
    REILLY’S APPEAL.
    Where a creditor issues execution and sells property of his debtor; the execution creditor, and not the assignee for creditors of the debtor, is entitled to the fund on a distribution.
    Appeal from the Court of Common Pleas of Adams County. No. 41, May Term, 1879.
    The facts of the case appear in the opinion of the Court on a motion to take out of court the money returned on a writ of fi. fa; which was delivered by
    McLean, P. J.
    The defendant, Hanson Stonesifer, by deed of assignment dated March 28th, 1878, conveyed all his estate to Abraham Gr. Keagy, in trust for creditors, except such and so much as may be exempt from execution, and the deed was recorded the same day in the ■Recorder’s office. On the 1st of April following, Mr. Keagy, the assignee, presented his petition to the Court, asking for the appointment of appraisers for the assigned estate, and appraisers were, the same day appointed. On April 24th, 1878, Henry Sell obtained judgment in this court against Hanson Stonesifer et al. for $188.14, upon suit on a note waiving the right of exemption, and on April 26th, issued execution, which came into the hands of the Sheriff the same day, and which was levied on the goods of Stonesifer, and sale made of the same, May lltli, 1878. On April 29th, 1878, whilst these goods were in the Sheriff’s seizure under the fi. fa. aforesaid, the petition of Hanson Stonesifer and Abaham Gr. Keagy was presented to Court representing that Mr. Keagy had not caused any inventory and appraisement of the estate assigned to be made, and had not taken possession of the same, and refused to act under said deed or execute the trust, and the Court was asked to appoint an assignee in room of Mr. Keagy. Thereupon the Court directed due notice to all' parties concerned by publication in one newspaper for three weeks, parties to appear on 27th of May, 1878, and on May 28th, Michael Reilly, Esq., was appointed assignee by the Court.' On June 17th, on motion of the plaintiff, in the judgment, a rule was granted to show cause why plaintiff should not be allowed to. take out of the Court the money made on the fi. fa. On the return day of this rule, August 17th, Hansou Stonesifer and Michael Reilly, the assignee, offered and filed an answer, setting forth that a paper dated and delivered to said assignee on April 20, the assignor agreed to waive all claim to the benefit of the exemption law as stipulated in the deed, and consenting that all his estate, real and personal should pass into the bands of the trustee to be appointed. This paper was not acknowledged and has never been recorded. How could it have the effect of transferring the excepted property to the assignee in trust for creditors, as against the execution creditor? The estate excepting that which was exempt from execution, was in Mr. Keagy in trust for creditors until the 28th of May, when a new assignee was appointed. How did the exempt property pass to Mr. Keagy ? Was there not property remaining in Hanson Stonesifer which was the subject of levy and seizure under the execution of a creditor who held a waiver of the exemption privilege ? The property levied on remained in the possession of Stonesifer and there seems to have been no attempt or intention to surrender it to the assignee, Keagjq but' to a subsequent trustee to be appointed. I am of the opinion that the paper of the 20th of April did not operate to defeat the rights of the lien creditor against the exempt property.
    And now, to wit, October 5,1878, rule to allow the use plaintiff in judgment to take out of court the monies returned on the fi . fa. made absolute. The debt and interest to be paid to the plaintiff, and the costs of the officers thereto.
    The assignee then appealed complaining of the foregoing decision.
    
      
      David Wills, Esq., for appellant
    argued, that, the assignment passed all the property of the assignor, subject only to have Stone* sifer’s exemption set aside for him out of the fund; and in case it was set aside, the assignee was entitled to the whole of it, for the law contemplates an appraisement of the property of the as* signor should be made; Mulford vs. Shirk, 2 C. 473. In this case Stonesifer has made no election, and before the plaintiff had obtained judgment he waived his right to make such election.
    
      R.G. McCreary, Esq., contra;
    
    argued, that, the property excepted from the deed did not pass by the deed; Myer's Appeal, 28 P. F. S. 452. The paper of April 20th, 1878, did not transfer the reserved property. The exemption in the deed was such and so much property, as might be exempt from execution. The real estate was covered with liens waiving the benefit of the exemption laws, and consequently the exception in the deed could only refer to the personalty.
   The Supreme Court affirmed the decision of the Court below, on July 9th, 1879, in the following opinion by

Trunkey, J.

On a question of distribution the Court cannot inquire into the ownership of the goods sold ; they are taken as the property of the defendant in the execution, and lien creditors are entitled te the proceeds. So far does this principle go that where fixtures are severed from the realty and personalty, the execution creditor takes the proceeds against one having a lien on the realty of which the fixtures were a part; Hutchman’s Executor’s Appeal, 3 Casey 209. A party who sets up a title adverse to him as whose property the goods were sold, cannot come in for a share. An assignee of the defendant by a transfer prior to the levy, is an adverse claimant. An assignee in bankruptcy of the defendant has no standing to claim the money raised by a sale of the goods, when they were not sold in fraud of the bankruptcy law; Bush, Bunn & Co.’s Appeal, 15 P. F. S. 363; Walters vs. Pratt, 2 Rawle 265. On March 24, 1878, Stonesifer made a voluntary assignment in trust for his creditors. Subsequently Sell issued execution on his judgment, by virtue of which the Sheriff seized and sold the goods as the property of Stonesifer. He is entitled to the money made on his execution, whether or not the title to those goods was-vested in the assignee. If they passed by the assignment, and' the title was vested in the assignee, he has a remedy against the-proper parties by action at law. This is no time for expression of opinion upon the validity of his title.

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