Brown against Gray, 5 Watts 17

The opinion of the Court was delivered by Gibson, C. J. This

summary proceeding is provided for cases whose elements are simple and few. When the. complainant has made it appear that he is a vendee at sheriff’s sale, of which the sheriff’s deed, with its certificate of acknowledgement, is conclusive, or that he is the grantee of such vendee; that he had abortively given three months notice to quit; and that the respondent is the defendant in the execution, or in possession under such defendant by^ title subsequent to the judgment — he has entitled himself to recover.

Nor will the respondent be suffered to defeat or delay him, by allegations involving principles of more difficult application than those intended to be committed to this tribunal, except in two instances specifically pointed out. When he alleges on oath that he claims not under the defendant but by title adverse, or that he claims by the same title but by a transfer of it previous to the judgment, it becomes the duty of the justices to stay the proceeding till the truth of his allegation shall have been determined in a superior court; but he can arrest it by no other device or contrivance whatever.

Now the allegation of a sale by the complainant’s grantor to one of the respondents, was not within either of these exceptions, and therefore not proper to be heard. But being heard, it was properly disregarded; for it followed not that the inquiry was to stop because the respondents had succeeded in foisting into it matters of fact and law of which the inquest had not jurisdiction. These presented questions which it had not power to determine; yet the respondents are not without remedy. They may still have them determined in an action of ejectment; but they must surrender the possession in the mean time.

The notice given by the complainant’s grantor, was not, in point of law, the inception of the proceeding; and though it is recited in the record, ex majore cautela I presume, it is but surplusage. The complainant having acquired the vendee’s title, subsequently gave notice for himself; and it is this which, so far as respects that part of the case, entitled him to recover.

With the uncertainty of ownership, generated by these apparently conflicting notices, the respondents had no concern. • It was their business to depart and leave the vacant possession to those who might choose to make it a subject of contest: they certainly could not make pretension to hold against both parties. But it would be easy, were it necessary, to show that the right of possession was in the complainant at the date of his notice.

In respect to the conveyance from the sheriff’s vendee, there is no dispute; and the sheriff’s deed to him had been acknowledged three months before, of which the certificate constituted the only proof with which the inquest had to do. The discrepance betwixt these, as to dates, is immaterial. The date is not of the substance of the deed,'and it was doubtless inserted subsequently with the consent of the vendee; but the acknowledgement, being evidence of previous delivery, would entitle the vendee to recover of a stranger even on a deed without a date.

The effect of its retention as a security for the purchase money, if indeed any could be produced, would be betwixt the sheriff and his vendee; for a stranger would certainly not be suffered to aver, in the face of the officer’s recorded acknowledgement, that the instrument was less than what the acknowledgement of it purported to make it, or that the title was not vested by it. But had the justices erred in these matters, redress could not be had here.

On certiorari or writ of error, the appellate court inspects nothing but the record which, by the requirements of the statute, contains but a statement of the facts found for the complainant; and as neither the statute of West. 2, nor any other, has given justices of the peace authority to put extrinsic matter on the record by bill of exceptions, we would be compelled to shut our eyes to most of those assigned here.

This principle alone would'dispose of the exceptions to the sheriff’s deed, with its date and certificate of acknowledgement, the extracts of what have been called the records of former unsuccessful trials, and in short every thing that was merely matter of evidence. Over subjects like these, the power of the justices stands as did the common law power of the judges before the enactment of the statute of Westminster. The only legitimate matters of inspection, therefore, are the notices as they appear in the inquisition, which we have already said are well enough— and the judgment for a gross sum as costs.

That the costs were not regularly taxed, does not appear; and we will not intend it. Under these statutes the course has been for the justices to give judgment for a gross sum; and such is the course of the English courts at this day. The taxation is no part of the record; and that it may be reviewed on error to our common law courts, is the effect of long and inveterate practice. In the case before us, there must have been some sort of taxation, or process of liquidation from, which the amount was obtained; and we are not to intend there was error for want of it.

But even were the exception well founded, yet going to a part, of the judgment susceptible of separation, it would be cause of reversal only as regards the costs. Judgment affirmed.