Originally heard in the Court of Common Pleas of Clarion County.

This was an ejectment brought by James McCray against John Clark and Robert H. Patton, for a tract of land containing one hundred and seven acres, situated in Highland township, Clarion county.

On the trial, it was admitted that previous to 1861 the title to the land in dispute was in Columbus Reed.

The plaintiff claimed by virtue of articles of agreement under seal dated the 29th of December 1864, acknowledged the 25th of December 1871, and recorded December 26th 1871, wherein Columbus Reed sold and conveyed the land in question to plaintiff for $600, receipt of which was acknowledged in the agreement.  Plaintiff, it appeared, never took actual possession of the land himself or by tenant.

Defendants objected, and the court ruled: "There is no allegation that McCray was in possession of the land; he did not put his title upon record until the 26th of December 1871.  We do not see how the evidence, if admitted, would invalidate as to him either the lien of or sale under the judgment.  The objection is sustained, and evidence excluded."

The verdict was for the defendants.

Judgment reversed, and a venire facias de novo awarded.

The defendant Clark claimed that, on the 4th of May 1861, he entered judgment in the Court of Common Pleas of Clarion county against Columbus Reed for the sum of $346.74; that on the 2d of March 1866 he issued a scire facias to revive this judgment against Reed, which scire facias it appeared named no one as terretenant and contained no directions to the sheriff to serve on parties in possession, nor was McCray served with the writ.  On the back of the writ Reed accepted service, and on the 10th of May 1866 judgment was taken in default of an appearance.

On the 9th of March 1868 a writ of fieri facias issued, and the property was levied on, condemned and sold to Clark for $145, to whom the sheriff acknowledged and
delivered a deed on the 10th of December 1868.

In rebuttal the plaintiff proposed to prove by Columbus Reed that at the time John Clark issued his scire facias against Columbus Reed to revive his judgment, and at the time Reed accepted service of the writ, he admitted that he had notice of McCray's title, and that he was content to revive against Reed's other land alone, and having done so, the knowledge on his part of McCray's title is equivalent to the recording of the deed, and Clark and those under him cannot be innocent purchasers.

The defendants contended that this sale divested all title and interest of McCray in the land.