
    Hare versus Bedell.
    1. A defaulting purchaser at sheriff’s sale is not liable to respond in damages for loss ou re-sale of the property if. it appears that under the first sale he would have acquired a more valuable title than that which passed to tile purchaser at the last sale, or that the terms of the first sale were more advantageous to the purchaser than those of the re-sale.
    2. Where the sheriff’s return to a writ and the recitals in a sheriff’s deed show that a sheriff’s sale has taken place under one writ only, parol evidence is inadmissible to prove that the sale was. also made under an-' other writ in the sheriff’s possession at the time.
    October 6th 1881. Before Merour, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, O. J., absent.
    Error to the Court of Common Pleas No. 1. of Allegheny county: Of October and November Term 1881, No. 128.
    Assumpsit, by John Ii. liare, sheriff of Allegheny county for use of Joel Bedell, for use of Margaret J. Bedell, against Á. W.. Bedell, to recover the difference between the price for which certain land was sold to the defendant at sheriff’s sale, the terms of which he did not comply with, and the amount which the said land brought at a subsequent sheriff’s sale.
    On the trial, before Stowe, P. J., the following facts appeared by the records produced: On September 25th 1874, W. and II. Caughey obtained a judgment with waiver of inquisition, condemnation, &c., against Joel Bedell, which became a lien on the premises in question, then owned by the said defendant. On November 19th 1874, Joel Bedell, by deed of that date, recorded November 30th 1874, conveyed thesaid premises to bis wife, Margaret J. Bedell. Under á li. fa. issued to October Term 1875, No. 539, on-the said Caughey judgment, the said premises were exposed to sheriff’s sale, October 9th 1875, and were knocked down to A. W. Bedell for $5,050. In December following, the sheriff filed his return, indorsed on said li. fa., that Bedell having failed to comply with the terms of sale, the premises remained unsold.
    On December 16th 1874, one.Whigham obtained a judgment with waiver of inquisition, &c., against the said' Joel Bedell, and under a fi. fa., issued upon said judgment to July Term 1876, No. 205, the same premises were exposed to sheriff’s sale and sold to one William Bedell for $4,500.
    A pluries fi. fa. had previously been issued on the aforesaid Caughey judgment, to July Term 1876, No. 206, which, at the time of the last mentioned sheriff's sale, remained in the sheriff’s hands for execution. After said sale the sheriff returned this pluries wi it with the following indorsement: “ For return of this writ see fi. fa. No. 205, July Term 1876.” The special return indorsed on the Whigham fi. fa. (No. 205 July Term 1876) certified “ that by virtue of this writ to me directed,” the premises were sold to William Bedell for $4,500. The sheriff’s deed to William Bedell recited the Whigham judgment, execution and sale, omitting any reference to the Oaughey judgment and execution.
    The plaintiff offered to prove by the parol evidence of E. H. Fife, the sheriff who executed and returned the said writs, that the land was in fact sold at the second sale under both wi-its, viz., the pluries fi. fa. on the Oaughey judgment and the fi. fa. on the Whigham judgment. Objected to, the record being the best evidence ; objection sustained ; exception.
    The defendant presented, inter alia, the following points :
    2. That the first sale under the Oaughey judgment, if completed, would have extinguished the title of Margaret J. Bedell, which she acquired subsequent to the date of said Oaughey judgment, as well as the lien of all judgments against Joel Bedell prior to her deed. That the second sale under the Whigham judgment, entered subsequently to Mr. Bedell’s acquisition of title, would only pass to the purchaser a right to contest her title on the ground of fraud, and would not discharge the lien of any judgments against Joel Bedell prior to the date of her deed.
    . . . . Affirmed.
    
    3. The second sale being of a different and less valuable title than that which the defendant bid for at the first sale, he cannot be charged with the difference between his bid at the
    first sale, and the price realized at the second sale.....
    
      Affirmed.
    
    The court directed (he jury to find a verdict for the defendant. Yerdict and judgment accordingly. The plaintiff took this writ of error, assigning for error the exclusion of the plaintiff’s offer to prove that the second sale was made under both writs, the affirmance of defendant’s points, and the instruction to find for the defendant.
    
      Joseph Forsythe, for the plaintiff in error.
    Though parol evidence is not admissible to contradict or vary a sheriff’s return to a writ, yet where ambiguity exists in it, parol proof of facts consistent with and not appearing on the face of the return may be heard in explanation and to show the truth : Shoemaker v. Ballard, 3 Harris 92. If the sheriff’s return be ambiguous, such construction will be put upon' it, as will conform to the presumption that he has done his duty: Phillips v. Kuhn, 7 Phila. 146. The return indorsed on the Oaughey pluries fi. fa., though uncertain in itself, was rendered certain by referring to the return on the Whigham writ. Heading the two together, it is clear that the sale was made under both writs, and thus the title passed by the second sale was equal to that passed by the first sale. Under the circumstances of this case, the parol evidence of the sheriff should have been admitted and submitted to the jury : Emley v. Drum, 12 Casey 123; Scott v. Sheakly, 3 Watts 50; Hoffman v. Danner, 2 Harris 25; Titusville Novelty Work’s Appeal, 27 P. F. Smith 103. Since the trial, the court, on petition of William Bedell, the purchaser at the last sale, permitted an amendment to the sheriff’s return to the pluries fi. fa. under the Oaughey judgment, reciting that the sale had been ■made under that writ, as well as on the Whigham execution, and the present sheriff, by direction of the court, executed a new deed to William Bedell, reciting that the sale was made under both writs. This amendment, though prudent on the part of the purchaser, was unnecessary. It may be considered as having been made nunc pro tunc, and justice to Mrs. Bedell requires that she be given the benefit on another trial of the record as it now stands.
    
      C. Hasbrouck, for the defendant in error.
    A statutory mode is provided by which defective and informal returns upon writs of execution may be amended by decree of the court after notice to all persons interested : Act of April 21st 1846, Purd. Dig. 659, pi. 130. In the absence of such proceeding, the im: port of a sheriff’s return must be determined by the court from the return itself. It is well settled that parol evidence to explain the return is inadmissible to prove the quantum of estate sold. The fact that subsequently to the trial of this case, the return was amended in the statutory mode, does not appear in this record.
    November 7th 1881.
   Mr. Justice Sterrett

delivered the opinion of the court,

It is very clear that a defaulting purchaser at sheriff’s sale is not liable to respond in damages for loss on re-sale of the property, if it appears that under the first sale he would have acquired a more valuable title than that which passed to the purchaser at the last sale, or that the terms of the first sale were more advantageous to the purchaser than those of the re-sale. The obvious reason of this is,' that the inferior quality of title, or the less advantageous terms of sale, would naturally effect a reduction of price, and we would be left without any reliable standard by which to measure the loss sustained by the refusal of the purchaser at the first sale to make good his bid.

The main ground of defence in this case was, that the title sold and conveyed at the last sale was far inferior in quality to that which would have passed to the defendant by the first sale, if he had paid his bid and received a deed. The first sale was by virtue of an execution based on the Caughey judgment against Joel Bedell, entered September 25th 1874, prior to the conveyance of the property by the defendant in that judgment to his wife. It is therefore clear that if the sale had been consummated, it would have extinguished the title of Mrs. Bedell, as well as the lien of all judgments against her. husband, entered prior to the date of his conveyance to her. If the last sale was made solely on the "Whigham judgment, entered December ,14th 1874, after the conveyance to Mrs. Bedell, it would pass to the purchaser only the right to contest her title, under the deed from her husband, on the ground of fraud, and would not discharge the lien of any judgments entered against him prior to the date of the conveyance : Byrod’s Appeal, 7 Casey 241; Fisher’s Appeal, 9 Casey 294; Hoffman’s Appeal, 8 Wright 95. The following special return is indorsed on the Whigham writ, viz.: “I do certify that by virtue of this writ, to me directed, &c., I did expose the premises within described to sale by public vendue or outcry and . . . . sold the same to William Bedell for $4,500,” &c. Ilis deed to the purchaser also recites the Whigham judgment, execution and sale by virtue thereof, and makes no mention of any other judgment or execution. Upon this state of facts, it cannot be doubted that the quality of the title acquired by the .purchaser is far inferior to that which would have passed to the defendant if the sale to him had been consummated. To meet the difficulty thus presented, the plaintiff relied on the fact that there was in the sheriff’s hands, at the same time, a pluries writ on the Caughey judgment, above mentioned, on which the following return was indorsed : “ For return of this writ, see fi. fa. No. 205 July Term 1876.” The. execution thus referred to is the Whigham writ. In connection with this, the plaintiff. offered to prove by the sheriff that the sale was in fact made on both writs, but the learned judge excluded the testimony as incompetent, and in so doing we think he was clearly right. When the return of the sheriff and the recitals in his deed show a sale on one writ only, it would be a dangerous precedent to permit him or any one else to come in on the trial of a cause and prove that the sale was also made on another writ at the same time. To do so would greatly impair the security of titles based on sheriff’s sales, and at the same time encourage official carelessness, of which there is quite enough already.

The act of June 16th 1836, prescribing the manner in which judicial sales of real estate shall be evidenced, requires that, “ The officer making sale of any real estate under execution . . . shall make return thereof, indorsed on or annexed to such writ, and give the buyer a deed duly executed and acknowledged ” : Purdon, 658, pi. 119. In thus requiring that 'the return shall not only be in writing, but also indorsed on or annexed to the writ, and that the sale shall be further evidenced by a deed to the purchaser, it was surely not contemplated that the return so made might afterwards be explained by parol testimony to mean something else. The act of April 21st 1846 makes ample provision for the correction or amendment of defective or informal returns: Purdon 659, pi. 130. After the trial of this case, the return in question was amended, in the regular and orderly way, at the instance of the defendant; but that cannot affect the question under consideration. It was not amended at the time of the re-sale. The state of the record, as it then stood, was such as to admonish bidders that the quality of the title then offered was inferior to that which would have passed by the first sale, and consequently the property would probably bring less than it did at the first sale.

For these and other reasons that might be added, we are of opinion that the testimony offered by the plaintiff was rightly excluded.

Judgment affirmed.

Merour, J., dissents, as there was amply sufficient to amend by, and the parol evidence should have been received.  