Holcomb v. Holcomb

• Decision Date: 07 May 1940
• Docket Number: 9045.
• Citation: 8 S.E.2d 889,122 W.Va. 293
• Parties: HOLCOMB v. HOLCOMB.
• Court: West Virginia Supreme Court

8 S.E.2d 889

122 W.Va. 293

HOLCOMB v. HOLCOMB.

No. 9045.

Supreme Court of Appeals of West Virginia.

May 7, 1940

Dana C. Eakle, of Clay, and Harper & Baker, of Spencer, for appellant.

E P. Alderson, of Summersville, for appellee.

MAXWELL Judge.

By her bill herein the plaintiff seeks to enforce against the defendant's real estate the lien of a decree for alimony entered in her favor against him in 1929. The trial chancellor sustained the defendant's demurrer to the bill and dismissed the cause as an original suit, but directed that the bill be filed and treated as a petition in the divorce case of Floyd Holcomb v. Belle Holcomb, wherein the alimony decree mentioned had been entered on the cross-bill of the defendant in that suit. This appeal was awarded the plaintiff in the instant suit.

The adjudication of alimony was in the sum of $5,000, payable in annual installments of $500 each, with interest. At the time of the institution of the present suit all installments had accrued, but only $1,500 had been paid.

Though the decree for alimony did not specifically declare that the whole amount thereof, or the maturing installments, should constitute a lien on the real estate of Floyd Holcomb, it necessarily follows that since all installments have become due, the matter stands as a gross-sum-alimony allowance having the effect of any other decretal judgment for money. In Goff v. Goff, 60 W.Va. 9, at page 22, 53 S.E. 769, at page 774, 9 Ann.Cas. 1083, this Court stated: "Of course, a decree for a gross sum as alimony is a lien by the letter of the statute." The statutory provision there referred to is Code 1931, 38-3-6 (formerly Code ch. 139, sec. 5), making every judgment for money a lien on the real estate of the debtor. Consult:Smith v. Smith, 81 W.Va. 761, 767, 95 S.E. 199, 8 A.L.R. 1149; Bassett v. Waters, 103 Kan. 853, 176 P. 663; Conrad v. Everich, 50 Ohio St. 476, 35 N.E. 58, 40 Am.St.Rep. 679; Schooley v. Schooley, 184 Iowa 835, 169 N.W. 56, 11 A.L.R. 110; Wetmore v. Wetmore, 149 N.Y. 520, 44 N.E. 169, 33 L.R.A. 708, 52 Am.St.Rep. 752. The Goff case, supra, is express authority also for the proposition that though alimony is payable in installments it constitutes a lien on land.

The plaintiff herein, owner and holder of a five-thousand-dollar decretal judgment against the defendant, has the right to maintain this suit for the purpose of enforcing the lien of her judgment against the defendant's real estate. The case of Duncan v. Duncan, 119 W.Va. 471, 194 S.E 433, was a similar proceeding, wherein no question was raised respecting the effect of an alimony decree. Both the trial court, the appellate court and counsel dealt with the case on the basis of tacit concessum that the alimony decree created a lien against the husband's real...