Summary
In Harris v. Worsham, 164 Miss. 74, 143 So. 851, the court considered a wife's claim that she was entitled to a lien on the husband's property to secure periodic support payments awarded in a divorce decree.
Summary of this case from Miles v. GayOpinion
No. 30152.
October 17, 1932.
1. DIVORCE.
Divorce decree directing husband to convey to wife lots free from incumbrances did not award wife judgment for amount of incumbrances if husband failed to relieve lots thereof.
2. DIVORCE.
Lien under alimony decree cannot arise, if at all, until default in payment of installments (Code 1930, sections 453, 611).
APPEAL from chancery court of Coahoma county. HON. R.E. JACKSON, Chancellor.
Brewer Brewer, of Clarksdale, for appellant.
Section 453, Mississippi Code 1930, provides that the decree of a court of chancery shall have the force, operation and effect of a judgment at law in the circuit court.
Judgment enrolled shall be a lien upon and bind all the property of the defendant within the county where so enrolled from the rendition thereof.
Section 611, Code of 1930.
As a general rule of law alimony decreed to the wife is as much a debt, until the decree is recalled or modified, as any judgment for money is, and the decree operates to cause an indebtedness to arise in her favor as each installment of alimony falls due.
19 C.J., p. 296.
A decree for permanent alimony when duly filed and entered has, in many jurisdictions, under the statutes relating to judgments, the same general lien of an ordinary judgment for money.
19 C.J., sec. 724, p. 313.
The wife's right to alimony constitutes an interest in her husband's estate.
Gillespie's Sons Co. v. Massey, 99 Miss. 208, 54 So. 805.
A decree of divorce awarding alimony to the wife in a gross sum creates a lien on the husband's real estate.
Conrad v. Everick, 50 Ohio St. 476, 40 Am. St. Rep. 679.
Alimony decreed to a wife in a divorce of separation from bed and board is as much a debt of record, until the decree has been recalled as any other judgment for money is.
Barber v. Barber, 21 How. 582.
As to that part of the decree awarding alimony at a rate of fifty dollars per month as the first day of each month came, the complainant, Celeste Harris, was entitled to that award of alimony when it became due; she had a vested right thereto of which she could not be deprived by any subsequent act of any court or of the legislature.
Guess v. Smith, 100 Miss. 457, 56 So. 166.
J.M. Talbot, of Clarksdale, for appellee.
If by the terms of the decree alimony is payable in installments, it should not be made a lien since this would amount to charging the property with an annuity and would embarrass its alienation, and furthermore the amount is uncertain and impossible of computation.
Mansfield v. Hill, 56 Or. 400, 107 P. 471, 108 P. 1007.
Where alimony is ordered to be paid in installments and nothing is said as to the manner of its collection, the fair inference is that the court intends the order to be enforced not by lien and execution a remedy manifestly ill adopted to the purpose but by attachment for contempt, if payment is not made, a remedy always available, and ordinarily efficacious.
Scott v. Scott, 80 Kan. 489, 18 Ann. Cas. 564.
There is no satisfactory authority for making the order a lien against the husband's real estate, and without such authority, it is not a lien. Proceeding in divorce are statutory throughout, and alimony, one of its features is just what the statute makes it. It is a lien against real estate only when it is declared to be so by the statute. No reason by analogy nor sentiment can make it a lien, and if the wife of the appellant cannot point to the provision of the act of 1845 making the order for her alimony a lien against her husband's real estate, she does not have one.
Kerr v. Kerr, 261 Pa. St. 641, 9 Ann. Cas. 89.
Unless the decree itself specifically states that it shall constitute a lien on the husband's realty, none arises, as in the absence of a direct statutory provision to the contrary, the mere rendition and dictating of a reward does not have that effect.
1 R.C.L., par. 90.
A decree must be specific in fixing a lien or no lien arises.
102 Am. St. Rep. 700.
The provision of the divorce decree for future monthly payments by defendant until the further order of the court being for an indefinite time and amount and yet to accrue is not definite liability or a judgment for a specific sum which may become a lien upon his property. The very idea of a lien upon property involves certainty as to the amount so that persons dealing with defendant, as well as defendant himself, may know how much is involved. Otherwise he would be precluded from dealing with his property at all, since it would be impossible for him to pay the lien.
Mansfield v. Hill, 56 Or. 400, 107 P. 471.
In April, 1930, the bonds of matrimony theretofore existing between the appellant and her then husband, C.H. Harris, were dissolved by a decree of the court below, which, among other things, provides: First, that C.H. Harris shall convey to the appellant free and clear from all incumbrances certain described lots in the town of Clarksdale, and, second, that he shall pay to her the sum of eighty dollars per month for her support and maintenance beginning on the 1st day of May, 1930, and monthly thereafter. In April, 1931, the appellant exhibited an original bill in the court below against her former husband, C.H. Harris, and the appellee, Worsham, wherein, after setting forth the decree in the divorce proceeding, she alleged in substance that:
First. C.H. Harris had conveyed the lots to her, but had failed to relieve them from incumbrances thereon amounting to approximately two thousand eight hundred dollars.
Second. Harris "has failed to pay said alimony for four months, and there is now due and owing (thereon) three hundred twenty dollars."
Third. The decree in the divorce proceeding was "duly and properly enrolled on the judgment roll in the office of the clerk of the circuit court of Coahoma county, Mississippi."
Fourth. C.H. Harris now owns certain described real property on which he executed a deed of trust on August 13, 1930, to secure the payment to the appellee of two thousand dollars due him by Harris, which deed of trust was executed and recorded after the decree in the divorce proceeding had been enrolled on the judgment roll in the office of the circuit clerk, and that the appellee and his attorney both knew of the rendition of that decree; whether they had this knowledge before the deed of trust was executed does not appear.
Fifth. The decree rendered in the divorce proceeding is a lien prior to that of the appellee's deed of trust on the land described in that deed of trust.
The prayer of the bill is that the appellant be granted a decree awarding her a recovery from Harris for the amount of the incumbrances on the lots he was directed to convey to her in the decree rendered in the divorce proceeding and for the three hundred twenty dollars accrued alimony and interest thereon, and "that said amounts be adjudged and decreed to be first lien on" the land described in the deed of trust to Worsham, and that the same be sold for payment thereof.
Separate demurrers were filed to this bill of complaint by Harris and the appellee, the one filed by Harris was overruled, but the one filed by Worsham was sustained, and the bill as to him was dismissed.
The appeal is by Mrs. Harris, and is from the decree dismissing her bill as to Worsham.
The appellant's contentions are that, although the decree in the divorce proceeding does not award her any lien on property owned by her former husband, C.H. Harris, nevertheless the decree, when enrolled on the judgment roll in the office of the clerk of the circuit court in accordance with the provisions of sections 453 and 611, Code of 1930, became a general lien on all of the property owned by C.H. Harris.
We will assume, but merely for the purpose of the argument, it not being herein necessary for us to decide the question, that a decree of a chancery court when enrolled in accordance with the provisions of section 611, Code of 1930, becomes a general lien on the property of the person against whom it was rendered.
That part of the divorce decree directing Harris to convey to the appellant certain lots "free and clear from all encumbrances" does not award the appellant a judgment for the amount thereof in event Harris should fail to relieve the lots thereof, nor does it set forth the amount thereof, but leaves that fact to be ascertained by matters de hors the record, without both of which no judgment at law could be effective. 33 C.J. 1202; Easterling v. State, 35 Miss. 210. That portion of the decree, therefore, cannot have the force and effect of a judgment at law.
That portion of the decree providing for the future maintenance of the appellant by her former husband by directing him to pay her a stipulated amount thereafter in monthly installments creates not a present debt due her by her husband, and each installment of the alimony comes within that category when, but not until, default is made in the payment thereof. Therefore, in the very nature of things a lien therefor cannot arise, under the statute, if at all, as to which we express no opinion until that fact comes into existence.
It is clear from the allegations of the bill that Harris' default in the payment of these installments of alimony arose after the execution of the appellee's deed of trust.
Affirmed.