Bolton v. Johns

• Decision Date: 24 April 1847
• Citation: 5 Pa. 145
• Parties: BOLTON et al. <I>v.</I> JOHNS et al.
• Court: Pennsylvania Supreme Court

5 Pa. 145

BOLTON et al. v. JOHNS et al.

Supreme Court of Pennsylvania.

April 3, 12, and 13, 1847.

April 24, 1847.

April 3, 12, and 13.

IN error from the Common Pleas of Montgomery county.

J. Sergeant, for plaintiff in error.—The supposed decisions do not affect this case, for these are claims for doing part of the work, &c. It is impossible to extend the rule, as to contractors, to one who is not a contractor for the whole building, otherwise there could be no lien in any case, since no one can either do work or furnish materials, to however small an extent, unless under a contract, express or implied. The rational construction of the decisions, if they apply at all, is to confine them to contractors simply; that is, persons who furnish nothing but their skill and superintendence. But supposing the decisions do cover the case, they were not made in this case, and though doubtless binding on the court below as rules, the parties here had no vested right in the judgment between other parties. It cannot be pretended they have such a right in the reasoning of the court; for that would bar the power of review if it should be found unsound; and this court has that power beyond question. [GIBSON, C. J. — That may be so, when property has not been acquired on the faith of it; if so, right or wrong, we must abide by it.] Supposing we are driven to the act of 1845, which gives a lien in all cases, notwithstanding a contract exists. Personally we may be opposed to them, but we are on a grave question, the power of the legislature to do this. Vested rights and retrospective effect, are too vague in themselves to state as objections, and the question is now too well settled by decision. Thus in Barnet v. Barnet, 15 Serg. & Rawle, 72, the limit of this power is said to be after judgment in the cause. In O'Conner v. Warner, 4 Watts & Serg. 223, another limit is suggested. The familiar cases of repairing defects in the form of acknowledgments of deeds by femes covert; in adding the landlord's privilege to one holding under a void Connecticut claim, are cases both retrospective in their operation, and which, by force of the statute, gave a right to one who had none before, and deprived another of a perfect right; Satterlee v. Matthewson, 13 Serg. & Rawle, 133, 16 Serg. & Rawle, 169, 2 Pet. 380; Watson v. Bailey, 1 Binn. 470; Watson v. Mercer, 6 Serg. & Rawle, 49; Mercer v. Watson, 1 Watts, 330. These latter cases were after judgment and decision of this court on the perfection of the right.

Freedley, contrà.—On the 8th of March, when the assignment was made, there was no lien. On the 9th it was filed, and the action prosecuted to award, after which there was a discontinuance. This put an end to all proceeding in rem. It is a mistaken assertion, that the only cases are of contractors for the whole building; Witman v. Walker, 9 Watts & Serg. 183, applies the rule of Jones v. Shawhan, 4 Watts & Serg. 257, and Hoatz v. Patterson, 5 Watts & Serg. 537, to all contractors, though of a part only. As to this statute, the court were right in construing its meaning to exclude all previous purchasers, for every intendment is to be made against an act of injustice and wrong in the legislature; Dash v. Van Kleeck, 7 Johns. 477; Lambertson v. Hogan, 2 Barr, 22; Norman v. Heist, 5 Watts & Serg. 171.

Meredith, on the same side.—The facts are not disputed; there was no lien at the purchase. The subsequent statute makes a lien. There is no decision which will support this. The cases may be divided into classes. 1. Those statutes giving a new remedy, without which power a legislature would be useless. This comprises Stoddart v. Smith, 5 Binn. 355; Turnpike v. Commonwealth, 2 Watts, 433; Menges v. Wertman, 1 Barr, 218, same case as Menges v. Oyster, 4 Watts & Serg. 20; which was put on the power to enforce a moral obligation, for had the sale been private there would have been an equitable estoppel. 2. Those prohibiting the exercise of natural rights, which are injurious to the public good; Myers v. Irwin, 2 Serg. & Rawle, 368; Resp. v. Duquet, 2 Yeates, 493. 3. Those under the right of eminent domain; McClenachan v. Curwen, 6 Binn. 509; 3 Yeates, 362; Philadelphia and Trenton Railroad, 6 Whart. 25; District of Pittsburgh, 2 Watts & Serg. 320; Monongahela v. Coons, 6 Watts & Serg. 101; Shrunk v. Navigation Co., 14 Serg. & Rawle, 71; Pittsburgh v. Scott, 1 Barr, 309; Harvey v. Thomas, 10 Watts, 63. 4. Those enlarging or depriving courts of judicial powers; 3 Binn. 417; Commonwealth v. Flanagen, 7 Watts & Serg. 68. 5. Those validating the acts of courts; McDonald v. Schell, 6 Serg. & Rawle, 240; Adle v. Sherwood, 3 Whart. 481; Braddee v. Brownfield, 2 Watts & Serg. 271, where the grant of new trial was attempted. [GIBSON, C. J. — That was a judicial power.] It was not void on that account, but because it was against right. Evans v. Montgomery, 4 Watts & Serg. 218; O'Conner v. Warner, 4 Watts & Serg. 223. 5. Those changing the qualities of estates, and regulating distribution; Bambaugh v. Bambaugh, 11 Serg. & Rawle, 191; Deichman's Appeal, 2 Whart. 395. 6. Those in which, as parens patriæ, the legislature act for infants, or persons not sui juris, or persons needing assistance; Norris v. Clymer, and Sergeant v. Kuhn, 2 Barr, 277, 393; Estep v. Hutchman, 14 Serg. & Rawle, 435; Ex parte Crouse, 4 Whart. 9. 7. Those altering contracts with consent of parties; Ehrenzeller v. Union Canal, 1 Rawle, 181; Smith v. Merchand, 7 Serg. & Rawle, 260. 8. Those validating acts and contracts void by irregularity or informality; beside those cited on the other side; Tate v. Stooltzfoos, 16 Serg. & Rawle, 35; but these are confined to matters of mere informality: to the same effect are Underwood v. Lilly, 10 Serg. & Rawle, 97; Bleakney v. Farmers, 17 Serg. & Rawle, 64; Hepburn v. Curts, 7 Watts, 301; Hess v. Werts, 4 Serg. & Rawle, 356. In Satterlee v. Matthewson, and those other cases cited, there was no pretence of a contract or vested right, unless in the consequences of a party's own wrongful acts. So as to the cases on defective acknowledgments, which, in Green v. Drinker, 7 Watts & Serg. 440, were restrained from affecting vested rights. That is the distinction. In the cases where this has been forgotten, — where the legislature have hastily acted contrary to right, the exercise of such power has always been suppressed; Barter v. Commonwealth, 3 Penna. Rep. 260; 3 Watts, 363; Indiana Turnpike v. Phillips, 2 Penna. Rep. 184; Commonwealth v. Mann, 5 Watts & Serg. 403; Davis v. Dawes, 4 Watts & Serg. 401; Benner v. Phillips, 9 Watts & Serg. 15; and the cases cited by my colleague. Under these it is established that the legislature have no power to take an estate or charge it, but under the owner's contract, or by reason of some act of omission or commission. The only question then is, is this within the rule? There is no difficulty upon construing the act; it is not declaratory; to expound a statute cannot be declaratory; if it was in the statute there is no need of the act; if it was not there, it is a new statute.

Reply. — There is no evidence of this alleged purchase, saving a mere deed; but the payment of the consideration, or want of notice of this claim, is not pretended to have been shown; Rogers v. Hall, 4 Watts, 359, which coincides with the rule in equity; 2 Sug. on Vend. 303, 305. It was made, too, when there was a judgment which was defeated on the mere technical objection to the joint sci. fa.

April 24. GIBSON, C. J.

So far as regards the parties to the contract to build, the enactment of the statute in question was clearly constitutional. No alteration of their rights was proposed, further than to give a specific remedy against the property, in addition to the remedy which the contractor had against it indirectly, by action; and retrospective laws have always been sustained where they touched not the right, but the remedy. So far there is no dispute. But the scene may be changed by the introduction of a purchaser for value actually paid, at a time when the property was free from the supposed lien; and it is proper to say, that his having had notice of a defective lien would be immaterial. By Simon v. Brown, 3 Yeates, 186, followed in Heister v. Fortner, 2 Binn. 40, it was established that the defective registry of a deed is a nullity; and in the case before us, the lien filed was a nullity which the purchaser was not bound to notice. Even had actual notice of it been given him, he would have been informed of nothing but an abortive attempt to create a lien where none could exist; and if he paid for a title actually unencumbered at the time, a statute to create an incumbrance on it afterwards would be a statute to take so much out of his pocket and give it to another destitute of claim to it, either legal or moral. The case, therefore, stands clear of the principle of Menges v. Wertman, 1 Barr, 223, in which it was admitted that the legislature may add a legal sanction to a moral obligation; for no such obligation rested on the original owner, and certainly none on the purchaser. A mechanics' lien depends on no...