Hess v. Beates , 78 Pa. 429 ( 1875 )

Mr. Justice Paxson

delivered the opinion of the court, June 8th 1875.

It is very clear that Elizabeth Hess, the plaintiff in the case stated, was entitled to retain for the use of herself and family the articles appraised and set apart to her under the domestic attachment. The 20th sect, of the Act of 13th June 1836, relating to domestic attachments, provides: “ That the wife and family, if any, of such debtor, shall be entitled to retain for their own use such articles as may by law be exempted from levy and sale on execution.” Her right was not affected by her husband’s waiver of exemption. Such waiver was undoubtedly good against him, but is of no avail as against his wife and family when his property is seized upon a domestic attachment. In such case the law withdraws the property to the extent of the exemption from the grasp of his creditors, and allows it to remain with his wife and family for their use. The articles claimed by the wife, and set apart to her under the exemption, ceased to be the property of the husband for the purpose of execution.

The seizure and sale of this property by the sheriff upon the execution against Jonas Hess, was illegal, and but for the Act of 10th April 1848, would have rendered him liable to an action of trespass. Under the provisions of said act, however, he entered a rule upon Mrs. Hess, to come into court “ to maintain or relinquish her right to the proceeds realized out of the property sold under the execution.” Mrs. Hess appeared to this rule, and filed an affidavit claiming the property. The proceedings under the Interpleader Act are informal, but are, nevertheless, sufficient to bring the parties within its provisions. Their effect would seem to be to substitute the proceeds of the sale for the property sold. We have already said that Mrs. Hess was entitled to the property. The fund in court is the net proceeds of the sale, the costs of the plaintiffs in the execution and the sheriff having been deducted. It is not right that either the execution creditor or the sheriff should profit by his own wrong. It would be a hard rule to compel Mrs. Hess to pay the expenses of this unlawful sale of her own property. The Sheriff’s Interpleader Act is broad enough in its terms to meet the justice of this case. It provides that the court shall exercise “ all the powers and authorities necessary, and make such rules and decisions as shall appear to be just, under the circumstances of the case, and the costs of all such proceedings shall he in the discretion of the court,” &c. With all the parties before us, our way is clear under this act to do substantial justice. Mrs. Hess is plainly entitled to the entire proceeds of sale. Even this is but an inadequate compensation. The costs and expenses ought not to fall upon the sheriff, whom we may assume to have acted under the directions of th§ execution creditor. Whatever costs may have been incurred should be paid by the latter.

The jugdment is reversed, and it is ordered that the entire proceeds of the sale, amounting to $240.85, be paid to Elizabeth Hess, the plaintiff; the costs in error and the costs below, including the sheriff’s costs, to be paid by Henry Beates, the plaintiff; and that the record be remitted to the court below, with instructions to carry this decree into effect.