Pauley's Estate

Opinion by Mr. Justice Green, In the case of White v. Crawford, 84 Pa. 433, we decided that, upon a sealed judgment note made in 1873, and containing a waiver of stay of execution, it was not competent for the court of common pleas to grant an order of sale under the act of Feb. 17,1876, to the debtor’s assignee for the benefit of creditors, where the payment of the purchase money was postponed for an unreasonable time. We held that the provision in the sealed note for a waiver of stay of execution was a contract right of the creditor, which a subsequent statute could not take awajr from him, and therefore an order staying execution, which was part of the order of sale granted to the assignee under the act of 1876, was inoperative as to the plaintiff in the judgment. Another reason for the decision was, that the length of time fixed in the order for the payment of the purchase money was an unreasonable postponement of the right of collection. In the present case no question of this character arises, for the reason that the judgment of the appellant was not obtained until the year 1881, at which time the act of 1876 was in full force. That act was necessarily applicable to all cases arising after its passage. When the appellant obtained her judgment she knew that it was subject to the operation of the act of 1876, and that, under that act, if her judgment debtor made an assignment for the benefit of his creditors, it was within the power of the court of common pleas to grant an order of sale to the assignee, in the circumstances mentioned in the act, and, as a part of their order, to direct a stay of execution on all liens that might be divested by the sale. The appellant is not in condition to say that the act of 1876 made any change in her contract rights precisely as they were at the time she obtained [200] her judgment. It is true that the act of 1876 does not specifically say that, in cases where stay of execution was waived in the contract, the court might order a stay, but the language is so general and comprehensive that it embraces all liens of whatever kind that may be divested by the sale. The appellant’s judgment is such a lien, and it is therefore embraced within the terms of the act. We have no difficulty in holding that, so far as this matter is concerned, the appellant’s contention cannot be sustained. Upon the facts of the application for the order of sale, we think it clearly apparent that the case is one eminently proper for the exercise of the power of the court to grant the order. The act was intended, and it expressly so declares, to apply to cases where the real estate is “ incumbered with liens to such an extent as to render it difficult to determine whether the same can be sold for enough to pay all the liens.” That was precisely the case here. The liens were somewhat in excess of the appraised value, but the appraised value may not be the real value, and may not be so much as the proceeds of the sale. It is alleged here that the liens are stated excessively in respect that one of them is duplicated in the amount of another. We do not think the difference, even in the amount of the appraised value and the aggregate of the liens as most largely stated, is sufficient to relieve the case of the uncertainty which gives the court jurisdiction to grant the order. It seems to us, therefore, an entirely proper case for the granting of the order. The property consists of a number of pieces of realty, part in the country and part in the town, one of the items being an undivided interest in a large tract of land with coal underneath it. In such circumstances it would be impossible to speak with certainty as to what the several properties might bring when sold. The cases cited in the appellant’s argument, other than White v. Crawford, supra, have no application to the present question. In the case of Thompson’s Ap., 126 Pa. 467, we affirmed the power of the common pleas to grant these orders of sale and to stay execution, in the broadest manner, and we think the present case comes fully within the effect of that decision. Order affirmed.