Felder v. Felder's Estate

• Decision Date: 31 May 1943
• Docket Number: 35365.
• Citation: 195 Miss. 326,13 So.2d 823
• Parties: FELDER et ux. v. FELDER'S ESTATE et al.
• Court: Mississippi Supreme Court

13 So.2d 823

195 Miss. 326

FELDER et ux. v. FELDER'S ESTATE et al.

No. 35365.

Supreme Court of Mississippi

May 31, 1943

James A. Wiltshire, of Magnolia, for appellants.

Cassidy & McLain, of McComb, for appellees.

McGEHEE Justice.

This case is here on its fourth appeal. As now presented, it involves the sole question of whether or not the alleged homestead rights of the appellants, Alonzo Felder and his second wife, are paramount to a specific lien fixed by the court on the land in controversy in favor of his first wife to secure the payment of an award of alimony made to her upon the granting of a decree of divorce against him because of alleged cruel and inhuman treatment, where it is shown that within approximately two weeks after the rendition of the divorce and alimony decree he remarried and moved the second wife into the home with him on said land before a sale thereof could be made by the commissioner who had been appointed by the court and directed to sell the land for the payment of such alimony in the event default should be made in the payment thereof.

The proof discloses that the court below, after having denied a divorce to the appellant Alonzo Felder, granted such a decree in favor of his first wife, Bessie McCormick Felder, on December 7, 1937, upon her cross-bill and proof made thereon and also awarded unto her the sum of $500 as permanent alimony and $50 as an attorney's fee, payable $100 in cash, $200 on February 10, 1938, and $250 on December 7 1938, fixed a lien in her favor upon the land in controversy for the payment thereof, and appointed the clerk as a commissioner to sell the land if default should be made in either of such payments. A lis pendens notice had theretofore been given on August 2, 1937, pursuant to Section 2325, Code of 1930, and which notice described the land in controversy and stated that a lien was sought to be enforced against it for alimony, attorney's fees and court costs in the case-a procedure sanctioned in the case of Gallaspy's Sons Co. v. Massey, 99 Miss. 208, 54 So. 805 Ann.Cas.1913D, 947, wherein it was held that a wife's right to alimony constitutes such an interest in her husband's real estate as that she may take advantage of the lis pendens statute to protect such interest as a vested right to maintenance therefrom. Then, on December 22, 1937 Alonzo Felder married his present wife, Pallie Felder, who, as heretofore stated, immediately moved into the home where he resided on said land. He thereafter defaulted in the payment of the alimony owing to his former wife, Bessie Felder, and with the result that the commissioner was directed to proceed with the sale of said land and the same was finally sold on May 1, 1939, when the former wife, Bessie Felder, became the purchaser at a price equal to the amount of her alimony, attorney's fees and costs. Upon due notice to Alonzo Felder, in whom the title of the land still remained except for the sale by the commissioner as aforesaid, and upon a hearing had in that behalf, the commissioner's sale of the land to the said Bessie Felder was duly confirmed by the court on December 12, 1939. During the pendency of an appeal to this court by Alonzo Felder from the decree confirming such sale, it appears that the said Bessie Felder died on June 8, 1940, leaving a last will and testament, whereby she devised and bequeathed said land to her mother, Mrs. Callie McEwen McCormick, subject to any indebtedness that may be owing by her estate. That appeal to this court was thereafter dismissed for the want of prosecution, as had been true of a former appeal from the decree awarding the alimony and fixing a lien upon said land for the payment thereof. Thereafter, a writ of possession was issued and served at the instance of the said Mrs. Callie McEwen McCormick and with the result that the present suit was filed by the said Alonzo Felder and his wife Pallie Felder on December 9, 1940, seeking to cancel the alimony decree rendered on December 7, 1937, whereby a lien had been fixed on said land for the payment of the sums due under such decree, and to enjoin the sheriff from executing the writ of possession which he had served upon the complainants herein, and also asking for general relief against the commissioner's sale, deed of conveyance and the claims of the estate of Bessie Felder, deceased, and of the said Mrs. Callie McEwen McCormick, so as to protect the alleged homestead rights of the complainants in the land in controversy. This suit was dismissed by the court below upon a motion to strike the bill of complaint as being in the nature of a bill of review and filed more than two years after the decree sought to be reviewed was rendered. The cause was again appealed to this court, and the case was reversed and remanded for the reason that it was alleged in the bill of complaint that after the rendition of the decree of divorce and alimony against Alonzo Felder and the lien was fixed against his land, he married the complainant, Pallie Felder, who was not a party to the alimony decree, and that the land described therein had become the homestead of the complainants; that Bessie Felder had died and her administratrix was attempting to sell the land under the alimony decree, and that this should not be done for the reason that Alonzo Felder's liability for the alimony ended with the death of his former wife, Bessie Felder. This court also held on that appeal that the bill of complaint was not one in the nature of a bill of review and should not have been dismissed as such. Felder et ux. v. McCormick, 191 Miss. 851, 4 So.2d 363. Upon remand, the cause was again heard upon an amended bill of complaint, answer and proof, and instead of it being shown that an attempt was being made to sell the land to collect alimony due the said Bessie Felder, deceased, the proof disclosed that the land had already been sold prior to her death and the claim for alimony paid and discharged when she became the purchaser of the land at the commissioner's sale, as hereinbefore stated, unless the land was exempt from sale as a homestead when sold by such commissioner.

Thus, it will be seen from the foregoing recitals of the proceedings had in the case that the decree awarding alimony against Alonzo Felder in favor of his first wife, Bessie Felder, and fixing a lien on the land for the payment thereof became final as to the parties to said cause upon the dismissal of the first appeal; that the commissioner's sale of the land to Bessie Felder and the decree confirming such sale likewise became final upon the dismissal of his second appeal; and that as heretofore stated the sole question now left for decision is whether or not, in view of the fact that his second wife, Pallie Felder, was not a party to any of the proceedings had prior to the filing of the present suit, she and the said Alonzo Felder, or either of them, are now entitled to have cancelled the commissioner's sale of the land and the decree confirming the same as being in violation of the homestead rights alleged to have been acquired by them subsequent to the rendition of the alimony decree of December 7, 1937, and prior to the sale of said land by the commissioner pursuant thereto.

Section 1421, Code of 1930, provides, among other things, that "When a divorce shall be decreed from the bonds of matrimony, the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders * * * touching the maintenance and alimony of the wife, or any allowance to be made to her, and may, if need be, require sureties for the payment of the sum so allowed * * *."

In 17 Am.Jur. 487, Section 638, it is said "In a number of jurisdictions statutes have been enacted expressly providing that a decree for alimony may be declared a lien on the real estate of the husband. In the absence of such authorization most authorities hold that the power to declare such a decree a lien inherently exists in a court of equity. Such inherent authority is held not to be abridged by the fact that the legislature has made provision for the requirement of security for the payment of an award." Our own court recognized the existence of this power in a court of equity in the cases of Moseley v. Larson, 86 Miss. 288, 38 So. 234, and Gallaspy's Sons Company v. Massey, supra, to affix a specific lien upon the real...