
    Supreme Court of Pennsylvania. EASTERN DISTRICT.
    APPEAL OF JOHN S. HAINES.
    1. An Act of Assembly cannot vest in a tribunal like a court of chancery, acting without a jury, the power to determine upon the legal right of parties, unless there exists some equitable ground of relief.
    2. The Act of April 28, 1868, relating to the extinguishment of ground rents, is unconstitutional.
    Appeal from an order of the Court of Common Pleas of Püila-delphia County,
   Opinion delivered March 6th, 1873, by

Sharswood, J.

The only ground upon which the constitutionality of the act of April 28th, 1868, Pamphlet Laws, 1147, can be supported under the decisions of this court in North Pennsylvania Coal Co. v. Snowden, 6 Wright, 488; Norris’ Appeal, 14 P. F. Smith, 275, and Tillmes v. Marsh, 17 Ibid. 507, is that it is a proceeding within the jurisdiction of a court of equity. It must certainly be considered as settled by those cases, that an act of Assembly cannot vest in a tribunal like a court of chancery, acting without a jury, the power to determine upon the legal rights of parties, unless there exists some equitable ground of relief. We may look in vain for any principle or authority to sustain a. bill praying for a decree under the facts and circumstances, as disclosed in the petition filed in the court below. As to the power which has been principally relied on, to order deeds or instruments to be delivered up and cancelled, there is always some ground of equity upon which the chancellor has interposed, besides the mere fact that the instrument cannot be enforced at law. There must be some danger of future litigation, when the facts will be no longer capable of complete proof, or have-become involved in the obscurities of time. 2 Story’s Eq. Jur., § 705. This is the reason upon which a bill quia timet may be sustained. No case has been produced, and we think none can be, which goes the length which must be maintained here, that wherever there is an outstanding claim or incumbrance upon an estate which is barred by reason of lapse of time, and therefore cannot be enforced at law, but which nevertheless, is a cloud upon the title, and prevents it from being marketable, the possessor can invoke the aid of a court of equity to remove the cloud, and forever bar such claim or incumbrance by a perpetual injunction. If this could be done, there is not an ejectment in the common law courts which by an inversion of parties could not be brought into a court of equity, and the question finally determined by one decree without a jury, instead of two verdicts and judgments. No doubt it is highly important ' to the parties, and, indeed, of public interest, that some mode should exist by law by which all such clouds may be removed, and that valuable estates be brought into the market. We are very far from holding that the Legislature cannot do this. But then trial by jury must be “as heretofore, and the right thereof remain inviolate.” By the thirty-third section of the act of June 16th, 1836, Pamphlet Laws, 701, entitled “An act relating to the lien of mechanics and others upon buildings ; ’ ’ whenever a mechanics’ claim is filed against a building, it is made lawful for the •owner, or any person interested, to call the claimant into court, which is thereupon authorized to proceed in like manner, as if a scire facias had been iusued, and duly served and returned. No one has ever thought of ■questioning the constitutionality of that section, which has been frequently acted upon and found very beneficial. Had there been a provision in the act of 1868, giving the respondent the right to demand an issue, as by the eighty-seventh section of the act of June 16th, 1836, Pamphlet Laws, 777, in questions arising upon the distribution of the proceeds of •sheriff’s sales, all objections to the act on this score would have been obviated. The learned judge who delivered the opinion of the court beiow, appears to have thought that because “ there is nothing in the law which would prevent the court from sending every such case as this by a general rule to a jury,” it may, therefore, “ very well be questioned whether this act does in fact absolutely deprive the parties of a jury trial.” But as such a general rule or the award of an issue in any particular case, would be entirely in the discretion of the court, it is clear that the parties have not secured to them, their constitutional right of trial by jury, They would in effect hold it at the mere pleasure of the court.

The contention which has the most plausibility, is that upon the evidence in this case there was no question of fact for the decision of a jury, .and that assuming all the facts to be true, the court before whom the trial might be had, would be bound to instruct the jury that the ground rents in question must be presumed in law to be extinguished. Conceding this to be so, there is a fallacy which lurks in this argument. The respondent in his answer demurred to the jurisdiction of the court, and if in law he was right, he could not be affected by any failure in the evidence, which Tie was not at all bound to produce. No party can be concluded by the •decision of a court which has no jurisdiction to decide the controversy. We cannot strike from the act the words, “on due proof being made of the truth of the said petition,” and insert other words which would confine the jurisdiction to the case, where no evidence should be produced which would save the act from its unconstitutional operation. That would be judicial legislation. We assume in this judgment that the evidence brought the case in law entirely within the purview of the act of 1855* Upon that, however, we give no opinion.

Order reversed at the costs of the appellee.  