98 Pa. 546 | Pa. | 1881
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 L. 534, entirely superseded any course of proceeding in equity which had been pursued before.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
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.