
    [Chamberserg,
    OCTOBER 17, 1823.]
    BLYTHE and another against RICHARDS.
    in error.
    Parol evidence is admissible to prove a long practice in a county for a sheriff to sell on a ■venditioni exponas after the return day, and such sale is valid, when supported by a long practice.
    In ejectment by a mortgagee to recover premises sold under a judgment on his mortgage, evidence is not admissible to show that the scire facias on the mortgage' which was returned served, was not served.
    Nor is evidence admissible, to show, that the mortgage money for which judgment was recovered by default, was paid.
    At a sale on a levari, .the mortgagee may purchase, though the properly sells for less than the mortgage money and costs.
    Both plaintiffs and defendants in this ejectment claimed under’ John Nicholson, deceased, who mortgaged the lands in dispute to Joseph Ball, deceased, the plaintiff's intestate, on the 20th Octo-her, 1794, and conveyed them in fee simple to Samuel Nicholson, on the 21st February, 1795. Samuel Nicholson conveyed to-Samuel Blythe, one of the defendants, by deed, dated the 31st March, 1806. Joseph Ball issued a scire facias on his mortgage to August term, 1803, against Hannah Nicholson, widow of John Nicholson, then deceased, and the children and heirs of the said J\ Nicholson, and Samuel Nicholson and others, terretenants. To this scire facias the sheriff made a general return, served.” A rule on the defendants was laid, to plead in six weeks, or judgment, under which rule judgment was entered against all the defendants at October term, 1803. A levari facias was issued on this judgment to January term, 1803, and an alias levari to April term, 1803, both of which writs were lost. January term commenced on the 3d day of that month, and on the 5th of the same month the lands were sold to Joseph Ball, by the sheriff, who executed a deed to him on the 8th January, 1803, and acknowledged the same in open court.
    Several exceptions were taken by the defendants to the opinion of the court below in the course of the trial.
    ■ 1. Parol evidence on the part’of the plaintiffs was admitted by the court, which went to prove a long practice in Franklin county, for the sheriff to advertise property to be sold by virtue of writs of venditioni exponas, about the middle of the week in which the court was to sit, which was several days after the return day and sales thereon; and the sheriffs deed to Joseph Ball founded on a sale of that description, was received in evidence.
    3. The defendants offered to prove that the widow and children of John Nicholson, minors, and Samuel Nicholson, were not in the county of Franklin in the year 1803, and that the said writ of scire facias was not served on any of the defendants named in it, This evidence the court rejected.
    3. The defendants offered several papers to show, that J, Ball had received payment of his mortgage before he obtained judgment on it. The court rejected this also.
    4. The court below was requested by the plaintiffs to charge, that the sheriff had no right to sell to the mortgagee, unless more was bid by him than would pay the debt and costs, but in case the bid was to a less amount, the property was to be delivered to him to hold until the debt and costs were paid. This the court refused to do.
    
      M'Cullough, for the plaintiffin error,
    1. The court erred in receiving evidence of the usage or practice to sell after the return day of an execution, and in allowing the sheriffs deed founded on such a sale to be read to the jury. The rule of law is well settled, that the sheriff cannot execute a writ after the return day, not even the very next day after, and before the quarto die post. 6 Bac. Ab. 168, 339. The authorities in this country are to the same point. 2 Caines, 344. 4 Johns. 450, The custom or usuáge to sell after the return day, which was allowed to be proved, was a custom in violation of the established principles of law, and ought not to be sanctioned, Such an attempt was resisted in Stoever v. Witman, 6 Binn., 416, where the effoil was to stípppH a re-entry and sale by the proprietors of the town of Lebanon, for a forfeiture incurred by non-payment of rent, by evidence of a custom ill that town» “ Misc.able Will be our Condition,’’ says the Chief Justice, {s if property is to depend not on the contract of the parties expounded by established principles of law, but On what is called the custom of particular places, so that we may have different law in every town and village of the commonwealth.” In Glancey's Lessee V. Jones, 4 Yeates, 212, the eourt shy that if a practice had prevailed in York county, to Bell by the sheriff without a venditioni, it is bad in itself, and must lead to the most injurious Consequences. The custom in the present casewas confined to the county of Franklin: so that if it be established, what is the law in Franklin county, would not be so, perhaps, in a neighbouring county: and every county might have a rule peculiár tó itself Besides the usage proved, was Only from 1784 to 1803, nineteen years, the county of Franklin having been erected in 1784s In point of time, it was far too short to create a 'custom . A Custom, our law books tell us, must be from time Immemorial 2 Bac. Ab. 232, 237.
    2» We have a right to show, against Balt himself, that the judgment was irregulan If a stranger had been the purchaser, thcs judgment would be binding * but it is not so where the mortgagee himself is the purchaser. Nace V. Hollenback, 1 Serg. Rawle, 540. Hiester v. Fortner, 2 Binn 46 We had, therefore, a right to show, that the s'cire facias never was served, and that the children Were minors, and the return of the sheriff is not conclusive The return of the sheriff, that he had made an arrest on a certain day, was held not conclusive as to the day of the arrest. 4 Binn. 500
    3. Por the same reasoh we had a right to show, that the debt Was paid» This question was never decided in the scire facias suit, and equity would grant relief on a judgment thus obtained. If a judgment at law be obtained against conscience, a court of equity Will decree the party to acknowledge satisfaction on that judgment, though he has received nothing» Mad. Ch. 286. 1 Ves. 289.
    4. The act of assembly of 1705, Sect. 6, directs, that oh a judgment and execution on a scire facias on a mortgage, the premises, for want of buyers, shall be delivered to the mortgagee or creditor, in the manner therein before directed, Which, by Sect. 4, is by a liberari at a valuation» The act contemplates the case of an exposure to sale and no bidder, and provides a specific mode, in which the mortgagee is to obtain the property which excludes the idea of a sale to him»
    
      Chambers, contra.
    1» The modes of selling on execution have not been restricted to the rigid letter of the law, but regulated by practice, and the usual course of selling. The act of 1705, Purd. Dig. 198. requires the sheriff to certify the finding of the inquest condemning land upon the return of the inquest: yet it was held by Shippen, President, that an inquest may be held after the return of a fieri facias. Weaver v. Lawrence, 1 Dall. 379. It was, indeed, for the benefit of the defendant to extend the time as much as possible, and to make the sale at the most public time, which was generally about, the middle of the court week. 2 Sm. Laws, 66. Usage has been in many instances favourably treated by the courts, and considered as establishing the law. “Courts of justice,” say the court in Woods v. Galbreaih, 2 Yeates, 308, “are frequently governed in their determinations by the customs of the country,” and several instances are there put. In Shultz v. Dickey, 5 Binn. 287, the subject was fully considered, and an important usage, varying from the common law, was established, by which the tenant was entitled to the way-going crop. In Burd v. Dansdale 2 Binn. 91, and McCormick v. Meason, 1 Serg. & Rawle, 98, the authority in the sheriff to advertise a sale previous to the return of a venditioni, and to continue the sale by adjournment till after the return of the writ, was supported on the ground of common practice: and that point was so entirely analogous to the present, that those authorities must rule the present case. In 4 Wheat. 503, a sale of lands after the return day oi.the fieri facias was held good, the levy being before.
    
      2. The return of the sheriff of service of the writ was conclusive: the only remedy of the party is against the sheriff. No evidence can be admitted to contradict the return of the sheriff to a writ. In Phillips v. Hyde, 1 Dall. 439, in an action on a replevin bond, after judgment de retorno habendo, the sheriff had returned cion-? gata, and it was held not traversable. In Wilson v. Hunt’s Executors, Peters, 441, the defendant offered to prove that C. Hunt had been arrested on a ca. sa., and discharged by the plaintiff, but the evidence was rejected, because the sheriff had returned the ca. sa. non est inventus.
    
    3. Nor was evidence admissible in this ejectment to show, that, the mortgage had been paid. That was proper on the scire facias, and could not be inquired into in this suit. If the judgment was improper, why has not the defendant applied to the court of Common Pleas to open it? Such a motion would not, however, be heard after 20 years. After 20 years, no judicial proceeding will be set aside for irregularity, 13 Johns. 549. 7 Johns. 556. It was even held dangerous to do so after 12 years. 2 Bay, 333. If it could not be done directly, could it be done collaterally ? The rule is well settled, that the merits of the original judgment cannot be inquired into to furnish a defence to a scire facias upon it. Cardesa v. Humes, 5 Serg. & Rawle, 68. On the same principle, the merits of the original judgment cannot be overhaled in this ejectment.
    4. As to the last-point, the constant practice has been for the mortgagee to purchase, and no idea existed, that it was contrary to law. In this respect, as in others, the act of assembly has received an interpretation from invariable usage.
   The opinion of the court was delivered by

Tilghman, C. J.

Several exceptions were taken to the opinion of the court below, in the course of the trial, all of which may be reduced to three heads.

1. Was parol evidence admissible to prove a long practice in Franklin county, for the sheriff to advertise property to be sold, by virtue of writs of venditioni exponas, about the middle of the week in which the court was to sit, and several days after the return day — and could such proceedings be supported, supposing the practice to be proved ? Great regard has been paid to practice originating in a mistake of the law, where it has been so long continued, that much property depends upon it; especially where such practice has nothing in it contrary to justice or equity. On this principle conveyances by married women, without fine or recovery, were supported before any acts of assembly were made on that subject. So powers of attorney executed beyond sea, for the sale of lands in Pennsylvania, have been held good, on proof of their having been acknowledged before the mayor of a city, although our act of assembly (act of 1705,) requires proof by the oaths or affirmations of two or more of the witnesses. 1 Peters 433, Milligan v. Dickson. So where a judge took the probate of a deed, by the oath of one of the witnesses, and certified the same under his hand without Seal, it was decided to be good, although the act of assembly directs the certificate to be under hand and seal. 4 Serg. & Rawle, 290, Whitmire v. Napier. And with respect to this very custom, of sales by sheriffs after the return day of the venditioni exponas, we shall find that the courts have sanctioned what appeared to be rather an irregular proceeding, in order to protect a great deed of property which depended on it. In Burd’s Lessee v. Dansdale, 2 Binn. 91, it was said by this court, “that it had been so common a practice for sheriffs to advertise the sale on a day previous to the return day of the writ, and make the sale by an adjournment, on a day subsequent to the return, that they should hardly think themselves justified in determining such sales to be void.” And when the same point came before them after-wards, in the case of M‘Cormick v. Meason, 1 Serg. & Rawle, 98, the sale was decided to be good. The only difference between those cases,1 and the one before us, is, that in the present case, the sheriff advertised the sale on a day subsequent to the return day. In substance, the cases are the same, because in both the sale was actually made after the return day. There was strong proof of a long continued practice in Franklin eohnty, to make sales in this manner. It is perfectly fair — sufficient notice by public advertisement having been given, it may be supposed that the property will go off at its value; nay it was for the purpose of getting the best price, that this practice was first adopted, because it was known, that about the' middle of the court week, there was the greatest concourse of people, and consequently the best chance for bidders. Then as to the defendant in the execution, he had the advantage of keeping possession of his property as long as possible, and, therefore, could have no cause to complain. No objection was made to the sheriff’s acknowledgment of his deed to Joseph Ball. That was the time for objection, if the sale was conceived to be irregular. But now, after the lapse of near 20 years, we first have a complaint of irregularity. Under such circumstances, the sale should be supported if possible/ And we shall be justified in supporting it, by the spirit of the decisions I have mentioned, in the cases where a sale was made after the return day of the venditioni ex-ponas. I am of opinion, therefore, that the evidence of the practice in the court of Franklin county was properly admitted, and the sheriff’s sale and conveyance to Joseph Ball, were valid.

2. The second question is, whether the defendant could be permitted to contradict the sheriff’s return to the scire facias, (Joseph Bally, the widow and children of John Nicholson, and the terretenants,) by evidence that the writ was not made known to them. The court decided against the evidence. The general rule is, that the return cannot be contradicted, but if it be false, an action lies against the sheriff who made it. There does not appear to be any thing in this case which should take it out of the general rule. In Phillips v. Hyde, 1 Dall. 439, it was decided in an action on a replevin bond, after judgment de retorno habendo, that the sheriff’s return of elongata, could not be traversed. In Bohun’s Inst. Legal. 256, it is said, that the sheriff’s return of devastavit, to a fi. fa. against an executor, cannot be contradicted, because an action lies against the sheriff if his return be false; but if a devastvait be found by an inquest, it may be traversed, because there no action lies. In 4 Burr, 2129, it was agreed by the court, that if the sheriff return a rescue on an arrest on mesne process, the return is not traversable. And in Wilson v. Hurst’s Executors, Peters Rep. 441, in a scire facias on a judgment against Charles Hurst’s Executors, the defendants offered evidence, that Hurst had been arrested on a ea. sa. and discharged by the plaintiff, but the court decided against the evidence, because the sheriff had returned ’■’•non est inventus,” to the ca. sa. which could not be contradicted. I do not see any distinction, by which the case before us carl evade the authorities which have been cited, and am, therefore, of' opinion, that evidence in contradiction of the sheriff’s return was inadmissible.

3. The third exception was to the courts opinion, on the rejection of a number of papers offered in evidence by the defendant, in order to prove that Joseph Ball had received payment of his mortgage before he obtained judgment on it. Now consider the situation in which the defendants stand. Their title is derived from Samuel Nicholson, one of the defendants in the scire facias, after the judgment; of course, they can make no plea which Samuel Nicholson had an opportunity of making, and did not make. Payment, would have been a good plea for Samuel Nicholson. But he suffered judgment to go by default. In the opinion of this court, delivered by Judge Gibson, in Cardesa v. Humes, 5 Serg.& Rawle, 68,it is said, that in no case, nor under any circumstances,can the merits of the original judgment be inquired into, for the purpose of making a defence on a scire facias. The present action to be sure, is not a scire facias, but an ejectment. But that is immaterial, as the ejectment is founded on a title derived from the original judgment, and is broughtagainstpersons who claim under one of the defendants in that judgment. It is precisely similar to the case of Nace, &c. v. Hollenback, 1 Serg. & Rawle, 340, where the assignee of a mortgage, having obtained judgment against the mortgagor and terretenants in a scire facias on the mortgage, and afterwards purchased the mortgaged premises from the sheriff, who sold them by virtue of a levari facias, brought an ejectment against one of the terretenants, who offered evidence to prove, that the mortgage had been satisfied before the judgment. But the court rejected the evidence, and the same principles governed the court, in the case of Jones v. Keller, 4 Binn. 61, 72. There was no error, therefore, in rejecting the evidence in the case before us.

4. The last point made by the plaintiffs in error is, that the sheriff had no right to sell to the mortgagee, unless more was bid by him than would pay the debt and costs, but in ease the bid was to a less amount, the property was to be delivered to him, to hold until the debt and costs were paid. Although this point was made, it was but feebly urged, in the argument in this court. And certainly, it is not tenable, because, although the act of assembly is not clearly expressed, yet it has long ago received a construction, which avoids the great inconvenience, and indeed, I may say, injustice, of the principle set up by the plaintiff in error. The construction is, that the mortgagee may be the purchaser, as well as a stranger, provided he be the highest bidder; and where he is the highest bidder, the uniform, unquestioned practice has been, for the sheriff to make a deed to him, which has always been sanctioned by an acknowledgment in open court. Upon the whole then, I am of opinion, that there is no error in this record, and therefore, the judgment should be affirmed.

Duncan, J., gave no opinion, not having heard the argument.

Judgment affirmed.  