The opinion of the court was delivered by
Rogers, J.
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.
[16]*16The defendant commences his title with George Derk, under whom both parties claim.
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 [17]*17to the three undivided fourth parts of the tract of land for which the ejectment is brought, the other one-fourth part being in Alexander Jordan.
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.
[18]*18After giving this evidence, the defendant then offered the record of the judgment of the executors of George Moore against Philip Moore, from Union county, the proceedings thereon, including the testatum to Northumberland county, the sale of the premises to Samuel Siegfried, with the record of its acknowledgment by the prothonotary of the county of Northumberland, together with the record of the testatum in the same county.
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 [19]*19testimony contained in the four bills of exceptions, and in the special instruction to the jury, and in refusing to instruct them as requested in the fourth, fifth, seventh and eighth points of the plaintiff.
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 [20]*20is not his province, nor the clerk’s, to make a certificate of the fact, nor is the sheriff bound to act until payment of the purchase-money.
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 [21]*21no difference so far as this point is involved, as we deem it absolutely necessary, that the entry by the proper officer should be made on the minutes, or records of the court, in order to affect a bona fide purchaser with notice. And here we wish to be distinctly understood, as taking a distinction between the defendant in the execution, and a purchaser of his interests without notice, either actual or constructive. It is not necessary to contend, that Derk would or would not be postponed as against the purchaser, who had paid for the land, or, what is equivalent to it, had permitted a credit to that amount on his judgment. By the purchase, he acquires an interest in the land, although the deed may not have been acknowledged. This interest descends to his heirs and it may be taken in execution. The purchaser or his heirs may call for the execution of the deed, by payment of the amount of the bid, and the court, on a proper application, may compel the sheriff to acknowledge the deed. It is also possible, that under very peculiar circumstances, this defect would be cured, as in the case of the Lessees of Duncan v. Robinson, 2 Yeates 434. There the deed was acknowledged, but not till after the commencement of the suit. The court admitted it as evidence, stating, that the deed does not take effect upon its acknowledgment, but from its sealing and delivery. Every thing relates to the first act; but the acknowledgment being made at a late day, the defendant is at liberty to go into every objection against the sale which might have been made, if the deed was now offered for acknowledgment, as in common cases. Duncan v. Robinson was the suit of the purchaser at the sheriff’s sale, against a third person, who claimed by title, independent of the defendant in the execution. The defendant in the execution made no objection on that account, and the deed was acknowledged in court, on petition, of which the defendants in the execution must havé had notice. The court in such a case, might well say, that the deed did not take effect from its acknowledgment, but from its sealing and delivery, and that every thing related to the first act. The defendant might be well satisfied with this decision, particularly as the court reserved to him the right of going into every objection against the sale, which might have been made, if the deed was then woffered for acknowledgment. And to the same effect is the case of Moorehead v. Pearce, 2 Yeates 456, which was determined on the authority of Duncan v. Robinson. In the latter case, it was admitted, that many of the public papers had been lost and destroyed, owing to the war, the burning of Hannahstown, where the office was kept, and the frequent removal of them by a change of prothonotaries during the war. Under these peculiar circumstances, the court decided, that the want of the usual proof did not vitiate the sale. “ The words of the act,” (the act of 1705,) says the court, “ are only directory,” (in which, with all deference, subsequent cases show they were mistaken,) “and do not invalidate a sheriff’s deed, for want of an [22]*22acknowledgment 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. Butin 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 ata sheriff’s sale, before his deed has been acknowledged, has an jnceptive 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 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 [23]*23afterwards 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 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[24]*24wealth will rest in parol, and be established, notas 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 [25]*25third 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, hecause 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 ]s 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 [26]*26sufficiently 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 legal and equitable estate. Where a person has purchased an 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 beemmade 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 estin 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 he 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 [27]*27owners, would have'the patents taken out in his name. In consideration whereof he agreed to pay them so much per acre, and to execute bonds for the purchase-money, and a mortgage on those or other lands of equal value as a security. On the 17th March 1795, Judge Wilson, in consideration of a large sum of money or stock advanced by Mr Chew, conveyed to him 36 of these tracts of land, with covenants of special warranty, and for further assurance, on the 13th July 1795, Jeremiah Parker, who was one of the defendants in the ejectment brought by Mr. Chew, and who was concerned with Parker and Wharton, and who took out the patents in his own name, conveyed to Judge Wilson the legal title to the land, which Wilson had previously sold to Chew. On the 14th October 1795, Judge Wilson executed bonds to Jeremiah Parker for 35,133 dollars, and to Parker and Wharton for 13,000 dollars, and a mortgage to the two latter to secure the payment of the above mentioned bonds and other debts to a large amount. .Mr Chew contended, that the subsequent acquisition of the legal title enured to his benefit. But the court was of opinion and so decided, that this could not be because being but the owner of an equitable title, he stood in no better situation than Judge Wilson. That it was his duty to trace the title back to the owner of the legal estate, and if this had been done, he would have discovered that the vendors of the land had an article of agreement with Wilson, in which there was an express covenant for the execution of bonds to secure the purchase, and a mortgage on these or other lands. That he was bound to examine the title which he purchased; but that, instead of doing this, he relied on a representation which turned out to be without foundation in fact. That an inquiry would have led to a knowledge that it was merely equitable, and subject to the covenants in favor of the original vendors. The equity between them was not equal, for Mr Chew had been guilty of laches, and was therefore not entitled to favour. The conveyance of the legal title to the mortgagor was made expressly with the view to receive the mortgage from Judge Wilson in pursuance of his covenants entered into previously to the conveyance to Mr Chew. This is the substance of the case, and if the defendants here had derived their title from the owner of the legal estate by an antecedent contract, then it would have been the duty of Mr Bellas to trace the title back, and to make the necessary inquiries at the fountain head, viz. to the owner of the legal title, and this would have led him to a knowledge of the title under which they claim; if he had neglected to do this, he would have been, as Mr Chew was, without equity, and the subsequent acquisition of the legal title, would have been available. But in this case the defendants, as well as the plaintiff, claim under Derk, and all Mr Bellas was bound to do, was to inquire of Derk. If he had inquired of the owners of the legal estate, what would have been the result? It would have been fruitless, and ended in nothing. They were as ignorant of the sale of the pro[28]*28perty to Spees as the plaintiff. They had the means of information that he had, and no more. Surely, therefore, a man’s title cannot be affected becaus'e he omitted to do that which would have necessarily produced no advantage whatever, and which would not, by any conceivable means, have enabled him to avoid the loss to which he has been exposed by paying the money for a worthless .title. The maxim lex neminem, cogit ad vanum seu impossibile, applies with peculiar force, particularly as against persons who claim under a man who has altogether omitted to perform a duty which the law casts upon him. Christian Bower who purchased the property as the agent of Mr Bellas, testifies that he received no notice of any other claim when he purchased of Derk, than Dunkleberger’s; Derk told him of no other, and he heard of no other. Whether Derk was himself aware that the property was sold by the sheriff, does not appear, and is immaterial, as it was not communicated to Bower. The probability is, he did not know it, as a contrary supposition-would affect him with fraud, and because it might well be that he should be ignorant of a sale conducted as this appears to have been, and of which he may have had no express notice. This case then stands unaffected by the principle declared in Chew v. Barnitz, a misapprehension of which has led the court into this error.
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, [29]*29is not constructive notice to a subsequent purchaser, although the registry be made in the proper county. To the same effect many other cases have been cited at the bar, to which, for a reason before stated, I refer generally. As to the allegation that Mr Bellas had actual notice of the conveyance to Spees, it is an allegation without proof. Publicity of the sale, and the fact that Mr Bellas was an attorney, amount to nothing, where the inquiry is into the title of a valuable tract of land for which the party has paid his money, and where, in addition, he has pursued his right diligently and without unnecessary delay.
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 [30]*30money which the purchaser is absolutely bound, to pay, is by the contract 50 dollars only, all of which was paid at the time, or shortly after, and before he had notice of any adverse claim, except by Dnnkleberger, whose title is disclaimed by plaintiff and defendants. In addition to this sum, for which he is absolutely bound, and which is paid, he is liable in the contingent event of establishing his right, to pay to Derk a further sum, in the whole amounting to 125 dollars. In effect, the contract amounts to little more than a warranty of title on the part of the vendor, with a stipulation that, instead of paying it to Derk, with an agreement for its repayment on the failure to establish the title, it was retained by the vendee with an agreement that on the happening of the' contingency, he, the vendee, would pay to the vendor an additional sum. Such a case as this has never árisen, and I do not consider it any stronger than as the case of a sale of an equitable estate, with a general warranty, which has not been supposed to deprive the vendee of the benefit attached to the character of a bona fide purchaser. I have examined all the facts and circumstances of this case with some care, and it does not strike me that there is any peculiar equity on either side, or any thing in it which can induce any person to view the cause with a good or evil eye. They have all shown themselves anxious to make an honest penny in an honest way, with this difference, however, of which the plaintiff has a just right to avail himself, that he has been vigilant and the others have slept on their rights. From the best consideration we have been able to give this case, we are of opinion that the court was wrong in the admission of the evidence as contained in the bill of exceptions, and in charging the jury “ that as the plaintiff purchased only an equitable interest from one who never had any thing more than an equitable interest, a title imperfect on its-face, he stood in no better situation than Derk from whom- he bought. If the defendants establish the existence of a prior right by virtue of the sheriff’s deed to Spees, that right will prevail, whether the plaintiff had notice of such right at the time he purchased or not. Notice is not necessary, as the recording acts do not affect the rights of either party. And in their instruction that it is sufficient if the jury are fully satisfied from the circumstances and facts in evidence, that there was an acknowledgment certified by the clerk of the court upon the deed. It is not necessary that the acknowledgment should be entered on the records of the court, nor is it necessary that the sheriff’s deed to Spees should be recorded in the recorder’s office. It is good without either of these acts, if duly executed and acknowledged in open court, and the acknowledgment is certified by the clerk on the deed itself.”
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 [31]*31is inadmissible in a collateral proceeding, whether by witnesses present in court at the time of the acknowledgment, by witnesses who saw the entry of the acknowledgment on the deed, or by the production of the deed itself, with an acknowledgment on the back when no registry has been made of it in court. We say this cannot be in a collateral proceeding, although by the last case put, it would be competent for the court to amend the record by making a registry of the acknowledgment, though this would in no case be permitted without saving the rights of third persons.
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.