210 Pa. 143 | Pa. | 1904
Opinion by
The defendants in a judgment confessed in 1892 “ without stay of execution,” having failed in an application to the court to set aside a writ of execution against their real estate, made an assignment for the benefit of their creditors. The assignee obtained a rule to show cause why the writ should not be stayed, which after hearing was discharged. This appeal is from the order discharging the rule. The sole ground for the first application for a stay was that an advantageous sale could not then be made because of uncertainty as to the title to the real estate, and the sole purpose in making an assignment, the debt being admittedly due and the debtors solvent, appears to have been to secure another and possibly better chance to gain time by having the assignee invoke the provisions of sections 16 and 19 of the Act of June 4, 1901, P. L. 404, which authorize the court on application to vacate and set aside all legal proceedings not wholly completed, and to stay executions in order that a sale may be made by the assignee or a receiver.
This was not a legitimate use of the act, and it is at least doubtful whether such a use could be sustained if the application of the assignee was in other respects free from objection. It is, however, unnecessary to consider this feature of the case or the constitutionality of the act, or whether if constitutional it is operative when in conflict with the federal bankrupt law, because the order of the court was made on the ground that,
The legislature may modify or suspend for a definite and reasonable time a remedy it has given, but it may not by acting on the remedy impair the obligation of a contract. Remedies which affect the interests and rights of the parties and are made the subject of contract for the purpose of enforcing it become an essential part of the obligation, and a right of the creditor which cannot be impaired by subsequent legislation. The Act of April 18, 1861, P. L. 408, staying civil process against persons in the service of the government was held to be constitutional, the stay being for a definite and reasonable time: Breitenbach v. Bush, 44 Pa. 313. But the proviso of the 1st section of the Act of May 21, 1861, P. L. 770, which granted a stay of executions on judgments on which the right to a stay had been expressly waived by the debtor in the original obligation, was held unconstitutional in Billmeyer v. Evans, 40 Pa. 324, and Lewis v. Lewis, 47 Pa. 127; White v. Crawford, 84 Pa. 433, arose under the Act of February 17, 1876, P. L. 4, which authorized the court, when an order of sale of an assigned estate is made, to stay executions on liens that may be discharged. While the decision is based on an abuse of discretion by the judge in allowing the purchaser an unreasonable time in which to make payments, the foregoing cases are cited with approval and the doctrine on which they rest is reasserted and affirmed.
The order of the court discharging the rules is affirmed at the cost of the appellant.
