73 So. 723 | Miss. | 1916
delivered the opinion of the court.
After the death of E. J. Mitchell, the administrator, Dr. J. D. Donald, was ordered by the court to pay over to Mrs. Mitchell, the widow of deceased, nine hundred dollars “out of the effects of the decedent,” as “one year’s provision,” under section 2052, Code of 1906. The deceased left about nine hundred dollars worth of property, and the appellee administrator seeks by bill in equity to have this property converted into money with which to pay the widow;s allowance of nine hundred dollars. The appellant bank had an enrolled judgment lien upon the property of the decedent at the date of his death, but no execution had .been issued thereon. A demurrer was filed by appellant to
The question presented to us on this appeal is whether or not an enrolled judgment lien obtained against unexempt property of a decedent prior to his death must yield after his death to the widow’s allowance provided for in section 2052, Code of 1906. We have been unable to find any decision of the precise question by any court, and, having no precedent to aid us here, we must seek to find the intent of the lawmakers in the enactment of the two statutes here involved, which are in the following language:
“819 (757). Lien of Enrolled Judgments. — A judgment so enrolled shall be a lien upon and bind all the property of the defendant within- the county where so enrolled, from the rendition thereof, and shall have priority according to the order of such enrollment, in favor of the judgment creditor, his representatives or assigns, against the judgment debtor, and all persons ■claiming the property under him after the rendition of the judgment; and a judgment shall not be a lien on any property of the defendant thereto unless the same be enrolled,” etc.
“2052 (1877). Appraisers to Set Apart One Tear’s Support for Family. — It shall be the duty of the appraisers to set apart out of the effects of the decedent, for his widow and children who were, being supported by him, or for the widow if there be no such children, ■or for such children if there be no widow, one year’s provision, including such provision as may be embraced in the exempt property set apart; and if there be no provisions, or an insufficient amount, the appraiser shall allow money in lieu thereof or in addition thereto necessary for the comfortable support of the widow*688 and children, or widow or children, as the case may be, for one year,” etc.
The force of a judgment lien must depend upon the statute which gives it. No execution and levy under the judgment lien having been had here, we do not hesitate to say that the lien is general, and not specific. The lien may be said to he a “recorded debt,” binding the property of the defendant against him and all persons claiming the property under him after rendition and enrollment. In Dozier v. Lewis, 27 Miss. 679, this court, in speaking of judgment liens, says:
“It was a general, not a specific, lien. ‘It is not a property in the thing itself, nor does it constitute a right of action for the thing. It more properly constitutes a charge upon the thing.’ Story, Eq. par. 1215. It is neither a jus in re, nor a jus ad rem, 4 Kent’s Com. It confers a mere right of satisfaction out of any property of the defendant then held or subsequently acquired, which, under our laws, operated as a charge upon the property from its date, and empowered the creditor to have the- property taken in execution. Any one purchasing property in this condition, of course, holds it subject to the right of the creditor to subject it to his judgment. But this right depends upon the fact that the property shall be actually taken in execution; and if that is never done, the creditor’s claim is nothing more than a debt of record. ’ ’
The court said in Houston v. Houston, 67 Ind. 276:
“This subject of the power of the legislature over the lien of judgments was considered by this court, in the case of Gimbel v. Stolte, 59 Ind. 446, Wokden, J., delivering the opinion, and it was then held, as we now hold, that, as this lien is given by statute,' so also it might be destroyed or taken away by legislative action. ’ ’
Also in Gimbel v. Stolte, 59 Ind. 446, that court said:
*689 “ 'But a judgment creditor of an owner has no estate or proprietary interest in the land. ■ He. stands wholly upon the law, which gives him a remedy for the collection of his debt by a sale of the land under execution, in ease sufficient personal property of the debtor should not be found. This remedy is not secured by contract, but is purely statutory, and in aid of it acts have been passed, from time to time, authorizing a sale of the land which the defendant owned at the time of recovery or docketing of the judgment, or at any subsequent period, and making the judgment a lien upon the land. The duration of this lien and the mode of its enforcement and discharge are subjects which appertain to the laws for the collection of debts.
“We concur generally in the views thus expressed by the court of appeals of New York. There can be no doubt that a law which gives a judgment creditor a lien on the real estate of the debtor relates solely to the remedy; and there can be no vested right in a remedy. ’ ’
Under section 819, Code of 1906, the force and extent of the judgment lien is to bind the property against the debtor and all persons claiming under him after enrollment of the judgment, but it is not superior to exemptions created by law. The lien, being a general lien, before levy of' execution, is merely a charge upon the property; it is not a right in it nor to it; it is only a right of satisfaction to be had out of it.
The privilege of the widow’s allowance at the death of her husband is an exemption granted by the statute, and arises immediately upon the death of the husband. It is a fixed statutory right in and to the property of the husband at his death. The statute is notice to judgment creditors that, upon the death of the husband the exemption to the widow will arise and supersede the judgment lien created by the same legislative power. The purpose and wisdom of this exemption
In Edwards v. McGee, 27 Miss. 92, this court said, in speaking of the widow’s allowance:
It “was intended to give to the widow and children of such deceased person a clear right to one year’s support out of his estate.”
And the court was dealing with a case there similar to the case before us now. Whether the creditor there held a judgment lien does not appear. But the court held that the widow’s allowance was superior to the rights of a creditor.
This court said, in Morgan v. Morgan, 36 Miss. 348:
“The allowance is a right, to which the widow is entitled under the statutes, to be paid out of the funds or property in the hands of the administrator, at' all evens, and whatever may be the condition of the estate, whether solvent or insolvent, testate or intestate. It is only necessary that the amount and value of the estate and the circumstances and condition of the widow and children should be taken into consideration in making the allowance; and where the amount of the estate is shown, it is a matter with which the administrator has no concern.”
The holding in this last-named case clearly indicates that the widow’s allowance is a paramount right as .against a general lien of a judgment creditor.
In Turner v. Turner, 30 Miss. 428, in discussing this exemption to the widow, Justice HaNdy said:
“The allowance for a year’s provision stands upon different ground — that of the immediate necessities of the widow and children. It interfers with no right of disposition which the testator could be presumed to make of his property, and therefore, from its*691 peculiar nature, is allowed as a privileged daifa upon Ms estate, whether he has left a will or not.”
Section 2052 of the Code gives a right of exemption to the widow; that is, a right or privilege hy law to have and to hold the property free from all liability to levy and sale on execution or attachment. This is what the exemption means. The judgment creditor had only a lien, with the right to subject the property under it, before the exemption arose by law. It will be observed that section 3977, Code of 1906, suspends the right of process by the judgment creditor as to estates of deceased persons, thus indicating that the exemption for the widow as provided in section 2052 was intended to intervene and supersede the rights of any judgment creditor for at least one year after the death of the judgment debtor.
The text-writers seem to announce the rule to be that the character of exemption we are dealing with in'-this case is such as will prevail against judgment liens, unless the statute giving the lien expressly provides otherwise. Section 2052 is held to be a part of our exemption laws. Barber v. Ellis, 68 Miss. 172, 8 So. 390. The decisions cited by counsel do not aid us much here, as they are based upon different statutes of other states.
After a careful study and consideration of the •question here presented, we feel safe in the correctness of the conclusion that the exemption allowed to the widow is a superior right to the lien of the judgment creditor, and must have right of way over the lien of appellant in this case.
The decree of the lower court is affirmed, and the case remanded with leave to answer within thirty days from date of filing mandate in lower court.
Affirmed and remanded.
