[Bellas v. M'Carty.] acknowledgment in court. Such an acknowledgment does not appear to be indispensably necessary in all given cases, &c. On the whole, we think, the present deed may be supported without the usual acknowledgment, after so great a lapse of time, and no objection made to it by the debtor. But in its operation, it is subject to every exception, which may be had against a sheriff's deed, on its acknowledgment being offered in court." In Steever v. Rees, 3 Whart. 21, and Morrison v. Wentz 437, the principle was decided, which is not disputed, that a purchaser at a sheriff's sale, before his deed has been acknowledged, has an inceptive interest in the land by the contract. But although cases establish the point, that an acknowledgment is not indispensably necessary, in all given cases, yet, it by no means follows, that the sanction of the court which has ever been required since the settlement of the province, and which has been endorsed by various acts of assembly, is an idle ceremony. Exceptio probat regulam is a maxim, which may be aptly applied in answer to the case cited on this point by the defendants. At a very early period attempts were made, by statute, to estabJish 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 that 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 always 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 [Bellas v. M'Carty.] afterwards be disapproved of, collaterally. 1 Serg. & Rawle 101; 4 Yeates 214; 6 Binn. 254; 2 Serg. & Rawle 54, 55. 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 1802, 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 [Bellas v. M'Carty.] wealth will rest in parol, and be established, not as has been heretofore done, by inspection of the record. Nor was it necessary that there should be an express direction to that effect in the act, as it is an incontrovertible and a universal rule, that every judicial act or judgment of the court, whether prescribed by the common law, or by statute, must be recorded. To keep regular minutes of the proceedings of all courts, and particularly of courts of record, dockets are provided, and clerks and prothonotaries are appointed. The entries, although made by the officers selected for that purpose, are the acts of the court done by their authority, and are under their supervision and control. A court of record is that where the acts and judicial proceedings are enrolled for a perpetual memorial and testimony, which rolls are called the records of the court, and are of such high and supereminent authority, that their truth is not to be called in question. For it is a settled rule and maxim, that nothing shall be averred against a record, nor shall any plea or even proof be admitted to the contrary. And if the existence of a record be denied, it shall be tried by nothing but itself, that is, upon bare inspection, whether there be any such record or not; else there would be no end of disputes. But if there be any mistake of the clerk in making up such record, the court will direct him to amend it. But it is a fundamental principle, which admits of but few exceptions, that the want of a record or an entry on the record, cannot be supplied by parol testimony in a collateral proceeding. 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 [Bellas v. M'Carty.] third persons, whether by a direct application to the court, having the care of the record, or on a collateral proceeding. It is a strong feature in this case, that the purchaser at the sheriff's sale, sold on a testatum from another county, neither had possession of the property, paid the taxes, had his deed acknowledged, nor did any act whatever to give notice that he had become the owner of the land. Under these circumstances, it may conduce to a correct understanding of the case, to inquire whether the defendants, who claim under Spees, are in a better situation than Spees himself, and connected with this to examine whether the plaintiff is a bona fide purchaser without notice. It is unnecessary to review this question in its relation to the owner of the land, as whose property it was taken and sold by the sheriff. But I must remark that even in that aspect the title of the defendants is by no means free from doubt. Till the sheriff's deed is acknowledged, the legal title does not pass, and the vendee cannot demand the rents, or receive the possession. Hoffman v. Coster, 2 Whart. 469. Nor would a purchaser, or those who claim under him, be within the principle of the cases of the Lessee of Duncan v. Robinson, and Moorehead v. Pearce, 2 Yeates. They differ, as has been already shown, in many important particulars, which it is unnecessary to report. But be this as it may, is the plaintiff in the same, or is he in a better, situation than Derk, from whom he purchased? And this depends on the solution of the question; whether he is a purchaser without notice? The defendants contend that he is not entitled to protection, because he is the purchaser of an equitable title. And of this opinion was the court who charged the jury; that the plaintiff has purchased only an equitable interest from one who never had any thing more than an equitable interest or title, imperfect on its face. The plaintiff must, therefore, stand in no better situation than Derk, from whom he bought. It is certainly a most inconvenient and mischievous doctrine, that, because one link in the chain of a long title should be (so to speak) broken by a neglect to convey a legal title, therefore all subsequent purchasers of the property are put out of the protection of the recording acts. With all due respect to those who hold this opinion, the position is as absurd as it is contrary to the act itself. 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 x.—c* 26 [Bellas v. M'Carty.] sufficiently comprehensive to embrace equitable as well as legal titles, and the record of an equitable title is notice to all subsequent purchasers. It is not doubted, that a free conveyance, duly registered, operates to give full effect to the legal and equitable estate conveyed thereby, against a subsequent conveyance of the same Where a person has purchased an legal and equitable estate. equitable title, which he has taken care to put upon the record in conformity to the directions of the act, it would be difficult to persuade any person that there was any justice in postponing his right in favor of a subsequent purchaser. This in truth will not be pretended. And when a purchase has been.made of an equitable estate, which has undergone one or more operations by legal conveyances, which have been immediately recorded, why should a second be postponed to a prior purchaser, who has neglected to have his deed recorded, who has neither paid taxes nor taken possession of the property, and who has done no act or thing in assertion of his right, calculated to give notice of his claim. Justice and sound policy would seem to require that in such cases nothing short of clear, positive and explicit notice, should prejudice the right of a second, fair and bona fide purchaser. But it is said that the defendants have clothed themselves with the legal title, and that where the equities are equal, the maxim is, qui prior in tempore potior est in jure. These elementary principles are not denied, but they have no application to the facts of the case. The rule only applies between persons who have been equally innocent and equally diligent. The parties are not in equal equity. One has been vigilant and the other sleepy, and this leaves room for the application of the maxim "vigilantibus non dormientibus jura subveniunt." And when one of two innocent persons must suffer, the loss should be thrown on him whose negligence caused it. It was the duty of the purchaser to have the deed acknowledged in open court, as is directed by every act which has been passed in relation to this matter, and it was his farther duty to see that a proper registry was made of the acknowledgment; and this has been repeatedly decided to be equivalent, and of equal effect, as any other deed recorded in the recorder's office. If this was omitted, either from the neglect or the ignorance of the purchaser or his counsel, the loss cannot with any show of justice be visited on an innocent third person. The idea of Mr Justice Lewis as to equitable estates, would seem to have been taken from some general expressions of the present chief justice in Chew v. Barnitz, 11 Serg. & Rawle 389. But the remarks there must be viewed in reference to the case decided, and cannot in this state, where equitable and legal estates are, for most purposes, on the same footing, without the most glaring injustice, be generally applicable to equitable interests. The case was this:-By articles of agreement, dated the 7th September 1794, William Parker and Moore Wharton sold to James Wilson, a large tract of land, and covenanted that they, who were the then |