estate sold on the execution) he must comply with the act.
The mortgage obligation is merged in the judgment. See Restatement of the Law, Judgments, Sec. 47 (pages 181-182) -- Work v. Prall, 1904, 26 Pa.Super. 104 and Biery v. Steckel, 1902, 19 Pa.Super. 396; and when the execution plaintiff "seeks to recover the balance due on said judgment", he must proceed in accordance with the provisions of the Deficiency Judgment Act.
However, I believe that the plaintiff in the case at bar is estopped. He had knowledge of the proposed sale of the securities which took place prior to the expiration of the six months' limitation and he offered no objection to the sale even though he was apprised that the amount realized from the sale of the real estate was insufficient to pay the debt in full. He has waited until the time limit under which the defendant could proceed under the Deficiency Judgment Act has expired and now complains for the first time.
The issue here is analogous to that in Re Gibson's Estate, 153 Pa.Super. 413, 419, 34 A.2d 159, decided October 8, 1943. In that case a decedent died, apparently intestate, and his son was appointed administrator. The estate consisted of personal property of value of $288 and real estate in the value of about $3,900. The son took possession of the decedent's property and paid the funeral bill of $1,111.50. It turned out that the decedent had made a will bequeathing his entire estate to a third person. This person had the will in his possession and disclosed the will a year, lacking two days, after testator's death with full knowledge at all times of the fact that the son had been appointed administrator, taken possession of the estate of the decedent and had paid the funeral bill. When the son sought reimbursement of the funeral bill from the real estate he was met with the limitation of the Fiduciaries Act, Act of June 7, 1917, P.L. 447, Sec. 15(a), as amended, 20 P.S. Pa. § 521, which provides in part: "* * * No debts of a decedent, including the cost of settlement of the estate and the funeral expenses of the decedent * * * shall remain a lien on the real estate of such decedent longer than one year after the decease of such debtor, unless within said period an action for the recovery thereof be brought against the executor or administrator of such decedent * * *."
The Superior Court of Pennsylvania held that notwithstanding the specific limitation as to the time within which the claimant for the funeral bill could bring action, the heir was estopped by reason of her knowledge and failure to act promptly under the circumstances.
Said the court, 153 Pa.Super. at page 419, 34 A.2d at page 162: "'* * * If a man is silent when he ought to speak, equity will debar him from speaking when conscience requires him to be silent. Silence when there is a duty to speak is deemed equivalent to concealment'. 10 R.C.L., Estoppel, § 21, p. 693. * * *"
Again on page 420 of 153 Pa.Super., on page 162 of 34 A.2d the court stated:
"* * * Likewise, in 37 C.J., Limitations of Actions, § 44, p. 725, it is said: 'But the prevailing rule is that the doctrine of equitable estoppel may in a proper case be invoked to prevent defendant from relying upon the statute of limitation, it being laid down as a general principle that, when a defendant electing to set up the statute of limitations has previously by deception or any violation of duty toward plaintiff, caused him to subject his claim to the statutory bar, he must be charged with having wrongfully obtained an advantage which the court will not allow him to hold.'
" Appellant not only had the opportunity, but it was her duty, to act promptly under the circumstances. 'An estoppel arises "where a man is concluded and forbidden by law to speak against his own act or deed; yea, even though it is to say the truth."' New Jersey Suburban Water Co. v. Town of Harrison, 122 N.J.L. 189, 3 A.2d 623, at page 626." (Emphasis supplied.)
It is true that Section 10 of the Deficiency Judgment Act forbids waivers, but we are here concerned with an estoppel. It is well recognized that an estoppel is different from a waiver. 21 Corpus Juris, page 1115, § 118; 31 C.J.S., Estoppel, § 61. In Gibson's Estate, supra, conduct similar to that of the plaintiff in the case at bar has been construed as constituting an estoppel. Furthermore, Section 9 of the Deficiency Judgment Act expressly provides that "nothing in this act shall be construed to effect a release or discharge of any person otherwise than, nor to a greater extent than as herein expressly provided."
For the reason stated, plaintiff's motion for judgment against the defendant on the pleadings is dismissed.
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