Lefever v. Witmer

Hibson, O. J. It may be that the legislature has not constitutional power to divest a husband’s freehold in his wife’s inheritance, without his consent; but it has certainly power to [506] divest it with his consent, so as to free it from the claim of creditors who have not obtained a lien on it. The act in this case was, therefore, constitutional. But are we at liberty so to interpret it as to give it a retroactive operation against a creditor who had brought an action and incurred costs, at the time of the enactment, when there was no law to forbid the pursuit, with a view to obtain a lien and satisfaction out of the husband’s curtesy ? The rule has been, to give a retroactive operation to statutes which operate, notion the right, but the remedy; and here it would operate on both. According to the principle of the Lancaster County Bank v. Stouffer, just now decided (anté, 398), the husband had an indefeasible freehold in his wife’s land, which was open to action by his creditors; and, by the opposite principle, them right to seek satisfaction from the land, by actions previously commenced, would be taken away. But a more stringent principle still, is that which has governed us in refusing a retroactive operation to statutes which would bar an action pending, where we are not compelled to do otherwise by direct and positive words; as in Bedford v. Shilling, 4 S. & R. 401, and subsequent cases. These embrace the principle of the case before us; and, so far, the opinion of the judge was incontrovertible; and, as has been said in the Lancaster Bank v. Stouffer, there was no right of appeal. The case must, therefore, take the course of its predecessor. Appeal quashed.