Cock v. Thornton

Mr. Justice Clark delivered the opinion of the court, February 23d, 1885. The error assigned in this case is to the refusal of the court below to receive in evidence a sheriff’s deed which covered the premises in dispute and formed a link in the chain of the plaintiff’s title. The objections made to the admission of the deed were — that the writ of venditioni exponas, upon which the sale was made, had never been returned ; that the purchase money had never been fully paid, and that the sheriff’s deed made pursuant to the sale had never been delivered. The first two grounds of objection, as the law now stands, are wholly dependent upon the validity of the third, because if the deed executed in due and proper form and regularly acknowledged was actually delivered, the first grounds of objection are removed. In numerous cases it has been held by this court that the acknowledgment of a deed is a judicial act, and concludes all mere irregularities, however gross, in the process and sale. After acknowledgment, the validity of the title acquired by the purchaser cannot be questioned in any collateral action involving the title,*except for the absence' of authority [641] or the presence of fraud in the sale. This question was elaborately considered in Shields v. Miltenberger, 2 Harris, 76, where the authorities are collected and reviewed by Mr. Justice Bell, and that case is followed by many others. The acknowledgment of a sheriff’s conveyance fixes him for the bid, and payment is then a matter between him and the purchaser: Hinds v. Scott, 1 Jones, 19; Gibson v. Winslow, 38 Penn. St., 49; Foster v. Gray, 22 Penn. St., 9. In this ease there was a valid judgment, a regular writ of fieri facias, a levy upon and-condemnation of the land, and a venditioni exponas directing the sale. The sheriff had undoubted authority, and no fraud is alleged; the deed if duly executed, acknowledged and delivered will therefore convey the title, although the vend. ex. was never returned, and the purchase money was never paid. The sheriff’s sale, according to the recitals of the deed, took place on the 4th December, 1871, and a deed made pursuant to the sale was acknowledged in open court, before the judges thereof, on the 13th day of December following. The acknowledgment was entered upon the minutes of the court and certified in the usual form upon the body of the deed. On the same day the deed was duly recorded hi the Court of Common Pleas, in the sheriff’s deed docket, as' required by law. The official term of the sheriff expired on the first day of January, 1872, and it appears that after the acknowledgment and recording of the deed he lifted it out of the prothonotary’s office, and retained it in his custody until the time of his death in the year 1881. The bid at the sale was $70. The purchaser applied $64.84 to the payment of the costs and claimed the right to apply the balance to the judgment of John Cock, the first lien creditor whom he represented in the purchase. It does not appear that the sheriff ever demanded the purchase money, that the purchaser at any time refused to pay it, or that any application was made by any one to vacate the acknowledgment or to set the sale aside. It certainly cannot be doubted that the sheriff in this condition of the record was fixed for the amount of the bid, and that whoever at the time of the sale was entitled, in the order of distribution, had a legal demand against him for the money ; as a corollary to this it would seem equally clear that the defendant’s title had been • extinguished. The record exhibited to the whole world, and still exhibits, a valid sale of the lands levied upon, and the execution and acknowledgment of a regular conveyance. If the deed were lost or destroyed this record would furnish competent and complete evidence of the sale, and of the deed; prior to the passage of the Act of 14th March, 1846, a sheriff’s deed was not within the purview of the recording acts, and the only record which could be re [642] sorted to to supply the loss of such a conveyance was that found in the Common Pleas: Seechrist v. Baskin, 7 W. & S., 403. The acknowledgment and recording of a sheriff’s conveyance is very strong presumptive evidence of delivery, and where several years have elapsed, without effort to vacate the acknowledgment, that presumption is very greatly strengthened. The mere possession and custody of the instrument, under such circumstances, is a matter of no great significance, as the sheriff may hold the deed merely as a basis of settlement, or when the purchaser is entitled in the distribution, until the proper entries are made upon the record. When a sheriff’s conveyance is retained for such purpose, it may, after adjustment of the bid, pass to the purchaser by the hand of any one. The case of Robins v. Bellas, 2 Watts, 359, which is greatly relied on by defendants in error, is readily distinguished from the case under consideration, where the sheriff’s deed was neither acknowledged nor recorded. There was, it is true, a memorandum made upon it by the prothonotary in the following words: “ 19th January, 1819, acknowledged George W. Brown, Prothonotary. Deposited as an escrow; ” but, as this indorsement did not declare what was acknowledged, or by whom, or where, or for what purpose, it was altogether inadequate, both in form and in substance, to establish a valid acknowledgment. The deed thus indorsed was left with the prothonotary as an escrow, to be delivered when the purchase money was paid. Ten years later, without such payment having been made, upon an order of the court the deeds were recorded and delivered by the prothonotary to the purchaser. Such being the facts of that case the court very correctly said: “As well might the court undertake to direct the sheriff’s name and seal, in his absence and without his consent, to be signed and affixed to a deed in order to consummate a sale of real estate made by him, as to order a deed which had been signed and sealed by him, but not delivered, or only deposited with a third person, to be delivered to the vendee without the consent of the sheriff, or the condition being first performed, upon which it was deposited as an escrow.” The adjudication of this case does not necessarily determine the causes for which, or the time at which the court in the exercise of its equitable powers may in a proper and direct proceeding set aside a sheriff’s sale’. The powers of the court in such cases, it must be understood, are dependent upon other considerations, and are governed by different principles. Even after the acknowledgment and recording of a sheriff’s deed, if the instrument remain within the grasp of the court, or the purchaser deliver it up for cancellation, the record may upon [643] prompt and proper application be vacated and tbe sale set aside, provided no intervening rights have accrued: Jackson v. Morter, 1 Norris, 294. We are here considering the validity of a sheriff’s deed as evidence of title, in an action of ejectment, a proceeding collateral to that in -which the sale and conveyance was adjudicated, and in which those who derive title from the defendant deny the efficacy of the deed to extinguish their right. The cases which define the powers of the court in a direct proceeding to set aside a sale, have little relevancy to the questions here involved. We are of opinion that the deed from David L., Walker, sheriff, to Edward Campbell, acknowledged ' 13th December, 1871, was admissible in evidence, and the offer of it by the plaintiff should not have been refused at the time. The judgment is therefore reversed, and a venire facias de novo is awarded.