10 Watts 13 | Pa. | 1840
Lead Opinion
The opinion of the court was delivered by
This was an action to recover the-undivided three-fourths part of a tract of land in Coal township, in the county of Northumberland.
The title of. the plaintiff commences with a patent to Samuel Clarke, dated the 11th of April, 1776, from whom he deduces his title, thus: Deed, Clarke to T. Johnson: — Articles of agreement between Johnson and Abraham Cherry, and an assignment by Abraham Cherry to John Cherry: — 28th April 1813, articles of agreement between John Cherry and George Derk, recorded 26th Aug. 1814: —17th April 1815, Saxton and Wolverton, administrators of John Cherry, conveyed the same property to George Derk, under an order of the Orphans’ Court: — 22d December 1829, articles of agreement between George Derk and Christian Bower, acknowledged 24th December 1829, and on the same day — deed, George Derk to Christian Bower, recorded the 24th December 1829: — 28th December 1829, Christian Bower conveyed the property to the plaintiff, Hugh Bellas, which was recorded the same day.
To the May term 1820, Peter Richter, who was the assignee of John Spees, obtained a judgment in the common pleas of Union county, against George Derk for 540 dollars. This judgment was entered the 3d April 1820. The 25th December 1820, testatum was issued to Northumberland county, return tarde venit, and on the 25th May 1S21, the land in controversy was levied by the sheriff of Northumberland county, inquisition held and condemned. A testatum venditioni exponas issued, which was returned unsold, and an alias testatum venditioni exponas to the 22d February 1822, was returned sold to John Spees; viz. 100 acres, more or less, for 67 dollars. This is all that appears on the record in reference to the sale. It is alleged, and proof has been given, that James R. Shannon, who was at that time the sheriff of Northumberland county, gave a deed for the premises to the purchaser, but there is no record of the acknowledgment of the deed either on the record of Union or Northumberland county. It is also alleged, and proof has been given, that John Spees assigned the premises to P. Moore, on the back of the deed. The deed has been lost in some way, and parol proof has been given of the deed and the assignment. The defendant farther gave in evidence a judgment of the executors of George Moore against the executors of P. Moore. On the judgment a testatum was issued 1st February 1828, and the lands in dispute were levied on, and on the 3d May 1829, were sold to Samuel Siegfried for 100 dollars. On the 17th August 1829 the sheriff gave a deed for the premises to Siegfried, which, with the testatum fieri facias, &c., was duly recorded in the county of Northumberland. The 4th February 1830, deed from Siegfried to A. Jordan, for the undivided half of the property sold to Siegfried as the property of Moore, for the consideration of 50 dollars, with special warranty: recorded 15th June 1830, 50 dollars paid. The 5th January 1831,deed, Alexander Jordan and wife to Wm M’Carty el al. for the same property, consideration 500 dollars, with special warranty. The 29th January 1831, Peter Lazarus, who was the administrator of Samuel Siegfried, petitioned for leave to sell the remaining undivided half part of this tract, which was ordered by the orphans’ court. The property was sold by the administrator, and purchased by Wm M’Carty for 565 dollars, and on the 28th April 1832, the sale was confirmed. The 15th March 1833, Peter Lazarus executed a deed to Wm M’Carty. The 25th April 1832, Roger Wolverton, who was the administrator of John Cherry, made a deed to Wm M’Carty and Alexander Jordan for the undivided half of the tract, containing-50 acres, consideration 150 dollars; andón the same day, and for the same consideration, Wolverton, administrator as aforesaid, conveyed the other undivided moiety to Wm M’Carty. By these conveyances, Wm M’Carty became entitled
It also appears that George Derk, under whom both parties claim, on the 9th June 1818, entered into articles of agreement for the sale of the land to George Durbleberger for the sum of 866 dollars, payable in instalments. On this contract Durbleberger paid 66 dollars, took possession of the land, and continued in possession, but for what space of time, is unknown, cut timber off the land to reimburse himself for the same, and as it seems to be conceded by both parties, then abandoned his contract. It is also a part of the case, that neither Spees the purchaser at the sheriff’s sale, nor his assignee Moore, ever took possession, nor is there any proof that they, or either of them, ever paid taxes.
This is a general outline of the case, and on this several questions depend. •
After giving in evidence the judgment of Richter, for the use of Spees v. Derk, and the proceedings thereon, the defendants then offered the receipt book of sheriff Shannon, to prove the existence' of a sheriff’s deed for the premises. They also offered to prove, that the deed was delivered by James Merill to John Spees. That diligent search has been made for it, and that it cannot be found. That it is either lost, or has come to the plaintiff’s hand, and that notice has been served on him to produce it.
The plaintiff objected to this testimony, because there was no acknowledgment of the deed in open court, or record made of it by the prothonotary.
The court, however, admitted the testimony, whereupon the defendant proved by the evidence of several witnesses, after having given the receipt as above stated in evidence, that a deed for the premises was delivered by the sheriff to James Merrill, the plaintiff’s attorney, who handed the same to Jacob Spees, who delivered it to the purchaser John Spees. It was also proved, that Spees made an assignment of the premises, on the back of the deed' to Philip Moore. The defendant also made próof, that diligent search had been made for the deed, but without success. If the witnesses are to be believed, the existence of the deed is fully shown, and of the assignment of it to Moore, no reasonable doubt remains; a diligent search has been made, and it has been lost or mislaid. But there is no evidence which has any tendency to show that Bellas has, or ever had, the deed in his possession, or was aware of its existence. In the course of the examination, the defendant asked one of the witnesses this question, “ Had you any particular reason or cause, to deliver the deed to Mr. Bellas, [and do you believe you delivered it to him, for any purpose connected with your estate?]” The court allowed the latter part of the question to be put to the witness, the part in brackets, and overruled the rest.
To this testimony the plaintiff objects, because the defendant has shown no title to the land in controversy, in Spees or in Moore; it being admitted that there is no record of the acknowledgment, nor any registry of the deed by the prothonotary, or recorder, either of Union or Northumberland county.
The defendant then proposed to ask Mr Merrill, whether the deed from the sheriff, was acknowledged in court, and certified by the clerk. For this purpose, notwithstanding exception was taken to it by the plaintiff, the court permitted the examination of Mr Merrill.
He testified in substance, “ That he could not say that it was acknowledged, nor positively that it was not. That he cannot recollect much of the facts; that he had forgotten them, until he saw his receipt: has no sort of recollection that there was a certificate to it, but his impression is strong, that there was none, and he has strong doubts whether there was an acknowledgment: Shannon who was the sheriff, was pretty consequential about that time, because Spees did not come and bring him up the money: Shannon said, he had sold the tracts for Richter, who was the plaintiff, and Spees had no right to the judgment, and would not be good for the money. He insisted the money should be paid into court.” Mr Merrill says, “he thought the deed should be acknowledged in the county from which the writ issued. He never called on Shannon as he recollects, to do any thing more in the business. He says he would have had no recollection about it, but for the receipt shown here, &c., and other papers. It was intended the deed should pay so much of the debt. Never saw the deed in the hands of Philip Moore or his executors, and does not know that the deed corresponded with the levy. Not sure he read it. Has no distinct recollection either from the receipt or return or record, whether both tracts were sold, or one only. Has no recollection of looking into the deed. He thinks there could not have been a certificate without his knowing it, but he does not say, there was not one. The strongest impression on his mind is, there was not one. He is almost positively certain, nay quite convinced, he never saw a certificate.”
The defendant again after this examination, offers the record, &c., as before. To which the plaintiff objects, for the same reason as before stated. The court on argument, admitted the testimony, to which the plaintiff excepted.
The plaintiff insists that there is error in the admission of the
The bills of exceptions and the charge of the court may be resolved into several general propositions, the division of which will supersede the necessity of examining each in detail.
It cannot be denied, that the defendant has given satisfactory proof of the existence of the sheriff’s deed, and of the assignment of the premises to Philip Moore. He has also shown, that diligent search has been made, but that both the deed and the assignment have been lost or mislaid. But it is not so clear, that he has been equally successful in establishing the fact, that the deed was ever acknowledged. It is not pretended, that there is any record of the acknowledgment existing either in Northumberland or Union county. But the effort has been to show, directly or by inference', that the deed was acknowledged in open court, and that an entry was made to that effect by the prothonotary on the back of the deed. This was an affirmative proposition, the proof of which devolved upon the defendants, and for this purpose, they proposed to ask James Merrill, whether the deed from sheriff Shannon was acknowledged in court, and certified by the clerk. The amount of his testimony is, “ that he does not know that the deed was acknowledged. Has no recollection that there was a certificate on the deed. Thinks there could not be one without his knowing it. He is certain, nay absolutely sure he never saw a certificate.” Mr Merrill, who, it must be recollected, was the defendant’s witness, and whose character is without reproach, gives some reason for the opinion that the deed was not acknowledged; such as his recollection that Shannon was under the impression that the judgment did not belong to Spees but to Richter; that Spees was not good for the amount of his bid, and that he could be secure only by the payment of the money, and the same being brought into court. The result of this evidence, most certainly, is an expression of an opinion on the part of the witness introduced and examined, be it remembered by the defendant, that the deed was neither acknowledged, nor was there a certificate of acknowledgment by the prothonotary on the deed. But this fact, which is considered essential, is sought to be established by the inference, that Mr Merrill, who was the attorney of Spees and Richter, and the sheriff and the prothonotary have performed their duty, which duty the defendant alleges, consists in having the deed duly acknowledged in open court, and having the same certified by the prothonotary on the back of the deed. But the argument is neutralised by a countervailing inference, that the prothonotary is presumed to have discharged his duty, and that the presumption, that if the deed had been acknowledged, as is directed by the act, the acknowledgment would have been registered. The argument proves nothing. It is certainly the duty of the sheriff to acknowledge the deed, but it
The acknowledgment, which is a judicial act, can only be made in open court, and by the order of the court only, can it be recorded; and this must appear, as will be hereafter shown, on the record of the court alone. There is no law which authorizes, or requires, that a certificate shall appear upon the deed, although the practice has been pretty general to make a memorandum to that effect on the deed, after it has received the sanction of the court. Insinuations have been made, that the deed has, in the language of the counsel, been spirited away; but of this there is not a shadow of evidence, and of course, must be determined by conjecture; there is as much reason, viz. that is none at all, for believing, that the deed has been suppressed, because there was no memorandum upon it. But no such charge can with any propriety be made, against either party; such surmises ought not to weigh a feather, either with the court or jury. It seems that Mr Merrill bad some doubt at the time, whether the acknowledgment should be taken in Northumberland or Union; he rather thought it should be registered in the latter county. ■ This, connected with the difficulties made by the sheriff, with the then trifling value of the property, may account for his taking the deed, as is undoubtedly his impression, without any acknowledgment, and that without any serious imputation against his character, as a careful and skilful lawyer, and an honest, conscientious man. It may be remarked also, that although several of the witnesses speak of the existence of the deed, yet there are none who testify to the acknowledgment. From the best consideration that can be given to this part of the case, the conclusion is inevitable, that there is no evidence whatever, of any acknowledgment by the sheriff, and that nothing has been proved, from which either the court or the jury, can legitimately infer it. The case therefore stands (and this is the best point of view in which it can be considered for the defendant) in the same light, as if the deed had been produced and offered without any evidence of an acknowledgment, either on the face of the deed or on the records of the court. The question then fairly arises, whether the defendants have shown such a title in Spees and Moore, as entitles them to give in evidence the judgment of Moore’s executors and Philip Moore against Bellas, who, as will be hereafter shown, is a bona fide purchaser for a valuable consideration from Derk, under whom both parties claim. On the bill of exceptions, and on the charge of the court, several interesting points will arise. Is a sheriff’s deed such an instrument as must be acknowledged in court, to be valid against a subsequent purchaser, from the defendant, without notice, actual or constructive? In this is included the question, whether the acknowledgment is a judicial act, which must be entered on the record.
It has been already shown, that there is no evidence of acknowledgment on the face of the deed, and if there was, it would make
At a very early period attempts were made, by statute,.to establish a system for the registry of conveyances in the province, a history of which is very clearly given by Mr. Justice Sergeant, in his valuable Treatise on the Land Law of Pennsylvania, page 237. By an act which passed in 1683, (25 Charles 2,) the legislature prescribed a form of conveyances, and decided that they should be acknowledged in open court, and certified,under the clerk’s hand and seal, and should be registered. It is very probable Chat from hence we may date the origin of the practice of acknowledging a sheriff’s deed in open court, and the registering of it in the prothonotary’s office, which is referred to by Chief Justice M’Kean, in Snyder’s Lessee v. Nargar, 1 Dall. 68, which he says is always done. And also the phraseology of the act of 1705, which directs that the sheriff shall give the buyer a deed, duly executed and acknowledged in court, for what is sold, as has been heretofore used upon the sheriff’s sale of lands. The phrase, “ as has been heretofore used,” and “ as is alioays done,” used by the chief justice, are pregnant with meaning, and show the notions entertained at that day of the universality of the .practice of not only acknowledging the deed, but also of making a registry of it in the 'proper office. In Adams and another v. Thomas, Chief Justice Tilghman calls the acknowledgment, the sanction of the court to the act of the sheriff, and such it has been considered in the numerous authorities which have been cited at the bar. In this state the reception of an acknowledgment of a sheriff’s deed, is a judicial act in the nature of a judgment of confirmation of all the acts preceding the sale, curing all defects in process on its execution, which the court has power to act upon. 1 Bald. 272; Thompson v. Phillips, 10 Peters 472. When the acknowledgment is once taken, every thing which has been done, is considered as done by the previous order or subsequent sanction of the court, and cannot
The acknowledgment of a sheriff’s deed is the official proceeding of a court of record, acting judicially in relation to the'matter before it. Ordinary deeds may be acknowledged before a judge or justice of the peace, but a sheriff’s deed can only be acknowledged under the supervision of a court. The taking of the acknowledgment is an act as purely judicial as the awarding of the execution on which the land was sold. Till such deed is acknowledged, the legal title does not pass; the vendee cannot demand the rents or recover the possession. By the act of 1S02, the deed acknowledged, is made conclusive evidence of the purchase. The jurisdiction or relation to the acknowledgment of a sheriff’s deed, is accompanied by the power to set aside the sale, and confirm it, to distribute the moneys paid into court, and to award issues. It is a. judicial proceeding, conducted with all the solemnities of a court of record, affecting matters of the highest moment, and involving, wherever the acknowledgment is received, adjudication on the validity of the sale, and the rights of the parties to the execution and the purchase. Hoffman v. Coster, 2 Whart. 469. There is a marked distinction between sheriff’s deeds and other deeds in this particular. The former are judical acts, and require the sanction of the court, and therefore the acknowledgment must be registered by the court; whereas the latter are intended merely as process and execution; for which reason the act of 1719 expressly directs, that the justice shall, under his hand and seal, certify the acknowledgment or proof upon the back of the deed.
In the face of all these authorities, and the whole current of cases which have been cited at the bar, it was with surprise we heard an intimation from the counsel, that, if the court should decide it was necessary that such a proceeding should be entered on the record, it would be nothing more nor less than judicial legislation, inasmuch as. it is no where expressly directed that the act of acknowledgment should be perpetuated by an entry on the record. If this argument proves any thing, it also proves that it would be judicial legislation to require that it should be noticed on the deed, or that any notice in writing should be taken.of it whatever. From this course of reasoning, it will follow, that a solemn judicial adjudication or record, which imports absolute verity, may rest on the frail recollection or memory of man. That it may be proved as any other fact by witnesses. Of this we have a practical example in the course pursued here, for Mr Merrill was examined to prove that the deed, although no record was made of it, was acknowledged in conformity to the act, in open court by the sheriff. This is among the very few attempts which have been made so to establish a record by parol, and it is most sincerely hoped it may be the last. If this experiment should receive countenance, we must not be surprised that the judgments of every court in the common
The judgment itself, and all the proceedings upon it, are carefully registered and preserved, under the name of records in public repositories, set apart for that particular purpose. Co. Lit. 260; Fonbl. 231; 3 Black. Comm. 24; 1 Black. Comm. 68.
The usual mode of proving a record, is by the production of the record itself, or by a sworn or office copy. But in Peake’s Ev. 29, 30, on the authority of Thompson v. Bullock, 1 Bay 364, it is said, that although inferior evidence of the contents of a record which is shown once to have existed, may be admitted, especially in cases where the record is the only inducement to an action, yet the inferior evidence must be above the degree of mere parol proof. But this evidence presupposes the existence of the record, and is admitted from necessity,because the records, which, for security,are preserved in public repositories, cannot be removed, from place to place, to serve a private purpose. The most solemn instruments may, it is true, be presumed to have existed to support a long uninterrupted possession. So where an ancient or even a recent record is lost, the contents of it, if they can be ascertained, may be supplied by inferior testimony, by an application to the court where the records are deposited. But where the court has omitted to have a record made of a judicial proceeding, it would be dangerous to the rights of suitors, and particularly to third persons, to permit the record to be made up on parol proof or their own recollection, after the lapse of several years. Certainly this would not be done in prejudice of
To put equitable titles on a different footing from legal titles, would be intolerable in Pennsylvania, where we have no means of compelling the conveyance of the legal title, and where one-third or perhaps one-half of the estates are in the same predicament. And this has been the view taken of the act in the numerous cases which have been cited, to notice which particularly, would swell this opinion to an unreasonable extent.
The act of 18th March 1775 is not confined to deeds, but directs that every recorder of deeds, &c., shall keep a fair book, in which he shall immediately make an entry of every deed or writing brought into his office ,to be recorded. The language of the act is
But was Mr Bellas a bona fide purchaser for valuable consideration and without notice? A notice is either actual or constructive. In the remarks which have been already made, I have endeavored to show that Mr Bellas had 'not constructive notice. The defendants, however, have been permitted to give in evidence .proof of the existence of a deed from the sheriff to Spees, a conveyance by assignment of Spees to Moore, a levy on the premises as the property of Moore, a sale and deed by the sheriff regularly acknowledged and recorded, to Siegfried under whom the defendants claim. A doubt has been suggested, whether this will operate as notice to Mr Bellas. But this cannot affect the title of the plaintiff, because, granting that he knew of the inquisition and sale of the property to Spees, of which, by the by, there is not a particle of proof, all he was bound to do, was to ascertain (which could only be done by recourse to the record of the common pleas of Northumberland) that the deed had not received the sanction of the court, and his inquiry was at an end. He was not required to search further, and to inquire either of the sheriff or Spees, whether the deed had in fact been acknowledged, although no minute of it had been made as is required by a proper construction of the act. .He is not bound to search after secret conveyances, and the more especially in such a case as is here presented, where the parties have neglected to take possession, or to assert their rights. A person is not visited with the consequences of constructive notice on slight grounds. In the Lessee of Heister v. Fortner, 2 Binn. 40, it is held that the registry of a deed defectively proved or acknowledged,
But it is insisted that from the terms of the contract between Bower and Derk, Mr. Bellas, who takes the place of Derk, is not entitled to the protection afforded by the character of a bona fide purchaser. To entitle himself to this protection, the purchase must not only be bona fide, aud without notice, and for a valuable consideration, but he must have paid the purchase money; but whether he is the purchaser of the-legal or equitable title, can make no manner of difference. 2 Hay’s Eq. 716; Taite 502. This -doctrine of the courts of chancery has been recognised in this state, in Yost v. Marten, 3 Serg. & Rawle 430; The Union Canal Co. v. Young, 1 Whart. 410; and in Rogers v. Hall, 4 Watts 359. The English rule has been somewhat modified, as appears by the case of Yost v. Marten, and, carried to its utmost extent, it would be anything but a rule of equity. It remains yet to be decided, that, when valuable improvements have been made by an innocent purchaser, he can be ousted by a prior equity when there has been no negligence on his part. There is an important difference, as is seen in Yost v. Marten, between the laws of England and Pennsylvania. By our recording act of 15th March 1785, every man who has articles of agreement affecting the title of land, may place them on record, which will be notice to all the world; so that he who does not place them on record is guilty of laches. In consequence of this law, it is the custom for purchasers to search the records before they pay the money; and if they find nothing there, they conclude they are safe. But in England such articles are not recorded, and the purchaser relies on the possession of the title papers. In England, therefore, some blame is imputable to the second purchaser, but none to the first purchaser, who has done all he has been required by law to do; whilst in Pennsylvania it is directly the reverse; the first purchaser is guilty of laches by neglecting to put his agreement on record, whilst the second has used due and proper diligence by registering his conveyance in proper time, and by taking possession of the property. In Pennsylvania, therefore, there is not the same reason, for the rule in all its strictness; and I have no disposition to extend it one jot beyond the cases that have been already decided. Does then Mr Bellas come within the rule, or in other words, does the purchase-money, or any part of it, remain unpaid? We think that it does not. The
This court are of opinion that the acknowledgment is a judicial act, and that a sheriff’s deed must be acknowledged in open court to be valid against a bona fide purchaser without notice either- actual or constructive. That -parol evidence of the acknowledgment
We are further of opinion, that a bona fide purchaser of an estate, whether legal or equitable, without notice either actual or constructive, who has in due time recorded his deed, and in other respects pursued his claim with diligence, is to be preferred to a previous purchaser claiming under a sheriff’s deed, the acknowledgment of which has never been registered.
Dissenting Opinion
dissenting. — It is with great reluctance,and certainly not without some feeling of diffidence, that I undertake to express my dissent to the decision of some of the points which have been mentioned, as arising in this cause, in the very lucid and able opinion of the court, delivered by Mr Justice Rogers. Believing, however, that the rules of property will be materially affected thereby, and changed from what they have ever been considered as being, according to the plain meaning and spirit of the several legislative enactments, which have reference thereto, as also the various adjudications of this court in relation to the same, I feel myself constrained by ásense of duty, as long as I cannot yield my assent to the opinion of the court on the points alluded to, to declare my own, in regard to them, with some of the reasons; which appear, in my humble view, to be sufficient for its support. The first matter, in which I must beg leave to differ from the opinion of the majority of my brethren, is, as to the nature and character of the acknowledgment, directed by law to be made of a sheriff’s deed, conveying lands sold by him under judicial process of the court, and the effect of the want of such acknowledgment under certain circumstances. From the first settlement of the state, even as a province, lauds were held liable to the payment of the debts of their respective owners. By the 14th of the fundamental laws, agreed upon in England, the 25th of April 1682, between William Penn, governor and chief proprietary, then of Pennsylvania, and the freemen and planters of the said province, it was agreed, “ That all lands and goods should be liable to pay debts, except where there is legal issue, and then all goods, and one-third of the lands only.” Miller’s Prov. Laws, Appendix I. And by the legislature of the province, at their meeting held at Chester or Upland, in the latter end of the same year, the liability of lands to pay debts, in cases of lawful issue, was extended to the one-half thereof, instead of one-third, where the lands were purchased before the debts were contracted. Ibid. 4, sect. 51. And in 1688, in further
Then as to the manner in which sheriffs usually acknowledged their deeds before the act of 1836; there was certainly nothing therein which would have led any one to believe, or even to suspect, that the court, in g-iving their attention to the sheriff while he acknowledged his deeds, were pronouncing a judgment, approving and confirming the sales mentioned therein. In the courts held in and for the city and county of Philadelphia, from the time of the earliest recollection of the oldest gentleman of the bar there, the practice of the sheriff, until the act of 1836 came into operation, was to appear in court, with all the deeds in his hand, which he had to execute for sales of lands, made under writs returnable to that or any preceding term, and even in the midst of the trial of a cause by a jury, or other business going on in the court, to watch the presiding judge of the court until he caught his eye, and then to raise his hand, in which he held his deeds, repeating, “ I acknowledge the deeds which I now hold in my hand,” or other words of similar import, without attempting to designate them by any thing whatever contained within them: and then hand them over immediately to the clerk of the court, who without a word being uttered by the court, made a brief memorandum generally of the acknowledgment from which he was enabled afterwards, when he could attend to it, to make a certificate of the fact at the foot, or on some part of the deed itself, under his hand and the seal of the court, pretty much in the form of those previously given. And instances have occurred, and it is believed not a few, of deeds being
The next point passed on by the opinion of the court, in this case, from which I must beg leave to differ is, that Mr Bellas, the plaintiff, is to be regarded, from the evidence, as a bona fide purchaser, for a valuable consideration without notice. In the first place, it is sufficient to observe that I have shown most clearly, that all the world is bound to take notice of a sheriff’s sale, and that
But in the next place, even if it were otherwise, he could only, according to the principle settled in regard to this point by this court, in Youst v. Martin, 3 Serg. & Rawle 423, claim the land in question as a security for what he has actually paid of the consideration money mentioned in the deed made to him: 300 dollars is the consideration mentioned therein, and it was agreed in writing, that this sum should be all paid, provided Mr Bellas should be able to hold the land under his- purchase; 50 only of it, however; have been paid. Thus it appears by the written agreement of the parties, that only one-sixth part of the consideration money, mentioned in the deed, was paid; but it - is said that the 50 dollars, which were paid by Mr Bellas, before it is shown that he had actual notice of the sheriff’s sale, under which the defendants claim, was in fact all the consideration money that was to be paid absolutely; and that the remaining 250 dollars of the 300 mentioned as the consideration in the deed of conveyance, were only to be paid on a future contingency; but then that contingency must be regarded as the first and great object of the purchase by Mr Bellas, which is, that he should forever continue to hold the land under the conveyance made of it to him. And if he did, can it be denied that the remaining 250 dollars were not only a part, but almost the whole and only consideration that he was to pay for what he wished to obtain. And.certainly nothing can be clearer than that the party, George Derk, of whom Mr Bellas purchased by means of his agent, Christian Bower, would not have sold or parted with his right absolutely for the 50 dollars without more. And I must say further, that it does seem to me unaccountable that he should have agreed to sell his right even for 300 dollars,, when he had George Dunkelberger, a responsible man, bound to pay him nearly 800 dollars for it beyond 100 received. It is said Derk found himself unable to make to Dunkelberger a title, such as he had agreed to make for the land, and therefore could not enforce the execution of the agreement against Dunkelberger; but it would seem from the evidence to have been otherwise. The legal title to the land then was in Col. Johnson, or his heirs, from whom Derk derived his claim to it, and who, it seems, were willing to make the title to Derk or any other, who could show himself entitled to it, as the assignee of Abraham Cherry, to whom Col. Johnson, by his written agreement, had agreed to convey the land upon being paid the consideration money therein mentioned. And it is certain that the representatives of Col. Johnson did convey the land afterwards, upon being applied to to do so, and receiving 81 dollars, which they claimed as a balance of the purchase-money cpming from Abraham Cherry upon his agreement for the purchase of the land. It is not easy, therefore, to say why Derk sold the land to Mr Bellas upon the terms that he did, unless the sheriff’s sale of the land,
I concur fully in the opinion expressed by the court, provided Mr Bellas could be considered a purchaser without notice, that the mere circumstance of his having bought an equitable claim or title to the land, would not preclude him from claiming the benefit of the rule, because an equitable estate comes within the language and design of the recording acts, as fully as a legal estate. The injury to the purchaser might be the same in either case, if he were to lose the object of his purchase. Equitable estates are embraced by the statute against frauds and perjuries; and are as much the subjects of transfer as legal estates, and therefore the purchasers of them are entitled to the same rule of protection; unless where it appears on the face of the title to the equitable estate, that there is a legal title to which it may be subservient, as would seem to have been the case here in regard to the legal title,' which was invested in the heirs of Col. Francis Johnson, when the plaintiff purchased
I have only to add now in conclusion, if it be that a balance of the purchase-money, which Abraham Cherry agreed to pay Col. Johnson, in his lifetime, for the land, still remained unpaid at the time the plaintiff purchased; and was paid afterwards by M’Carty, one of the defendants, who, in consideration thereof, obtained an investiture of the legal title, the plaintiff under no circumstances can recover the land until he pays this balance, whatever it may be. Eighty-one dollars appears to be the sum, which M’Carty paid, that was claimed as such balance; if this be correct, then Mr Bellas would have to pay this sum, with interest thereon, from the time it was paid by Mr M’Carty. Both plaintiff and defendant bought subject to this balance, if it was really .due; and therefore neither can claim to hold the land Avithout paying it, if he has not already done so.
Judgment reversed, and a venire facias de novo awarded.