Shaeffer's Appeal

| Pa. | Oct 4, 1882

Mr. Justice Mercur

delivered the opinion of the court, October 4th 1882.

This contention is for a fund produced by an assignee’s sale of real estate. John Lukens made to the assignee a general assignment of all his real and persohal estate for the benefit of his creditors, “ except so much, however, as may be exempt from execution.” It does not appear that he had any personal estate. All the property shown by the inventory and appraisement filed by the assignee was a house and lot.

At the time of the assignment the land was encumbered with nine judgments. In the first, and in the last two judgments, there was no waiver of exemption. In each of the six intermediate judgments there was a waiver of inquisition, condemnation, and benefit of exemption laws. The assignor was living on the property when the assignee caused it to be appraised and valued; but made no claim that the property, or any part thereof, be set off to him. Nor did he make any claim for this property, or for any other during his life. After his death, on application of the assignee, the court ordered a sale of this real estate. It was duly advertised, and on the day before the sale was to be made the administrator of the assignor demanded of the assignee that he appraise and set apart to the estate of John Lukens $300 worth of real estate. Thereupon the assignee summoned appraisers, who found the property could not be so divided as to give the estate $300 worth without injury to the whole. The assignee sold, and in his return of sale to court referred to the request of the administrator, and the report of the appraisers. The sale was duly confirmed. On distribution of the money produced by the sale, the court ordered $300 to be set apart to the administrator of John Lukens, as the amount reserved in the deed of assignment. This application of $300 so reduced the fund for distribution as to leave unpaid the greater part of the judgment held by Mrs. Shaeffer in which the exemption was waived, and all of the judgment in favor of Barnes in which it was not waived.

The first question we will consider is, what effect had the assignment on the judgment liens? It certainly did not divest any of them. The land passed to the assignee bound by the liens to the same extent and in the same manner as when the assignor held it. In case a sale by execution oh either of the judgments had been made before the assignment, no claim for $300 exemption could have been sustained to the prejudice of the Shaeffer judgment, on which the exemption was waived. It is true, an assignor for the benefit of creditors may except from his general assignment the $300 worth of property exempt from execution, provided he so holds it that he can claim the exemption without making an assignment. lie cannot except from the operation of the assignment land bound by a judgment lien, for the payment of which he has expressly agreed the land shall not be exempt from execution. By no such device can he impair the value of a vested lien.

While this sale was not technically made on execution, yet it was by virtue of an order of court. The Act of February 17th 1876, Pur. Dig. 1973, declares that sales of real estate of an assignor for the benefit of creditors made by the assignee after due notice, and confirmed by tire court, .shall discharge all judgment liens against the real estate so sold. As the lien of the judgments was thus discharged it follows that it was not in the power of the assignor, by demand made at any time, to successfully claim the $300 out of the proceeds to the prejudice of the judgment in favor of Mrs. Shaeffer: Bausman’s and Herr’s Appeal, 9 Norris 178.

Was the demand made in time to give ' the claim for $300 priority over judgments in which the exemption was not waived ? The general rule is well settled that a claim for exemption must be made with such promptness as to occasion no delay to the one about to sell it, and not permit him to make costs which otherwise might be avoided: Bowyer’s Appeal, 9 Harris 210; Davis’s Appeal, 10 Casey 256; Morris v. Shafer 12 Norris 489. All the statutes giving the light of exemption from execution relate to the same subject. Being then in pari materia, they should be construed in reference to each other. Whether the claim be made by the defendant in an execution or by the widow of a decedent, in either case no proceedings can be taken to appraise the property until the claimant designates the specific property which he desires to retain: Weaver’s Appeal, 6 Harris 309; Neff’s Appeal, 9 Id. 243.

Although the several acts allowing exemptions do not specifically refer to an attachment execution, yet it is held that one claiming exemption against such writ, must demand it at the term to which the writ was returnable, and before the plaintiff has taken any steps which subject him to further costs. The claimant in such case caunot wait until execution issues to collect the judgment: Morris v. Shafer, supra. It is not the intent of any of the exemption laws to give to a claimant that which he did not have, but to permit him to retain that which he has already. lie cannot claim the proceeds of a sale of land unless he has first claimed a part of the land, which could not be set off without prejudice to the whole. Here the assignor never made any specific claim to land. It is contended that it was not necessary to make any such claim by reason of the exception in the deed of assignment. But he did not except any specific property. It was only “ so much property as may be exempt from execution.” It is further said the property excepted did not pass to the assignee. This argument would prove-too much. As the assignee could not sell more than passed to him by the assignment, that which the assignor reserved would still remain unsold. It is clear such was not the intent or the effect of the assignment. The whole property passed subject to his right of election. The exception not being of any specific property, the assignor must first elect before any action could be taken towards valuing it or setting it off. In Peterman’s Appeal, 26 P. F. Smith 116, neither the assignor nor the assignee had any knowledge of the property which produced the fund when the assignment.was made. It. was not inventoried, appraised, nor sold by the assignee. The assignor claimed it “ as soon as his right to the fund attached,” and being money, no appraisement was necessary. The claim of an assignor may not be made under the Exemption Act of 1849 ; but the exempting power of that act must be invoked to ascertain what property he is entitled to retain. It must be ascertained in some manner. He must make his election. No timé is more suitable and jiist than when the appraisers appointed by the court act, and none áre better qualified than they to decide whether it can justly be set off. As they pass upon the value of the property, which goes into the hands of the assignee for the benefit of creditors, every reason exists for requiring the claim to be then made. The case of an assignor’s claim, which, if it exists, must arise on the assignment, must not be confounded with the claim of a widow or minor children of a decedent claiming $300 worth of property in thq Orphans’ Court — that is, to property which -the decedent owned when the right was cast on them. Even they may lose it, by not claiming in time. Here the effort of the administrator is to divert from fixed judgment liens property which the assignor did not own at the time of his death. Myer’s Appeal, 28 Id. 452, is not applicable to the present case. There the judgment on which the money was claimed, to the exclusion of the $300 reserved, ivas not recovered until after the assignment was made. It was therefore no lien on the land, and was properly disallowed.

In the present case the -learned judge erred in decreeing the i $300 to be paid to the appellee, to the prejudice of the judgments held by the appellants.

Under the .facts found we discover ’no error in decreeing payment of the whole of judgment, No. 190, August Term 1878, as it stood wholly unpaid on the confirmation of the sale. It follows that so much of the $300 decreed to Philip Smith, administrator of John Lukens, as may be required to-pay the residue of the judgment in favor of Mrs. Shaeffer, should be so applied thereon, and the remainder of the $300 be applied on the judgment in favor of Thornton Parnes. The residue of the fund is correctly distributed, and is confirmed, except as to the $300.

Decree reversed, and distribution thereof ordered to- • be made conformably with this opinion, and that the appellee pay the costs of this appeal.