The opinion of the court was delivered, July 2d 1873, by
Williams, J. —If the sale had been made on Runkel’s execution alone, there would be nothing to distinguish this case from Line’s Appeal, 2 Grant’s Cases 197; but it wras not. It was made on the executions of Keagy and Rudisil, as well as that of Runkel. The lien of Keagy’s judgment was prior to that of Runkel, and his execution was first issued. Runkel’s execution, therefore, was not the direct instrument of sale. If it had not been issued, the property would have been sold on the other executions. In this respect the case is distinguishable from Line’s Appeal. In that case there was no claim for the benefit of the Exemption Law, and no appraisement was demanded on the execution on which the sale was made. But here the benefit of the exemption was claimed, *197and appraisement was made on two out of the three executions on which the property was sold. As against Runkel, the appellants are not entitled to the exemption by their failure to demand it. But as between Runkel and Keagy, the latter is entitled to have his judgment first satisfied out of the proceeds of sale, and his right to satisfaction cannot be postponed or defeated by the appellants’ waiver of exemption in favor of the former. The appellants,' therefore, are not entitled to any portion of the proceeds as against either. But why are they not entitled to the exemption as against Rudisil, whose judgment is subsequent to Keagy’s and Runkel’s? They claimed it as against Rudisil. Their failure to claim it as against Runkel did Rudisil no harm. It placed him in no worse position than if they had demanded its benefit as against Runkel. If the sale had been made only upon the executions of Keagy and Rudisil, there can be no doubt that, as against the latter, the appellants would be entitled to the exemption. Why should their failure to demand appraisement on Runkel’s execution deprive them of a right which they would otherwise have had ? What equity has Rudisil to claim that the failure shall inure to his benefit ? It did him no harm. As against him the appellants were guilty of no laches in making their claim. Why, then, should it not be allowed ? It seems to us that their failure to demand appraisement as against Runkel did not work a forfeiture of their right to demand it as against Rudisil, and therefore they are entitled to the exemption as against him. But they can only come on the residue of the fund after paying the prior judgments, and as it is not sufficient to satisfy the claims of all the appellants, how shall it be distributed ? Manifestly Sarah McCreary is in equity entitled to the whole of it; the interests of the other appellants in the proceeds of sale having been exhausted in paying the prior judgments. The residue of the fund must therefore be appropriated to the claim made by Sarah McCreary to the exemption to which she is entitled under the law.
'And now, July 2d 1873, It is ordered, adjudged and decreed that the decree in this case be reversed and set aside as to Andrew Rudisil, and that the balance of the proceeds of sale, amounting to one hundred and sixty-five dollars and eight cents, applied to the payment of his judgment (No. 228, January T. 1868) against the appellants, be appropriated to the claim of Sarah McCreary, one of the appellants, to the exemption to which she is entitled under the law; and it is further ordered that the appeal of the other appellants be dismissed at their costs, and that the costs incurred by the appeal of Sarah McCreary be paid by Andrew Rudisil, the appellee.