#### Pearson’s Appeal. [Pentz *v.*Rooker.]

The debtor’s exemption was disallowed in this case, the sheriff having neglected to make an appraisement of the real estates after demand, — the evidence of an agreement to waive the appraisement, and the other facts, being insufficient to save the exemption ; the appeal being by the sheriff.

*Query,*whether an agreement to waive an appraisement of the real estate and come in on the fund is against the policy of the law.

March 8, 1886.

Appeal, of Birge Pearson, sheriff, No. 6, July T. 1885, to review decree of C. P. Northampton Co., dismissing exceptions to report of commissioner distributing fund, in hands of sheriff, under the Act of June 28, 1871, raised by alias vend. ex. No. 109, Dec. T., 1877. Before Mercur, C. J., Gordon, Paxson, Trunicey, Sterrett, and Green, JJ. Clark, J., absent.

The following facts were found by the commissioner, F. W. Edgar, Esq.:

Lenora Pentz and Aaron Serfass held judgments against William Rooker, upon which executions had issued. Serfass, the second lien creditor, was the purchaser. The whole amount of the price which Serfass bid and at which the real estate was sold to him, viz., $¡410, had been actually paid to Birge Pearson, sheriff. This amount, less the costs of the execution, was the fund in dispute. The judgment upon which the ven. ex. issued was the first lien. It was for $300 and interest from April 1,1877. Aaron Serfass had the next lien, a judgment, for $61, No. 150, June T., 1877. Serfass claimed the fund by virtue of his execution and his second lien. Rooker claimed about $275, the balance of his $300 exemption. About $25 worth of personal property had been set off to him on account of exemption when the fi. fa. was levied. These two, Serfass and Rook-er, were the only claimants. It appeared clearly from the testimony that Rooker’s wife, and also his attorney, had each, in behalf of the defendant, and in proper time, demanded of the sheriff the exemption out of the real estate. The writ of fi. fa. with the attached con*679demnation and return, as well as the distinct admission of Pearson, in his testimony before the commissioner, showed that no appraisement of the real estate for'that purpose had been made as required by §§ 3 and 4, of the Act of April 9, 1849, Purd. 638, pi. 22, 23.

The commissioner awarded the fund to Serfass, after deducting the costs, and suggested that if Rooker’s demand for exemption had been in time and properly made, his remedy was against the sheriff. He could not come on the fund in court. Vide cases cited in notes Br. Purd. Tit. Execution, pp. 637-8.

The report was presented May 1, 1878, and filed in open court and, on proclamation, confirmed nisi. May 16, 1878, Mr. Kachline, on behalf of Rooker, filed exceptions to the report to the effect that the commissioner erred in disallowing, under the facts found, the $300 exemption claimed by the defendant out of the fund. It does not appear from the record that these exceptions were argued. But Sept. 16, 1878, an affidavit was filed by Mr. Kachline, setting forth that “ further testimony had since been ascertained to the effect that Aaron Serfess, by language, promise, inducement and conduct, made himself liable to the sheriff to pay the sum of $300 in dispute to the defendant,” and that, on account of the liability of said several parties ( Serfass and the sheriff) to the defendant, the costs of the commission could not be taken from the fund. Upon motion, the report was referred back to the commissioner to take additional testimony.

No additional testimony was taken, nor any farther proceedings had until nearly six years after the order of reference.

But on Jan. 28, 1879, Mr. Kachline caused a summons to be issued at the suit of William Rooker against Birge Pearson to Feb. T., 1879, No. 100. The record is as follows:

Feb. 10, 1879, affidavit of claim and narr filed. The cause of action was stated to be damages arising from the neglect of the sheriff, after demand of defendant by his wife and attorney, to cause an appraisement to be made of the real estate for the purpose of setting off $300 worth under the exemption law. Feb. 13, 1879, affidavit of defence filed setting forth a release from plaintiff of all claims arising under the alleged facts contained in the affidavit of claim. Feb. 14, 1879, rule by plaintiff’s attorney to choose arbitrators. Feb. 15, 1879, petition by defendant with affidavit, setting forth that he had paid and fully discharged, since the impetration of the writ, all the demands of the plaintiff, and that Mr. Kachline, attorney of record, had proceeded in the cause without Rooker’s authority, and praying for a rule on Kachline to file warrant of attorney and on plaintiff to give security for costs, and that further proceedings be stayed until said rules be disposed of by the court. Same day rules allowed, returnable to the first Monday in March then next. On Jan. 3, 1881, the rules were made absolute and judgment of non-suit entered. The same day the costs were paid and, Jan. 4, 1881, Birge Pearson satisfied the judgment.

*680Nothing was done under the order referring the report back until about July 1, 1884.

At this hearing, it appeared that Mrs. Pentz, on the day of the sheriff’s sale, assigned her judgment to Serfass, but the assignment was not placed upon the record.

There was evidence that John C. Merrill, Esq., attorney for Mrs. Pentz, agreed with the attorney for the defendant, that the appraisement of the real estate should be omitted in order to save costs.

The commissioner further reported as follows :

“ Both Rooker and Pearson testified that the suit of Rooker against Pearson was compromised by Pearson paying Rooker $150, and that the understanding was between them that Pearson was to take Rooker’s rights in the matter against the fund. The release from Rooker to Pearson was in writing but was not produced.

“ Mr. Scott contended that the agreement made with Pearson by Merrill and Kachline was competent to bind the plaintiff ( Mrs. Pentz ), and entitle Rooker to the exemption out of the fund. He argued that the appraisement was a benefit to the plaintiff, for, without such a provision in the law, if the sheriff were to set off the property, he might set off too much. So that, when the plaintiff or his attorney waived the right to have an appraisement made in order to save costs, and agreed that the defendant should come upon the fund, the contract was supported by sufficient consideration. That Mr. Pearson and Mr. Rooker had no notice of the assignment of the judgment to Serfass either actually or by entry on the record so that Serfass was bound by the agreement made by Merrill, attorney for Mrs. Pentz. And that, at any rate, Mr. Allis, attorney for Mr. Serfass, assented to it by conduct at least, after the sale under the ven. ex. was set aside and before the sale upon the al. ven. ex. was made. That, after the compromise with and payment to Rooker, and by virtue of his agreement with him, Pearson became subrogated to Rooker’s rights and is now himself entitled to the amount of the exemption out of the fund. And, even if the subrogation extended only so far as the amount paid Rooker, Rooker was then entitled to the balance.

“ Mr. Allis contended that an agreement to omit the appraisement was not proved; and, though the auditor might find the fact otherwise, yet an agreement between the • attorneys for Pentz and Rooker would not be sufficient to bind the parties. That, even if' they were bound, the agreement was not in writing nor entered on the record, so Serfass could not be affected by it. That Rooker’s only remedy was against the sheriff and not against the fund. That Pearson could not take by assignment or subrogation any of Rook-er’s rights, and even if he could, Rooker having no right to come upon the fund because there had been no appraisement of the real estate, Pearson took nothing by the transfer. That Serfass was entitled to the fund.

" Without deciding the question whether the alleged oral agree*681ment between the attorneys of record with the sheriff to omit the appraisement was in fact made, but assuming it to have been made as alleged by Pearson, the main question confronts us: Would Rooker then have a valid claim upon the fund for his exemption ? All the other questions presented are of necessity subsidiary to this.

“ A defendant may waive the appraisement either in writing or tacitly by neglecting to demand it. The effect in either case is the loss of the exemption. See'Bowyer’s Ap., 21 Pa. 210; Bowman *v.*Smiley, 31 Pa. 225; and Kerns *v.*Beam, 11 L. Bar, 183. The defendant cannot waive the appraisement and save the exemption. Nor has he any power to compel the appraisement. He has no control over the matter. All he can do is to make his demand.

“ If the sheriff refuses or neglects to make an appraisement, he is liable to the defendant, but the defendant cannot come upon the fund: Marks’s Ap., 34 Pa. 36; Nyman’s Ap., 71 Pa. 447.

“ The object of the statute provision is to prevent a sale of exempt property: Neff’s Ap., 21 Pa. 247.

“ The plaintiff can never be benefited by an appraisement; but its omission may benefit him either by saving costs, or as an equivalent, so far as he is concerned, to a waiver of the exemption: See Hatch *v.*Bartle, 45 Pa. 166; Boas *v.*Fendler, 2 Pears. 361.

“ The plaintiff has no power under any circumstances to prevent or control an appraisement.

“ If $300 worth of real estate is cut off, the appraisement benefits the defendant. If it cannot be cut off, the effect of the appraisement is only the determination of that fact and the fund is substituted for the land. The appraisement is a duty put upon the sheriff by the statute. He must decide at his peril whether the defendant is entitled. The court will not advise him: Thornton *v.*Aubrey Co., 5 W. N. C. 428. Nor is an appraisement the adjudication of the defendant’s rights. It may be set aside: Seibert’s Ap., 73 Pa. 359. If no appraisement is made and the plaintiff permits defendant to draw his exemption out of the fund, he in effect discharges the sheriff’s liability. He pays the sheriff’s debt.

“ It is evident, therefore, that any agreement between plaintiff and defendant by which the appraisement is to be omitted and the defendant to be permitted to come upon the fund, is without consideration moving from the defendant; the promise of the plaintiff is nudum pactum. At any rate, it is a promise without any inducement from the payee (defendant) to answer the default of another (sheriff).

“ But if the agreement is made between the plaintiff and the sheriff, the promise of the plaintiff to permit the defendant to come upon the fund is really an agreement to indemnify the sheriff against liability for neglecting to appraise, or a promise to permit him to appropriate funds in his hands technically belonging to plaintiff to that purpose. The only consideration is the saving of costs, which of course only applies to a case where the land cannot be divided *682and will bring at the sale less than the amount of the exemption, debt and costs. In other cases there would be no inducement whatever moving from the sheriff, and the promise would be nudum pactum.

“ Where the money has been ruled into court, it is difficult to conceive how the defendant could avail himself of an agreement between plaintiff and sheriff to which he is not a party. When there has been no appraisement, a decree in favor of the defendant would be error: Weaver’s Ap., 18 Pa. 307.

“ And if the plaintiff makes demand of the sheriff, his promise is at best but a promise to indemnify. It is a private obligation, which .the sheriff cannot set off against the plaintiff’s demand for the whole fund: Fitch’s Ap., 10 Pa. 461.

“ It must be borne in mind that, so soon as the defendant demands his exemption and makes his election, the sheriff’s liability is fixed; it can only be discharged by appraisement or payment.

“ Now, suppose the agreement be tripartite between the plaintiff, defendant and sheriff, the trilateral contract must be analyzed thus: The defendant excuses the sheriff from making the appraisement in consideration that the sheriff will pay the exemption, the plaintiff promises to indemnify the sheriff upon consideration that appraisement be omitted and the costs saved, and the plaintiff promises to pay the amount of the exemption to the defendant, i: e., without consideration moving from defendant to him, he assumes the liability of the sheriff.

“ While, under such an arrangement, the defendant might have an action against the sheriff and the sheriff against the plaintiff, yet the defendant could not have an action against the plaintiff unless the promise was in writing.

“ The proceedings under the exemption law are entirely collateral to the various processes of execution. They are set in motion by the defendant, and, having made his demand and election, he has nothing more to do. Any irregularities or omissions in the proceeding may affect the officer; they cannot deprive either party to the writ of any right. But irregularities in the process, by which judgment is obtained, the execution of the fi. fa., levy, inquisition, condemnation, advertisement, ven. ex., sale and acknowledgment of sheriff’s deed, affect the parties and may render the whole proceeding void, or the irregularities may be such that silence, or lapse of time, or pleading, or verdict will cure them, or they may be distinctly waived.

“ The statute provides a method by which inquisition may be waived; but it must be in writing. Yet the defendant’s attorney of record has no power to waive inquisition: Hadden *v.*Clark, 2 Gr. 107. 1 The waiver of inquisition is the nearest analogy to the waiver of appraisement, so it seems clear that attorneys of record would have no power to waive appraisement. It has never been pretended that defendant’s attorney could waive exemption, and it is hardly *683conceivable that an attorney of record has power to make a collateral agreement that would bind his client to pay money or to answer for the default of another, much less that such an agreement, not even entered on the record, would bind an assignee of the judgment. The powers of attorneys, as determined by decisions in Pennsylvania (vide Br. Dig., Tit. Attorneys ), are very ample, but do not extend beyond the methods of conducting the suit and matters strictly incidental thereto.

“ It is evident that any agreement, even when made by the parties themselves, as to the appraisement, is merely personal and entirely collateral to the matter in suit; it would not restrict the judgment nor affect the execution; consequently, unlike payment or agreement to allow a rebate, or stay of execution, or to waive irregularities in the process, it cannot attach to the judgment. And, especially when such an agreement is not entered on the record, it seems very certain that the assignee of the judgment is not bound by it.

“ Birge Pearson bases his claim distinctly upon the doctrine of subrogation to Rooker’s rights, and Rooker claims any balance that Pearson is not entitled to. It makes no difference whether Rooker has the power to transfer his rights to Pearson or not, nor whether the doctrine of subrogation applies here if Rooker never had any right to come upon the fund. Even assuming all the allegations of Pearson and Roo.ker to be true, I have shown that Rooker never had, and cannot have, any right to his exemption out of the fund in court. Having reached this conclusion, it is, of course, not worth while to discuss the other merely subsidiary questions.”

The auditor reported a schedule of distribution awarding the fund to Aaron Serfass.

The following exceptions were filed to the report of the auditor by Pearson and Rooker:

1. That the auditor erred in not awarding the fund in court to Birge Pearson; 2, in not awarding $150 of the fund to Birge Pearson ; 3, in not awarding the fund to Birge Pearson and to William Rooker; and, 4, in awarding the fund to Aaron Serfass.

The exceptions were dismissed and the report confirmed, in the following opinion of the court below, by Schuyler, P. J. :

“ The fund for distribution consists of the proceeds of real estate, and the only question before us grows out of the defendant’s claim for his exemption under Act April 9, 1849. It is admitted that the defendant made a demand upon the sheriff for an appraisement in due time and in proper form; but it is also admitted that the sheriff did not make an appraisement as required by the Act. This, we think, is fatal to defendant’s claim.

“ ‘ The Act,’ says Gordon, J., in Hufman’s Appeal, 81 Pa. 331, ‘ contemplates the setting apart for defendant’s use *real estate,*and not money arising from it, *and it is only where, by the action of the appraisers,*it is shown that the land cannot be divided, *that he may**684*be permitted to take money!*So in Marks’s Appeal, 34 Pa. 37, Thompson, J., says: ‘ The law deals with the defendant’s demand as an election to have his exemption in *land,*and he could *only take the money*in lieu of land, if that amount in value of land *could not beset off to him by the appraisers*without injury to or spoiling the whole.’

“ It is thus seen that, before a debtor can come in on the proceeds of real estate for his exemption, he must show, as a necessary condition precedent, an unsuccessful effort to appraise to him a portion of the real estate itself. Nothing else will do. So the legislature have said, as their language is interpreted by the supreme court. Even if this were a purely arbitrary provision, it would have to be complied with; but it is not an arbitrary provision. ‘ In,exempting from execution *property*to the value of $300,’ says Lewis, J., in Weaver’s Appeal, 18 Pa. 309, ‘ the primary object of the legislature was to preserve for the use of the debtor *and his family*either a home or such articles of personal property as were necessary for their comfort. The payment of money arising from the sale of articles necessary to the enjoyment of life would but lead an improvident or an intemperate debtor into temptation to permit his family to be deprived of these necessary articles in order that he might have the means of indulging in the habit which had brought the sheriff to his door. The debtor who permits his family to be deprived of articles necessary for their use, and which the law authorizes him to retain, *may well be suspected of an intention to deal unfairly by them!*

*“*It follows, from what has been said, that compliance with the requirements of the Act cannot, on any pretext whatever, be dispensed with by agreement of the parties. To hold otherwise would open the door to collusion, which, in the very cases appealing most strongly for the protection of the courts, would be utterly subversive of the benign purpose of the legislature toward the *family*of the defendant in the execution.

“ Nor can we see what the doctrine of estoppel has to do with this matter. Suppose the plaintiff is estopped from denying the defendant’s right to his exemption, the defendant must still establish his right by showing that the requirements of the Act have been complied with. Without this, we would be powerless to award him any part of the fund in court, even though the plaintiff stood by assenting thereto. But an agreement to waive the appraisement directed by the Act, as has been seen, is against the policy of the law and cannot, we think, be made the basis of an estoppel. In the view we have taken, it becomes unnecessary to notice the other points made on the argument.”

*The assignments of error*specified, 1-4, the action of the court in not sustaining the exceptions to the report of the auditor, quoting them.

The appellee, in his paper-book, moved to quash the appeal for the reasons stated in the argument below.

*685*Henry W. Scott,*for appellant.

The plaintiff in the execution is bound, by estoppel, to permit the balance of defendant’s exemption to be drawn from the fund, after the sale upon execution process.

As between the plaintiff, defendant and sheriff, there was a valid consideration, which would estop him from denying the right of defendant to the fund after sale. An appraisement of property for the debtor, is for the benefit of the creditor; the debtor's rights are preserved whenever he makes his demand. If not allowed, he has a remedy against the officer. An appraisement is to prevent more property than is necessary to meet defendant’s claim, from being withdrawn from the execution. The promise of the plaintiff, upon sufficient consideration moving to him, to wit, the payment of amount of costs of appraisement which would be made, to his execution, is a contract either to estop him from saying that defendant should not be paid, or to indemnify the sheriff against any action or demand of the defendant, for refusal to hold an appraisement.

The law of estoppel would apply also in favor of the sheriff against the plaintiff, because, by reason of the promise that defendant should have his exemption out of the fund, without an appraisement, the officer is induced to omit the appraisement and render himself liable.

The assignment of judgment to Serfass, not being recorded (and without notice), gave him only the rights of the assignor, the plaintiff in the execution: Mellon’s Ap., 96 Pa. 475 ; Fraley’s Ap., 76 Pa. 42; Fisher *v.*Knox, x 3 Pa. 626; Campbell’s Ap., 29 Pa. 402.

Even if notice of his assignment had been given by Serfass while the sale was in progress, it made no difference. He took his judgment, so assigned, with the rights of all parties, as they existed then. If the assignor failed to disclose the circumstances to him, it might furnish a remedy against his assignor, but could not affect the rights of the sheriff or the defendant, under a contract made upon sufficient consideration.

Before notice of this assignment to defendant (who never had notice before sale), payment to the assignor, and satisfaction, would have extinguished the judgment: Bury *v.*Hartman, 4 S. & R. 175 ; Brindle *v.*Mcllvaine, 9 S. & R. 74; Hodgdon *v.*Naglee, 5 W. & S. 217.

The agreement made with the sheriff by counsel for plaintiff and defendant in execution was binding on their clients : Lynch *v.*Com., 16 S. & R. 368; Patterson *v.*Cummin, 2 P. & W. 520.

The appellant having paid defendant’s exemption, under agreement for subrogation, becomes entitled to enforce his remedy by equitable assignment, without a writing: Brice’s Ap., 95 Pa. 145; Robb’s Ap., 41 Pa. 45 ; Mosier’s Ap., 56 Pa. 76.

The sheriff, in paying the exemption, was not a mere stranger and volunteer. If the fund was not liable, the sheriff was; and is entitled to this appeal. The principle that a defendant cannot assign his exemption, is not opposed to appellant’s rights here. If his ex*686emption is paid, by a person not a mere volunteer, the assignee takes his place.

*Elisha Allis,*for appellee.

This appeal should be dismissed, as the appellant is neither party nor privy to the record. Either with or without an assignment, he cannot succeed to the rights of Rooker, if any: Bowyer’s Ap., 21 Pa. 214; Morris *v.*McCulloch, 83 Pa. 37. A writ of error can only be brought by him who would have had the thing, if the erroneous judgment had not been given: Williams *v.*Gwynn, 2 Saund. 246, note 6; Steel *v.*Bridenbach, 7 W. & S. 150; McCabe’s Ap., 22 Pa. 427. Executors, as such, have no right to appeal from a decree distributing funds in their hands : Stineman’s Ap., 34 Pa. 394; Gallagher’s Ap,, 89 Pa. 30. See, also, Constine’s Ap., 1 Gr. 242; Craig’s Ap., 38 Pa. 330; Cadmus *v.*Jackson, 52 Pa. 295.

This waiver of appraisement was an invention. If not, why was it not proved at the first hearing ? It is not claimed that Mrs. Pentz agreed to it; her counsel could not: Stackhouses. O’Harra’s Exr., 14 Pa. 89 ; Stokely *v.*Robinson, 34 Pa. 315 ; Housenick *v.*Miller, 93 Pa. 514. He could not even have waived inquisition : Hadden *v.*Clark, 2 Gr. 107.

A debtor can not assign his exemption : Bowyer’s Ap., above ; Shelly’s Ap., 36 Pa. 373 ; Laucks’s Ap., 44 Pa. 396 ; Numbers *v.*Shelly, 78 Pa. 426. Neither can he assign a right of action for taking away that exemption : Morris *v.*McCulloch, above.

But appellant repudiated Rooker’s claim by the judgment of non-suit. Hence he could not claim advantage from it, for the reason that a party may not claim in repugnant rights: Hall *v.*Lacy, 37 Pa. 366; Baily *v.*Baily, 44 Pa. 276; Lentz *v.*Lamplugh, 12 Pa. 346.

When the commissioner’s report was filed May 6, 1878, the appellant had full knowledge of his position and' his duty: Butcher *v.*Yocum, 61 Pa. 171. He must be conclusively presumed to have known the law: Light *v.*Light, 21 Pa. 4x2.

The presumption is that the appellant used the funds, and he had ample opportunity to show that he held them officially on deposit in bank: Reed *v,*Reed, 1 W. & S. 239; Rushton *v.*Rowe, 64 Pa. 63. In Com. *v.*Crevor, 3 Bin. 121, a sheriff, in whose hands money had' been placed by agreement of the .parties, was held liable for interest, after he had drawn out the money. This case is followed in Miller *v.*Orleans Bank, 5 Wh. 505 ; Woodz/. Robbins, 11 Mass. 505. See, also, People *v.*Gasherie, 9 Johns. 71; The Santa Maria, 10 Wheat. 441. As bailee, if he used the fund, he must pay interest: 2 Pars. Cont., 6th ed., pp. 104, in : Edwards, Bailments, 1st ed., pp. 89, 90.

Pie made all the costs of the supplemental reports and of this appeal, without warrant of law. He must pay them: Canby *v.*Ridgway, 1 Bin. 496; Utt *v.*Long, 6 W. & S. 178; Larimer’s Ap., 22 Pa. 41; Patterson’s Ap., 1 Pitts. 135 ; Harland’s Est., 3 Pa. L. J. 118 ; *687Bowers *v.*School Board, 2 Pears. 228; Wabass *v.*Armstrong, 2 Stock. 266; Am. Sewing M. Co.’s Ap., 83 Pa. 198, 203 ; Gambers *v.*Robinson, 1 Pears. 67; Moore’s Ap., 50 Pa. 252. He should be amerced pro falso clamore: Musser *v.*Good, 11 S. & R. 250; Tatham *v.*Crawford, 2 W. N. C. 367; Gallagher *v.*Milligan, 3 P. & W. 178.

March 22, 1886.

The appellant should be decreed to pay, with the costs of this appeal, an attorney fee and the cost of printing the paper book of the appellée, under the Act of May 28,1874, P. L. 227, 1 Purd. 707, pi. 28 ; Pass. R. R. *v.*Phila., 51 Pa. 468 ; Wood *v.*Robbins, above; Crane *v.*Dygert, 4 Wend. 675.

As to the assignment of the Pentz judgment, appellant had actual notice. An assignment need not be made. The risk Serfass ran was that Rooker, if without notice, might have paid Mrs. Pentz: Henry *v.*Brothers, 48 Pa. 70; or a subsequent assignee of the judgment: Campbell’s Ap., 29 Pa. 401. The right of substitution is everything; actual substitution, nothing: Fleming *v.*Beaver, 2 Rawle, 132. Actual notice of an assignment of a judgment is sufficient ; it need not be entered of record : Kellogg *v.*Krauser, 14 S. & R. 143; Guthrie *v.*Bashline, 25 Pa. 80. The sale of a judgment is good, though made by parol : Levering *v.*Phillips, 7 Pa. 389. See, also, Gratz *v.*Farmers’ Bank, 5 Watts, 99; Campbell’s Ap., above.

Per Curiam,

Without affirming the correctness of all the reasons given by the learned judge, we think the facts fully sustain the decree. The assignments of error are without merit.

Decree affirmed and appeal dismissed at the costs of the appellant.