Downs v. Flanders
| Decision Date | 12 November 1889 |
| Citation | 22 N.E. 585,150 Mass. 92 |
| Parties | DOWNS v. FLANDERS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J. Brown, for remandant.
Bradley Swift, for tenant.
An attachment of the real estate of the husband had been lawfully made by an order of the probate court, to a specified amount, in a proceeding by the wife praying for a separate support and the custody of her children. Pub.St. c 147,§§ 33-35, and chapter 146, §§ 11, 12, 15, 33, 37. An execution had been issued for non-payment of certain arrears of the allowance ordered by the probate court, and had been levied by sale of certain lots of land of the husband included in the attachment, but not of all of them. Said execution and sale thereon had been for an amount much less than that of the attachment. The case presents the question whether a new and additional execution might be issued for the amount of arrears which subsequently become due, and whether, under it, a sale may be made of the other real estate of the husband, which would give a title to the extent of the amount for which the property had been originally attached, and which had not been exhausted by the former levy, superior to that of any one to whom the husband had alienated the estate. If the original attachment remains in force, after an execution has once been issued and served, so that other land may be taken, by virtue of a second execution issuing upon the decree, to the amount of the attachment, as the wife may from time to time petition for and obtain from the court successive executions in the original proceeding, the demandant evidently has no title. The property attached consisted of separate and distinct parcels; and the second execution, under which the tenant claims, was levied by sale thereof upon different tracts from those which had been sold by virtue of the first execution.
The attachment in a proceeding for separate maintenance is made "as in the case of a libel for divorce." Pub.St. c 147, § 35. While it is provided by Id. c. 161, § 52 that real or personal estate attached shall be held only for 30 days after final judgment for the plaintiff, the laws relating to attachment in suits at common law or in equity do not apply, except so far as they are not inconsistent with the sections of the statute which permit such attachments in cases like the one at bar. In libels for divorce or petitions for separate maintenance, there is no final judgment which closes the proceeding as ordinary actions are terminated. The orders and decrees in reference to support, alimony, etc., remain open always to revision, and the purpose of an attachment is to secure such suitable support and maintenance to the wife and her children as may be awarded, by enabling the court to enforce its decrees, as they may be originally made or modified upon the property thus sequestered. Chase v. Ingalls, 97 Mass. 524; Barney v. Tourtellotte, 138 Mass. 106; Burrows v. Purple, 107 Mass. 428. It has...
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