Kostenbader v. Spotts

Mr. Justice Gordon

delivered the opinion of the court,

We are disposed to adopt, without comment, the charge of the learned court below, except so far as it relates to the effect of the waiver of inquisition, as contained in the confession of judgment of Tunis to Whiteman, on the 20th October 1863. Our doubt is, whether under the letter of the 45th section of the Act of June 16th 1836, this waiver was binding upon the property in the hands of Dundore, to whom it was subsequently sold by Tunis. The language would seem, at first blush, to put the power of waiver exclusively in the hands of him who owned the lands at the time of the issuing of the execution, thus attaching this right to the land rather than to the person of the debtor. Certainly the debtor could not waive the privilege of extent after the property, bound by the judgment, had passed to his vendee: Wolfe v. Payne, 11 Casey 97. In such case, however, the debtor having disposed of the property, is but a stranger, and has no right in it that he can waive. As against one phrchasing after the test of the fi. fa., but before sale, such waiver has been held to be good: Kimball v. Kelsey, 1 Barr 183. In this case it seems to be taken for granted that the waiver, as contained in the judgment note, being effective, as against the debtor, bound the property co-extensively with the lien of the judgment, so no point was made as to its effect upon a purchase subsequent to its entry. The argument is, that the provisions relating to the inquisition and extent being intended for the benefit of the debtor, his waiver of such right, thus vested in himself, could not be questioned by any third party. For my own part, I think it is hardly possible to evade the force of this argument ; for it is not to be controverted but that the statute does intend these dilatory provisions for the benefit of the debtor alone, and it is but natural to suppose that if he chooses to contract for their release he should have the power so to do. Again, the contrary theory involves the anomaly that one may dispose of this right for a valuable consideration, and then by his own act annul the contract by which such disposition was made. The creditor, also, is entitled to some consideration ; the waiver is part of the obligation for which he has paid his money or goods, and he ought not to be deprived of a valuable part of his contract on any doubtful construction of the statute.

The majority of this court, however, are not disposed to adopt this reasoning, but put the affirmance of this judgment on the ground of communis error alone. In many parts of the Commonwealth it has never been doubted but that the waiver in a judgment is co-extensive with the lien, and upon this theory many sheriff’s sales have been made, and many titles acquired; we are, therefore, not inclined by a technical exposition of the act to unsettle rights honestly acquired and upon which many persons have rested for years.

Judgment affirmed.