1821. Sunbury.

MILLER

V.

MOORE.

ance.

their plan. The Orphans' Court would have had power to vest the legal estate of the land in William Moore, the defendant, without any conveyance from the other heirs, taking security from him, to pay the others their respective portions, in the manner prescribed by the Act of Assembly in such case provided. But arbitrators had no such power. The defendant cannot obtain the legal estate, without a conveyance from the others. But this award directs no conveyTherefore it is neither mutual, nor final. The defendant is to pay for his father's land, without getting a title to it. Besides, the submission to these arbitrators, is not made by all the proper parties. The husbands have submitted, without their wives. The wives therefore are not bound. So that if the defendant were to pay the husbands, the title of their wives to their father's land would not be extinguished. The award is radically bad. It is impossible to support it. This Court is therefore of opinion, that the judgment of the Court of Common Pleas should be affirmed.

ner, as to indicate to the witness the answer which it is wished he should make ; and if there be no such indication the interrogatory is fair.

If it be stated in a record of the Orphans' Court, of the proceedings for the sale of an intestate's lands, that certain administrators of such intestate came into Court, and requested the sale, one of those administrators cannot afterwards be received in a suit respecting the lands, as a witness to prove that she did not consent to the sale.

The truth of the record, concerning matters within the jurisdiction of the Orphans' Court, cannot be disputed.

If the notice be that depositions will be taken at a certain house in the borough of Lancaster, and all that appears is, that the deposition offered was taken in the county of Lancaster; it cannot be read in evidence, if taken in the absence of the opposite party. But the appearance of the adverse party cures every defect of notice,

SELIN and others บ.

SNYDER

and others.

This was an action of ejectment brought by Anthony Sny- 1821. der and others, heirs of John Snyder, deceased, against An- Sunbury. thony Selin and others, heirs of Anthony Selin, deceased. The defendants claimed under a sale of the land in dispute, part of the estate of the said John Snyder, deceased, made by virtue of an order of the Orphans' Court of Northumberland County, on the petition of Mary Snyder, widow of the said John, (who afterwards intermarried with Jacob Kendig,) John Miller and Simon Snyder, deceased, administrators of the said John Snyder. The principal ground on which the plaintiffs rested their title, was, that the sale made by Selin was void, because of his fraudulent misrepresentations and threatening language at the time of the sale, by which persons were induced not to bid, or deterred from bidding. In the course of the trial, the deposition of Mary Kendig was offered in evidence by the plaintiffs, to certain parts of which the defendants objected, and being admitted in evidence by the Court, the defendants excepted to their opinion. One of the parts objected to, was the deponent's answer to the second interrogatory. The interrogatory was in these words. "Did you ever acknowledge the deed made for the land in question, to Anthony Selin? How and when did you make the acknowledgment?" Answer, “I never acknowledged the deed in any other way than I have stated; that is, I said in the presence of Frederick Evans, Esq. that I signed the deed to my sorrow." The signature of Mary Kendig to the deed for these lands, as one of the administrators of her husband John Snyder, and her acknowledgment of it before Frederick Evans Esq., certified by him, were in evidence.

Another question, the fourth proposed to Mrs. Kendig, and her answer, were as follows. "Were you or not ever consulted about applying to the Orphans' Court, to have an order to sell the land, or did you ever consent to the sale ?" Answer. "I was never asked to apply to the Orphans' Court, for the sale of the land in question, nor did I ever consent to have it sold." The record of the Orphans' Court had been given in evidence, which shewed that Mary Snyder, (before her marriage with Kendig,) John Miller, and Simon Snyder, presented a petition for the sale of the land of John Snyder, in order to pay his debts, and that after the land had

1821.

Sunbury.

SELIN

been sold to Selin, Jacob Kendig, and Mary his wife, (late widow Snyder,) John Miller, and Simon Snyder, made a report of their proceedings to the Court, by whom the sale and others was confirmed. The record stated that Kendig and his wife, SNIDER (late Mary Snyder,) John Miller, and Simon Snyder, adand others. ministrators of John Snyder, deceased, came into Court, and prayed, &c.

v.

The depositions of Daniel Witmer and Peter Gonter, read in evidence on behalf of the plaintiffs below, were also excepted to. These depositions were taken ex parte, under a rule of Court. The plaintiffs gave notice to Simon Snyder, that the depositions would be taken “at the house of Adam Weaver, innkeeper in the borough of Lancaster, on Tuesday the 8th of August, at ten o'clock in the morning." The depositions were taken on the day appointed, before Paul Zantzinger, a justice of the peace for the county of Lancaster, but it did not appear where they were taken, except that they were taken in the county of Lancaster.

Bellas and Burnside, for the plaintiffs in error.

1. In the first place, Mrs. Kendig is received to deny that she acknowledged the deed before the magistrate, though such acknowledgment is certified by him. Parol evidence is not admissible to contradict a deed. Snyder's Lessee v. Snyder, 6 Binn. 484. The consequences would be mischievous, if parol evidence were admitted to contradict the certificate of the justice. The law entrusts the justice to take the acknowledgment and make the certificate, and gives faith to them when done. In 1 Harr. & M Henry, 211, in chancery in Maryland, it is decided, that no evidence can be received to invalidate the acknowledgment of a deed before two justices, agreeably to the laws of Maryland. But a further objection to this answer is, that the question is a leading question, and therefore the answer ought not to have been received. The former case of Snyder's Lessee v. Snyder, 6 Binn. 483, furnishes a precedent on this point.

2. But a point of more importance and more clear is, that Mrs. Kendig ought not to have been allowed to give evidence contradicting the record of the Orphans' Court, viz. that she

never consented to the sale. The defendants are purchasers 1821. on the faith of a sale by order of the Orphans' Court, and Sunbury. many titles depend on such sales. It is well settled by numerous decisions, that no averment can be received against a record. 18 Vin. 73. Cruise on fines, 35.

3. It does not appear that the depositions of Witmer and Gonter were taken at the house and at the time stated in the notice. The rule to take depositions is for the benefit of the person taking it, and it is incumbent on him to prove, that he has complied with the rule. There is no evidence on record at what place the depositions were taken. The defendant was sick when notice was served on him, and he did not attend the taking.

Lashells, contra.

1. In answer to the first error assigned, we say that the answer of Mrs. Kendig did not affect the deed; she did not deny that she had acknowledged the deed. She admits that she said in the presence of the magistrate, that she had signed the deed: and refers to her having sworn so before, in a former part of the deposition, which was read without objection. But if she had contradicted the acknowledgment, it would form no exception to her evidence. A deed is good without acknowledgment; it is not a material part of the deed. And the decisions shew that such acknowledgment may be explained and controlled by parol evidence. Hurst v. Kirkbride, 1 Binn. 616. Gratz v. Evalt, 2 Binn. 95. Baring v. Shippen, 2 Binn. 154. M Ferrand v. Powers, 1 Serg. & Rawle, 102. 4 Johns. 161. 4 Johns. 230.

2. Might not Mrs. Kendig prove that she never consented to the sale, by order of the Orphans' Court? There was no act of Mrs. Kendig appearing in the record. John Kid clerk of the Court, signed the names of the administrators to the report of the sale. Stating that she never consented to the sale, does not contradict the record; because she might have petitioned for the sale, and yet objected to it when made. The Orphans' Court is a Court of limited jurisdiction, and their proceedings may be questioned collaterally in another suit. Messinger v. Kintner, 4 Binn. 97. Fines, recoveries, and other conveyances, obtained by means of forged deeds or fraud, may be avoided, Courtright v. PulVOL. VII.-Z

SELIN and others

V.

SNYDER and others.

1821. Sunbury.

teny, 2 Atk. 380. Baker v. Pritchard, 2 Atk. 387. Englefield v. Englefield, 1 Vern. 443. Cruise on fines, 221. .In this case we contended below, that the conveyance was oband others tained from Mrs. Kendig, by means of fraud and of imposition.

SELIN

v.

SNYDER

and others.

3. As to the depositions of Witmer and Gonter. The objection is, that it does not appear that the depositions were taken at the house of Adam Weaver. Nothing however appears to the contrary, and therefore it should be presumed they were taken according to the notice. In Sweitzer's Lessee v. Meese, 5 Binn, 500, the notice was, that depositions would be taken at the house of Spangler: and depositions taken at the house of Samuel Spangler, were held to be well taken. In the present case, the justice makes a note that the defendant though notified did not appear. Now this must be understood that he did not appear at the place notified, and consequently that the depositions were taken at that place. The defendant received no injury. It lies on . those claiming under him to shew that he attended at Weavers, and sustained damage by the depositions not being taken there.

The opinion of the Court was delivered by

TILGHMAN, C. J. [After stating the facts on the first point.] The reason offered by the defendants' counsel, against this evidence is, that the law, having entrusted Frederick Evans, a justice of the peace, with authority to take the acknowledgment of deeds, and he having certified, that Mary Kendig did acknowledge this deed before him, his certificate cannot be contradicted. But that question does not arise, because Mary Kendig did not contradict the certificate. She confesses that she acknowledged the deed, but was sorry that she ever signed it. This was what the plaintiffs wanted to prove. It was material for them to show, that although Mary Kendig executed the deed, and acknowledged it, yet she was never satisfied with the sale to Selin. I am of opinion therefore, that the evidence was properly received. There was another objection, not to the answer, but to the interrogatory itself as being a leading one. The interrogatory might have been put in a more unexceptionable manner. "Did you or did you not, ever acknowledge the deed?" &c.