215 Miss. 298 | Miss. | 1952
Appellee brought suit against the appellant for a divorce, the custody of her two minor children, alimony and support for herself and children, and counsel fees. She likewise sought by her suit under adequate allegations contained in her bill of complaint to have the court decree a lien to exist upon the property of the appellant
The appellant prosecutes this appeal, contending (1) that the proof is insufficient to establish the alleged grounds of divorce, and (2) that the court erred in adjudging the appellee to be the owner of an interest in the homestead, and (3) that the court erred in fixing a lien on the property of the appellant to secure the payment of monthly installments of alimony which were to become due in the future, and (4) that the lien so fixed to secure the payment of alimony was not sought by the pleadings nor the necessity thereof shown by the evidence.
We are unable to bring ourselves in accord with these contentions of the appellant. The chancellor, on conflicting evidence, found that the alleged grounds of divorce were established. His finding is amply supported by the evidence and we are therefore not warranted in disturbing it.
In support of appellant’s contention that the chancellor was in error in adjudging the appellee to be the owner of an interest in the homestead, he relies upon the case of
Appellant, however, relies to support his contention upon the cases of Harris v. Worsham, 164 Miss. 75, 143 So. 851, and Todd v. Todd, 197 Miss. 819, 20 So. 2d 827. We do not find these cases applicable. In the case of Harris v. Worsham, supra, the wife was awarded a decree for alimony payable in monthly installments. The decree did not fix a lien on the property of the husband to secure the payments, but nevertheless it was contended that the decree, when enrolled under the provisions of Sections 453 and 611, Code of 1930 (Sections 1373 and 1555, Code of 1942), became a general lien on the property of the husband. The court in that case held that the monthly installments did not become a present debt due by the husband until default in the payment thereof, and that the general lien under the statutes did not arise as to the installments not in default. In the case of Todd v. Todd, supra, the court held erroneous a decree awarding alimony in monthly installments and fixing a lien on all of the property of the husband and authorizing a sale thereof and the application of the proceeds to installments in arrears, and the impounding of the residue to secure and enforce the payment of future installments
Appellant further contends that the decree of the court below is erroneous because the lien fixed to secure the payment of the alimony was not sought by the pleadings nor the necessity thereof shown by the evidence. The record does not support this contention. Appellee’s bill of complaint sought the lien and the chancellor found on ample evidence the necessity therefor. We have held in the case of Moseley v. Larson, 86 Miss. 288, 38 So. 234, that a decree for alimony might be made a lien upon the homestead if ordered by the court in its judgment awarding the alimony. '
It follows from the foregoing views that the decree of the court below should be and it is affirmed.
Affirmed.