Pittman's Appeal

• Decision Date: 05 January 1865
• Citation: 48 Pa. 315
• Parties: Pittman's Appeal.
• Court: Pennsylvania Supreme Court

48 Pa. 315

Pittman's Appeal.

Supreme Court of Pennsylvania.

January 5, 1865.

APPEAL from the Common Pleas of Indiana county.

COPYRIGHT MATERIAL OMITTED

Weir & Stewart, for appellant.—An application of the law as announced in Shelly's Appeal, 12 Casey 373, to the facts, will result in a different appropriation of the money from that made by the court below. The distribution ought to be as follows viz.: Whole fund for appropriation, after deducting costs of sale, &c., is $739.04. The first judgment being for a debt contracted prior to the passage of the Exemption Law, and being also the first lien, must be first in the order of payment. The amount of debt, interest, and cost of this judgment is $310.17. This sum taken from $739.04, leaves a balance of $428.87, to be applied to the defendant and the subsequent judgment-creditors according to their respective rights. The effect of Pittman's claim of exemption was to divide this balance into two funds, $300 of it belonging to him, and $127.87 to his creditors generally, in the order of their respective liens. The defendant having waived his exemption in favour of the plaintiffs in the second judgment, gives them a lien on both funds; the other subsequent creditors on one only. This gives the subsequent creditors an equitable right to force the plaintiffs in the second judgment, which contains a waiver, upon the fund that the other creditors cannot touch. This judgment, including debt, interest, and costs, amounts to the sum of $113.97. This taken from the defendant's $300, leaves a balance of $186.03 of the fund which belongs to him, and $128.87 to be applied to the fourth, the judgment being the next in order of lien upon the record. This appropriation is the law of distribution as laid down in Shelly's Appeal. It is what the defendant contended for in the court below, and is the rule adopted by the auditor in schedule C of his report. The doctrine that a waiver by a defendant of his statutory exemption in favour of junior lien-creditors enures to the benefit of all his creditors in the proper order of their liens, does not apply in this case. Pittman only waived his right in favour of the first judgment-creditors, after the passage of the "act" — the subsequent judgments contained no such waiver. But it is contended that the first judgment being for a debt contracted prior to the Exemption Law; and the second judgment being the first lien after that enactment, these judgments stand upon the same footing, are liens on both funds, and by the application of the equitable principle recognised in Shelly's Appeal, the subsequent lien-creditors can force them in the first place to exhaust that portion of the fund upon which they have no lien and cannot reach. And this seems to have been the view taken by the judge of the Common Pleas, and the point upon which we think he manifestly erred. There is a distinction made in the rulings of this court between a voluntary waiver by defendant and cases excluded from the operation of the Act of 1849 by its terms, or the nature of the writ upon which the sale is made, when it precludes a separation or division of the property. A defendant whose real estate is sold upon a mortgage, is entitled to exemption out of the proceeds of the sale against subsequent judgments, without demanding an appraisement and division of the...