[Bellas v. M'Carty.] explanation and alteration of the law on this subject, it was enacted, "Thall all lands whatsoever and houses should be liable to sale upon judgment and execution obtained against the defendant, his heirs, executors, or administrators, with this proviso, that the messuage and plantation, with its appurtenances, upon which the defendant was chiefly seated, might not be exposed to sale, till the expiration of one year after the judgment obtained, to the intent that the owner, or any one on his behalf, might endeavour the redemption of the same; and before such sale should be made, the appraisement thereof should be by twelve honest and discreet ment of the neighbourhood; and that after such sale and appraisement as aforesaid, the lands should be and remain as a free and clear estate to the purchaser or creditor, his heirs and assigns for ever, as it was to the debtor." Ibid. 6. This appears to have been the first act which made all the lands of the debtor liable, in every instance, to the payment of his debts; and for this purpose directed that they, after being appraised, should be liable to be sold upon judgment and execution, which was never before directed expressly. Anterior to the passage of this act, the practice had been to take first one-half of the lands of the debtor, under a writ of elegit, issued upon the judgment for that purpose, and to deliver the same by metes and bounds to the creditor or plaintiff, at an appraised value thereof, made by twelve men, towards payment of his claim. Then after this, where the debt was contracted subsequently to the purchase of the land by the debtor, and the moiety thereof delivered to the plaintiff proved insufficient to satisfy it, a second writ of elegit was sued out, and the remaining moiety of the lands taken and delivered in like manner to the creditor, if the debtor happened to have no legal issue. The writs, thus issued and executed, were returned by the sheriff and filed in the prothonotary's office, whereby the creditor became invested with such right and title to the land as the debtor had, without any action or decision of the court thereon whatever. And the land being thus transferred, under the authority of judicial process, sued out of a court of record, was deemed such a conveyance thereof, as every person was bound to take notice of; so that no one thereafter could become a purchaser of it from the defendant, named in the process, without being affected with notice of the prior transfer made of it, as it were, by operation of law. This act of 1688 was limited in its duration to one year, and until twenty days after the rising of the next general assembly, but was continued in force by subsequent acts till 1695, when the legislature passed a new act in the same words, excepting that it was without limitation. Miller's Laws, Appendix, p. 10. The practice of the sheriff's selling lands, taken in execution by him, and of making deeds conveying the same to purchasers, seems to have commenced with the operation of the act of 1688, though nothing is mentioned therein of his making a deed of conveyance for the purpose of perfecting his sale of the land. The first act that we [Bellas v. M'Carty.] have on the subject, expressly directing it, is that of 1700, whereby it is enacted, "That all lands and houses, within this government, shall be liable to sale, upon judgment and execution obtained against the defendant, the owner, his heirs, executors or administrators, where no sufficient personal estate is to be found; with this proviso, that the messuage and plantation, with its appurtenances, upon which the defendant is chiefly seated, shall not be exposed to sale before the expiration of one whole year after judgment is obtained, to the intent that the defendant, or any other on his behalf, may endeavour the redemption of the same; and before any such lands, messuages or houses, or any other lands or houses whatsoever, taken in execution, shall be sold, they shall be duly appraised by twelve honest and discreet men of the neighbourhood; and then it shall and may be lawful for the sheriff to make sale of, and convey the same under his hand and seal; after which sale and appraisement, made as aforesaid, such land and houses shall be and remain a free and clear estate to the purchaser or creditor, to whom the same are so made over or sold, his heirs and assigns for ever, as fully and amply as ever they were to the debtor." But still, notwithstanding the sheriff is here directed to make a deed perfecting the sale, yet he is neither required nor directed to acknowledge it in court or elsewhere. And, I presume, it will scarcely be denied, that the court, from which the process issued authorizing the sale, might have set it aside at that day as well as at the present, if any irregularity had been shown to have been committed by the sheriff in making it. The practice, however, mentioned above, of sheriff's making deeds confirming their sales of lands taken in execution, commenced under the act of 1688, and continued to prevail down to the passage of the act of 1700. And without any direction given, by any act to sheriffs to make deeds for such purpose, or to acknowledge them in court when executed, deeds were made and acknowledged by sheriffs in court, in some instances, and perhaps in the majority of cases where sales were made of lands taken in execution; but certainly not in all, as would appear from the records of the courts at that time. The practice of acknowledging the deeds at this early period by sheriffs, was possibly borrowed from the practice which had obtained previously of acknowledging private deeds conveying land, under the act of 1683, (Miller's Laws, Appendix, pp. 5, 6,) entitled, "Forms of grants of estates of inheritance for life, lives or years." By this act it was enacted, "that for avoiding long and tedious conveyances, and the many contentions which may arise about the variety of estates, all grants of estates shall be, either of the inheritance, or for life or lives, or for years, any number not exceeding fifty years, which grants shall be thus contracted in these words: "A B, the &c., day of &c., in the year (according to the English account) 16 &c., from him, and his heirs and assigns, grants his, (describe the bounds,) with all its appurtenances, lying in the county of containing [Bellas v. M'Carty.] acres, or thereabouts, to C D, and his heirs, (in fee,) or E F, for his life, (if for lives,) or to G H for one hundred years, if I K L M N O shall so long live, or to P Q for fifty years, for the consideration of pounds in money paid, and of the yearly rent to be paid to A B, and his heirs and assigns, upon the &c., day of &c. In witness whereof he sets his hand and seal. Sealed and delivered in presence of R S T. Acknowledged in open court, and certified under the clerk's hand and court seal, the day of &c., 16 &c., and registered the &c., day of &c., 16 &c." It is perfectly clear, from the tenor of this act, that it did not embrace, and moreover that it was not intended to have any bearing whatever on sheriffs' deeds. The form of deed furnished by it could not be made to suit that of the sheriff's. And from the whole tenor and scope of it, it is difficult, if not impossible, to conceive that it was the design of the legislature to prohibit the use of other forms, previously in use, in making deeds of conveyance for purposes similar to those indicated by the act, and to render them void if they were not made in conformity to the form thereby given, and acknowledged and registered as thereby directed. This act, at most, can only be considered as directory, since it contains no prohibition as to using other forms in making deeds thereafter; nor declaration that they shall be void, if not acknowledged in court and registered, nor that they shall be of no force until so acknowledged and registered. Doubtless many deeds were made after the passage of this act, of a different form, without being either acknowledged or registered in court, which were nevertheless received and considered effectual and valid. And 'certainly much less could it be pretended that a sheriff's deed could be affected, or considered of no effect for want of such acknowledgment and registry: Because in no case was such a thing contemplated or directed by the legislature to be done, with a view to its being considered a judicial act by the court, in order to give it validity and efficacy thereafter. It was directed merely for the purpose of authenticating the execution of the deed so acknowledged and registered, that it might be rendered admissible in evidence thereafter, without making farther proof of its execution, according to the rule of the common law. That such acknowledgment, made at that early day, of a sheriff's deed in open court, was considered as being done merely for the purpose of having its execution authenticated, by a certificate of the clerk of the court, under his hand and the seal of the court, so that it might be recorded, in the recorder's office of the county, or the rolls office, either for preservation, or for being given in evidence at any time thereafter, if called for, without further or other proof being given of its execution, is evidenced in some degree by the practice which then prevailed of having them so recorded, as also by the form of the certificate given by the clerk of the court. In order to show what the certificate was like, I will here add a transcript, taken from two or three deeds of that day, which has been most kindly furnished by a friend. John White, [Bellas v. M'Carty.] sheriff of the county of Philadelphia, in the province of Pennsylvania, having seized and taken in execution a house and lot of ground situate in the city of Philadelphia, under a writ of fieri facias, upon a judgment at the suit of Griffith Jones against Samuel Jobson, sold and by his deed conveyed the same to the plaintiff; and at the foot of the deed is a certificate, intended no doubt to be one, of the acknowledgment of its execution in the following terms. "Acknowledged in open court, held at Philadelphia, on the 7th first month 1693. Witness Wm. Markham, clerk, court and county seal," [L. S.] This deed appears to have been recorded afterwards on the 4th of the third month, in the same year, in the office for recording of deeds in the city and county of Philadelphia, in Book E 2, vol. v, p. 256. Also to a deed executed by John Claypole, sheriff of Philadelphia county, to Daniel Giffin, for a messuage and lot of land, taken in execution, and sold by the former as sheriff to the latter, is subjoined a certificate of acknowledgment in the following words: "Acknowledged in open court, held at Philadelphia the 7th day of December 1697, as witness my hand and county (not court) seal. John Claypole, sheriff, [L. s.]" This deed also appears to have been recorded the 15th of the first month, 1697-8, in the office for recording of deeds. Again, to a deed from Thomas Farmer, sheriff of Philadelphia county, to Jacob Reginer, for a lot of ground lying in the city of Philadelphia, is underwritten a certificate of acknowledgment, in the following words: "Acknowledged in the court of common pleas, at Philadelphia, the 9th September 1703, certified under my hand and county (not court) seal. Robt. C. Asheten." This last deed, it will be perceived, is certified by Robert C. Asheten, under his hand, without any indication of what he is, and under the county seal, as is also the one immediately preceding; and appears to have been recorded in the office for recording of deeds, on the 11th of the ninth month, in the following year, 1704. Now, if the acknowledgments of these deeds in the court had been considered or looked on as judicial acts of the court, can it be believed that they would not have been certified as such, in the usual form of certifying a record of the court-for instance, in the conclusion thereof: thus, "as appears by the records of the said court. Witness my hand and the seal of the said court. R. C. A. clerk." Thus this latter form, or one of similar import, would have been adopted and observed, had the acknowledgment been considered as judicial, I think can not well be doubted; but being viewed as a certificate merely of the fact, that the sheriff had appeared in court and acknowledged that the deed, which he produced and held in his hand, was his deed, a matter which required no action of the court, and with which the court certainly, at that day, never supposed it had any thing to do, unless the sale was objected to, on account of its having been unfairly or irregularly made; the object being to have the deed authenticated, so that it should carry evidence on it of its execution, it was deemed sufficient for the clerk of the court to certify the fact of the sheriff's [Bellas v. M'Carty.] having acknowledged it in court, without more. And here permit me to say, that down to the present day this is the practice, and all that is certified: and that such certificate of the acknowledgment of the deed, subjoined thereto, has ever been received as satisfactory evidence thereof, whether an entry of the acknowledgment was to be found upon the records of the court or not. Anterior to the passage of the act of 1705, entitled "An Act for taking lands in execution for payment of debts," 1 Dall. Stat. Laws 67; 1 Smith 57, no direction was contained in any act, that the sheriff should acknowledge his deed in court or elsewhere, though it had been a common practice to do so: and that it was so, would seem to be recognized in that act, in the direction therein contained to "give the buyer a deed, duly executed and acknowledged in court, for what is sold, as has heretofore been used, upon the sale of lands." But if the acknowledgment usually made by a sheriff theretofore, of his deed in court, upon his sale of land, was not considered, as I think I have shown it was not, a judicial act, then certainly there is nothing in this last act making it so. But further, it seems to be admitted that the practice of acknowledging sheriffs' deeds in court, for the sale of lands, as there was no act of the legislature directing it, must have commenced out of courtesy to the practice which obtained under the act of 1683, recited above, giving a form for private deeds conveying lands, and directing them to be acknowledged in court and registered. But surely it will not be pretended, that an acknowledgment made in court, under that act, of a private deed, by a grantor of his own land, could be construed into a judicial act, even by the utmost stretch of ingenuity itself. By that act, no power whatever is bestowed upon the court over the acknowledging of the deeds thereby directed to be acknowledged in court; so that it is utterly impossible, as it seems to me, to hold that acknowledgments made under it were judicial acts, when the court had no power whatever given to it to interfere with or control the acknowledgment so directed to be made. The court was completely passive in the matter, excepting as to giving the certificate of its having been done in court, which may perhaps be regarded as the act of the court, but certainly not as one of a judicial character, requiring the exercise of any discretion or judgment. Seeing, then, that the practice of acknowledging sheriffs' deeds in court is derived from the practice that obtained previously, in regard to private deeds, under the act of 1683, without any legislative direction, or requisition on the subject, it is difficult, if not altogether impossible, to make the acknowledgment of a sheriff's deed amount to more in its nature than that of a private deed under the act of 1683, from which it was at first borrowed. Then, it being thus shown that the nature and effect of acknowledging a sheriff's deed in court, before the act of 1705, could not be deemed a judicial act, and as it is clear that that act made no alteration or change whatever in its nature, but simply directed it to be done "as had been theretofore used," it must still |