
    Scott and another administrators of Hart late Sheriff against Greenough.
    In Error.
    Tuesday, June 26.
    ERROR to the Court of Common Pleas of Columbia county.'
    
      Query, Whether, in case a venditioni exponas he j^ued county, to the fher^unty",0” the Sheriff, atmaket’vaRd TOentofhisS" deed, before hisowncounwrit ?
    The Sheriff has a right to demand payment of the purchase money, from one who purchases at Sheriff’s sale, before he tenders a deed acknowledged.
    If a purchaser at Sheriff's sale, accept a deed acknowledged by the Sheriff and keep possession of' lit, without objection, he cannot, when sued for the purchase money, object that the acknowledgment was defective.
    This was an action by the administrators of Jacob Hart, deceased, late Sheriff of Luzerne county, against Ebenezer Greenough, Esq., to recover the purchase money of -a tract of land, sold by Hart to Greenough, by virtue of a writ of venditioni exponas, issued by the Court of Common Pleas of Northumberland county. The land sold to the defendant had been levied on and condemned, on a writ of téstatum fieri facias, issued by the Court of Common Pleas of Northumberland county, on a judgment obtained by Thomas Craig 
      against John Easterly. The venditioni exponas, on which the jand was soic}) was returnable to August Term, 1810, and some days before the return day, Sheriff Hart acknowledged his deed to the defendant, before the Court of Common Pleas of Luzerne county, and delivered it to the defendant, who accepted it, and had it iwhis possession from the time of delivery to the time of ■ the trial of this cause. The President of the Court gave it in charge to the jury> that the Sheriff’s deed being acknowledged before the. return day of the writ, was not good, and not such a deed as it was necessary for the Sheriff to tender, before he made a legal demand of the money, and that the receiving of this deed by the defendant, does not preclude him from demanding a legal deed, before he pays his money, unless he received it with a knowledge of the imperfection, and a knowledge of his rights.” To this opinion, the plaintiffs excepted. •
    
      Marr and Biddle, for the plaintiffs in error.
    The Court below erred in two respects -: 1st, In saying that the deed was not - good ; 2d, In not charging that the defendant had, by his conduct, waved any objéction to the imperfection of the deed.
    1. On the first point, they referred to the Act of Assembly of the 31st of April, 1791, Sect. 11, 3 Sm. L. 31. Adams v. Thomas, 6 Binn. 154. 2 Teates, 454.
    2. The acceptance of the deed was a waver in law. The Sheriffjs an agent of the law. He could not make a new acknowledgment, because the defendant kept possession of the deed. The defendant, if a defect existed, was bound to point it out to the Sheriff, and require it to be amended.. He must have known, that it was .acknowledged before the return of the writ, because it was a sale .on a testatum. The defendant by accepting the deed, also prevented the Sheriff from making another sale.
    
      Lashells, contra,
    on the 1st point cited Toung v. Taylor, 2 Binn. 218. Act of 1700, Purd. Ab. 174.
    2. The defendant might have accepted the Sheriff’s deed without .examining it, and knowing its defect, and the Court left it to the jury to decide whether he knew of the defect The jury were told, the defendant would have no defence against this action, if he knew the defect and was not ignorant of his rights. The evidence on which the cause went to the jury cannot be known to this Court. He cited Glancey v. Jones, 4 Teates, 212. Act of 6th of April, 1802, Purd. Dig. 511.
    
   The -opinion-of the Court was delivered by

Tilghman, C. J

Whether in case of a venditioni ex-ponas, issued by a Court of Common Pleas of one county directed to the Sheriff of another county, the Sheriff who sells, may make a valid acknowledgment of a deed before the Court of his own county, before the return day of the writ^í do not think it necessary to decide, because even supposing the apknowledgment in this case not to have been good, there are other circumstances sufficient to establish the plaintiff’s right of recovery. Thé Court of Common Pleas .went too far, in saying, that before.the Sheriff can demand his money, he is bound to tender to the purchaser, a deed legally acknowledged;, The law cannot be so. The Sheriff is not bound to acknowledge his deed before he demands the money, because it may be that the purchaser will not pay, and in that case the Sheriff has a right to put up the land to sale again, or to return that it remains unsold, &c. The purchaser runs no risque of loss, in paying the money and' accepting the deed before its acknowledgment, because the Court will compel the Sheriff to make the acknowledgment; and in case of his death before it is made, the Court may order the title to be perfected by his successor in office. What could Sheriff Hart have done in the present instance ? The defendant accepted the deed acknowledged as it was, and retained the possession of it. The Sheriff therefore had it not in his power to ■ make another acknowledgment, which he might have done had the defendant requested it. But it does not appear, that the defendant Complained, or that the Sheriff had the least suspicion of any imperfection in the deed. Why then could not the defendant pay the purchase money ? It cannot be- said, that he has received no consideration—he has a good title in equity-—hé has, or might have had, if he chose it, possession of the land. If he has not the complete legal title, it is owing in part at least to his own negligence or default, and he may have the title per-1 fected whenever he thinks proper to pursue the legal steps for that purpose. When Sheriff Hart made return on the venditioni exponas that he had sold to the defendant, and * , had the money ready in Court, as by the writ he was com-he become immediately responsible to Thomas Qra{g for the whole amount of the purchase money. It may be, that in the present situation of the country, the land would not now bring what the defendant agreed to pay for it, and it would be extremely hard indeed, if the loss would fall on the Sheriff. It is not on the hardship of the case however that this Court is to decide. The question is, was the charge of the Court of Common Pleas correct? Was it necessary for the Sheriff to tender a deed, legally acknowledged, before he demanded the purchase money? I am of opinion that it was not. In that respect the charge, was erroneous. The judgment must therefore be reversed, and a venire Jadas de novo awarded.

Judgment reversed and a venire Jadas de novo awarded.  