Phelps's Appeal

Chief Justice Sharswood

delivered the opinion of the court,

In Arna’s Appeal, 15 P. F. Smith 72, the question was on a motion to quash the appeal, which was not by the plaintiff in the execution but by the terre-tenant whose land the court below had ordered to be first sold. The plaintiff below was permitted to intervene and make the motion to quash, offering to accept his debt and assign his judgment to either of th.e terre-tenants. The point here made was directly raised, and this court held that the ninth section of the act of April 22d 1856, Pamph. L. 534, entirely superseded any course of proceeding in equity which had been pursued before. It is not easy to see how the decision could have been otherwise. Not only would it be in the teeth of the act of March 21st 1806, § 13,4 Smith’s Laws, 332, which provides that where a remedy is given or any thing directed to be done by an Act of Assembly, the directions of the act shall be strictly followed, but it is abundantly evident that td sustain the old proceeding, without regard to the limitation or qualification contained in the act of 1856, would be practically to repeal the act in toto. The legislature has seen fit to enact, in order to secure the rights of the judgment creditor and to prevent any delay or embarrassment to him, that he shall have the option offered to him of accepting 1ns debt and assigning his judgment before he can be controlled in the order in which the different tracts of land subject to his lien shall be sold under his execution. It is not for us to question the mandate of the legislature, even if we thought it un just or oppressive to the terre-tenant. . The authority of Arna’s Appeal is not in the least shaken by Roddy’s Appeal, 22 P. F. Smith 95. The order in that case simply discharged the rule. It seems the attention of the court below had not been called to the Act of 1856, and it was said in the opinion of the court: “ As the court below declined to exercise their powrer at all or to make any order in the case, their order discharging the rule must be reversed.” The case -was therefore remanded to be reheard and decided according to the Act of 1856.

It is proper to remark that the petitions upon which the order was made in this case are all fatally defective in not distinctly averring that the plaintiff’s judgment or the mortgage upon which it is founded is a lien on their lands. Indeed, some of the petitioners expressly reserve the right to contest that point. But the words of the Act confine the remedy to the real estate of persons which is subject to a common lien. Without such lien, the petitioners had no equity to interpose and arrest the proceeding of the plaintiff to recover his debt. In that case no harm can be done to them. Their title will not be disturbed or affected by the sale, and it is open to them in an ejectment by the sheriff’s vendee to contest his title.

We see no ground to question the constitutionality of the Act of 1856, in its application to all proceedings, after its passage. It is a modification of an existing remedy and in no way infringes any clause in the federal or state constitution.

Order reversed and record remitted.

Mr. Justice. Mercur dissents from the construction given to the Act of 1856, but concurs in the judgment on the other ground.