Appeal of Allentown

Mr. Justice Trunkey

delivered the opinion of the court,

Under the Act of April 14th, 1851, the widow of any decedent is entitled to retain either realty or personalty of his estate to the value of three hundred dollars; and when she elects to retain part of a tract of land, if the same cannot be divided without injury to the whole, the whole may be sold and she shall be entitled to take of the proceeds of said sale so much as she would have received at the appraised value had said real estate been divided. This provision shall not impair any liens for the purchase money of such real estate— no other liens are excepted by the terms of the statute, and none other has been held to deprive her of the right save a mortgage by her husband in his lifetime.

The reason why such mortgage shall not be impaired by the statutory exemption in favor of the widow or children, is said to arise from the contract by which the debtor pledges the land to his creditor as a security for the debt. And though mortgages are commonly spoken of as mere securities for payment of money, they are such because they are formal pledges of the land. The mortgagee, upon default in performance by the mortgagor of the stipulations in the deed, may by ejectment obtain possession of the premises, and the exemption laws do not apply to the impairing of such a security: Gang-were’s Appeal, 36 Pa. St., 466; Nerpel’s Appeal, 91 Id., 334.

A debtor may waive the right of exemption from levy and sale, as respects all his property, and the waiver is valid during his life, but after his decease the contract of waiver does not interfere with the right of his widow or children to retain the property allowed to be set apart to them by statute.

Section 33 of the Act of 1874, provides that all taxes assessed and levied upon real estate in pursuance of said Act, shall be a lien on such real estate, which lien shall have priority and be paid before any judgment or mortgage ; and the defendant in any writ of execution shall not be entitled to claim any exemption under a levy and sale of any real estate charged with such tax against the payment of the same. This Act creates a lien that shall be paid before other liens that are prior in date, and abrogates the debtor’s right of exemption, if any, which existed under prior laws, but leaves the statutory right of the widow or children of a decedent untouched. With regard to the widow’s claim the lien for taxes is no more than that of a mechanic’s lien or a judgment.

In Bower’s Appeal, 68 Pa. St., 126, it was decided that a mortgage is not a waiver of the debtor’s right to exemption as •to prior liens, and the fund for distribution was appropriated first, to the mortgage ; secondly, to the debtor in satisfaction of his claim of exemption; and thirdly, to the judgments prior to the date of the mortgage. But in Huffort’s Appeal, 10 W. N. C., 528, it was ruled that the sum claimed by the debtor for his exemption, should be regarded as one fund, and the residue another; and that a mortgagee whose mortgage is subsequent to the lien of judgments, having a claim on both funds, and the judgment creditors on one only, must exhaust the first fund before resorting to the second. Accordingly, the judgments were paid, and the balance of the fund applied on the mortgage; the debtor got nothing on his claim of exemption. These cases are not easily reconciled. It is recognized in the latter, with reference to the former, that if the fund for distribution does not exceed three hundred dollars, the subsequent mortgage may be paid out of the same, and if there be an overplus it shall be paid to tire debtor on his claim. Plence, Huffort’s Appeal does not qualify tbe decision in Bower’s Appeal as respects the facts in this case.

This fund is less than three hundred dollars. Were there no mortgage the widow would be entitled to tbe whole of it. The mortgage or pledge of the land, subject to the prior liens, cannot prejudice them and ought not to benefit them by dein-ivation of her right. Whatever remains after payment of the debt secured by the pledge, goes to the widow, not to lien creditors who could have taken nothing as against her had there been no pledge or mortgage.

Whether, if the fund were large enough to satisfy the widow’s claim aud all liens prior to the mortgage, but too small to satisfy lier claim, and all liens including the mortgage, she would be defeated, cannot now be determined.

Decree affirmed and appeal dismissed at costs of appellant.