned levied on the land in question, and that it was “ sold on this “ and two other executions for 320/.” The docket entries of full/, 1787, state that the land was sold to Edward Cook Esq. on the 15th fuly, 1787. The bill of the legal costs is also stated in the docket, amounting in the whole to 16/. 2s. lid. Amongst other items in this bill there is a charge of 2/. 4s. for holding an inquisition, and 12s. 6d. for advertising and cryer. In the Court of Common Pleas of Fayette county Daniel Leet obtained judgment against the executors of William Crawford; and Robert Ross also obtained judgment against them in the same court. Upon each of these judgments writs of feri facias were issued returnable to fune, 1786, and were returned “levied,” on the land in question. Several writs of venditioni exponas were afterwards issued in pursuance of these writs of fieri facias; the last of which were writs of pluries venditioni ■ exponas, returnable to fune Term, 1787, under the seal of the court, but not signed by the prothonotary; upon each of which the sheriff returned, “ sold on this and two other executions for 320/.”' On the 13th October, 1787, the sheriff, fames Hammond, received the purchase money, and made his deed for the premises to Edward Cook, and the same day acknowledged it in open court, in Westmoreland county. This acknowledgment was certified by the prothonotary, and the deed was signed • by John Moore Esq. the president of the court, as a witness. On the 27th March, 1790, Edward Cook and wife conveyed to Isaac Meason, the defendant. An objection was made by the plaintiff to the reading of the above-mentioned sheriff’s deed in evidence; but it was admitted by the court, and an exception taken.
    
      ; It is not error that the writ of venditioni exponas was not signed by the prothonotary.
    Nor that a fi. fa. issued in order to found a testatum, was returned N. E. I.
    
    Nor that in a suit against executors the fi. fa. commanded the sheriff to levy on their property as executors.
    If an inquisition has been held on one fi. fa. and the land condemned, another judgment creditor may take out a venditioni and sell without a new inquisition.
    The sheriff may advertise a sale on a venditioni before the return day, and adjourn and finish it after the rétürn'’ day. ,
    Where the sale ■tfassmade , under a venditioni from Fayette county, an acknowledgment before the Court of Common Pleas of Westmoreland county was held notto be good.
    
      The court charged in favour of the defendant. They left it to the jury as a question of fact, whether or not an inquisition had been held and the property condemned. On the subject of the sheriff’s deed they stated to the jury, that they had admitted it with some hesitation, from the doubts which they entertained with respect to the acknowledgment of it. But- that the deed was not considered material in the determination of the case ; for if the sheriff had .authority to sell the premises, and duly exercised that authority by making a fair sale pursuant to it, and the purchaser at such sale had paid the fair consideration money and entitled himself to receive a good deed from the sheriff, the title of such purchaser would not be divested, merely because the sheriff had omitted to make a deed. Objections to a sheriff’s sale may be made at any time previous to the execution, and acknowledgment, of a proper deed to the purchaser. But we hold, that a purchaser under such sale, having paid his money, and being fairly and peaceably in possession of the premises, may lawfully retain such possession till objections, sufficient to invalidate such sale, are made and sustained. And that if such be the situation of the present defendant, he may lawfully retain the possession of the premises against the plaintiff, unless it should appear that the sale was made without lawful authority, or not pursuant to such authority.
    An exception was taken to the charge of the court, and a bill of exceptions sealed.
    
      Austin and Foster, for' the plaintiff in error,
    took the following-exceptions to the proceedings below.
    1. That there, was no inquisition or condemnation of the land before issuing the writs of venditioni exponas.
    
    2; The writs of venditioni exponas issued in Fayette, were not signed'by the prothonotary. The writ ought to be signed by the prothonotary, under the power given to him by the act of assembly, of April 13th, 1791. ■
    3. The Jit fa. issued in Westmoreland county was returned N. E. I., which is an absurdity; and did not authorise the issuing of a testatum, which can issue only on a Ji.fa. regularly issued and returned. '
    -: 4. The ft. fa. commands the sheriff to levy of the goods of the executors, and not of the property of the testator.
    .” 5. No writ of venditioni exponas was issued from Westmoreland county. The sheriff cannot sell lands without a venditioni. Porter’s lessee v. Nolan.
      
       A sale without a venditioni is Utterly void. Clamsey’s lessee v. Jones, York, 1805, before Teates and Smith J. affirmed in bank. Murphy v. M'Clay,.
    - 6. The writs of venditioni were returnable to June Term, 1787, and the land was not sold till the 15th July. It was held in Burd v. Dans dale,
      
       that the sale may take place after the return of the venditioni, if it has been advertised before, and continued by adjournment. There is no evidence in the present case, that there was any advertisement or adjournment of the sale.
    7. The sheriff’s deed ought not to have been received in evi.dence. It was never regularly acknowledged. The court in Westmoreland county had no authority to receive the acknowledgment of a sheriff’s deed, made on á sale in another county, and on venditioni process issued from another county.
    A court of Common Pleas has no authority to take the acknowledgment of any. deeds, except sheriff’s deeds; and those only by special acts of Assembly, which do not embrace this case. Nor was the execution of the deed proved previous to its being offered in evidence. John Moore's hand writing was not proved; nor is there any evidence, that he was president of the court of Common Pleas.
    
      Campbell and Ross, contra, contended.
    1. That whether there had been an inquisition and condemnation, was left to the jury as matter of fact, which they have decided by their verdict. ,
    
      2 and 3. These are mere clerical errors, in matters of form, which might be amended either by the court below, or by a court of error. 3 Johns. 98. 144. 4 Burr. 2156-7. 1 Com. Dig, 477-8. 2 Bl. Rep. 836.
    4. Both the judgment and fi-fa. are substantially, ¿fe bonis testatoris; and even if not strictly correct, might, like, the preceding, be amended.
    5. It was not necessary, that more than One venditioni should issue; or that more than one inquisition and condemnation should be held.
    6. After 26 years, an advertisement and. adjournment will be presumed. Many things are presumed after an acquiescence of 20 years. 3 Mass. Rep. 399. 1 Burr. 106-7. 2 Str. 1129. Warren v. Granville, 2 Burr. 1072. 2 Wils. 78.
    7. The_ only real question in the case is, whether the sheriff’s deed ought to have been received in evidence ? If the sheriff has several writs of venditioni, from several counties, he may acknowledge the deed in either, county. So, if there is a fieri facias from several counties, and a venditioni from only one, he may acknowledge the deed in either. In the present case, the judgment and fieri facias from Westmoreland were the efficient cause of the sale. The sale could not; have- been had- without that.judgtrient, and the court having received .the acknowledgment, and. recorded the deed, it is part of -the record, and .the whole record.should be read. The objection now, made, that, there was no proof of .the execution of the deed, was not made on the trial: had it been, we could easily have procured, the proofs. But, as it appears that the deed was acknowledged in open court,, and is so Certified by. the officer of the court,, and, the president of the court was a subscribing witness, this Court will intend, that the acknowledgment was before him. The execution of the deed therefore is sufficiently proved, .and it was . admissible to shew the payment of the consideration money to the sheriff. It has been held, that a deed proved by the oath.of one witness before a justice, might go to the jury, although-the act of 1715, required proof by two witnesses. 1 Dall. 63. 93.
    Foster, in reply.
    The,bill, of exceptions- shews, that ,we excepted to the sheriff’s deed being given.in evidence, but does mot specify .the'reasons., - We mow. allege as one reason, that there was no .proof of the.execution, of the deed. This deed was never recorded in Westmoreland county.- ¡
    
      
       1 Smith’s Laws, 65.
    
    
      
      
        1 Dall. 334.
      
    
    
      
       2 Binn. 80.
    
   [Yeates- J.

.Ithas been determined, .that an. acknowledgment by the sheriff in open court, and a minute-.of, this on thereoord, is equivalent to recording. This was -before .1 came on the bench]. - - ~ ; ■

Tilgi-iman C. J.

This-is, an-ejectment for. a, tract of land in Fayette county, formerly the property'.of Colonel William Crawford deceased, under whom- both plaintiff and defendant claim.-Theplaintiff derives . his., title- from the. devisee's of Colonel Crawford, and the defendant,;under a judgment and execution against his... executors., On the trial, exceptions were- taken to., the ..charge of the, court, and also to the admission in -evidence' of a deed from -the sheriff of Fayette county, to Edward Cook, conveying the: land- in dispute. - In order-to understand the objections to the: judge’s charge^ which have- been urged in this Court, it, will be-necessary to give a short statement of the evidenc.e. Alexander Bowling obtained judgment in the court of Common- Pleas-of Westmoreland county, against the executors of Williani-Grawfofd.- -On this, judgment .a. ft fa. was issued; to January Term, 1787,. and a testatum fi.fa. was issued to' Fayette county to July, 1787, which was levied' on the land in dispute and returned, “ sold on this and two other executions “ for 320/.” By the docket entries it appears, that the land was sold to Edward. Cook, Esq.a on the 15th July, 1787, and in the bill of costs, there are charges of 2/. 4$. for holding an inquisition, and 12s. 6d. for advertising and crier’s fees. In the court of Common Pleas of Fayette county, Daniel Leet and Robert Ross, each obtained judgment against the executors of William Crawford. On both these judgments f.fas. were issued to June 1786, and levied on the land in dispute. Several writs of venditioni exponas were issued in Fayette county, and at length the land was sold to Edward Cook, on a pluries venditioni exponas returnable to June Term, 1787. The sheriff’s return was, “ sold on this and two other executions for 320/.” On the 12th October, 1787, the sheriff executed a deed to Edivard Cook, which was acknowledged in the court of Common Pleas of Westmoreland county. The exceptions taken by the counsel for the plaintiff in error are as follows:

1. That there was no inquisition and condemnation of the land previous to the issuing of the venditioni exponas. This exception cannot be taken now. On-the triál it was very properly left to the jury. The evidence was sufficient for them to presume, that an inquisition had been taken, which was lost, and they did presume it.

2. That the writ of venditioni exponas issued in Fayette county, was not signed by the prothonotary. This objection is of no validity. The writ issued under the seal of the court, and the not signing by the prothonotary was a clerical omission, which the court could have ordered to be supplied at any time.

3. That the f. fa. issued in Westmoreland county was returned N. E. L, which is nonsense; and therefore did not warrant the test. f. fa. afterwards issued to Fayette county. Neither is this objection of any weight. The original fi.fa. is so much in nature of a fiction, where the object is to levy on lands in another county, that if a testatum is issued without a previous fi.fa. the court will give leave to file one afterwards, in order to support the testatum.

4. That the fi. fa. commanded the sheriff to levy on the property, not of the testator Colonel Crawford, b.ut of his executors. The judgment was de bonis testator is, and the command of the execution was “ to levy on the property of 44 ¡¡annah Crawford and John Stevenson, executors of William « Crawford,.” Without straining the expressions, they may be understood to mean the property of the testator, and even if they would not bear that construction, the court would at any time grant leave to amend the execution so as to make it conformable to the judgment.

5. That no writ of venditioni exponas was issued from the court of Westmoreland county. It was not necessary that a venditioni exponas should issue from that county. An inquisition having been held, and the land condemned, the judgment creditors in Fayette county who had levied on the same land, might take out writs of venditioni exponas. There is no occasion to go to the expense of several inquisitions. The land being once condemned, the object of the law is obtained. It is proved, that the rents and profits will not pay all the judgments in seven years, and nothing more is necessary.

6. That the venditioni exponas was returnable at June Term, 1787, and the land was not sold till the 15th July. It has been a practice of long standing for the sheriff to advertise a sale before the return day, and then adjourn and finish the sale after the return day. In Burd v. JDansdale the court intimated their opinion against shaking the titles which depend on this practice. Objections of this kind from a stranger, who had no concern in the execution, deserve no favour. Those who were concerned were satisfied. The sale there-, fore, ought not to be invalidated. These are all the exceptions brought forward in this Court against the charge of the president of the Court of Common Pleas, and on every one of them I think the charge was perfectly right. The exception to the admission of the sheriff’s deed remains to be considered. The sale was by virtue of a venditioni exponas from the Court of Common Pleas of Fayette county, and the counsel for the plaintiff in error contends, that the acknowledgment of the deed should have been in the same court from which the process issued. The sale of land by execution is regulated by act of assembly. Certainty of title is of great importance, and this is best attained by adhering to regulations prescribed by law. An “ act for taking lands in “ execution for payment of debts,” was passed in the year 1705. The 2d section provides that when the yearly rents or profits will pay the debt in seven years, the land shall not be sold, but delivered to the plaintiff in the same manner that lands are delivered by writs of elegit in England. The 3d section directs, that if it be found by inquisition, that the yearly rents, &c. will not be sufficient to satisfy the debts in seven years, the sheriff shall certify the same upon the return of the execution; whereupon 'a writ of venditioni exponas shall issue to sell the land in the manner therein-after directed. In the 4th section, directions are given for advertising and selling, “ and upon such sale the sheriff shall make re- “ turn thereof, indorsed or annexed to the writ, and give the “ buyer a deed duly executed and acknowledged in court for “ what is sold, as has been heretofore used upon the sheriff’s “ sale of lands.” The construction and practice upon this act, have been, that lands held in fee simple cannot be sold without a writ of venditioni exponas, except in certain cases not necessary now to enumerate. It cannot admit of a doubt, that the court in which the deed is to be acknowledged, is the court from which the venditioni issues, and to which it is to be returned; this is the plain meaning of the words, and if we consider the spirit, it is certainly most proper and convenient, that every act necessary to complete the title should be done in the same court, otherwise one court might receive the acknowledgement, and the other set aside the sale on the return of the venditioni. At the time when this act was passed, the extent of the inhabited part of the state was so small, tl\at wherever the land might lie, the sheriff would not have far to travel in order to acknowledge his deed in the court from which the process issued. The case is altered now, and therefore by an act passed 18th April, 1791, sheriff’s deeds for lands sold on testatum writs, may be acknowledged in the court of the county where the sale was made. That act was made after the sale in this case, but even if it had been made before, it would not help the plaintiff’s case, for his deed was not acknowledged either in the court of the .county in which the sale was made, or of that from which the process issued. But the counsel for the defendant in error have warmly contended, that at all events the deed was evidence, because it was acknowledged before the president of the Court of Common Pleas of Westmoreland county. But how does this appear ? It is answered, that one of the subscribing witnesses was Mr- Moore, the president of that court; and the deed being acknowledged in open court, it ought to be- presumed that he was present. I do not think myself authorised to make such presumption, because I do not know that hewas president, nor do I see it in this record ; but I: .know-that if . the acknowledgment had been before him-, as- president, he ought to have certified it as the act of assemblynequires, by endorsement on the deed. I can perceive that the justice of this case is with the defendant, and that' he will - Ultimately prevail. It is hard upon him to be put to expense and-inconvenience hy objections foreign-to •the merits; but it Is-dangerous to strain the principles which regulate the conveyance of real property, in- order to prevent -hardship in particular cases. Those.principles produce certainty, which contributes much to the quiet of the country. Notwithstanding the ingenious .arguments which have been so ably urged,-L have not been persuaded that the sherifFs ■Meed was legal evidence. I am-therefore of opinion, that the .judgment should be reversedj and a venire facias de. nova •awarded.' ■

Ye ates J,

I do not hold it necessary, that an inquisition . should have: been taken-in this-case, on the testatum feri •facias, which issued :from the Court óf. Common Pleas of Westmoreland county; If it had been found, on legal process issued: .in Fayette county, that the rents' and profits of-the lands' levied on;::would-not have been sufficient to have paid the debts and costs in seven years, it would justify a sale ..'under a venditioni,exponas in-the hands of the sheriff, return- . able in either, of the two , counties. ' To have , held other inquisitions would have' been highly oppressive. Upon the trial, the court held an inquisition to be indispensable, and •submitted' that-fact to the jury under all the circumstances ; —the verdict' affirms that fact.

The judicial writs in Westmoreland county are admitted -to -be de bonis iestatoris. . They do not pursue the technical .form's, but command the debts to be levied on the goods and chattels of the two executors in their representative character, and the testatum f. j'a.-was so understood, and levied on the lands of the testator. The judgment entered was de bonis, ..which-necessarily implies iestatoris; because if it was intended to charge the executors with a devastavit, it would have ..been sq expressed. . Itpursues the usual form of entry.

I take the law to be settled, that the court’s approbation of the sale of lands levied on, is essential to the validity of the sheriff’s deed. .This is. inferred from the accustomed mode qf receiving the sheriff’s acknowledgment in open court. , It would beamjust in the.extreme, that the defendant in an execution should not be. alio wed an opportunity to contest the .fairness and regularity of the sale of his lands. The proper .time' to .do this, is at the Term to which the process is returnable, which.directed the sale ; and it necessarily follows, that,'it must'he in the. county from whence such process issued.- Theicourt alone, which directed the sale, can judge of the:legality:of acts:done under-its authority. At common -law, lands .could' not'be sold by. the. sheriff for payment of debts';' he could only extend- one moiety of them by elegit. An old. act of .1703,-.directs that a venditioni exponas shall issue upon the sheriff’s return of lands levied, and the legislature have enacted two laws on the 23d March, 1764, anjd 26th March, 1785, confirming and ratifying sheriff’s ■ sales made without writs of venditioni, in cases which, had happened before the passing of those laws. If a venditioni had issued in the present instance in Westmoreland, county, there is no doubt but the acknowledgment there would be valid; and if the sheriff, duly proceeded and sold under a venditioni issued ..in Fayette county ¿ although the venditioni was not signed by the prothonolary, and the return day.had passed, pn an adjournment of the sale, the acknowledgment in that county would have validated the deed. - '

"Under-the circumstances of this case, the sheriff’s deed could not he received-in evidence, without other proof. The acknowledgment of the-deed in Westmoreland county, found- . ed.ori'a.sale upon a venditioni issued in Fayette county, was irregular and: unknown, to the law. But it has b'een-said,- that although it might not operate, as á-sheriff’s deed-, within the .meaning; of the "old act- of 1705, it. might be admitted to ; show, , that:-the consideration money-was- confessed by Mr. I Hammond, to have been paid- to; him by-the purchaser, inás.vmuch ~as. John Moore Esq. the.president,of the-court, wit-messed:the.deed, and the prothonotafy has -certified..the act .: done in open/court.-.But the hand; writing.of' Mrs Moore-has -mot been-proved,- nor does- it 'necessarily follow, that he .was .. their present in court.: To' make-it a-good acknowledgment underthe recording; act of'28th:tMzy,ll 7l!S, or its supplement of 18th March, 1775, it must be certified by the justice who took it. I agree, that a deed may be received in evidence in some cases, wherein it may not be entitled to be recorded, as where possession for thirty years has gone with the deed, or where it has been recited in another deed; but no such proof was given here, and we are to consider it as if no acknowledgement was indorsed on it, as the same was in-ojfcial.

It has been further urged, that the present objection was not taken on the trial, and that it is a surprise on the defendant. The answer is, we are bound by the facts stated in the bill of exceptions, and if in the plight in which it was offered to the court, it was not legal evidence, we must say so. It is unnecessary for the court to declare, what would have been the legal or equitable operation of this deed, if the defendant had procured the same to be duly proved; the only question now before us, is, Whether the deed could legally have been admitted in evidence ? I am constrained to declare my opinion, for the reasons I have given, that the judgment of the court of Common of Pleas of Fayette county be reversed, and a new trial awarded.

Bb.ackenr.idge J. concurred.

Judgment reversed, and a ,venire facias de novo awarded.  