[Bellas v. M'Carty.] taken from the clerk's office, after being acknowledged in the manner mentioned, without any such certificate being entered upon them, or entry of the acknowledgment made on the records of the court, or registry of the deed itself. Now to pronounce such a procedure a solemn adjudication of the court, approving and confirming the various sales mentioned in the several deeds so acknowledged, without the court's knowing or being informed what they were, or even attempting to make the inquiry, would seem to be, as it appears to me, any thing but a judicial act of the court. truth it seems to be even worse than mockery to call it so. We have cases, however, in which it must be admitted, that the acknowledgment of the deed by the sheriff in open court has been spoken of as an indispensable requisite or judgment of the court, in order to give the deed validity, but certainly in no case does it appear to have been decided, that a sheriff's deed, founded upon a sale of land made by him under proper authority, and in due conformity to every requirement of the law, could not avail the purchaser or give him title to the land, without its being acknowledged in court, when the death of the sheriff, as is admitted to be the fact in this case, has rendered this impracticable. The reason given by Chief Justice M'Kean in Shrider's Lessee v. Nargan, 1 Dall. 68-9; for its being unnecessary to have a sheriff's deed recorded in the rolls' office according to the act of assembly of 1774," as it is mentioned in the book, but I take it as it must have been meant, "in the office of the county for recording deeds, according to the act of 1775." It was there objected that a sheriff's deed, not recorded, could not be read in evidence. "Sed non allocatur, because it was (as is said) acknowledged in court, and the registering of it in the prothonotary's office (as is always done) is a sufficient recording within the act." It was also ruled in that case, that every deed under seal, when proved, might be read in evidence. Surely this would apply to a sheriff's deed as well as that of any other person, and support the reading of the sheriff's deed in evidence, as was done in this case, in the court below, because it was proved to have been executed by the sheriff before it was read in evidence, and was directly pertinent to the issue in this cause, which seems to be a qualification that ought to have been annexed to this broad rule, as laid down by the court in that case, according to what is said in the cases of Peters v. Condron, 2 Serg. & Rawle 84, and Faulkner v. Eddy, 1 Binn. 188. The decision of the court on the first point in Shrider v. Nargan, was correct enough, that is, in admitting the sheriff's deed to be read in evidence, though it was not recorded in conformity to the act of 1775. But the reason assigned for it was clearly erroneous. The reason assigned does not meet, what would appear to have been one of the chief objects which the legislature had in view in passing the act of 1775, which was that of causing every deed, passing or affecting the title to lands, to be recorded in the office, established within the county for [Bellas v. M'Carty.] the recording of deeds, where the lands were situated. Now, admitting that it was the practice, in every case of a sheriff's deed, for the sheriff to acknowledge it in court, and for the prothonotary to make a record of the acknowledgment and a registry of the deed; still before the passage of the act of the 13th of April, 1791, this could only be done in the court of the county, from which the process authorizing the sale issued. So that there could and was not any record made of the acknowledgment of the deed, or registry of the deed itself, in the county where the lands were situate, when sold under testatum process, which was frequently the case. This, if done at all, could only be done legally in the court of the county from which the testatum process issued. Hence it was evidently incorrect to say, that the acknowledgment of a sheriff's deed, founded upon a sale of land made under testatum process, was a sufficient recording within the act of 1775: it can not be likened in any respect to a recording of the deed in the county where the land lies. The reason therefore assigned by the court, for their decision. on the first point in Shrider v. Nargan, may be regarded as given hastily, and looked on as a slip in the hurry of business, as Chief Justice Tilghman said, in 2 Serg. & Rawle 83, their decision on the second point has been considered. The decision itself, however, was right enough, but the reason given in support of it is wrong. The court, as it appears to me, ought to have said, that the deed being a sheriff's deed, conveying land, regularly taken in execution and sold by him, did not come within either the letter or spirit of the recording act of 1775, or of any other recording act. It being a sale founded upon a judgment had in a court of record, and made publicly by an officer of the law under and by virtue of judicial process, sued out and directed to him for that purpose, it was deemed by the legislature unnecessary to require that it should be recorded in the office for recording deeds in the county where the land lay, within six months after the execution thereof, or within any other period, otherwise the deed should "be adjudged fraudulent and void as against any subsequent purchaser or mortgagee, for valuable consideration," which are the words of the recording act. It will scarcely be denied, I think, that previously to the act of the first of April, 1823, every person would have been bound, at his peril, to have taken notice of a seizure of land under a testatum fieri facias, and condemnation of it to sale, as also of a subsequent sale thereof under a testatum venditioni exponas, though no entry should have been made of such testatum fieri facias on the records of the court, in which the land was situate, nor deed acknowledged by the sheriff therein, within six months after the return day of the writ of venditioni exponas, under which the sale was made, in imitation of the six months allowed for recording of private deeds under the recording act of 1775. Indeed it frequently happened after the passage of the act of the 20th of March, 1799, enabling the justices of the supreme court to hold circuit courts in the several [Bellas v. M'Carty.] counties of the state, as often as causes should be removed into the same, and be at issue, that deeds of sheriff's' grounded upon sales made under testatum process from the supreme court or some of the circuit courts, were not acknowledged for a year or two, or even longer in some instances after the sales, on account of no circuit court being held in the county where the lands lay, in which the sheriff, by the express terms of that act, was authorized to acknowledge his deeds executed upon such sales; yet no man ever supposed that, during such interim, if any person purchased the land of the defendant in the execution, though bona fide, for a valuable consideration, and without actual notice of the sheriff's seizure and sale, he could hold it against the purchaser at the sheriff's sale. Judicial sales are not only founded upon the judgments and decrees of courts of record, of which every one is bound to take notice, but made publicly in pursuance of process issued thereon, after actual notice given to the party, as whose estate the land is about to be sold, and to the public, by advertising them in the newspapers published within the county, and by means of handbills set up in different parts thereof, some three weeks previously, of the time and place, when and where the sale shall be made. Public convenience, as also public policy, therefore requires, that all shall be held bound to take notice of judicial sales or transfers of real estate. Such also is the law as to personal estate, so that there need be no actual and visible change in regard to the possession of it, corresponding to the transfer made thereof by the sale, as there must be when private sales are made of it. Accordingly in Myers v. Harvey, 2 Penn. Rep. 478, it was held that the purchaser of personal property at sheriff's sale, was protected in his right, which he thereby acquired to the same, against the claims of the creditors of the debtor against it while it remained in the possession of the debtor under a lease from the purchaser. So for the same reason lands taken in execution and delivered to a judgment creditor, upon a writ of liberari facias, in satisfaction of his judgment, is such a transfer of the right to the possession thereof, as every one is bound to notice; and should any person subsequently buy the land of the defendant in the judgment, he will be affected with notice, whether he had actual notice of the previous transfer under the judicial process or not. So every one is bound to take notice of the assignment, which an insolvent debtor is required by law, to make of his property and effects, before he can obtain the relief that is provided for him in such case. Accordingly in Ruby v. Glenn, 5 Watts 77, it was held, that the recording acts did not apply to such assignments; and that a sale therefore, by the insolvent after he obtained his discharge, of lands lying in a county distant from that in which he got his discharge, was invalid, though the purchaser bona fide paid a valuable consideration therefor, without any actual notice of the discharge or of the assignment. And previously in the case of Wickersham v. Nicholson, 14 Serg. & Rawle 118, it was held that [Bellas v. M'Carty.] the property of an insolvent debtor passed to his trustee immediately on his assignment, and that all the world was bound to take notice of it; and that on payment, therefore, to the insolvent afterwards, of a debt owing to him, which was embraced in the assignment, by one who had no notice in fact of his creditor's discharge under the insolvent laws, was not good. So the real estate of an intestatę may be passed by a decree of the orphans' court of the county in which it lies, to one of the heirs, when it can not be divided among them, without impairing the value thereof, though there be any number of them interested in it as owners by descent. The transfer is effected by a decree of the court, founded upon a proceeding had therein, of which every body is presumed to be conusant: and hence should any person thereafter purchase of one or more of the heirs, whose interests in the estate have been so transferred, he will be affected with notice, though in point of fact he had none. Or where no one or more of the heirs will agree to take the estate at the appraisement made thereof, under the writ awarded by the court for that purchase, the court may, at the instance of any one of the heirs, make an order directing the administrators of the intestate to sell the estate by auction, after public notice given of the time and place appointed for that purpose; which when done the purchaser receives a deed of conveyance from the administrators, and thus becomes invested with the title to the estate, without the deed's being acknowledged in court; and of such sale every one will be held bound to take notice, without any registry or record of the deed being made, because it is made under and in pursuance of a decree of the court. These cases all go to show most clearly the total insufficiency, as also inaptitude of the reason given by Chief Justice M'Kean in Shrider v. Nargan, for its being unnecessary to have a sheriff's deed recorded in the recorder's office, established for recording deeds; and that the registry of such deed, in order to render it valid or effectual, could never have been considered necessary by the legislature. And under this conviction, resting at all times upon their minds, no act was ever passed requiring it either expressly or impliedly to be done; or declaring if it were not, that the sale or the deed should be void in any case whatever. The direction given in the act of 1705, for the acknowledgment of the deed, is the only thing, from which it is attempted to draw any conclusion of the kind; but I conceive, I have shown, that the act in that particular, is at most only to be considered as directory, and not as avoiding or rendering either the sale or the deed ineffectual for want of the acknowledgment. And again from the various acts of the legislature on the subject, that it never was designed that the acknowledgment itself should be considered a judicial act. But if the acknowledgment, in court, of a sheriff's deed be held indispensably necessary to entitle it to be read in evidence, and that such acknowledgment can only be made to appear by a record thereof, [Bellas v. M'Carty.] made in the court in which it has been acknowledged, then, I would ask, is it not practicable to have all this supplied? Yet in the present case, under the provisions contained in the act of the 16th of June, 1836, entitled, "An act relating to executors," the only formidable objection to this being done, seems to arise from this act being entirely prospective in its terms, and therefore not applicable to cases which occurred before its passage, as this case did. The 102d section of the act, Pamph. L. 780, provides for the case of a sheriff's dying after he has made a sale of land, without having executed and acknowledged a deed therefor, by authorizing the supreme court, or the court in which the judgment was obtained, under which the sale was effected, upon the petition of the plaintiff in such judgment, or the purchaser of the land, to make an order to be entered upon their records, directing the sheriff for the time being, to execute a deed. But seeing the sale in this case was made before the passage of this act, I confess, that I am inclined to believe, that it can not be brought within its provision. If the language of the act were such, as to include and provide for cases happening before as well as after its passage, I do not consider that the length of time, which has elapsed here, since the sheriff made the sale and executed the deed, would be any objection whatever to the want of the record of the acknowledgment being supplied now. In M'Cormack v. Meason, it was done before the second trial came on, under the venire facias de novo, which was awarded by this court, upon their reversal of the judgment rendered on the first trial of the cause in the court below, which was twenty-six or seven years after the deed had been executed by the sheriff; and the defect being thus supplied, the defendant succeeded again on the second trial in obtaining a verdict and judgment in his favor, which terminated the contest. And in Duncan v. Robeson, 2 Yeates 454, the acknowledgment of the deed was wanting until the eve of the coming on of the trial of the cause, when it was supplied by getting the person, who had been sheriff when he executed the deed, to come into court and acknowledge it, upwards of twenty-seven years after it had been executed. As long as the person who had been sheriff, when he executed the deed, was in being, it was well enough to have the deed acknowledged by him in court, but where his death has rendered that impracticable, proof made according to the rule of the common law, of the execution of the deed by him, as sheriff, when he was fully authorized to do so, ought to be considered sufficient, as I think I have already shown, to enable the party claiming under it to read it in evidence. 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 |