124 Pa. 347 | Pa. | 1889
The precise point involved in the present case is, whether a waiver of the debtor’s exemption under the act of 1849, in favor of a lien creditor whose claim is less than $300, enures to the benefit of junior creditors, so as to prevent the debtor from claiming the balance of the exemption after the satisfaction of the senior lien. A perusal of the cases amply justifies the remark of the learned judge below that the question is not free from difficulty.
In Bowyer’s App., 21 Pa. 210, it was decided that the exemption could not be assigned to or waived in favor of a junior lien creditor, while there were prior liens against which it could be claimed. The case was decided in 1853, when the act of assembly was but four years old, and the whole subject was new. The grounds of the decision are not clearly set out, though the opinion was written by that eminent master of the English language, Chief Justice Black. He seems disposed to regard the exemption as a dangerous novelty, likely to be used as an instrument of fraud, and to treat it as a gift of the law for the benefit of the debtor’s family, to be claimed as a whole for that purpose strictly, or not at all; and he expressly excludes from the decision, the question whether a prospective waiver in the instrument evidencing the debt, would be binding if the debtor should, notwithstanding it, afterwards claim the exemption. The germ of the rule finally adopted was, however, contained in the following passage: “ Whatever he does not claim for himself and his family he leaves in the general fund, under control of the court, to be distributed among those who are legally entitled to it; and such distribution is not to be regulated by any wish of his, no matter in what form he may choose to express it.” This passage is the starting point in the long line of cases on the subject.
The next case took a somewhat different turn. In Johnston & Sutton’s App., 25 Pa. 116, the court below following, as it thought, Bowyer’s Appeal, treated a waiver in favor of any creditor as a complete abandonment of the debtor’s claim and made distribution of the fund in the ordinary way, as if no exemption had been claimed. This court, however, reversed the judgment and distributed the fund (which was less than $300), first, to a debt contracted before the act of 1849;
Next in time came Garrett’s App., 32 Pa. 160, reiterating the rule of Bowyer’s Appeal that a waiver on a junior lien enures to the benefit of the senior, and applying it to executions
The next case in chronological order is Shelly’s App., 36 Pa.
Shelly’s Appeal settled the law as to the effect of a waiver upon prior judgments, and has been uniformly followed: Laucks’s App., 44 Pa. 895; Pittman’s App., 48 Pa. 315; Thomas’s App., 69 Pa. 120; Jimison’s App., 13 W. N. 25.
The last named case, Jimison’s Appeal, requires examination, as it was chiefly upon its supposed authority that FutHey, J., ■decided Taylor v. Webb, 2 Chester Co. Rep. 16, which the learned judge below followed in the present case. The fund was raised by an assignee’s sale under the act of February 17, 1876. The first lien was a judgment for $300 with waiver, and there were later judgments without waiver. In assigning his land for the benefit of his creditors, the debtor had reserved $300 exemption for himself, and the assignee’s account claimed credit for that amount paid the assignor. The court disallowed the credit, and held that the $300 exemption must go to pay the first judgment, in relief of the junior judgments (see opinion in Jameson’s Est., 1 Chester Co. Rep. 49), and this was affirmed on appeal. The syllabus in 1 Chester Co. Rep. is too broad, and some of the expressions in the opinion of this court seem to be equally general, but read in connection with the facts, this case is but the ordinary application of the rule established by Shelly’s appeal.
This rule being thus conceded, we have still the consideration of the effect of a waiver on subsequent judgments. None of the cases, except Johnston & Sutton’s Appeal, raised this
The result of tMs somewhat prolonged discussion of the authorities may be summed up finally in the following rules, with which no authority carefully examined on its facts is in conflict, and which are believed to rest on sound reasoning' and settled principles of law:
First; a waiver as to any lien will enure to the benefit of all prior liens; on the principle that a debtor cannot alter the precedence settled by law.
Secondly; a waiver as to any lien will enure to the benefit
Thirdly; a waiver will not enure to the benefit of subsequent liens, beyond its own amount; so that if the waiver-judgment is less than $300, the balance will go to the debtor claiming his exemption, and this on the broad ground that men may do what they will with their own, provided they do not contravene the settled rules of law, or impair the rights of others.
In accordance with the views herein expressed, the judgment is reversed, and now judgment is entered on the case stated for defendant, with costs, and the record remitted.