The opinion of the court was delivered by
Lowrie, C. J.It seems to us that the mechanics’ lien law of 1836, in providing for setting off and selling, as a separate tenement, the portion of land that is charged with a mechanic’s lien, while there are other liens on the whole, is simply declaratory of a well known principle of equity, and directory of the means of giving it effect in this special class of cases. The principle is clearly stated in Mevey’s Appeal, 4 State R. 80, and we need not repeat it.
It is no violation of the rights of a suitor, that he is subject to some delays in carrying out the principle; for more or less delay is necessarily incident to every proceeding, that is not left to the mere will of a single party. When the intervention of the court is required, it can be had only after inquiry and deliberation in -the usual way. It is plain equity, that the mortgagee shall not use his process to the injury of the mechanics’ lien creditor; and it does not seem to us, that the law requires that the land should be sold in parcels, if that would be injurious to the mortgagee as a creditor or to the defendant. Even after the portion charged with the mechanic’s lien has been set off, the court may allow the whole to be sold as one, if it be made to appear that, in that way, it will bring -a higher price.
Proceedings affirmed.