#### Feak’s Appeal.

1. Johnson obtained a judgment waiving the exemption against a defendant owning real estate. Feak afterwards obtained a judgment without waiver against same defendant. Johnson issued an execution, the sheriff levied on defendant’s goods, and Johnson then assigned the judgmeni and execution to Coleman, who ordered the sheriff to return the writ unexecuted, and permitted the goods to remain in the defendant’s possession. Feak afterwards issued execution on.his judgment; the sheriff returned, *“nulla*bona,” the defendant having claimed the beneft of the exemption laws. Coleman after that obtained another judgment against the defendant on which he issued an execution; the same goods were levied on, sold and applied to this last execution. The real estate was afterwards sold, and the proceeds applied to Coleman on the first judgment. *Held,*to be correct; the levying by Coleman on the defendant’s goods was not satisfaction, *pro tanio,*of the judgment, and did not postpone him on the real estate to the subsequent liens.

2. This was not a case of two funds on which one creditor can come whilst another creditor cannot reach one of them. The creditors all had liens on the real estate and right to execution against the same chattels.

3. A creditor who has a waiver in his judgment cannot be required to insist upon it for the benefit of subsequent creditors who have none.

March, 1872.

Before Thompson, C. J., Read, Sharswood, and Williams, JJ., Agnew, J., at Nisi Prius.

Appeal from the Court of Common Pleas of Cameron County, of January Term, 1872. In the distribution of the proceeds of the sheriif’s sale of the real estate of C. M. Coleman.

, On the 15th of July, 1868, C. M. Coleman became the owner of the real estate whose sale by the sheriff produced the fund for distribution. Afterwards the following judgments were entered against C. M. Coleman and others:

1. July 17th, 1868, J. 0. Johnson. No. 66, to August Term, ■1868, for $350. ' . ,

2. August 3d, 1868, same plaintiff, No. 91, to same term, *77for $100. In both of these judgments the benefit of the exemption laws was waived. •

3. February 6th, 1869, Amos Feak, No. 43, to May Term 1869, for $120.

4. Same date, same plaintiff, No. 44, to same term, for $100.

In neither of these judgments was there any waiver of the exemption laws.

On the 30th of August, 1869, Johnson issued execution on his two judgments, 1 and 2. On these executions the sheriff levied on personal property of C. M. Coleman to the value of $308.40. On the 29th of September, John Coleman paid the amount of the judgments, interest and costs, and had them assigned to his son, H. E. Coleman, and directed the sheriff to return the writ of fi. fa. unexecuted. The property was left in the possession of C. M. Coleman. After that time no effort was made by John or II. E. Coleman to enforce these judgments.

On the 17th of December, 1869, executions were issued on the Feak judgments 3 and 4. C. M. Coleman claimed the benefit of the exemption laws; the sheriff, on the 17th of January, 1870, returned “ *nulla bona”*with levy inquisition of the real estate, and that it had been extended.

The following judgments were afterwards entered against C. M. Coleman:

5. January 28th, 1870, John Coleman, No. 9, to April Term, 1870, for $225. .

6. Same date, same plaintiff, No. 10, to same term, for $169.60. Executions were issued, February 26th, 1870.

The sheriff levied on the same personal property as had been levied on under the judgments 1 and 2. It was sold March 10th, 1870, to John Coleman, and the sheriff returned that he had made on them $134.70, and applied the proceeds to the execution No. 9, to April, 1870.

Subsequently the real estate of the defendant was sold by the sheriff for $525 ; the proceeds were brought into court, and referred to F. D. Leet, Esq., as auditor, for distribution. He reported the foregoing facts, and, after deducting costs and expenses, he awarded to II. E. Coleman, on Johnson’s judgment, No. 1 (No. 66 to August Term, 1868), $399.12, being the debt and interest, and on Johnson’s judgment, No. 2 (No. 91 to same term), $41.98.

Feak filed exceptions to the report, amongst others :

2. That the purchase of the judgments, No. 66 and 91, August Term, 1868, by John Coleman, and his taking an assignment to Hugh E. Coleman, and ordering the writs returned unexecuted, and subsequently taking the same prop*78erty in satisfaction of junior liens to these, was a fraud in .fact and in law as to other creditors of the defendant, and as to them a satisfaction of judgments No. 66 and 91, August Term, 1868, to the value of said property, $308.40.

3. In not applying the money in court in satisfaction of judgments No. 43 and 44, May Term, 1869, in preference to judgments No. 66 and 91, August Term, 1868.

4; That while the claimant had two funds out of which he could satisfy his judgments, and the plaintiff* had only one, that the claimant could release the fund upon which the jdaintiff had no lien, allow the same to be applied in satisfaction of junior judgments, and then come upon the remaining fund in preference and to the exclusion of the plaintiff.

Williams, A. L. J., of Eourth District, after recapitulating the facts delivered the following opinion:

“ The holder of the Johnson judgments, who is really John Coleman, claims the amount of those judgements from the fund, they appearing from the records to be the first liens, and the auditor has awarded the fund to them. To this exception is taken, and we are asked to postpone the Johnson judgments to those entered subsequently in favor of Georgia for use of Peak, for the following reasons, viz.: 1st, That the release of the levy made by the sheriff upon the writs issued by Johnson, by the express direction of John Coleman, and his subsequent sale of the same property upon a junior judgment, amounts to a fraud in law, which operates, as to intervening judgments, as a satisfaction of his judgments, to an amount equal to the value of the personal property ; and 2d, that John Coleman having both the real estate and the personal estate to which he could resort, and Eeak having only the real estate, John Coleman was bound in equity to exhaust the personal property, upon the principle that when one has two funds, and another but one out of which to satisfy his judgments, he may compel the creditor who has two to resort to that one which he cannot reach.

“ The case of Hunt *v.*Breading, 12 S. & E., 37, is relied upon as establishing a principle which sustains the first of these positions. In that case it was held that one who has levied on the chattels of the debtor shall not divert the levy to the payment of a younger judgment, to the detriment of an intermediate lien. The primary difficulty with the application of that rule to the case in hand is, that when the levy was released there was no younger judgment in favor of John Coleman. He released the levy oh the 29th of September, 1869; his younger judgments were not entered till the 28th *79of January,1870, and no writs of *fi. fa.*were issued upon them till the 26th of February, 1870, some five months after the return to the writs issued by Johnson, and the release of the levy on the personal property. The fi rst levy was not made use of, therefore, to divert the goods to the payment of any other judgment. The intermediate judgments were not *squeezed*out, as in Hunt *v.*Breading, but the chattels remaining in defendant’s hands -were actually levied upon, by virtue of writs of *fi. fa.*issued upon the intermediate judgments, and were appraised under the exemption laws before the levy under which the chattels were sold was made by the sheriff. The rule established in Hunt *v.*Breading, and the extent to which it has been qualified by subsequent cases, as Cathcart’s Appeal, 1 Harris, 416, and Campbell’s, Bredin & Co.’s Appeal, 8 Casey, 88, need not be discussed at this time therefore. The first levy instead of being used to effect the payment of a junior judgment was simply *abandoned.*Unless a levy is satisfaction *pro tanto*of the judgment upon which the *fi. fa.*issued, the levy made by Johnson affords no reason for interfering with the priorit}7 of his judgments.

“ It is not insisted that a levy upon chattels which is subsequently abandoned amounts to satisfaction *pro*tanto, as to subsequent judgment creditors, where, as here, the property remained in the hands of the defendant, subject to levy, and actually levied upon by such subsequent judgment creditor.

“ Nor does the second reason urged by the exceptor strike us as applicable.. This is not a case where two funds exist upon which one of the judgment creditors can come, while, from one of them another is out of reach. The creditors had all liens on the same real estate. They had all the right to execution against the same chattels. They all levied on the same chattels. The law gives the debtor the right to have property to the value of $300 exempt from levy and sale, and provides that it shall not be subject to levy and sale, bqt shall remain for the use of the debtor and his family. The Supreme Court has held that a defendant may waive this right, but they have not yet held that a creditor who has such a waiver *shall insist upon*it, for the benefit of creditors who have no such waiver. *We*cannot so hold. The plaintiff'; Amos Feak, had all the benefit which he could have derived from his judgments, so far as the personal estate was concerned; if he had been the only creditor he could not reach that which was exempt by law, if his judgment had stood alone upon the records ; he cannot now avail himself of a waiver in favor of another creditor to reach it.

“ While it may be that the judgments in favor of Johnson were really kept on foot by John Coleman fraudulently, yet *80we have no evidence of it before us, and no issue was asked while the case was in the hands of the auditor. On the contrary, the case has been püt by counsel upon the legal questions to which we have already adverted, and which we hold afford us no reason for interfering with the distribution reported by the auditor.

“ The report is therefore confirmed.”

Feak appealed and assigned the confirmation of the auditor’s report for error.

*J. B. Newton*and *B.*Brown, for appellants.

The conduct of John Coléman, under the facts found by the auditor was fraudulent, with intent to hinder, etc., the creditors of C M. Coleman, and keep the goods for his use, and the exemption act cannot be used for that purpose: Bowyer’s Appeal, 9 Harris, 213. The debtor cannot, by means of this act, put one who has no right to the fund in place of one who has, or preferring one creditor to another: Garrett and Martin’s Appeal, 8 Casey, 160; Hill *v.*Johnston, 5 Id., 362; Lauck’s Appeal, 8 Wright, 396 ; Pittman’s Appeal, 12 Id., 320. By reason of the waiver Coleman had two funds to resort to, whilst Feak had but one; Coleman should therefore exhaust the funds to which he had the exclusive resort before he went to that only on which Feak had a lien : Pittmanfs Appeal, *supra.*One of several judgment creditors having levied on personal property cannot release it so as to change its application and obtain a preference on both real and personal : Hunt *v.*Breading, 12 S. and R., 37 ; Taylor’s Appeal, 1 Barr, 390.

J. *II.*Johnston, for appellee.

Every creditor has the right to abandon a levy, and if he does so without collusion with the defendant it cannot disturb his hold on the real estate: Cathcart’s Appeal, 1 Harris, 423; Campbell’s Appeal, 8 Casey, 91; Cummin’s Appeal, 9 W. and S., 73. The rule that a creditor who has two funds shall exhaust one on which a subsequent creditor has no hold before he resorts to that on which only the latter has a hold, is not enforced when it will operate to the prejudice of the party having the double fund. 1 Story’s Eq., sect. 633 ; Brightly’s Eq., sect. 183.

Judgment was entered in the Supreme Court May 13th, 1872.

Per Curiam.

The decree of the court below confirming the auditor is affirmed on the opinion of the learned judge, and the appeal dismissed at the costs of the appellant.