the city, is put on the same footing with a certificate of a justice
of the peace of the county where the land lies, which being given
under his hand and seal, is considered and made proof of itself,
to entitle the deed upon which it is indorsed, to be admitted t-o
record, and of course to be admitted in evidence on the trial of
an issue where it may be pertinent ; for both the letter and the
spirit of the act require, that due proof of the execution of the
deed shall be made before it shall be recorded ; and without
such proof of the execution of the deed being first made as is
required by the act, it is evident that the legislature did not
intend that it should be recorded. Besides, it is impossible in
the nature of things, that recording of the deed can contribute
in the slightest degree to the proof of the execution of it ; and
the bare act of recording the deed, and certifying that it has
been done, is all that the recorder has to do with it ; for, I re-
peat, he has no power whatever to take or to collect proof of the
execution, but merely to examine and see before he does record
it, that it has a certificate thereof indorsed upon it, appearing
on its face to be such as the act of assembly requires. And if
he were to record a deed without such certificate of proof of
the execution being indorsed, it would be a mere nullity. To
demand proof of the authenticity of the certificate, would be to
exceed the requisitions of the act; for it cannot be pretended in
any case whatever, either in the case of a deed executed and
acknowledged or proved abroad, or executed and acknowledged
or proved at home within the state, that the act requires proof
to be made of the genuineness of the certificate. Besides, to
demand such proof to be produced and made within the state,
is at once to defeat the facility of establishing the execution of
188
Feb. 15, 1833.] OF PENNSYLVANIA. 169
[Chew v. Keck and others.]
deeds, which was the sole object and design of the act in au-
thorizing the acknowledgment or probates of those executed
abroad for lands lying within this state, to be taken and made
where they were executed. And, in short, if the language and
plain obvious meaning of the act are not to govern, the course'
of proof may be made interminable, and we shall be without
any rule on the subject, having neither common law nor statute
law to direct us.
If the deed in this case, then, be authenticated in such man-
ner as to entitle it to be recorded under the provisions of the
recording act, as I think I have shown most clearly that it is,
the decisions of the judges of the Supreme Court in the cases
of M'Dill v. M'Dill and Hamilton v. Galloway, are direct and
positive authorities in favour of its having been received in
evidence on the trial of the cause. *The court in r*-inr\-\
Hamilton v. Galloway say, " the deed may be read in \-
evidence, for the recording does not contribute to the proof of
the deed, which is established by the oath before the justice: the
recording only gives the deed a special operation by the express
provisions of the act of assembly." The special operation given
to the deed by the recording of it, which is here alluded to by
the court, is declared and set forth in the fifth section of the act,
and clearly has nothing to do with making the deed admissible
in evidence. But this section also enacts that the copies from
the record of all deeds recorded in pursuance of the act, given
by the recorder and certified under the seal of his office, shall
be allowed in all courts where produced, and declares that they
shall be as good evidence and as valid and effectual in law as-
the original deeds themselves, and that they may be shown,
pleaded, and made use of accordingly. Now, if the deed in
question had been recorded, and a copy from the record of it
duly certified had been offered in evidence, I do not see what
possible objection could have been made to it, unless the act of
assembly is to be entirely overlooked, and common law princi-
ples merely are to prevail. At least it is quite obvious from
the nature of a copy, that the impression of the seal of the city
of London could not appear on it and it would therefore be im-
possible to call a witness, however well he might know the com-
mon seal of the city of London to prove that it was affixed to the
certificate of probate on the copy. But the act of assembly has
declared that such copy shall be allowed in all courts when pro-
duced, and be as good evidence as the original and receivable as
such, wherever the original might be admitted : but if it is to
be received at all, it must necessarily be admitted without proof
being first made that the probate of execution is certified under
the common seal of the city of London, for no impression of the
189
170 SUPREME COURT [Philadelphia
[Chew v. Keck and others.]
kind being on the copy, it would be utterly impossible to make
such proof, which, in my humble conception, proves to demon-
stration the incongruity of the decision of this court in the case
of Foster v. Shaw, when compared with the palpable and plain
provisions of the act. But if it be considered, which I think is
the fair construction of the recording act of 1815, that it makes
the certified copy from the record of the deed only " as good
evidence as the original, and receivable as such wherever the
original may be admitted," so that if the original were not re-
ceivable in evidence before, or at the time of its being recorded,
it is then as clear as the light of noonday, that a certified copy
from the record of it cannot be receivable in evidence, unless the
original were so at the time of its being recorded : and of course,
according to the decision of the court in this case, a certified
copy from the record of the deed in question, if it had been re-
corded, could not have been received in evidence by the Circuit
Court. It seems to follow also as a necessary consequence, that
although recorded by the recorder of deeds in the proper
office, such record would not be constructive notice of its ex-
istence to subsequent purchasers, or mortgagees for valuable
r*1711 cons ideration, and that it cannot have *the operation
-I and effect declared by the act of assembly, in any way
whatever ; and these, as it appears to me, are some of the inev-
itable consequences which must result from the decision of this
court in Foster v. Shaw, and the one just now made in this case,
and may very justly excite alarm, for I apprehend that many
deeds apparently proved in the same manner as the deed in the
present case without a shadow of other proof, have been placed
on record by the recorders of deeds, believing it to be their duty
to do so, because the act of assembly in so many words required
it of them.
It is easy to see that this question was not decided in the case
of Foster v. Shaw in conformity to the directions of the act of
assembly, but I think it is not quite so easy to 'perceive upon
what principle it was settled. The court were of .opinion that
if proof of the seal of the city of Dublin had only been given,
without any proof of the handwriting of the mayor of that city,
whose name was subscribed to the certificate, that the deed would
then have been admissible in evidence, otherwise not. But why
hold that necessary, and that alone sufficient proof of the giving
of the certificate by the mayor of Dublin, without proof also of
his handwriting? For proof of the seal of a foreign court with-
out proof also of the handwriting of the judge subscribing and
certifying a judgment or sentence of it is not sufficient to render
it admissible evidence ; both the seal and handwriting must first
be proved. Henry v. Adey, 3 East, 221 ; Delafield v. Hand,
190
Feb. 15,1833.] OF PENNSYLVANIA. 171
[Chew v. Keck and others.]
3 Johns. 310 ; Phil. Evi. 301. Neither does the seal of a cor-
poration when proved seem to verify whatever it may be affixed
to. Stoever v. Whitman, 6 Binn. 416. It is not a different
answer to this objection, to say, that the act requires the certifi-
cate to be given under the seal of the city in such case, and
therefore proof of its being the seal of such city is necessary to
satisfy the demands of the act; because the act also requires
that all certificates given in pursuance of it, shall likewise be
under the hands of the officers respectively giving the same, and
if proof of the seal be necessary under the act, proof of the
handwriting of the mayor would seem to be equally so. But
why stop here ; why not go further and require proof also of the
appointment of such mayor, and again, that the city of which
he professes to be mayor is a corporation, and has a right to use
such a seal ? And if taking proof of the execution of the deed
be considered a ministerial act merely, then the oath of the
officer taking it, or of some one who was present at the time of
taking the proof would be requisite to prove the truth of the
certificate before it could be given in evidence. Gilb. Ev. 124;
1 Hale P. C. 305 ; 2 Hale P. C. 52.
These are difficulties, however, which can only be raised when
we fail to adopt the act of assembly as the rule of our decision,
and therefore- ought not to be overlooked in settling the question
before us.
That a copy from the record, duly certified by the recorder,
would not have been admissible in evidence, has not been seri-
ously *contended for, had the deed in this case been re- r* .-,-]
corded, nor do I see how it could with the least degree L
of plausibility, consistently with the directions of the act of
assembly. But if the copy, not of the deed itself, but of the
record of it, which is in truth only the copy of a copy, be admis-
sible, of which it appears to me there cannot be the slightest
doubt, and yet it be held that the original cannot be received,
it necessarily leads to this conclusion, that the original is not as
good evidence as the copy even of a copy of it ; a proposition
so much at variance with all those rules and principles of evi-
dence, which have been founded upon the experience and
wisdom of ages, and are so admirably adapted to the attain-
ment of truth, without which justice cannot be administered,
that I cannot yield my assent to it. But it is said that under
the act of assembly the original possibly might be receivable
in evidence when recorded, although without being so it cannot.
It is very certain that the act in terms has not so declared
it. The fifth section, which declares the effect of recording,
enacts that all deeds and conveyances when duly recorded,
" shall be of the same force and effect here for giving posses-
191
172 SUPREME COURT [Philadelphia,
[Chew v. Keck and others ]
siou and seisin, and making good the title and assurance of the
said lands, tenements, and hereditaments, as deeds of feoff-
ment with livery and seisin, or deeds enrolled in any of the
king's courts of record at Westminster are . or sliall be in the
kingdom of Great Britain," without using a single word or
expression tending in the least to show that the legislature
intended that they should be received in evidence when recorded,
although not before. Now, it is, as was rightly held in Hamil-
ton v. Galloway, 1 Dall. 93, the probate or acknowledgment of
the deed before the proper officer, that makes it admissible in
evidence, and not the recording of it, for without being proved
so as to be admissible in evidence, it is not entitled to be re-
corded. It is said, however, that by requiring deeds to be
recorded as well as acknowledged or proved in the manner
pointed out by the act, before they shall be received in evidence,
may afford protection against imposition and fraud arising from
forgery or other malpractices; because after they are placed
upon' record, every person concerned or interested, may not only
thereby come to a knowledge of their existence, but provide
more effectually against any unjust and evil effect or operation
from the use of them. But to this it may be replied, that as
the legislature, from the wording of the act do not seem to have
intended, or had such object in view, courts surely can have no
authority for directing it. And beside, even under this con-
struction of the act, the deed that is recorded but the minute
before it is offered in evidence, must be considered as fully ad-
missible as if it had been recorded years before, so that the re-
cording of it may be managed and done by the party holding it,
in such a way as to have the benefit of giving it in evidence, with-
out affording much if any advantage to those who may be con-
cerned so as to apprise and enable them to defend against the
operation of it, as has been suggested. It appears to me that the
r*17^1 secon d *section of the act of the 18th March, 1775,
J which is a supplement to the act of 1715, fortifies and
strengthens the view which I have taken of this matter, in de-
claring still further the effect of neglecting to record a deed
within a limited time ; which is, that if not recorded within six
months after its execution, it "shall be adjudged fraudulent and
void against any subsequent purchaser or mortgagee for valuable
consideration, unless such deed or conveyance be recorded as
aforesaid before the proving and recording of the deed or con-
veyance under which such subsequent purchaser or mortgagee
shall claim." This provision then, in connection with the
seventh section of the act of 1715, w r hich- declares, that "if
any person shall forge any entry of the said acknowledgments,
certificates, or indorsements, whereby the freehold or inheritance
192
Fe6.15,1833.] OF PENNSYLVANIA, 173
[Chew v. Keck and others.]
of any man may be charged, he shall be liable to the penalty
against forgers of false deeds, &c. And if any person shall
perjure himself in any of the cases hereinabove mentioned, he
shall incur the like penalties as if the oath or affirmation had
been in a court of record," seems to have been, in the opinion
of the legislative body at those different times, all that was
requisite in order to guard and provide against the evils or in-
conveniences that might arise from men neglecting or refusing
to record their deeds; without declaring that until recorded they
should not be received in evidence, or be otherwise first proved
according to the rules of the common law. A clause to this effect
could readily have been inserted, if the legislature had designed
such a thing, but it is clear to my mind, that the very reverse
was intended. They intended to dispense entirely with the
common law mode of proving all such deeds, when proved in
the manner prescribed by the act, whether recorded or not.
In conclusion, 1 will refer to Milligan v. Dicksou, Peters C.
C. Rep. 43H, where a certified copy from the recorder's office of
the proper county, of a letter of attorney given to convey land
lying in this state, which appeared to have been executed in
Scotland, and acknowledged before the Lord Provost and chief
magistrate of the city of Edinburgh, and so certified by him
under the seal thereof, was offered in evidence, and objected to;
first, because it was only an exemplification and no proof given
of the loss of the original; second, because it was only certified
to have 1 been acknowledged, whereas the act of 1715 provided
only for its being admitted in evidence upon its being certified
to have been proved by one or more of the witnesses thereunto;
but the objection that no proof was offered of the seal of the
city of Edinburgh, seems not to have occurred or been thought
of by any one concerned in the case, although much discussed
by those whose competency, as well from ability as from knowl-
edge and experience in the practice of the law will not be ques-
tioned. This is not only strong evidence to show that such
objection is in contravention of the act of assembly itself, but
most powerful to show that in practice it had never been taken
or thought of among the profession before the case of Foster v.
Shaw.
Judgment of nonsuit affirmed.
Cited by Counsel, 4 Wr. 460.
Cited by the Court, 12 Wr. 51.
See Act April 3, 1840, P. L. 233.
VOL. iv. 13 193
174 SUPREME COURT [Philadelphia,
[*174] * [PHILADELPHIA, FEBRUARY 15, 1833.]
Fox and Others against Winters and Another.
IN ERROR.
I
Under the act of April 1st, 1811, the Orphans' Court has no power to order
sale of the real estate of a testator, until the final settlement of the adminis-
tration accounts.
But irregularities in the proceedings cannot be inquired into in a collateral
suit, if it substantially appear that the accounts were finally settled and con-
firmed previously to the order of sale.
Nor can the purchaser at such sale be affected by the fraud of the executor
in settling his accounts, unless if appear that the purchaser was a party to it
or had notice of it before or at the time of the sale.
WRIT of error to the District Court for the city and county of
Philadelphia, in an action of ejectment for a messuage and two
lots of ground in the Northern Liberties of the city of Philadel-
phia, brought by the plaintiffs in error, Joseph Fox and others
against the defendants in error, Garret Winters and George
Weaver.
The plaintiffs below claimed under the will of Joseph Fox,
deceased, and endeavoured to impeach the regularity of pro-
ceedings in the Orphans' Court instituted on the application of
Frances Fox, executrix of Joseph Fox, for leave to sell the
real estate of the decedent, and the validity of the sale made
in pursuance of these proceedings, under which the defendants
claimed.
A further statement of the facts and the arguments of the
counsel is rendered unnecessary by the opinion of the court,
which, after argument by Conard for the plaintiffs in error,
and Chester and Chauncey, for the defendants in error, was de-
livered by
ROGERS, J. The defendants derived title from a proceeding
in a case of testacy in the Orphans' Court, under the second
section of the act of the 1st of April, 1811.
That act differs from the act of 1794 (which relates to the es-
tates of intestates) in this, that previous to the order of sale, it is
required that there should be a final settlement of an administra-
tion account in the Orphans' Court. A final settlement contains
an exhibit of the personal estate of the testator ; and when the
executors intend to make it the foundation of an order of sale,
there should be an exhibit or schedule of the debts due from the
194
Feb. 15, 1833.] OF PENNSYLVANIA. 174
[Fox and others v. Winters and another.]
estate. This is required, that the court may judge whether there
are sufficient effects to pay, and satisfy the balance appearing to
be due ; and also, that they may be enabled to determine, what
part of the real estate it may be necessary to sell for that pur-
pose. The settlement, if done in proper form, is made before
the register ; and, after due notice, (as is directed in the act of
1794,) it is sent to the Orphans' Court for confirmation and al-
lowance. After confirmation the executor petitions *the r*i 7 - i
court for an order of sale, whose duty it is to refuse the L
order, unless there has been a final settlement of an administra-
tion account, and unless it appear that there are not sufficient
assets to pay and satisfy the balance appearing to be due. The
Orphans' Court will take especial care to prevent injury to
minors, by ordering so much only to be sold, as will be sufficient
to pay the debts, having also a due regard to the interest of ail
those who may have an interest in the estate. The great diffi-
culty which we have had, is, whether the jurisdiction of the
Orphans' Court attached, by a confirmation of an account, such
as is required by the act. It must be admitted, that there has
been great irregularity in the proceedings, and it is confidently
expected, that the several Orphans' Courts of the commonwealth
will pay more attention than was formerly considered necessary
in this branch of our judicial polity. I have examined the
case with attention, and have come to the conclusion (not with-
out great hesitation) that the account exhibited to the register
was substantially confirmed by the Orphans' Court. It appears
to have found its way into the court, (though in an informal
manner,) and was made the foundation of the order of sale.
Indeed, the court seems to have taken unusual pains to ascertain
the facts necessary to the order. The opposition to the sale
proceeded from Mary Elliot, one of the children of Joseph Fox,
who are interested under the will of their father in the property,
for which the ejectment is brought. On her application the
order of sale was suspended, and auditors were appointed to re-
port the facts to the court. They reported the net income of
the testator's estate to be ninety-two dollars and twenty cents,
and that there was a balance in the hands of the executrix of
personal estate, according to the appraisement, as stated in the
register's certificate, of two hundred and two dollars. The re-
port of the auditors was confirmed by the court. It is clear,
that the account exhibited to the register, was before the audi-
tors, which on examination they found to be correct, and on
that basis made their report. There was then a substantial
though it must be confessed an informal confirmation of a final
settlement of an administration account, so as to give the Or-
195
175 SUPREME COURT [Philadelphia.
[Fox and others v. Winters and another.]
phans' Court jurisdiction of the subject-matter. The court
were not content with the report of the auditors, but at the in-
stance, as I suppose, of the heirs, and very properly, they
directed the auditors further to inquire whether the debts
claimed by the creditors, were justly chargeable to the estate,
and that they should furnish the court with the evidence on
which they founded their opinion. In pursuance of the order,
the auditors made a report of the evidence, and also, that in
their opinion, the estate of Joseph Fox, deceased, was charge-
able with the payment of the debts, as presented in the schedule
from the register's office, amounting to one thousand nine hun-
dred and sixty-eight dollars and twenty-five cents. This report
must also have been confirmed, although not noted on the record,
for we find that the order of sale is then suffered to go, without
further opposition in that court, or an appeal to this. If then
F*1 7fi1 ^ ie cour t na d jurisdiction *to order the sale, \\*e cannot
-* now inquire into the irregularities which attended the
proceedings. The decree of the Orphans' Court, is conclusive
on the subject-matter. Whatever doubts may have existed for-
merly, there is none now, that when the Orphans' Court have
jurisdiction, the decree is conclusive, and cannot be questioned
on a collateral suit, unless there is fraud. Kennedy v, Wach-
smuth, 12 Serg. & Rawle, 171 ; M'Fadden v. Geddis, 17 Serg.
& Rawle, 336; President of the Orphans' Court of Dauphin
County for the use of Groff v. Groff, 14 Serg. & Rawle, 183 ;
M'Pherson v. Cunliff, 11 Serg. & Rawle, 422; M'Lenachan
and Wife v. Commonwealth, 1 Rawle, 357. I had some difficulty
on the ground of the notice which is required under the act of
1794, which is the same, whether the person died with or with-
out a will. There cannot, however, I think, be any reasonable
doubt, that all the parties had notice. Two of the four children,
all of whom were adults, were present before the auditors, and
threw every obstacle in the way of the application for the order
of sale. We must presume that the court would not decree a
sale, without giving every person in interest the opportunity of
a hearing. A purchaser at a judicial sale has a right to act
on the supposition that the court has done its duty. We have
room for the presumption of notice, because a sufficient time
elapsed, from the time of filing the accounts in the register's
office, viz., the 5th February, 1812, and its confirmation on the
17th June, 1812.
The plaintiffs offered to prove fraud practised by the executrix
in settling the accounts. This they attempted to show before
the auditors. We think the court were right in rejecting the
testimony, unless the plaintiff could further show the participa-
196
Feb. 15, 1833.] OP PENNSYLVANIA. 176
[Fox and others v. Winters and another.]
tion in the fraud by the purchasers, and notice to them, at the
time of the sale.
Judgment affirmed.
Cited by Counsel, 6 W. 149 ; 8 W. 417.
See act February 24, 1834, g 20, P. L. 76.
* [PHILADELPHIA, FEBRUARY 15, 1833.] [*177]