Moore v. McMorrow

Opinion by

Rice, P. J.,

In May, 1895, judgment was entered against the defendant before a justice of the peace, upon which an execution was issued, Avhich was returned “ no goods.” A transcript was filed in the common pleas and an execution issued to November term, 1895, which was returned nulla bona. An alias execution issued on December 10, 1895, to February term, 1896, upon which an inquisition was held on March 12, of Avhich the defendant had personal notice on March 5. A vend. ex. issued on April 13, 1896, after which date, — but whether before or after the land was advertised for sale does not appear — the defendant gave the sheriff notice that she claimed the benefit of the $300 exemption law and demanded an appraisement. Notwithstanding her claim, the sheriff sold the property for $171, and made a special return under the act of 1846 that the purchaser had paid $50 in cash, which was appropriated to the costs of the writ, and had given a receipt upon his judgment for the amount of the balance of his bid.

The question raised in the court below by the exceptions to the return, and in this court by the assignments of error, is whether the defendant was entitled to have the proceeds of the sale set apart to her under her exemption claim.

The act of 1849 instead of exempting certain specific property from sale exempts such as the debtor claims to have exempted to the value of $300. It gives to the debtor a right to be exercised within a reasonable time. Failure to exercise the right within a reasonable time after notice of the execution is deemed a waiver of it, and properly so. What is a reasonable time within which the debtor must exercise this right depends upon the circumstances of each particular case. No fixed and unvarying rule can be laid down, that it must be before inquisition or before advertisement of the property for sale; such a rule would be convenient because it would be easy of application, but it would have no other merit. For there may be a waiver of inquisition in the warrant of attorney confessing judgment, and in such case there may be an immediate advertisement upon the issuance of the writ. But where the defendant has ample notice of the inquisition, and lies by and allows the property to be condemned, and a return of the writ to be made may not the execution creditor fairly and reasonably infer that he does not intend to assert his right to the exemption? Undoubtedly he may. And if, acting upon this reasonable supposition, induced, by the defendant’s silence, he goes on and makes further costs in the collection of his just debt it would be manifestly unjust to say that the negligent debtor may stay the proceedings and cast the burden of the costs, thus incurred, whether heavy or light, upon the plaintiff who is in no fault. If there were any equitable method by which the creditor could be protected against this loss and injury induced by the debtor’s laches, as for example by tender and payment of the costs, there would be some plausibility in the claim that there was not an absolute forfeiture of the debtor’s statutory right by his delay. But unfortunately for the defendant in the present case no such method is recognized by the decisions; and, even if, notwithstanding the construction which has heretofore been given to the act of 1849 we were to recognize it as at all practicable or allowable under special circumstances, it could not be recognized here because the defendant did nothing, and offered to do nothing, which would protect the plaintiff against the loss he would sustain if her claim had been allowed — a loss too which would have been avoided if she had been reasonably diligent in exercising her right. Therefore the court below was quite right in holding that her claim came too late, and that the sheriff was not bound to suspend, and would not have been justified in suspending the execution of his writ. The ruling is sustained by a long line of decisions, which it is unnecessary to cite, and is not in conflict with any of the late decisions cited by the defendant’s counsel. In Williamson v. Krumbhaar, 132 Pa. 455, the levy was upon personal property, and the exemption was claimed before a day of sale had been fixed, advertisements posted, or other expense incurred in executing the writ. In Snyder v. Sehmick, 166 Pa. 429, there was a waiver of inquisition and the exemption was claimed within ten days after the writ issued. In Hart v. Hart, 167 Pa. 13, the demand was made a few minutes after the land was condemned and before the writ was returned. There was not as here, a delay of more than a month after the inquisition and until after the plaintiff had incurred the costs of a vend. ex. None of these cases disturb the well settled rule that the claim “ must not be unnecessarily delayed until costs have been incurred'which otherwise might have been readily avoided.”

The order is affirmed and appeal dismissed at the costs of the appellant.

Beaver, J., dissents.