35 Pa. Super. 593 | Pa. Super. Ct. | 1908
Opinion by
The plaintiff’s judgment was entered on a note, with warrant of attorney and waiver of exemption, dated August 29, 1906, and read, in part: “On demand, after date, for value received, I promise to pay the First National Bank of Sayre, or bearer, $6,377.24,” etc.
The judgment was confessed and entered on December 13, 1906, and a fi. fa. issued thereon, and a levy made on personal property on the same day. On December 15, 1906, defendant filed a voluntary petition in bankruptcy in the district court of the United States for the middle district of Pennsylvania, and he was duly adjudged a bankrupt thereon. On December 17, a restraining order was issued out of said district court,
The assignment of error is: “The court erred in discharging the rule to show cause why the execution should not be set aside.” The first question argued by appellant’s counsel, is that judgment could not be entered on the note payable on demand, without a precedent demand or request for payment. This question has been so clearly decided by our Supreme Court that we cannot hope to make it plainer. The note' was due on delivery, and no precedent demand was necessary to a right of action or a right to confess and enter judgment thereon by virtue of the warrant therein. It is an unconditional agreement to pay a sum certain on demand; it evidences an existing indebtedness and the entry of judgment was a sufficient demand: Andress’s Appeal, 99 Pa. 421; Swearingen v. Sewickley Dairy Co., 198 Pa. 68; Cook v. Carpenter, 212 Pa. 165; Boustead v. Cuyler, 116 Pa. 551.
Where a contract or instrument provides for payment at a stated time after demand, or upon the future performance of a condition, or the happening of a contingency, the making of a demand is a necessary prerequisite to a right of action: Smith v. Bell, 107 Pa. 352; Eichman v. Hersker, 170 Pa. 402; Taylor’s Administrators v. Witman’s Administrators, 3 Grant, 138. There is no merit in the learned counsel’s first contention.
In our opinion, the second position is equally without merit.
In our opinion, the substantial question now under consideration'was decided by this court in Sharp v. Woolslare, 25 Pa. Superior Ct. 251, where we held that: “A federal trustee in bankruptcy is not entitled to the bankrupt’s exemption of $300,' against a creditor who ]jas attached the same by an attachment execution issued and served within four months prior to the bankruptcy, on a judgment waiving exemption.” Unless we recede from the position taken in that case, and attempt to explain and distinguish the authorities therein cited, it rules the present question. We have again reviewed the bankruptcy act of 1898 and the decisions thereon and see no reason for changing our views expressed in the above case. See Adair v. Decker, 34 Pa. Superior Ct. 153.
We do not understand the learned counsel to contend that the appellant’s exempt property might not have been seized and sold on a fi. fa., waiving exemption, issued after it .had been exempted and set apart, and after the grasp of the restraining order of the district court had been released. The contention is that the writ on which the property was advertised was without validity. The levy was made and indorsed on the fi. fa. on December 13,1906, but the sale could not be made on
In In re Jackson, 8 Am. Bank. Rep. 594 (district court for eastern district of Penna.), execution had been issued and levy made March 18, and March 27 a petition in bankruptcy was filed and a restraining order was issued forbidding further proceedings on the execution. McPherson, J., held: “After the property exempted has been separated and delivered, its subsequent fate does not concern us. If some one of the bankrupt’s creditors has already obtained, or should afterwards obtain, a lien upon it, it is not for this court to interfere with his right. ... I think the restraining order should be so modified as to permit the creditor to assert such right as he may have gained by his execution against such property as may be set aside to the bankrupt under his claim for exemption.”
Now, if this ruling is sound, subsection 67/ of the bankruptcy act should be construed to mean that all levies shall be deemed null and void, only, as to the property which passes to the trustee for the benefit of the creditors of the bankrupt, but remain valid for enforcement under the state laws as to the bankrupt’s exempted property. This construction seems to be in accordance with the real meaning of said section. No good reason is apparent for holding the judgment, execution
The same author (3d ed.), 543-544, says: "This provision (subsection 67/) does not avoid the levy and liens therein referred to against 'all the world, but only against the trustee in bankruptcy and those claiming under him, so that the property may pass to and be distributed by him among the creditors of the bankrupt.” See also Lamorelle v. Nass, 30 Pa. Superior Ct. 190.
It seems to us that the learned court below did not err in refusing to prevent the sheriff from proceeding with the sale of the appellant’s exempted property, on the venditioni ex-ponas, with clause of fi. fa., in accordance with the law and practice of Pennsylvania, and, therefore, the assignment of error is dismissed and the decree is affirmed.