KEIM vs. LOGAN.
Where a man waives the $300 exemption in a lease, upon an execution issued upon a judgment for money due upon the lease; he cannot claim the exemption, even though the judgment does not show the waiver.
Error to Common Pleas No. 3, of Philadelphia County, No. 91, July Term, 1884.
This was an action brought by John P. Logan against George DeB. Keim, Sheriff of Philadelphia County. A case stated for the opinion of Court was agreed upon as follows :
And now to wit, December 18th, A. D. 1883, it is agreed between counsel, plaintiff and defendant, that the following case be stated for the opinion of the Court in the nature of a special verdict, to wit:—
That on the 28th day of November, 1877, the said John P. Logan leased to one Martin Schultz certain premises situate at *399Nos. 3957 and 3959 Story street, by a written lease reserving rent, which rent the said Martin Schultz covenanted to pay and in which lease the said Martin Schultz waived “all right to the “benefit of any laws now made or hereafter to be made exempting personal property from levy and sale for arrears of rent.”
That under and in accordance with said lease said Martin Schultz entered into possession of said premises, but after-wards failed to pay said rent and removed his goods therefrom.
That on the 20th day of September, 1883, the said plaintiff brought an action of covenant upon said lease in Court of Common Pleas No. 3, of September Term, 1883, No. 345, against the said Martin Schultz, filed a copy of said lease and an averment of the amount of rent due and on the 20th day of October, 1883, duly recovered a judgment in said Court against the said Martin Schultz for arrears of rent for want of an affidavit of defense in the sum of $108.99.
That said judgment contained no reference to the waiver of exemption in the lease, but was simply a judgment entered for want of an affidavit of defense under the affidavit of defense laws, the foundation of said judgment, however, being the copies filed as hereinbefore set forth.
That thereafter, on the said 20th day of October, 1883, the said plaintiff issued a writ of fieri facias in said suit upon which was endorsed by the Prothonotary the words, “Exemption waived,” directed to the said defendant as Sheriff of Philadelphia County, under and by virtue whereof the said defendant, as Sheriff, levied upon said goods of the value of $202.20 — so as aforesaid removed from said premises.
That the said Martin Schultz thereupon claimed the benefit of the Act of 9th April, 1849 and notwithstanding the objection of plaintiff’s counsel that the said Martin Schultz was not entitled to the benefit of said Act, the said defendant, as Sheriff, caused the said goods to be appraised and set apart to the-said Martin Schultz.
That the said defendant, as Sheriff, thereupon made the following return to said writ of fieri facias:—
*400“I hereby certify and return that the defendant has no goods “or chattels in my bailiwick not exempt by the provisions of the “Act of Assembly of April 9th, 1849, and in obedience to the “within writ I seized and took in execution goods to the value “of $202.20, as per certificate of inventory and appraisement “hereto annexed and, he having claimed exemption and elected “to retain said goods, I summoned to appraise the same three “disinterested and competent persons whose appraisement is “hereto anexed and by whom the same were duly appraised in “accordance with the provisions of said Act.
“So answers GEORGE DeB. KEIM, Sheriff.”
That the costs of said suit are the sum of $9.62.
If the Court shall be of opinion, under the above state of facts, that the plaintiff is entitled to recover from the said de - fendant then judgment to be entered in favor of the plaintiff and against the defendant in the sum of $148.61, with interest from the 5th day of November, 1883, to the date of entry of judgment otherwise judgment; otherwise judgment to be enterer in favor of the defendant, the costs to follow the judgment andl either party reserving the right to a writ of error to the Supreme Court as in other cases.
The Court entered judgment on the case stated in favor of the plaintiff. Keim then took this writ of error, complaining of the entry of judgment against him.
Wm. Grew and D. W. Sellers, Esqs., for plaintiff in error,
argued that the judgment did not show the waiver of exemption, as was the case of Case vs. Dunmore, 23 Pa., 93; and Bowman vs. Smiley, 31 Pa., 225.
A. Simpson, Jr., contra,
cited Buildings Association vs. Silverman, 85 Pa., 397; Hicks vs. Brinkworth, 1 W. N. C., 90; Case vs. Dunmore, 23 Pa., 94; Lauck’s Appeal, 24 Pa., 428; Bowman vs. Smiley, 31, Pa., 226; Billmeyer vs. Evans, 40 Pa., 328; Morris vs. Shafer, 93 Pa., 490; Numbers vs. Shelly, 67 Pa., 426.