Beesley v. Badger

• Decision Date: 10 October 1925
• Docket Number: 4266
• Citation: 240 P. 458,66 Utah 194
• Court: Utah Supreme Court
• Parties: BEESLEY v. BADGER et al

240 P. 458

66 Utah 194

BEESLEY v. BADGER et al

No. 4266

Supreme Court of Utah

October 10, 1925

Appeal from District Court, Third District, Salt Lake County; W. S Marks, Judge.

Action by Wilford A. Beesley against Ralph A. Badger and others. From a judgment of dismissal, plaintiff appeals.

AFFIRMED.

E. R Callister, of Salt Lake City, for appellant.

Wilson Loofbourow & Barnes, of Salt Lake City, for respondent.

Booth, Lee, Badger, Rich & Rich, of Salt Lake City, for other respondents.

STRAUP, J. GIDEON, C. J., and THURMAN, FRICK, and CHERRY, JJ., concur.

OPINION

STRAUP, J.

Appellant, the plaintiff below, brought this action to recover damages from the respondents Ralph A. Badger and Norma D. Badger for a breach of warranty against incumbrances arising out of a conveyance of real estate by them to plaintiff. Their demurrer to the complaint was sustained. The plaintiff, declining to amend, the action was dismissed. The plaintiff appeals and challenges the ruling on the demurrer.

By the complaint it is alleged that Ralph A. Badger and Norma D. Badger, on August 2, 1924, by warranty deed conveyed to plaintiff real property, fully described, in Salt Lake county, Utah; that they warranted it to be free of all incumbrances and liens; that on August 2, 1918, Julia P. Badger, then the wife of Ralph A. Badger, in the district court of Salt Lake City, obtained a decree of divorce from him by which decree he was required to pay her alimony and for the support of three minor children the sum of $ 80 per month commencing the 1st day of August, 1918; and that such decree and order constituted a lien and an incumbrance on "said real property, and renders the title to said real property unmarketable by reason of which the said plaintiff is damaged in the sum of $ 2,500," for which amount judgment was prayed. There are no allegations in the complaint of any default in the payment of any of the installments of the decreed alimony or that there were any due or unpaid when the conveyance was made or even when the complaint was filed; nor is there otherwise any breach of the divorce decree alleged, nor that plaintiff was required to pay or had paid any part of the alleged lien or otherwise was injured or damaged; nor are there any facts or particulars alleged upon which the alleged amount of damages is based or claimed. In other words, if the complaint otherwise states a cause of action, it states one only, for nominal damages for a technical breach of a covenant against an incumbrance, a personal covenant not running with the land, which, if the incumbrance existed, was broken when made when the deed was delivered. Devlin on Real Estate (3d Ed.) §§ 905, 916, 942, and 7 R. C. L. pp. 1135 and 1163.

On motion of Ralph A. Badger and Norma D. Badger, Julia P. Badger was made a party, on the theory that she was a necessary party. It is not apparent wherein she was such, but, since no point is made as to that, we are not concerned with it. She demurred to the complaint on the ground that it did not state a cause of action against her because it was not alleged that she had signed the deed or had made any covenant, or that there were any payments of the divorce decree due and unpaid, or that she claimed or asserted any lien on the conveyed real estate. The defendants Ralph A. and Norma D. Badger joined in the demurrer and adopted it. We shall treat the demurrer as a general demurrer.

Of course the complaint does not state a cause of action against Julia P. Badger. No claim is made by plaintiff that it does. Does it state one against the real defendants?

The complaint certainly does not state any for substantial damages. Does it state a technical breach of covenant entitling the plaintiff to nominal damages? That involves the question of whether the divorce decree as alleged constituted a lien on the conveyed real estate. It is not claimed by plaintiff that by the allegations of the complaint it is shown that the divorce decree in terms or by its provisions declared a lien or impressed one upon specific or any real estate of Ralph A. Badger, the divorced husband, to secure the payment of the adjudged alimony. Nor does the complaint contain any such averments. What the plaintiff contends is that a decree or judgment in such respect, when rendered and docketed, has, under the statute relating to judgments, the same effect of a general lien as that of an ordinary judgment for money, not only as to due and unpaid installments, but also as to those to become due. The defendants, while faintly admitting that such a decree or judgment has the effect of such a lien as to past due and unpaid installments, stoutly deny that it has such effect as to installments to become due; and, since there are no averments of any past-due and unpaid installments, the defendants contend that no lien is averred and hence no cause of action is stated.

The law on the subject is stated in 2 Nelson on Divorce and Separation, p. 903, thus:

"The decree for alimony, however, is a judgment, and is considered as having the same effect as other judgments for the payment of money. Where judgments are declared by statute to be a lien upon the real estate of the defendant from the day of the rendition of such judgment, or from the first day of the term in which the judgment is rendered, the decree for alimony will become a lien upon the same date as other decrees. The wife is therefore entitled to an execution against lands conveyed by the husband after the decree became a lien, although the pleadings and decree contain no reference to any specific property. * * * American courts having jurisdiction of actions for divorce have also the inherent power to enforce their orders by contempt proceedings, or by such other adequate means as may be justified by the general jurisdiction of the court, and its procedure. Without such power our courts could not maintain their authority, and many important functions would be paralyzed. * * * Such decree is something more than an ordinary debt or judgment for money. It is a personal order to the husband, similar to an order of court to one of its officers or to an attorney."

In 19 C. J. p. 313, it is said:

"A decree for a sum certain as permanent alimony being a decree in personam, not a decree in rem, in many jurisdictions, when duly filed and entered, has, under the statutes relating to judgments, the same general lien of an ordinary judgment for money, subject to the same limitations, and it is enforceable by execution, unless the record discloses a contrary intention. Statutes sometimes provide that a decree for alimony shall be a lien on the husband's property, or at least are so construed as to have that effect. Unless so provided by statute, or in the decree itself, a decree for permanent alimony does not constitute a specific lien on the husband's estate."

Our statute (Comp. Laws Utah 1917, § 6868), relating to "judgments in general," among other things provides that--

"From the time the judgment is docketed it becomes a lien upon all the real property of the judgment debtor not exempt from execution in the county in which the judgment is given, owned by him at the rendition of the judgment, or by him thereafter acquired during the existence of said lien in his own right. * * * The lien shall continue for eight years unless the judgment be previously satisfied," etc.

By sections 6912 and 6913 it is provided that the party in whose favor judgment is given may at any time within 8 years after the date of entry thereof have a writ of execution issued for its enforcement, and, if the judgment be for money, the amount thereof and the amount actually due thereon must be stated in the writ. By section 7021 it is provided that whenever an order for the payment of a sum of money is made by a court, or judge thereof, pursuant to the provisions of the Code, it may be enforced by execution in the same manner as if it were a judgment. Our statute (Comp. Laws Utah 1917, § 3000), relating to "Divorce," etc., provides that, when an interlocutory decree of divorce is made, the court may make such order in relation to the children, property, parties, and the maintenance of the parties and children as shall be equitable. Subsequent changes, or new orders, may be made by the court in respect to the disposal of the children or the distribution of property as shall be reasonable and proper. By section 3002 it is provided that the decree of divorce shall become absolute after the expiration of 6 months from the entry thereof, unless proceedings for review are pending or the court before the expiration of such period otherwise orders. There is no express provision by statute authorizing...