
    Keller and others against Nutz and others.
    
      Tuesday, June 14.
    A deed dated in 1772, need not have been recorded; nor is the right derived by such deed impaired in equity, by its being kept secret for more than 40 years, and the grantor's keeping possession and enjoying the land as his own, without recording or notice thereof, even as respects a bona fide purchaser without notice.
    The recording of a deed between third persons, is not notice to a purchaser at sheriff Js sale, who does not claim through or under that deed.
    A rule to take depositions implies, without being so expressed in it, that they are to be taken before a judge or justice of the peace.
    It is not permitted to a party on a bill of exceptions, to object, that it does not appear by the record, that the notice of taking depositions was served at the time stipulated in the rule', if the witness was not interrogated below on that point, and the objection to the deposition below was on another ground.
    To get rid of such exception, the Court would presume the date of the notice was the day of service.
    In Error.
    ERROR to the Court of Common Pleas of Union COUnty.
    This was an ejectment brought by John Keller and others against John Nutz, Philip Moore, and Jacob Gemberling. The plaintiffs and defendants claimed under the same original title, which was a location to John Jacob Gemberling of the 30th October, 1767; a survey of the 29th September, 1768, returned into office on the 25th January, 1770. The plaintiffs claimed under a deed from John Jacob Gemberling to Michael Keller, dated 24th October, 1772, not recorded, and deduced ’ 7 7 . their title from Michael Keller. The defendants claimed under a judgment obtained by Jacob Gemberling against John Jacob Gemberling, on the 25th March, 1794; a sale upon execution thereon, and a deed from the sheriff of the 26th August, 1796, to Jacob Gemberling. They examined one Philip Nutz, who testified, that his father made some clearing on the land during the war of the revolution; that John Jacob Gemberling, two or three years after that war, worked on the land, and boarded with the witness’s father, who lived on an adjoining tract; that his father bought from John Jacob Gemberling 50 acres for 50 pounds, and paid 20 pounds and no more. John Jacob Gemberling went away and never returned ; his father gave the land to Jacob Gemberling, who paid back the 20 pounds; there was no farther cultivation of the land until Michael Keller, who claimed under Jacob Gemberling, gave a lease to the witness 16 or 17years ago; until that time there was no building on it. The defendants also gave in evidence a deed, dated 20th April, 1785, from Jacob Keller to Leonard Keller, Tobias Ream, George Stake, and Jacob Swigert, recorded on the 31st May, 1785. To prove the pedigree of the plaintiffs, they offered in evidence certain depositions of Adam Musser and others, living in Lancaster county, taken under a rule of Court entered by the plaintiffs, “ to take depositions ex parte on ten days notice.” These depositions were taken before one of the Judges of the Court of Common Pleas of Lancaster county, at Reamstoxvn, in that county, on the 1st November, 1815. They were objected to by the defendants, because the rule of Court did not specify, that the depositions were to be taken before a judge or justice. The Court sustained the objection and rejected the depositions, and the plaintiffs excepted to their opinion.
    The witness who proved the notice to the defendants of the time and place of taking these depositions testified, that he gave one of the defendants a copy of the notice, and that no one attended on behalf of the defendants. The notice was dated 29th September, 1815, that the depositions would be taken on the 1st November, at Reamstoxvn. It did not appear by the record of the evidence returned with the bill of exceptions, that any question was asked the^witness as to the time when he served the. notice.
    
      The counsel for the plaintiffs requested the Court below to charge the jury to the following effect.
    1. That the recording of the deed from Jacob Keller to George Stake and others, and the recitals therein contained, were notice to the purchaser at sheriff’s sale of all the deeds recited therein.
    
      Answer of the Court. The recording of the deed from Jacob Keller to George Stake and others, was not notice to the defendants; as they do not claim title by or under that deed, but from a source anterior.
    2. That it was not incumbent on the plaintiffs, or any person under whom they claim, to record the deed of 1772, from Gemberling to Michael Keller.
    
    
      Answer of the Court. If Jacob Gemberling and John Jacob Gemberling were the same person, the plaintiffs’ keeping the deed of the 24th October, 1772, secret more than forty years, and John Jacob Gemberling taking possession of the land and enjoying it as his own, long after that deed purports to be dated, and contracting debts and .suffering the land to be sold for the payment of them, the Court are of opinion, that it was necessary that deed should have been recorded, (although the date of it is prior to tjie recording act of 1775;) or, that some other notice of that deed or of the claim of the plaintiffs, should have been given; otherwise, the recovery of the plaintiffs will be barred in equity, if the jury consider the defendants bona fide purchasers for a valuable consideration without notice of the plaintiffs’ claim.
    
      Laschells, for the plaintiffs in error.
    There' was no necessity to specify, that the depositions were to be taken before a judge or justice. Such power is implied by the rule; and it has been the uniform practice to enter rules in this way. But even if irregular as depositions, they are admissible as ex parte afiidavits to prove pedigree. In Douglass’s lessee v. Sanderson,
      
       a leaf of a family bible proved by a notarial certificate from another State, and an ex parte oath there that it was cut from the bible, were admitted as evidence to prove pedigree.
    There are also errors in the charge of the Court.
    1. The recording of the deed from Jacob Keller to Stake 
      and others, was notice in law to all persons claiming under John Jacob Gemberling.
    2. It was not incumbent on Michael Keller to record the deed from Gemberling. The law did not require it to be recorded. There was no evidence, that there was any design •tb keep it secret. It was the duty of the owner to keep it safely, which could not be done but by locking it up. This point was decided by this Court in Maclay’s lessee v. Work.
      
    
    
      Greenough and Burnside, contra.
    An ex parte affidavit of a person alive, and within the State, has never been held to be evidence even in case of pedigree. The case of Douglass’s lessee v. Sanderson,
      
       was determined on its particular circumstances. In cases of pedigree the witness is to be examined on oath, in the same manner as in other cases, though he may speak from hearsay. But there is a further objection to these depositions. There was no proof of service of the notice in due time; and this we allege to be a fact, upon which the Court below decided, and it cannot be re-examined.
    As to the charge of the Court.
    1. It was not possible for the purchaser to discover this deed from Jacob Keller. Of all deeds from Gemberling we could obtain information at the recorder’s office; but this deed is not from him.
    2. The Court only declared their opinion of the law, supposing the facts to be as he took them to be; but whether these facts were so or not was left to the jury. If there was notice of the plaintiffs’ title, actual or constructive, they ought to lose the land.
    
      Hall, in reply, was stopped by the Court.
    
      
      
         5 Binn. 154.
    
    
      
      
         5 Binn. 154.
    
    
      
       2 Dall. 116.
    
   The opinion of the Court was delivered by

Duncan J.

The plaintiffs offered in evidence certain depositions, taken under a rule of Court to take depositions ; ex parte rule, on 10 days notice ; these depositions were rejected, and a bill of exceptions taken.

The witness who proved the notice to take depositions, testified that he gave one of the defendants a copy of the no tice, and produced the original; there were more than ten days between the date of the notice and the day appointed' to take depositions ; and the depositions were taken at the time and place appointed. No one attended on the part of the defendants.

It is now alleged, that the proof of service was defective, as it does not appear in the bill that the witness did state when served. If it appeared, that the objection was founded on this defect, the depositions were properly overruled ; but had it been made, the witness was present and could have stated the day of service ; he was not interrogated as to this; he was asked the question, did you serve a copy of this notice ? It would be laying a trap for the party to object to the depositions on other grounds, and then start in this Court, an objection which, had it been made, could have been easily removed by the witness. In fact, it is not pretended that this objection was made; and from another part of the record, there is demonstration that this was not the cause of rejection, for other depositions were admitted, though objected to, where the proof of service of notice was by the same witness, and nearly in the same words. Nothing appearing to the contrary, no other time than the date of the notice, to get rid of an objection of this nature under these circumstances. I would presume the day of service was the day of the date of the notice. The objection below, as is conceded, was, that in the rule it is not set forth, that the depositions were • to be taken before any judge or justice. No rule of Court requiring this to be inserted in the record is produced, and the rule as entered here is co-eval with the judicial records of the state, and universal in all her Courts ; the depositions must be taken before some judge or justice having authority to administer an oath. This is explained by the rule itself j indeed this seems to be given up by t|ie counsel for the defendants in error, or at least languidly defended, or is only supported on some alleged decisions which are admitted to be peculiar to this district. These depositions ought to have been received in evidence, as' taken under a rule of Court giving authority to any judge or justice of the peace to take them. ■ ■»

As mere ex pdrte affidavits, the witnesses living in the State when taken, and living in the State at the time of trial, although they went to prove pedigree, they were not admissible. The relaxation of the general rules of evidence in cases of pedigree, refers to the nature of the evidence. Reputation, hearsay, entries by parents in family bibles 5 monumental inscriptions ; necessity justifies the admission of these; but the proof of this reputation, entries, inscriptions, by other than legal evidence is not required by any necessity. The ex parte affidavit proved to have been made is stronger evidence, than what one man heard from another; but where the witness is living, and within the process of the Court, the matter to be proved by him, must be proved as all facts are. It is not necessary now to decide, whether ex parte affidavits, taken beyond sea, or in any of the United States, could be received as evidence of pedigree, the witnesses living. In some cases, such affidavits taken in England, have been received ; and in Douglass's lessee v. Sanderson, ex parte affidavits taken in Delazvare, going further than mere reputation of pedigree, were admitted. But the opinion of the Court on certain questions of law, on which they are requested by the plaintiff in error to instruct the jury, is likewise excepted to. It will be proper, in order to understand the nature of the objections, to give a brief outline of the evidence. Both plaintiffs and defendants claimed under the original title, which was a location to John Jacob Gemberling, of 30th August, 1767; a survey of 29th September, 1768, and a survey returned on 25th January, 1770. The plaintiffs claim under a deed front John Jacob Gemberling to Michael Keller, dated 24th October, 1772, not recorded, and deduce title from Michael Keller. The defendants claim under a judgment of Jacob Gemberling against John Jacob Gemberling, of 25th March, 17.94; a sale on execution, and a deed from the sheriff of 26th August, 1796, to Jacob Gemberling. They examined one Philip Nutz, who testified, that his father made some clearing on the' land during the war of the revolution. John Jacob Gemberling two or three years after that war, worked on the land, and boarded with the witness’s father, when he lived on an adjoining tract; that his father bought from John Jacob Gemberling 50 acres for 50 pounds, and paid 20 pounds and no more ; the writing is lost. John Jacob Gemberling went away and never returned. His father gave it up to Jacob Gemberling, who paid back the 20 pounds. No further cultivation of the land, until Michael Keller, who claims under Jacob Gemberling, gave a lease to the witness, 16 or 17 years ago. Until that time there was no building on it.

The material question, (for it seems that question and answer is the mode adopted in this district,) is the second; that it was not incumbent on the plaintiff, or any person under whom they claim, to record the deed of 1772, from Gemberling to Michael Keller. The answer of the Court, that keeping the deed of 24th October, 1772, secret for more than 40 years, and John Jacob Gemberling taking possession of the land, and enjoying it as his own, long after the deed, and contracting debts, and suffering the land to be sold for the payment, it was necessary the deed should have been recorded, although its date is previous to the recording act of 1715; or that some other notice of that deed, or the claim of the plaintiffs, should have been given; otherwise the recovery of the plaintiffs will be barred in equity, if the jury believed the defendants were bona fide purchasers for a valuable consideration, and without notice of the plaintiffs’ claim.

This is just the effect of an unrecorded deed, executed since the act of 1715 ; for there notice is equal to recording. The only deeds, before that act, required to be recorded, were mortgages, or defeasible deeds in the nature of mortgages. These if not recorded within six months were void against subsequent purchasers ; but no law previous to that act of assembly required, under the penalty of forfeiting the estate conveyed, the registry of an absolute deed. The evidence of ownership of personal property is possession; the evidence of the ownership of lands, is the title. He who buys personal estate and suffers another to continue in possession is, in contemplation of law, so far as respects creditors of the vendor, or subsequent purchasers from him, guilty of a fraud. It is not only a badge of fraud; evidence of fraud to be left to a jury; but, agreeably to the modern decisions, is a fraud itself. Not so of lands, for there the purchaser must look to the title. An inchoate right, location or warrant, without survey in a reasonable time, is considered as abandoned; but the doctrine of abandonment never can apply where the survey is returned. Before that the contract is executory, and may be abandoned; after survey, it is executed. But abandonment is out of the question b-jíre, where both parties claim under the same right. Abandonment or relinquishment can never be presumed, where money has been paid ; for it is, in its nature, an extraordinary act. Where no money has been paid, there may be many reasons which may induce a man, to relinquish his purchase; but why should one give up land that he has paid for ? The omitting to take actual possession of land, is no evidence of relinquishment; because many persons take up land with a view of letting it lie unimproved for many years. Such is the reasoning of the-Court- in. Cox's lessee v. ■Cromwell, 3 Binn. 120. So, many purchase land without a view to immediate settlement or sale ; they purchase, because experience has informed them of the gradual rise in the value of land. Limitation is a matter of legislative and not judicial power. The plaintiffs here then, have not lost the lands on account of an adverse possession of 21 years; at least if they have, it was not a question made on the trial. They have not lost them, because they have not registered a conveyance, which the laws of the land required should be registered, and declared the conveyance void against a subsequent purchaser. The delay of bringing an action, or omitting to take possession, is not evidence of actual fraud, nor a ground for presuming fraud. There were fields cleared on the land, but no actual resident settlement on it, until about IT years before the trial. There may be evidence of negligence, but.it is a negligence which the law permits, if not protracted beyond a certain period. The plaintiffs had a title not barred by the act of limitations. They have been guilty of no actual fraud. Had , notice of the possession been brought home to them, had they knowledge of the sale by the sheriff, of the subsequent sale, of valuable improvements, and looked on without giving any notice, this might postpone them ; but the not registering the deed, the not giving notice, the delay of ejectment only, whilst it stands not affected by the limitation law, is neither a bar in law or equity. Knowledge of the possession, of the sheriff’s sale, of the subsequent sale, of the improvements for IT years, would make out a strong . defence ; but this formed no part of the case on the evidence, nor in the opinion of the Court. The judgment must therefore be reversed, and a venire facias He novo awarded.

As this cause is returned for trial, it is proper to state, that the Court laid down the law correctly in the answer to the plaintiffs’ first question. The recorded deed from Jacob Keller to George Stakes and others, and the recitals therein, were not notice to the purchaser at the sheriff’s sale, por how was the purchaser to find by inquiry at the recorder’s office this deed ? He would inquire for any conveyances from j0/m jacoi) Gemberling. He was not bound to search the record further. If conveyances from one stranger to another, would be notice to all the world, miserable would be the situation of the purchaser. The registering act would afford him no protection, because it could give him no notice.

Judgment reversed, and a venire facias de novo awarded.  