Fey v. Johns

• Decision Date: 09 December 1922
• Docket Number: 24,040
• Citation: 112 Kan. 385,210 P. 1107
• Parties: ELIZA SQUIRES FEY, Appellant, v. WILL JOHNS, as Sheriff, etc., and PARLEY J. SPENCER, as Administratrix of the Estate of MINNIE E. ROBERTS, Deceased, Appellees
• Court: Kansas Supreme Court

210 P. 1107

112 Kan. 385

ELIZA SQUIRES FEY, Appellant, v. WILL JOHNS, as Sheriff, etc., and PARLEY J. SPENCER, as Administratrix of the Estate of MINNIE E. ROBERTS, Deceased, Appellees

No. 24,040

Supreme Court of Kansas

December 9, 1922

Decided July, 1922.

Appeal from Douglas district court; HUGH MEANS, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

ALIMONY--No Judgment Lien on Real Estate. The alimony provision of a divorce decree considered, and held, no lien on the real estate of the divorced husband was created, or existed by virtue of the statute relating to lien of judgment on real estate of the judgment debtor.

George K. Melvin, R. E. Melvin, both of Lawrence, and Clifford Histed, of Kansas City, Mo., for the appellant.

Thomas Harley, of Lawrence, for the appellee.

OPINION

BURCH J.:

The action was one to enjoin sale of real estate on execution issued on the alimony provision of a divorce decree. Injunction was denied, and the plaintiff appeals.

The decree was rendered in the action of Minnie E. Roberts v. Louis D. Roberts, and contained the following provisions:

"It is further ordered, adjudged and decreed that the said defendant shall have the real estate known as lot 21, Winona avenue, in the city of Lawrence, Kan., subject to the encumbrances now on the same, which he assumes and agrees to pay, and shall have possession thereof within 30 days from this date. He shall also have his own personal belongings and such personal property known to the plaintiff to have been given to said defendant by any person or persons whomsoever. He shall also have all garden tools, yard and furnace utensils, together with the coal in the bin at said homestead at the time possession is given.

"It is further ordered, adjudged and decreed that said plaintiff shall have and hold as her property the automobile, and all household furniture, including the piano; also the real estate now located at Ontario, Cal.; and also the real estate located in the city of Pueblo, Colo., known as 914 East Second street; said plaintiff to assume and pay the encumbrance on the property at Ontario, Cal., amounting to the sum of $ 500, and also to assume and pay the encumbrance now on the property located at Pueblo, Colo., now amounting to approximately $ 600.

"It is further ordered, adjudged and decreed that said defendant pay or cause to be paid to said plaintiff the sum of $ 4,900 in the manner following: $ 200 May 1, 1919; $ 225 June 1, 1919; $ 225 July 1, 1919; $ 225 August 1, 1919; $ 225 September 1, 1919; and thereafter the sum of $ 200 per month on the first day of each and every subsequent month thereafter until the full sum of $ 4,900 is paid in full; the said judgment for said $ 4,900 being hereby expressly made a lien upon the salary of the said defendant as supreme secretary of the Fraternal Aid Union, and in the event the said defendant should hereafter sever his connection with said Fraternal Aid Union, by resignation, then the total amount remaining unpaid at that time shall at once become due and payable.

"It is further ordered, adjudged and decreed that the said defendant, Louis D. Roberts, shall pay the costs of this action taxed at $ 5.25, and shall pay or cause to be paid an attorney's fee of $ 100 to plaintiff's attorney, Tom Harley, and in default thereof that execution issue therefor. And in default of the payment of any said monthly payments, or any part thereof, at any time for ten days after the same becomes due and payable, execution may issue therefor."

The decree was rendered on April 3, 1919. Within thirty days possession of the lot in Lawrence was yielded to Roberts. Six months after date of the decree he remarried, and occupied the lot as a homestead until some time in June, 1920, when he and his wife conveyed by warranty deed to the plaintiff. The...