Duff v. Wynkoop ( 1874 )

The opinion of the court was delivered, January 5th 1874, by

Mbrcur, J. —

The plaintiff claimed title to the land in question, first under a treasurer’s sale and deed in 1862, and secondly under a sheriff’s sale made upon a judgment in 1863.

The fifth and sixth assignments of error relate to the execution and acknowledgment of the treasurer’s deed. The deed purported to have been signed by the treasurer. It was duly acknowledged by him in the Court of Common Pleas of the- proper county, and so certified on the face of the deed by the prothonotary, under the seal of the court. The defendants gave evidence that the signature to the deed purporting to be that of the treasurer was not his handwriting, but was that of his son and deputy. The court, in answer to a point submitted, said, “ We answer that if Jonathan Hays, the treasurer, did not make the deed to Elizabeth Wynkoop, if it was signed by some one else writing his name to it, his acknowledgment of it in the Court of Common Pleas would not make it valid.”

In so answering, we think the learned judge erred. It is not claimed that any fraud or deceit was practised upon the treasurer by his deputy. No evidence was given that the deputy signed the treasurer’s name to the deed without authority. By the appearance of the treasurer in open court and acknowledging the instrument to be his official act and deed, he ratified and confirmed the signature thereto which purported to be his own.

The Act of April 3d 1804 authorized the sheriff of the proper county to make sale of unseated lands for the non-payment qf taxes, “ and to make and execute a deed or deeds in fee simple, to the purchaser or purchasers of any unseated lands so sold, and the same in open Court of Common Pleas of the proper county, duly to acknowledge.”

The Act of April 4th 1809, transferred to the county treasurers respectively, all the powers vested in sheriffs and duties enjoined on them under the former act. Thereupon and thenceforth it became the duty of the treasurer to acknowledge in open court, in like manner as the sheriff had previously done, all deeds for lands which he might sell. The acknowledgment of a sheriff’s deed is a judicial act, conducted with all the solemnities of a court of record. It is an official proceeding of a court of record acting judicially in relation to the matter before it: Hoffman v. Coster, 2 Whart. 453; Bellas v. McCarty, 10 Watts 13. As parol testimony is inadmissible to contradict the record of an acknowledgment of a deed made by the sheriff, so we think it should not be permitted to impair the record of an acknowledgment made by a treasurer. The fifth and sixth assignments are therefore sustained.

The first assignment of error appears to be predicated on the assumption that the judgment had not sufficient validity to support the sale. The original entry of the judgment in Forest county was by filing an exemplification of an exemplification. A sci. fa. issued upon this judgment: it was revived by default. Execution issued on the revived judgment by virtue of which the land in controversy was- sold. After the sale the revived judgment, as well as the original judgment in Forest county, were stricken from the record: Mellon v. Guthrie, 1 P. F. Smith 116.

The Act of 1705 provides, “if any of the said judgments which do or shall warrant the awarding of the said writs of execution, whereupon any lands, tenements or hereditaments have been or .shall be sold, shall at any time hereafter be reversed for any error or errors, then, and in every such case, none of the said lands, tenements or hereditaments so as aforesaid taken or sold, or to be taken or sold upon executions, nor any part thereof, shall be restored, nor the sheriff’s sale or delivery thereof avoided; but restitution in such case only of the money or price for which said lands were or shall be sold : 1 Purd. Dig. .651, pi. 84.

A sale of land upon a judgment recovered upon a mortgage was held to confer a good title upon the purchaser, although the defendant ivas dead when the first writ of sci. fa. issued, and the sheriff returned that there were no terre-tenants: Warder v. Tainter, 4 Watts 270. This Act of 1705 applies to cases of judgments reversed for errors of fact as well as errors of law: Id. It extends to cases where the judgment and all subsequent proceedings were set aside after the sale: Hays v. Shannon, 5 Watts 548. So where the original judgment was void, but it had been revived by the issuing of two writs of sci. fa. post annum et diem, each of which was returnedmM, anda sale of land made thereon, it was held to pass a good title to the purchaser: Feger v. Kroh, 6 Watts 294. A judgment regularly revived by sci. fa. is not void, even if the original judgment was void. A sci. fa. is a substitute here for an action of debt elsewhere ; the judgment on it is quod recuperet instead of a bare award of execution, it therefore' warrants the awarding of the execution : Hays v. Shannon, supra. The last judgment cannot be considered invalid, although it was entered on a sci. fa. issued on a previous judgment that was void.: Buehler’s Heirs v. Buffington et al., 7 Wright 278. The new judgment being regular upon its face and voidable only, has a sufficient vitality to support the sale.

The case of Dorrance v. Scott, 3 Whart. 309, is not in entire accord with the other cases cited, yet it is distinguishable in two particulars. The original judgment was entered upon a bond executed by a married woman and therefore absolutely void; and the revived judgment was. upon a sci. fa. quare executionem. I may further add, that it was not an action to recover the land from the purchaser at sheriff’s sale, but was one of lien and the distribution of the proceeds of the sale. The protective Act of 1705 does not appear to have been referred to by either the counsel or the court.

The answer covered by the first assignment is somewhat obscure. The record showed the equitable plaintiff in the judgment to have been the purchaser at the sheriff’s sale. That fact was unquestioned. The court should therefore have answered in more specific terms that, if Guthrie claimed and received the proceeds of the sheriff’s sale, or any part thereof, he was estopped from controverting the validity of the sale, although'the plaintiff in the judgment was also the purchaser.

This rule applies whether the sale was void or only voidable : Smith v. Warden, 7 Harris 424.

The other assignments are not sustained.

Judgment reversed, and a venire facias de novo awarded.