Keetley v. Campbell , 1900 Pa. Super. LEXIS 369 ( 1900 )

Opinion by

Beaver, J.,

The agreement, under which the court below made distribution, the facts of and the single question involved in this case are all clearly stated in the opinion of the court below. The rights of the. parties were fixed at the time of the sale of the real estate of appellant. The waiver of exemption in the junior judgment inured at the time of the sale to the benefit of the. plaintiff in the senior judgment. This was so well settled in Hallman v. Hallman, 124 Pa. 347, that it has never been questioned since. At the time of the sale, therefore, the waiver of exemption applied to the judgment of the appellee and must, of course, be so held iu tbe distribution, unless the relative rights of the parties have been changed since the sale. An attempt has been made by the creditor of the junior judgment since the sale to relieve the debtor from the effect of the exemption clause therein. The court below well held that this could not be done “so as to prejudice the senior creditor.” Would the senior creditor be prejudiced, if this arrangement were carried out ? Assuming that her rights were fixed by the record at the time of the sale, she bid apparently just enough to cover her judgment. The junior creditor by a small additional bid purchased the property and now seeks, by a release of the exemption clause to the debtor, to take away the purchase money from the appellee. If this attempt could under any circumstances succeed and had been known at the time of the sale to the appellee, she could and would probably, by increasing her bid, have realized enough from the property to pay both the amount of her judgment and the balance of the appellant’s exemption. In any event she would have had the opportunity of doing so. She is, therefore, clearly prejudiced by the attempt of the junior creditor made after the sale to divert the fund raised thereby from its application to the senior judgment to the debtor’s claim for exemption. Tins cannot be done. The question is so fully considered in the opinion of the court below and is so clear of all difficulty that it requires no further discussion here. Decree affirmed.