Evans v. Montgomery , 4 Watts & Serg. 218 ( 1842 )

The opinion of the Court was delivered by

Sergeant, J.

— All that has been or can be objected to the provisions of the Act of Assembly'in question, passed on the 28th of April 1840, is, that it has modified the remedy which the creditor possessed, according to the construction of the courts, for the recovery of his debt under the previous Acts of Assembly giving mechanics and material men a lien for their work or materials. But it is now clearly established by repeated decisions, that the legislature may pass laws altering, modifying or even taking away remedies for the recovery of debts, without incurring a violation of the clauses in the constitution which forbid the passage of ex post facto laws, or laws impairing the obligation of contracts. And where the provisions of such laws, in relation to remedies, apply only to future proceedings, there is not the least ground for appealing to constitutional restrictions on the powers of the legislature. Such is the case in the present instance, so far as concerns sales thereafter to be made; for the Act expressly declares that no other or greater estate shall be sold by virtue of any exetion directed or authorized by the former Act, than that of the person who is in possession and erecting the building. Supposing, therefore, that the Act of 16th of June 1836, was subject to the same interpretation which was given by this court to the Acts of 1803 and 1806, (which, however, has never been decided); yet it is no more than a statutory enactment, abrogating the existing remedy in all future proceedings. The remedy itself certainly went to a great extent, when it enabled one person to devest another of his land without his participation in the building, and perhaps without knowledge. It was, moreover, altogether a statutory remedy, created by the legislature, not known to the common law, a boon to a favoured class of the community for the special encouragement of labour in the erection of houses, and subject to the control'of the legislature either to alter, vary or modify it, or repeal it altogether. Montgomery, the purchaser, has no reasonable ground of complaint, because the Act was passed several months prior to his purchase, and therefore he is to be considered as well aware of it, and as buying under its authority and subject to its provisions, according to which he took only the leasehold estate of Miller as his assignee, and is subject to all the covenants contained in the lease. We therefore think the opinion of the court below on this point was correct.

Several technical objections to the declaration have been made on the argument here, which I pass over. It appears by the written opinion of the court below, filed in the cause, that the demurrer in this case was intended to raise only the question I have before considered. None of these objections were made in the court below, as is conceded by the counsel; and it would be unfair that counsel should lie by and not make objections of this kind in the court below, where the pleadings might be amended, and afterwards surprise the opposite party by taking them here, where they could not strictly be amended. If it were necessary I would be willing, under such circumstances, to consider every thing as amended which the party might have amended in the court below. But enough appears to satisfy us, that the plaintiff in error waived these objections, and put his case on the merits of the question of law to be raised and determined as to the title acquired by the purchaser from the sheriff.

Judgment affirmed.