13 So. 2d 823 | Miss. | 1943
This case is here on its fourth appeal. As now presented, it involves the sole question of whether or not the alleged homestead rights of the appellants, Alonzo Felder and his second wife, are paramount to a specific lien fixed by the court on the land in controversy in favor of his first wife to secure the payment of an award of alimony made to her upon the granting of a decree of divorce against him because of alleged cruel and inhuman treatment, where it is shown that within approximately two *331 weeks after the rendition of the divorce and alimony decree he remarried and moved the second wife into the home with him on said land before a sale thereof could be made by the commissioner who had been appointed by the court and directed to sell the land for the payment of such alimony in the event default should be made in the payment thereof.
The proof discloses that the court below, after having denied a divorce to the appellant Alonzo Felder, granted such a decree in favor of his first wife, Bessie McCormick Felder, on December 7, 1937, upon her cross-bill and proof made thereon, and also awarded unto her the sum of $500 as permanent alimony and $50 as an attorney's fee, payable $100 in cash, $200 on February 10, 1938, and $250 on December 7, 1938, fixed a lien in her favor upon the land in controversy for the payment thereof, and appointed the clerk as a commissioner to sell the land if default should be made in either of such payments. A lis pendens notice had theretofore been given on August 2, 1937, pursuant to Section 2325, Code of 1930, and which notice described the land in controversy and stated that a lien was sought to be enforced against it for alimony, attorney's fees and court costs in the case — a procedure sanctioned in the case of Gallaspy's Sons Co. v. Massey,
Thus, it will be seen from the foregoing recitals of the proceedings had in the case that the decree awarding alimony against Alonzo Felder in favor of his first wife, Bessie Felder, and fixing a lien on the land for the payment thereof became final as to the parties to said cause upon the dismissal of the first appeal; that the commissioner's sale of the land to Bessie Felder and the decree confirming such sale likewise became final upon the dismissal of his second appeal; and that as heretofore stated the sole question now left for decision is whether or not, in view of the fact that his second wife, Pallie Felder, was not a party to any of the proceedings had prior to the filing of the present suit, she and the said Alonzo Felder, or either of them, are now entitled to have cancelled the commissioner's sale of the land and the decree confirming the same as being in violation of the *334 homestead rights alleged to have been acquired by them subsequent to the rendition of the alimony decree of December 7, 1937, and prior to the sale of said land by the commissioner pursuant thereto.
Section 1421, Code of 1930, provides, among other things, that "When a divorce shall be decreed from the bonds of matrimony, the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders . . . touching the maintenance and alimony of the wife, or any allowance to be made to her, and may, if need be, require sureties for the payment of the sum so allowed . . ."
In 17 Am. Jur. 487, Section 638, it is said "In a number of jurisdictions statutes have been enacted expressly providing that a decree for alimony may be declared a lien on the real estate of the husband. In the absence of such authorization most authorities hold that the power to declare such a decree a lien inherently exists in a court of equity. Such inherent authority is held not to be abridged by the fact that the legislature has made provision for the requirement of security for the payment of an award." Our own court recognized the existence of this power in a court of equity in the cases of Moseley v. Larson,
In 29 C.J. 873, Section 228, it is stated that "In some jurisdictions it seems to be held without qualification that a husband cannot claim exemption of homestead against levy of execution on his land from forced payment of a judgment for alimony. In others, a homestead is exempt from the levy of an ordinary execution issued on a general judgment for alimony in the same manner and to the same extent as in cases of execution on other judgments, unless, as may be done, the amount allowed is decreed to be a lien upon the property . . ." Citing Jackson v. Coleman,
The appellants here rely strongly upon the case of Jackson v. Coleman, supra, wherein the husband claiming the homestead exemption was shown to have had three children, two of whom still lived with and were dependent upon him for support and no lien was fixed on the land in the decree awarding alimony to the wife and to secure the payment thereof. In that case, the court said [
Since it is true that Section 1421, Code of 1930, authorizes the court, if need be, to require sureties for the payment of the alimony allowed, and it has been held that a wife's right to alimony constitutes such an interest in her husband's real estate that she is entitled to have a lien fixed on it to enforce her vested right to maintenance out of his property and to have a lien established thereon for the alimony whether the property was formerly their homestead or not, it would seem to follow that the authority granted to the court in the premises could not be defeated by any subsequent act of the husband in contravention of her rights under a specific lien fixed on his property, and especially when such lien is declared at a time when no homestead rights could be effectually claimed by him therein.
In a general sense, alimony is an allowance authorized by law to be made to the wife out of her husband's estate for her support. The amount of his property, whether exempt or not from sale under an ordinary execution, is usually taken into account in determining such allowance. When the alimony is fixed as a lien on the homestead, which may properly be done where there are no children, the lien becomes an encumbrance running with the land; that is to say, the property becomes virtually impounded as security under the inherent power of equity to enforce payment of an alimony award by that means in lieu of requiring sureties for the payment of the sum so allowed, as provided for by Section 1421, Code of 1930, supra, it being often true that the husband would be unable to furnish the sureties when ordered to do so, although he may own property on which a lien fixed by the court would afford ample security for the payment of the award made. *338
It was held in the case of Minor v. Interstate Gravel Co.,
While a homestead is exempt from levy or sale under an ordinary execution or attachment for the collection of a debt, it should be noted that a decree for alimony is not a debt in the strict sense of that term, but rather a judgment calling for the performance of a duty made specific by the decree of a court of competent jurisdiction. Consequently, a constitutional prohibition against imprisonment for debt does not prevent a commitment to prison for nonpayment of alimony. The chancery court has the inherent power where, in its judgment, it is deemed necessary for the enforcement of its orders to remand a defendant to the custody of the sheriff until he has executed the bond for the payment of alimony required of him by decree of the court. Edmonson v. Ramsey,
Therefore, we hold that the decree of the court below in declining to cancel and hold for nought the commissioner's sale and deed to the former wife, Bessie Felder, and in refusing to grant an injunction in favor of the appellants against the execution of the writ of possession issued against them in favor of the present owner of the title acquired under the commissioner's deed, and in dismissing the bill of complaint on the merits, was in all respects a correct decision and that the same should be affirmed.
Affirmed. *340