¶1It must be admitted, that the act of 1778, did- not au-thorise a sale free of incumbrance, and that the lien, notwithstanding the sale, still continued under that law. But the mortgagee had an election to abandon his lien, and secure his money from the treasury of the state, if he pleased.
¶2When we come to the act of 1783, it is plain that the four first sections, relate entirely to claims against the treasury only, and not to the right of the creditor against the estate. The legislature knowing that de jure, the commissioners could not sell free from incumbrances, knew also that de facto, they had done so in many instances, and therefore they say, to those having liens on forfeited estates, if you wish to readjust your demand, once given in, so as to have recourse against the treasury, y'ou must first prove that the sale was free from incum-brance; under an idea perhaps that this having been publicly done, and acquiesced ins by the creditor, who, by putting in his claims had consented to look to the state for payment, had abandoned his lien on the land. But the clause of the law has no effect, in my opinion, as to the construction of the fifth and sixth sections; that clause relating exclusively to claims against the treasury, and these to claims against the estate.
¶3Upon the existence of the lien and the liability of the land, the law is positive, plain and unambiguous; no room is left for construction. It is a positive bar to the demand, whether the sale was made free of incum- ■ brance or otherwise. But even if it be a bar only where the sale was free from in-cumbrance, this is exactly that case. To admit the course of reasoning of the plaintiff’s counsel, that it meant cases where sales free from incumbrance were authorised to be made by law, would be to annul the law by construction, for it is admitted, that no previous law had authorised such sales. If a creditor had applied to the treasury he certainly would have been paid, on proving that the sale had been de facto made free from in-cumbrance, though such a sale had not been authorised, and it would have been no answer to say, that no such sale could legally have been made. How then can such an answer be made in this case, if the fourth clause is to control the construction of the' fifth and sixth sections? The law is clearly retrospective and unjust in its operation, but it is not for this court to correct it, or to declare it a nullity. It is not repugnant to
¶4I am sorry to differ from the court which decided the case of Walter v. Perine, [Case-No. 17,121,] but I must give such an opinion
¶5considered the1 case of Walter v. Perine as precisely like the present, and that the decision in that case was right.
¶6The court being divided, a case was stated' for the supreme court, but no removal to that court took place.