Dissenting Opinion by
Mr. Justice Roberts:I dissent from the majority’s unsupported action in overruling the only Pennsylvania appellate authority controlling this controversy. The majority dismisses the unanimous decision of the Superior Court in National Cash Register Company v. Miller, 88 Pa. Superior Ct. 550 (1926), with the simple assertion: “We find that case unpersuasive and decline to follow it. *449Ordinary common sense requires that custodia legis continue until the order of the Referee could be effected.” The majority fails to indicate or even suggest just what its new concept of continuation of custodia legis entails; how long does the majority’s'extension theory continue after the referee’s order terminating his custody of the property?
In National Cash Register, supra, at page 553, the Superior Court held that property “. . . will remain, by operation of law, in custodia legis until it is withdrawn from such custody by the order of a competent court: . . . But when the referee made the order dir recting the receivers to return the cash register to the plaintiff, it passed out of the custody of the law and immediately became subject to a distress of the defendant for rent in arrears so long as it remained on the demised premises.” (Emphasis added.) Here the referee on July 5, 1962,1 decided that the trustee had no interest in the property and that Brunswick was entitled to possession. Brunswick then waited 15 days after that order before attempting to take possession of the property which continued to remain on the premises of the landlord. Surely, the referee’s order withdrawing the property from the bankrupt estate did not immunize the property from the right of distraint of the landlord for as long as Brunswick chose to keep the property on the demised premises.
The facts before this Court are virtually the same as in National Cash Register. I must conclude that appellant landlord Peter Ciaffoni2 had the right to dis-*450train. I would remand the ease for further proceedings on the merits to resolve the conflicting claims between the parties. See Act of May 1, 1929, P. L. 1589, §1, as amended, 68 P.S. §322. In Re Quaker City Uniform Co., 238 F. 2d 155 (3d Cir. 1956); Reinhart v. Gerhardt, 152 Pa. Superior Ct. 229, 31 A. 2d 737 (1943); Herman v. Osgood, 103 Pitts. Leg. J. 231 (C.P. 1955).
Since under my view this record should return to the trial court, I would note that inherent in this case is a possible conflict between Articles 9-104(b) and 9-313(2) of the Uniform Commercial Code which may affect the proper resolution of this case. Act of April 6,1953, P. L. 3, §9, as amended, 12A P.S. §§9-104, 9-313.
Thus, I dissent.
The record shows the reclamation petition was only served on the trustee and not on the Ciaffonis.
The right of distraint of Paul Ciaffoni, the other appellant, has been eliminated by waiver agreement executed by him with the appellees. Peter and Paul Ciaffoni were tenants in common and, under our law, where property is owned jointly, each owner may waive his right to distrain as to so much of the rent as represents *450his portion of it. Unless expressly so authorized he could not execute a waiver in behalf of his joint owner. Peter gave no such authority in this case. Therefore, it must be concluded that Paul has waived his right of distraint, but that Peter has not. Bernstein v. Colletris, 99 Pa. Superior Ct. 484 (1930). See also Wally v. Jones, 275 Pa. 250, 119 Atl. 75 (1922); Penrose v. Penn Forest Coal Co., 289 Pa. 519, 137 Atl. 670 (1927).