Everich v. Conrad

^EStMTGH,' J. ’ This ’is an action to restrain the sheriff from selling certain real estate in this county upon execution. The facts as they appear from the pleadings, are in substance that at the January fem of the court of' common picas of 1889, the plaintiff in error, Sarah E. Everich, Obtained, a Recree for divorce from one James Everich, in which proceeding she was granted alimony 'in the sum of one thousand dollars in gross, and in default of payment for five days, that execution issue therefor. James Everich at .that time was the owner in fee siVnpife ‘Of the real estate described in the petition, and on the 16th day of July, 1889, he feonyeyed. 'Said 'premises to the defendant Minerva Conrad. August 1st, 1889, an execution issued fapan 'the judgment for alimony, and a levy was made upon the premises, which •were,«appraised and advertised by the sheriff for sale; to enjoin which the defendant in error brought 'this action. Upon the hearing, the court of common pleas perpetually enjoined ffie sheriff from the sale of the premises, and a petition in error is filed in this court to reverse *fhe judgment. The'question presented is, whether the decree for alimony in gross to Sarah E. Everich Opgráted-as a -lien per se upon the real estate of her husband James Everich in the county. If 'it -.'did, then the plaintiff took the premises encumbered with the lien; and would not be entitled to the relief sought in this action. The usual practice when alimony is decreed, either-in installments or in gross, is to charge -the same upon the lands of the husband; but whether it will operate as a lien upon lands when the allowance or decree is for a sum in gross-.-when -not so charged, has' not been decided in this state so far as I know. The counsát Ifor the plaintiff in error contends that a decree for alimony in a proceeding is in the-nature of a decree iti chancery under the’ old practice, and that it has the same force and.effect and operates as a lien in .the same manner as a judgment at law, while the counsel for; the-defendant in error claims that a proceeding for divorce and alimony is purely statutory, and 'that a decree for alimony does not operate as a lien upon real estate unless made'so’b,y the statute. That the court is invested with jurisdiction to hear and determine áll'eqüxfál51e"questions that may arise in a proceeding for divorce and alimony, and to render such a judgment for alimony as may seem just and equitable, is clear from an examination bf see.'5699 of -the statute, 'which provides 'that when a divorce is granted by reason of the aggression .of the husband, the wife shall by force of the judgment of divorce be restored tp '¿11 her lands, tenements and hereditaments not previously disposed of, and if she so Üé'sire, ‘the court shall restore her to any name she had before marriage; she shall be allowed such alimony out of her husband’s real and personal property as the court may 'déeíti’reásonabte, having due regard to the property which came to him by marriage, and the..value of his real and personal estate at the time of .the divorce, which alimony may be allowed to 'her in real or personal property, or both, or by decreeing to her such sum 0'£motiey,,payáble either in gross or installments, as the court may deem just and equitable, j. *By the amendatory act of 1834, 32 O. L., 37, it was provided that all proceedings in ¿ksés..df( divorce shall be as in chancery, an'd again it was provided by statute, that decrees Ih'ibtenié.cWy'. 'shall from the time of their being pronounced have the force, operation and effect as judgments at law. So that 'before the adoption Of the code of civil procedure, judgments at law and decrees in chancery were made liens by statute on the lands of the debtor in the county. The form of remedy in both law and equity proceedings having been, abolished by the code, we have but the one mode Of procedure, called a civil action, ,in which the determination of the rights of the parties by the court is denominated a judgment, whether it'is an action at law or a suitdn equity; and the statute provides further that such lands and tenements within the county where the judgment is entered, shall 'be bound for the satisfaction thereof, from the first day of the term at which the judgment is'rendered. If the determination. of the rights of the parties in a proceeding for divorce and alimony, in which alimony is ordered to be paid in gross, is a judgment within the meaning of this statute, we know of no reason why it should not operate as a lien upon the. lands of the judgment debtor from the time of its rendition, as other judgments. Section: 5310 defines a judgment to be the'final determination of'the rights of the parties in action; and in- sec. 5697 the legislature has denominated the granting of allowance for alimony a-judgment. The case of Olin v. Hungerford, 10 O., 268, is relied on by counsel for defendant. In ihrafease itiWas held that'a decree for alimony to- be paid in installments, does not- operate as a li'en'tlpófti:|£he real estate of the defendant, unless made'a charge thereon by the decree itself. If-'willll'fo’e'-seen' that the decree was rendered in that case prior to the act of'1834 before refefred'tb, and the- court say, that this statute can have no effect upon the case before the é'iSütt fb'r that' reason, and it is further said: “But, even under this statute, should -we hold tK'at a decree for a gross sum to be paid the wife, would operate as a lien, it does not follow tSat the same principle would hold where, as in the present case, it was for the payment of specified sums annually, during the joint lives of thé parties; on the contrary,'a majority of the court, believe that such would be an improper construction of the law.” There is ,a manifest'difference between a decree for alimony payable in installments, and, a decree for a [519] sum of money in gross. In the former, the uncertainty of the amount,- and the coming due and payable of future installments from time 'to .time, would make it impossible that such decrees should attach as a 'lien upon real estate without the aid of the court in making it a charge thereon; while in the latter the judgment is for a sum certain, the rights of the parties are determined, and the judgment is final and conclusive. Ball & Hoffman, for plaintiff in error. Chas. H. Beard, for defendant in error. It is further contended that the decree is an order merely for the payment of money, or an allowance of a sum of money to the wife as alimony, and that it is defective in form, as a judgment. The entry is, "that it is further ordered and adjudged that the defendant pay the plaintiff additional alimony in the sum of one thousand dollars, and in default of such payment within five days, that execution issue therefor.” The case of Linsley v. Logan, 33 O. S., 376, was an action to recover the balance due on a land contract, and to subject the land to sale for the payment thereof. The defendant by cross-petition set up an alleged cloud on the plaintiff’s title to the land. The court on the trial made an entry, finding that the cloud had been removed; that the-plaintiff had deposited with the clerk of the court deeds conveying a clear title; the amount due on the contract, and adjudging the defendant to pay the amount to the clerk within thirty days, and in' default thereof, that execution issue therefor. The land was sold, and for the balance remaining due execution was issued on the judgment, and levied on other lands of the defendant, which were claimed by another party under a lien acquired after the rendition of said judgment. It was held that the entry so made was a final determination of the rights of the parties to the action, and was, therefore, a judgment within the meaning off sec. 370, and being a final judgment against the debtor for the payment of money, under sec. 421 became a lien on his land in the county where it was rendered, superior to that subsequently acquired, It was further said in that case, that while the journal entry was not in the best form, the judicial entry in question answers in substance the definition of a judgment, and it was therefore a judgment within the meaning of the code; it was a judgment for the payment of money final between the parties, upon which an execution was expressly awarded.” So we say, in this case the judgment was for the payment of a sum of money in gross, and the action of the court was final and conclusive, settling all the rights of the parties in that proceeding, in respect to the rights of the wife to alimony, and execution awárded to enforce the judgment. Our conclusion, therefore, is that the defendant in error could not maintain thp action to restrain the sheriff from the sale of the premises acquired by her after judgment for alimony was rendered; that such judgment became a lien on these premises; which the plaintiff in error could enforce by a' levy of execution and a sale to satisfy it. The judgment of the common pleas is therefore reversed, and the cause remanded for further proceeding.