Forbes v. Jennings

• Decision Date: 06 March 1928
• Citation: 124 Or. 497,264 P. 856
• Parties: FORBES v. JENNINGS, SHERIFF, ET AL.
• Court: Oregon Supreme Court

264 P. 856

124 Or. 497

FORBES v. JENNINGS, SHERIFF, ET AL.

Supreme Court of Oregon

March 6, 1928

In Bank.

Appeal from Circuit Court, Jackson County; C. M. Thomas, Judge.

Suit for injunction by Kenneth Forbes against Ralph G. Jennings Sheriff of Jackson County, and another. From a judgment in favor of plaintiff, defendants appeal. Reversed, injunction dissolved, and suit dismissed.

This was a suit to enjoin the defendant, Ralph G. Jennings sheriff of Jackson county, Or., and Hazel Edith Raymond, the plaintiff in the writ of execution, from levying upon certain real property described in the complaint. The complaint set forth that Kenneth Forbes, the plaintiff in this action, is the legal owner of the realty described in the complaint by virtue of a certain mesne conveyance from Lee Robert Raymond to W. R. Lamb, which conveyance was executed November 10 1923, and that said property was thereafter conveyed by Lamb and wife to plaintiff, who is now in possession thereof.

Lee Robert Raymond duly obtained a decree of divorce from Hazel Edith Raymond on the 18th day of November, 1922, which decree is as follows:

"This cause came on for hearing on the 18th day of November 1922, and, plaintiff appearing in person and defendant not appearing, and an order of default having been heretofore entered herein and the defendant was represented by Rawles Moore, district attorney for Jackson county, Or., the evidence was introduced, and upon said evidence, the court being fully advised and having made its findings of fact and conclusions of law, it is therefore ordered, adjudged and decreed that plaintiff be and hereby is divorced from the defendant, Hazel Edith Raymond; that the divorce is absolute, and that the bonds of matrimony heretofore and now existing between plaintiff and defendant be and the same are dissolved; that defendant subject to further orders of the court have custody of the minor child, and that plaintiff pay to defendant each and every month until said minor arrives at the age of 21 years the sum of $30 for care and maintenance of said minor child; that the court retain jurisdiction for 6 months, with the right to revoke this decree should either of the parties marry before that time."

The complaint also set forth that said decree was docketed on the judgment lien docket of said court on November 24, 1922, and said Hazel Edith Raymond, claiming it to be a lien on plaintiff's land, has caused execution to issue for collection of installments claimed by her to be due thereon and placed the same in the hands of the sheriff for service, that pursuant to said writ, he wrongfully levied upon said land, and will, unless restrained, sell the same, to plaintiff's injury and irreparable damage.

A temporary restraining order was granted. The defendant demurred to the complaint. The demurrer was overruled and defendant answered setting up more fully the facts of the divorce, the docketing of the decree, the fact that at the date of the conveyance to Lamb there was due in unpaid installments the sum of $300, and generally justifying under the writ and decree. The answer was demurred to as not stating a defense. The demurrer being sustained, the defendants elected to stand on their answer and, a judgment of dismissal being entered, defendants appeal.

Newbury & Newbury, of Medford, for appellants.

G. M. Roberts, of Medford, for respondent.

McBRIDE, J. (after stating the facts as above).

This case presents a new and peculiar question. Prior to 1921, section 514, Or. L. read as follows:

" Power of Court to Modify Decree. At any time after a decree is given, the court or judge thereof, upon the motion of either party, shall have power to set aside, alter, or modify so much of the decree as may provide for the appointment of trustees for the care and custody of the minor children, or the nurture and education thereof, or the maintenance of either party to the suit."

In 1921, the Legislature by chapter 114, Laws 1921, amended said section by adding the following proviso:

"* * * Provided, however, that such decree shall be a final judgment as to any installment or payments of money provided for therein which have accrued up to the time either party shall move the court to set aside, alter or modify the same; and provided further, that the court shall not have the power to set aside, alter or modify such decree or any portion thereof which may provide for the payments of money, either for the nurture or education of minor children or the maintenance of either party to the suit, which have accrued prior to the filing of such motion."

Appellants' position is that by this amendment a decree duly docketed and requiring payments of alimony by installments becomes a lien upon the realty of the plaintiff at the date when each installment becomes due. Respondent's position is that such a decree creates no lien, but is a mere personal decree against defendant to be enforced by proceedings other than execution. The statutes of other states are so varied that few precedents, capable of being applied to the conditions existing in this state since the amendment of 1921, supra, are of value. One of the canons in regard to the interpretation of statutes is that the court will consider the mischief to be remedied. Applying this rule to the statute of 1921, we find that, under section 514, Or. L., as it existed before that time, this court had consistently held that an order to pay alimony or sums for maintenance was merely personal and did not create a lien upon the land of the delinquent, and that it merely created an obligation in the nature of a debt, which, in the absence of an express order to that effect, did not bind the land. Such is the effect of the holding in Mansfield v. Hill, 56 Or. 400, 107 P. 471, 108 P. 1007, which decree, so far as maintenance for the minor children was concerned, is as follows:

"That defendant pay to plaintiff, for the support and education of said children, $15.00 each month from May 5, 1905, until the further order of the court"

--and directing that unpaid installments should be a lien on defendant's real property. In this case it was held that the uncertainty in the amount of the decree and the fact that it was made subject to the further order of the court prevented its being a general lien; but constituted a continuing liability, overdue installments of which constituted a debt or claim against the estate to be presented to the executor of the estate to be paid in due course of administration. Among other matters, the court, at page 408 (107 P. 474), said:

"The provision of the divorce decree for future monthly payments by defendant until the further order of the court, being for an indefinite time and amount not yet accrued, is not a definite liability or a judgment for a specific sum which may become a lien upon his property. The very idea of a lien upon property involves certainty as to the amount, so that persons dealing with defendant, as well as defendant himself, may know how much is involved; otherwise he would be precluded from dealing with his property at all, since it would be impossible for him to pay the lien. Freeman, Judgments, § 340, says: 'There can be no lien except upon such judgments as the plaintiff is entitled to satisfy by levy upon the lands of the debtor. * * * The judgment must be for a specified sum.' To the same effect is Black, Judgments, § 407."

Upon a petition for rehearing, Justice Eakin, at page 412 (108 P. 1008), used this language:

"As to the question of the lien of the decree in the divorce case of Mansfield v. Mansfield, in the circuit court of the state of Oregon for Multnomah county, for monthly payments for the support of the children, section 514, B. & C. Comp., cited by counsel, makes no provision for a lien, as is the case in some states; if the amount were a definite sum named in the decree, it would constitute a lien from the time it is docketed, under the terms of section 205, B. & C. Comp., which provides that, from the date of docketing a judgment as

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