Commonwealth ex. rel. Collins v. Boyd

The opinion of the court was delivered, January 7th 1868, by Thompson, C. J.

This case arises under the $300 Exemption Act of 9th April 1849, and presents singly the query, in case of levy on real estate and inquisition waived, when a demand of exemption will be effectual ? The learned Judge of the Common Pleas held that it was in time if made on the day of the waiver, but not on the next or any day thereafter, and relied for this on what was said in Bowyer’s Appeal, 9 Harris 210. .

In that case it was denied altogether to a debtor who waived inquisition and consented to condemnation and sale on the fi. fa. *404 .The reasons for this seem to he that it might delay a sale in case the appraisers under the exemption claim should report in favor of setting off a portion of the premises to the debtor, as it would be the duty of the sheriff to make return of that fact on the writ, so that a venditioni might issue to sell the residue. At the very worst, in such an event, the delay would be no greater than in the ordinary mode of proceeding where inquisition is not waived and the exemption claimed. But if the appraisers should report that the property could not be divided without spoiling the whole, then the sale would proceed on the fi. fa., and a term would be saved to the creditor. In a large majority of cases the waiver would therefore expedite the recovery of the money, and in none could it be delayed by reason of the demand beyond the period requisite to complete a sale where there is no waiver. Eor these reasons we held, in Shaw’s Appeal, 13 Wright 177 , that a claim for exemption might be made on waiving inquisition.

But when must it be made ? is the question here. I think that is answered by Bowyer’s Appeal, where it is said, “ In cases where no inquisition is required by law (for instance, when the execution is,pn a mechanic’s lien), the request for an appraisement must be made before the plaintiff has incurred the expense of advertising.” It is well settled that no inquisition is required where there is a waiver of it, and that a sale in such circumstances on the fi. fa. will be good; and why deny the rule its application to that case ? The statute allowing exemption is reasonable and beneficent, and ought not to be so construed as to defeat the intention of the legislature, unless unavoidable. Although cases of waiver of inquisition were not probably in the mind of the legislature in passing the act, yet there is nothing to prevent a defendant from waiving his rights in such a case, as in the ordinary proceeding to effect a sale.

In numerous cases this court has held that the demand for appraisement is in time if it does not delay the plaintiff; and that has been generally defined to be any time before advertisement. It is true, most of the cases in which this has been said, were cases of sales of personal property; but there is no conceivable reason why the rule should not be the same in all cases; and it is suggested as proper in Bowyer’s Appeal in regard to the sale of real estate when no inquisition is necessary. See also 1 Wright 425 ; 3 Id. 213 ; 1 Casey 182; 3 Id. 187 ; 7 Harris 255 ; 8 Id. 141.

The presentation of the case is somewhat defective in not showing the date of the levy on the real estate. But if I comprehend the sheriff’s amended return, there was a demand of exemption at the time of the levy on the personal property, and he caused it to be appraised and set off to the defendant, “ whereupon I levied and sold the real estate per endorsement on this *405 writ.” In the natural order of events, as presented by this return, the levy oh the personal property and demand of appraisement preceded the entry of the levy on the real estate. If so, it was not possible it could have been after advertisement.

Indeed, if the testimony of one at least of the appraisers be true, the plaintiff below reiterated his claim of exemption out of the real property, while the appraisement of the personal was progressing. It is not very material to inquire at this time minutely as to this, there being enough on the record to show that the property was not advertised when the demand for the appraisement was made. If this were so, the court erred in deciding that the .defendant in the execution was too late in making his demand for exemption. No question was raised in the case as to the fact of a demand, and we must take it there was no room for dispute on. that point; but, for the reasons given, we think the judgment ought to be reversed.

Judgment reversed,' and venire de novo awarded.