47 Pa. 202 | Pa. | 1864
The opinion of the court was delivered, by
Davis Mitchell, the plaintiff in error, who was defendant below, claimed his exemption of $300 in certain debts, attached in execution at the suit of John Coates, the defendant in error. The court below decided against the claim on the ground of a written waiver, supposed to be contained in a certain covenant, part of a lease from Coates to Mitchell, in the following words: — :
“ And the said Davis Mitchell, for himself, his executors and administrators, doth hereby agree that all the personal property on the premises shall be liable to distress, and also all personal property if removed therefrom shall for thirty days after removal be liable to distress, and may be distrained and sold for rent in arrear: the said Davis Mitchell, for himself, his executors and administrators, hereby waiving all right to the benefit of any laws now made, or hereafter to be made, exempting personal property from levy and sale for arrears of rent.”
Mitchell gave his notes for the rent in arrear, and afterwards gave a judgment-note in lieu of them. None of the notes contained any waiver of the exemption. The court below were of opinion that the clause in the lease attached to the debt, and not to the property subject to distress, and, therefore, held that the choses in action attached in execution were not the subject of exemption.
In this we think there was error, the question being purely one of interpretation of the language of the covenant. The whole of this portion of the lease must be taken together. Its purpose was to make the rent secure upon the personal property liable to distress, but not to waive the debtor’s right in other respects. He therefore agreed, “ that all the personal property on the premises shall be liable to distress,” “ and also all personal property, if removed therefrom, shall for thirty days after such removal be liable to distress, and may be distrained and sold for rent in arrear;” the next clause is a continuation of the same sentence, participial in form of expression, and having reference clearly to the preceding clause. It does not begin a new and independent covenant, but merely concludes a,nd strengthens the former by waiving the Exemption Law, as to the property liable to levy and sale for arrears of rent. It is true, the language is somewhat general, but it is plainly intended to be applied, and therefore must be restricted, to what was the subject of the covenant, to wit, personal property liable to distress for rent in arrear. He did not say waiving all exemption laws, or laws
It follows, that when the court extended this covenant of waiver to the rent, instead of confining it to the property liable for the rent, they expanded it beyond the intention of the parties, which was merely to give the landlord his remedy against the property liable to distress without a claim for exemption.
But the party having proceeded by obtaining judgment and issuing his attachment in execution, and laying it upon debts owing to the defendant in the attachment, cannot now extend the covenant to embrace them. The defendant has a right to say, I never came into this covenant.
The judgment for the plaintiff is therefore ordered to be reversed as against the garnishees, and the order dismissing the defendant’s claim for exemption to be set aside, and the cause to be proceeded in, in due course of law.
