Hoerner ex rel. Cromer v. Cordell

Opinion by William W. Pobteb, J., Had the sequence of liens originally been the two judgments, without waiver, and the bond and mortgage, with waiver, a sale on either the bond or the mortgage would have resulted in the debtor losing his exemption to the extent of his mortgage indebtedness: Hallman v. Hallman, 124 Pa. 347. By the postponement of the lien of that debt he loses it all if the court below be affirmed. Where the debtor has given or contracted several obligations some with and some without waiver, he puts it in the power of the holders to determine, by the order in which the obligations are reduced to lien, whether he shall be deprived of his exemption, in case the debtor’s property be insufficient to discharge all of the liens without leaving a balance for the exemption: Hall-man v. Hallman, supra. The contention here, however, is that the judgment on the bond entered after the two other judg [317] ments, became a lien anterior to them because it related back to the date of the mortgage given to secure it. In a sense the judgment does so relate back as to its lien upon the particular property covered by the mortgage. As to all other properties of the defendant its lien dates from its entry. But the lien of the mortgage was postponed by the act of the mortgagee to that of the two small judgments. The lien of the judgment on the bond was, as to the mortgaged property, only a duplication of the lien already there by virtue of the mortgage and represented the same debt. Release of the lien of the mortgage would work a release of the lien of the judgment on the bond. A satisfaction of either would work a satisfaction of the other. A postponement of the lien of either would work a postponement of the lien of the other. Had there been no agreement of postponement and had the property levied upon and sold under the judgment on the mortgage bond been personalty with the lien of the levy subsequent to levies upon the two small judgments, the debtor would have been deprived of his exemption, and this by the act of the creditors in determining the order in which the writs of execution issued, upon the rule that a waiver as to any lien will inure to the benefit of all prior liens: Miller v. Getz, 135 Pa. 558. Here the property was real estate and the act of the creditor by postponing produced the result of depriving the debtor of his exemption. It is difficult to see why the difference in the character of the property possessedby the debtor should result to his advantage by tying the hands of the creditor in the case of real estate and not in the case of personalty. The mere obtaining of the liens in either case does not thereby deprived the creditor of the right to control them, and to change if he will the order of their enforcement if it be to his advantage. No additional rights accrue to the debtor and none are lost to the creditor by the fixing of the order of the liens in the first instance. It is not alleged that it was agreed that the mortgagee should not postpone his lien, but the claim is that he was estopped from postponing because his act deprives the defendant of his exemption. The injury to the debtor thus resulting is due to the form and character of the obligations given or contracted. By his own act he put it in the power of his creditors to deprive him of his exemption. The creditors had the right to deal with [318] their claims in good faith, in snch manner, as would under the law, best secure their payment. The debtor cannot be heard to complain that they have exercised the power he gave them. The “ distribution is not to be regulated by any wish of his no matter in what form he may choose to express it: ” Bowyer’s Appeal, 21 Pa. 210. We need not discuss the matter of the form in which the claim for exemption was made. The judgment is affirmed. Beaver and Orlady, JJ., dissent.