Menzie v. Anderson

Biddle, J. Susan Anderson, on her complaint, obtained a decree of divorce and a judgment of alimony for five hundred dollars, against John Anderson, then her husband. John at the time had no property, either real or personal. Subsequently he married another woman, became a householder and the head of a family in the county, and inherited an interest in certain real estate from his father. A writ of execution was issued upon the judgment of alimony, and placed in the hands of the sheriff, who levied upon the interest of John Andersonñn the real estate he so inherited. As a householder of the county, he made his claim to the sheriff for the real estate, which was appraised at less than three huudred dollars, as exempt from execution. The sheriff denied his right to the exemption, and was about to sell the real estate upon the writ in his hands. This complaint is brought upon these facts, praying an injunction against the sale- A demurrer alleging the insufficiency of the facts to maintain the case was sustained. The appellant, who had purchased the real estate from Anderson, and brought this suit, excepted to the ruling upon the demurrer, and appealed to this court. Neither party claims that there is any irregularity in the proceedings; hut the appellant insists that John Anderson has a right to the exemption claimed, which, if allowed, will support his title to the real estate; while the appellees insist that Anderson is not entitled to [240] the exemption against a judgment for alimony, which, they insist, is not a “ debt growing out of, or founded upon a contract, express or implied,"’ as provided by the statute. 2 R. S. 1876, p. 352; and this controversy presents the only question in the case. Causes of divorce in this State are as follows: 1. Adultery; 2. Impotency before marriage; 3. Abandonment for two years; 4. Cruel and inhuman treatment; 5. Habitual drunkenness of either party, or the failure of the husband to make suitable provision for his family ; 6. Failure of the husband to make reasonable provision for his family for a period of two years; 7. Conviction, subsequent to marriage, of an infamous crime. Sec. 8, 2 R. S. 1876, p. 327. It will be observed that, although marriage is a civil contract, yet the causes of divorce, except the second, all arise out of tort; and a marriage, while the second cause existed, would be a gross wrong, in violation of the main purpose of the union. We conclude, therefore, that alimony is not a “debt growing out of, or founded upon a contract, express or implied,” within the meaning of the statute. The judgment is affirmed, at the costs of the appellant.