54 So. 805 | Miss. | 1911
delivered the opinion of the court.
The appellee, Mrs. T. A. Massey, for some years prior to the 23d of February, 1906, was the wife of J. M. Massey, and they lived together as such. About the 23d of February Mrs. Massey was driven from her home by the cruelty of her husband, and never returned to live with him any more. It seems that he had been cruel and unkind to her for a long time prior to the above date, and that these continued cruelties culminated in a final separation on the 23d of February. On the 5th day of March, 1906, Mrs. Massey filed a bill in the chancery court of Newton county, seeking a divorce from her husband, and also praying for alimony.' On the day she filed this suit she also sought to establish a lien on her husband’s estate for the payment of the alimony sought to be recovered, and in order to accomplish this she described the land in controversy in her bill, and asked that this land be subjected to any decree for alimony which she might recover, and at the same time she had a notice put on the lis pendens docket of the county to the effect that she had instituted a suit for alimony involving this land. On June 5, 1906, the court allowed Mrs. Massey alimony pendente lite, and on December 6, 1906, a final decree was rendered allowing Mrs. Massey six hundred dollars alimony and fifty dollars attorney’s fees, and the decree recited that a lien was thereby established on the property described in the bill and previously placed on the lis pendens docket. The decree further provided that execution might issue for the payment of six hundred and fifty dollars if not paid within the sixty days. The land in controversy involves two tracts, one containing eighty-two acres of land and the other one hundred and sixty acres, making two hundred and forty-two acres altogether.
In the meantime, a decree. having been rendered in Mrs. Massey’s favor for six hundred and fifty dollars on December 6, 1906, an execution was issued under this judgment on March 11, 1907, whereunder the property was levied on and advertised to be sold on May 6th. On that date the same property was sold by the sheriff under execution, and Mrs. Massey became the purchaser, bidding the sum of six hundred dollars. Subsequently a -deed was made by the sheriff under this sale to Mrs. Massey. So that on the 29th of March, 1907, Gallaspy Sons Company obtained a deed by virtue of the trustee’s sale and claim to be the owners thereof, and on May 6, 1907, Mrs. Massey obtained a deed to the same property under the sale made by the sheriff. Mrs. Massey does not dispute the validity or priority of the first two trust deeds executed by herself and husband, but denies the priority of the last trust deed over her claim for alimony, and at the same time the trustee undertook to sell the'property Mrs. Massey-offered to pay all due under the first two trust deeds. This offer was rejected, unless she paid all due under all three of the trust deeds, and over her protest the property was sold by the trustee in order to collect all due under the three trust deeds. The purchaser, Gallaspy Sons Company, was fully adviséd and bought- with full knowledge of- all the facts,
After all of the above transpired, suit was filed by Gallaspy Sons Company, claiming to be the true owners, of the property, and seeking a cancellation of Mrs. Massey’s deed. Mrs. Massey answered, maldng her answer-a cross-bill, praying for the cancellation of the deed made by the trustee to Gallaspy Sons Company on payment to. them by her of the amount found to be due under the first two trust deeds executed by her husband and herself, and, after this was done, praying for the granting and confirming of her title to the property. The additional twelve acres of land, not included in lis pendens notice, is not in controversy. On final hearing the court adjudged Mrs. Massey to be the owner of all the land described in her bill, subject to the lien of the first two trusts deeds, and canceled the trustee’s deed made toGallaspy Sons Company, ordering an account to be stated as to the amount due under the first two trust deeds, and making any amount found to be due a lien on the-land. From this decree an appeal was prosecuted.
The sole question to be determined in this case is whether the wife’s right to alimony is of such character-as that she may protect and enforce it, as against the estate of her husband, through the medium of lis pendens provided for by chapter 89 of the Code of 1906. "We have no hesitancy in asserting the affirmative of the-proposition. While counsel for appellant cite many authorities denying the right, and are persuasively able in-arguing the correctness of the cases which they cite, questions of this character must be settled exclusively by the laws of the state in which the question arises, where there is a law on the subject, and in this state we think this question is settled both by statute and decisions.We think that an examination of our statutes and deck
TMs being true, section 3148, Code of 1906, may be invoked by her to protect and secure that interest. Section 3148 is as follows: “When any person shall begin a suit in any court, whether by declaration or bill, or by cross-complaint, to enforce a lien upon, right to, or interest in, any real estate, unless the claim be founded upon an instrument which is recorded, or upon a judgment duly enrolled, in the county in which the real estate is situated such person shall file with the clerk of the chancery court of each county where the real estate, or any part thereof, is situated, a notice containing the names of all the parties to the suit, a description of the real estate, and a brief statement of the nature of the lien, right, or interest sought to be enforced. The clerk shall immediately file and record the notice in the
The wife had an interest in this real estaté for the purpose of enforcing her vested right to maintenance, and she had a right in law to have this interest protected and it is our judgment that the decree of the chancellor so holding was correct, and the case is affirmed.
Affirmed.