101 Pa. 22 | Pa. | 1882
delivered the opinion of the court, October 2d 1882.
The amount awarded to the assignor ($266.50) under his claim for $300 exemption was made up in part of the value of five shares of Building & Loan Association stock, and in part of other moneys of the assigned estate in the hands of the assignee. The Building & Loan Association stock was owned by the assignor at the time of the assignment, and passed to the assignee by force of the assignment. Payments were made both by the assignor and assignee to keep it alive after the assignment, but those payments were refunded, and constitute no part of the present fund. The whole of the fund is therefore the product of portions of the assigned estate as it originally came to the assignee. The assignor reserved generally in the assignment “ three hundred dollars’ worth of property of the assignor allowed him by act of assembly to be appraised and set apart to him according to law.” This was a sufficient reservation to entitle the assignor to retain and have set apart to him any of the
It was for these reasons, and on these principles, that this court held he was entitled to the money. We certainly did not say, or mean to say, in that Case, that a demand was not necessary, or that the right to claim the benefit of the exemption could not be waived by undue laches. The decided cases on those subjects were not overruled, or even discussed. On the contrary, we recognized the facts that the benefit of the exemption was regularly claimed, that personal property was actually selected, appraised and sot apart, to a certain amount, and that as to the balance of the exemption it was claimed as soon as the right to demand and receive it arose. But all these facts are lacking in the present case. While it is true there was a general reservation of the three hundred dollars’ exemption in the assignment, there was at no time any selection of property or appraisement made, and no notice of a claim to the assignee until several years after the real and personal property had all been sold and the proceeds of the former had- all been paid out in discharge of liens. It was positively testified, both by the assignee and others, that the assignor had repeatedly declared that he would not claim the benefit of the exemption; but we do not dwell upon that, because the duty of making the claim is an affirmative one, resting upon the assignor, and it must be shown by him, in case of dispute, that he exercised his right, and within a reasonable time. There is no proof that he did this in the present case. The assignee can not know, unless he is notified to that effect, what property or money he shall set apart or pay to the assignor; and in the absence of such notice it is his duty to administer and distribute to the creditors all the estate that has come to his hands and is needed for the payment of debts. It is too late for the assignor to make his claim after the property has all been sold and converted into money, a large part of the proceeds paid out in satisfaction of debts of record, and the assignee is about to file his account. Such was the condition of things when the claim of the assignor was first formally made, and we are very clear that such laches defeats the right to make the claim. There is no statute, and no decided case, that permits it in such circumstances. It is true, the act of 8th April 1859, Purd. 638, pl. 26, which gives‘the right to retain notes, money, or other securities, does not fix any time within which the right must be exercised; but neither does the act of 1851, Purd. 116, pl. 60; and yet we held, in Davis’s Appeal, 10 Cas. 256, that this act
The decree of the court below is reversed, and the record is remitted for further proceedings; the costs of this appeal to be paid by the, appellee.