131 Mo. App. 660 | Mo. Ct. App. | 1908
This is an action of replevin instituted by the appellant as executor and trustee of- the estate of Annie St. Gemme Dreyer, deceased, under her last will. By a residuary clause of said will the deceased devised and bequeathed to appellant her real and personal property not previously disposed of, to have and hold in trust for the benefit of Susan Elizabeth
It will be observed the judgment for alimony in favor of Ada G-. Dreyer, was dated May 26, 3894, and the execution based on said judgment and levied on the property was not issued until November 30, 1904, or more than ten years after the date of the judgment, Avhich, meanwhile, had not been revived. For this reason appellant contends the judgment would not support the execution and that the sheriff had no right to take the property or the two respondents to hold it as against the claim of appellant as trustee and executor. The court below rejected this proposition for the reason that the judgment was for alimony from month to month, and, therefore, was of a continuous nature, and excepted from the statute which limits the issuance of an execution on a judgment to ten years from the date of the judgment. [R. S. 1899, sec. 3722.] The statute governing the allowance of alimony permits it to be decreed in gross or from year to year. If alimony is decreed from year to year, the statute says it shall not be a lien on the realty of the husband, but that an execution in the hands of a proper officer shall be a lien on his real or personal property, so long as the execution remains lawfuly in the possession of the officer unsatisfied. It is further provided that in lieu of the lien of the decree, the party against whom the decree is rendered may be required to give security ample and sufficient for the payment of the alimony, and that if default is made in giving such security, the decree shall be a lien, as in the case of a general judgment. It is further provided that if there is a default of the husband and his sureties, if any there be, to pay or provide the alimony, the judgment may be enforced by the sequestration of prop
It is argued, that as the jury found respondents were entitled to possession of the property and appellant was not, it is immaterial that the execution was invalid, as appellant must recover on the strength of his own title. We can not concede this proposition. Appellant at the time of the levy was rightly in possession of the property under the will of the testatrix, and when she died she was in possession of it, claiming it as her own. Respondents have no sort of right.to it as against appellant, unless it was subject to levy for the judgment against him, and said judgment would support a valid execution.
The judgment is reversed.