
    LESHER vs. LEISER.
    In proceedings to obtain possession of real estate by a Sheriff’s vendee before a justice, want of sufficient notice of tbe bearing is cured by tbe appearance of tbe defendant.
    An equitable interest sold at Sheriff’s sale is sufficient to support a proceeding before a justice to recover possession.
    Error to Common Pleas of Northumberland County. No. 406 January Term, 1883.
    
      This was a proceeding before a justice of the peace to obtain possession of real estate sold at sheriff’s sale. B. H. Lesher had purchased a piece of land by agreement from Ario Pardee, but had not paid the installments. On January 28, 1878, Alfred Lesher purchased this equitable interest from B. H. Lesher, and paid Pardee, and received a deed from Pardee on May 6, 1878. J. H. Harley had obtained judgment against B. H. Lesher, which was entered of record on June 29, 1877,. while B. H. Lesher had the equitable title. On this judgment B. H. Lesher’s interest was sold on November 21, 1879, and purchased by Phineas Leiser, who thereupon issued proceedings to obtain possession before a justice. Notice was-served on Alfred Lesher on July 1st, 1880, and on July 3rd, 1880, the day fixed for the hearing, Alfred Lesher appeared, but judgment was rendered against him.
    A certiorari was then taken to the Common Pleas, but the justice’s judgment was affirmed in the following opinion; per
    Rockefeller, P. J.
    The Justice and Jury have found—
    1st. That the petitioner has become the purchaser of the-premises at a Sheriff’s sale, and a Sheriff’s deed for the same to him was duly acknowledged, etc.
    2d. That Alfred Lesher, now in possession of said real estate, was in full possession of the same when the sale was-made and Sheriff’s deed was executed and acknowledged, and that he came into the possession of the premises under B. H. Lesher, the defendant, in the judgment and execution,.. upon wh.ch the sale was made; and,
    3d. That the person so in possession has had three months’' no'.ice of such sa e, previous to the application.
    In the case of Brown vs. Gray, 5'Watts, 20, Gibson, Justice,, says, that “when the above is made to appear, the complain- ■ ant has entitled himself to recover. Nor will the respondent be suffered to defeat or delay him by allega ions involving principles of more difficult application than those intended to- • be. con m'tted to this tribunal.”
    
      The same Judge observes on page 21, “on certiorari or writ of error the appellate court inspects nothing but the record, which, by the requirements of the statute, contains but a statement of the facts found for the complainant.” In the case of * The Oakland Railway Company vs. Keenan, 6 P. F. Smith, 198, it is held that a certiorari to remove proceedings before the justice of the peace to recover possession of land bought at Sheriff’s sale brings into the Court of Common Pleas nothing but the record of the proceedings before the magistrate and the jury, and on a writ of error nothing else is before the Supreme Court.”
    This Court, therefore, has no power at this time to look into the title of these parties. I have examined the articles of agreement, the assignment thereof by B. H. Lesher to Alfred Lesher, as well as the list of judgments under which B. H. Lesher’s equitable interest in the real estate was sold, but I am powerless to pronounce upon the title, and it is needless now to give an opinion if I have one. The title can be tried in action of ejectment. I cannot go behind the record in the present case.
    The Act of Assembly requires proof of due service of the warrant upon the defendant or person in possession in case he fails to appear. If he appears, of course t íere is no necessity for such proof. In case of a failure to appear there could be no hearing without proof that such service was made three days before the return. But the act further provides that if the defendant or other person in possession shall be duly summoned as aforesaid, or shall appear, the said justice shall proceed to inquire, etc. I take it, that if the party appears, it makes no difference if the summons has not been served three days before the return day. Even if it was material, there is nothing on the face of the record, so far as I have been able to discover, to show that the defendant at the time of the hearing, appeared and objected on the ground that he had not been .summoned three days before the return day. The return of the service shows service was not made full three days before the return, but the record of the justice is as follows: “July 3d, 1880, both complainant and respondent present with their attorneys. Jury in this case sworn. Action opened and argued. The said justice and jury proceeded to inquire, etc.”’ The Court cannot go behind this record.
    The proceedings of the justice and jury are affirmed.
    Lesher then took a writ of error complaining of the action of the Court in affirming the justice’s judgment.
    
      Wm. A. Sober, Esq., for plaintiff in error,
    argued that the Act of Assembly did not contemplate proceedings where an equitable interest was sold, but only where the legal title was. sold by the sheriff; McMullin vs. McCreary, 54 Pa., 230; Steel vs. Thompson, 3 P. & W., 34; Brown vs. Gray, 5 Watts, 17,
    
      Oscar Foust, Esq., contra,,
    
    argued that as Lesher appeared and made defense, he waived the statutory notice; Stroup vs. McClure, 4 Yeates, 523.
   The Supreme Court affirmed the judgment of the Common Pleas on May 14th, 1883, in the following opinion:

Per Curiam.

This argument took a wide range. Much has been argued that is not properly before us. The judgment of the Court below was on a certiorari issued to the judgment of a justice of the peace. That was entered in a proceeding to obtain possession of land by a purchaser thereof at Sheriff’s sale. The record of the justice shows jurisdiction of the party, and of the subject matter, and is sufficient to sustain the judgment which he entered. We cannot look beyond that record. The Court, below committed no error in affirming that judgment.

Judgment affirmed.  