Miles v. Gay
| Decision Date | 04 November 1965 |
| Docket Number | 7 Div. 667 |
| Citation | 280 Ala. 131,190 So.2d 686 |
| Parties | Dollie MILES et al. v. Doris GAY. |
| Court | Alabama Supreme Court |
The original opinion is withdrawn and the following is substituted as the opinion of the court.
The wife obtained a divorce from the bonds of matrimony and an award of $10.00 per week, payable by the husband beginning September 29, 1945. The decree granting divorce and awarding the payments to the wife was rendered October 16, 1945. The decree did not undertake to impose any lien on the property of the husband.
The husband made some payments to the wife, but he never fully complied with the decree.
In 1949, the husband's father died and the husband inherited from the father a certain undivided interest in land.
On April 20, 1953, the wife recorded in the office of the Judge of Probate a certificate of the register, which, when an error is corrected, recites that on October 16, 1945, the wife recovered from the husband a 'Judgment for the sum of Ten & no/100 ($10.00) (Dollars) per week, beginning on the 29th day of September 1945,' and names the wife's attorney of record.
On December 21, 1954, the husband executed a mortgage on his interest in the land he had inherited. The mortgage was filed for record January 25, 1955, all subsequent to the date on which the wife recorded the first certificate in 1953.
On October 14, 1955, the wife recorded a second certificate of the register which corrects the judgment date, names a different person as the wife's attorney, and is otherwise the same as the first certificate.
The wife caused execution, based on the decree of divorce, to issue against the husband. The execution was levied on the land inherited by the husband and it was sold to the wife at execution sale on May 5, 1956.
The wife then filed a bill to sell the land for division. The holders of the mortgage executed by the husband claim that the mortgage lien is superior to the title of the wife which she acquired by purchase at the execution sale.
The trial court decreed that the wife's title is superior to the lien of the mortgage and the holders of the mortgage appeal.
The only theory on which it can be contended that the wife acquired a title, superior to the mortgage, is to say that by recording the first certificate in the office of the Judge of Probate on April 20, 1953, the wife acquired a lien on all property of the husband by virtue of §§ 584 and 585 of Title 7, Code 1940, which recite as follows:
The question for decision is whether the recording of a certificate, which recites that the wife has recovered a judgment against the husband for $10.00 per week, beginning seventeen days before the date of the judgment, was sufficient to fasten a lien on all the property of the husband.
Other courts have dealt with the question.
In McClanahan v. Hawkins, 90 Ariz. 139, 367 P.2d 196, the court was called to decide whether the grantees of a divorced husband were the rightful owners of real property which the husband had conveyed subsequent to a divorce decree. The facts were that on March 16, 1956, the divorce court entered a decree granting divorce and awarding the real property to the husband as his sole and separate estate. The decree provided that he should make periodic payments for support of wife and two children and should pay $250.00 for attorney's fees. On July 31, 1957, the decree was duly recorded. On October 8, 1957, the husband conveyed the real property to the grantees. Three days later, October 11, 1957, the husband appeared in the divorce court in response to an order to show cause and was adjudged to be in arrears (1) in payment of the attorney's fees and (2) for $1,157.00 in support payments. On October 14, 1957, execution was issued from the divorce court and levied on the property. The grantees instituted an action for a judgment declaring that the decree of divorce was not a lien on the property. The wife contended that a judgment lien on the land existed by reason of statutes which recited as follows:
The trial court held that the wife did not have a lien on the property and the Supreme Court of Arizona affirmed. The court observed:
'. . .. In order that a judgment operate as a lien under a general judgment lien statute, it must be final and conclusive, and the amount due must be definite and certain. . . ..' (90 Ariz. at page 141, 367 P.2d at page 197)
The court noted that the legislature had given the court continuing jurisdiction to modify a divorce decree as to payment of money for alimony or support or expenses of the proceedings, and, therefore, that a divorce decree is not final and conclusive as to some of its terms. The court said, however, that it followed the rule that installments become vested when due and the court had no power to modify as to past-due installments. The court said also:
'This immunity of accrued installments does not however, change the inherent nature of the divorce decree, i.e., that the amount which ultimately may become due is uncertain, subject to the continuing court authority to augment or decrease the payments as changing conditions and needs of parties dictate. Without delving into the multifarious contingencies affecting amounts payable under divorce decrees we need merely mention a few events which ordinarily change or vacate orders for periodical payments and point up their inconclusive nature.
'In the instant case when the appellant recorded the divorce decree in an attempt to place a lien upon her divorced husband's real property, the decree was not final in the sense that the alimony and support payments could still be modified or terminated. In this respect it was not within the contemplation of the general judgment lien statute.
'. . .
'The Arizona legislature has recognized the distinction between obligations and duties imposed by and under a decree of divorce and those imposed by an ordinary money judgment. Hence our statutes relating to the dissolution of marriage contain certain rpovisions stating the extent of the court's authority and discretion in entering a judgment for divorce, e.g., A.R.S. § 25--319 describes authority to make an allowance for alimony, support, and for costs of the proceedings, and A.R.S. § 25--318 dealing with divorce judgments provides for the settlement of all of the property rights of the parties to the actions. Section 25--318 reads in part as follows:
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In re Estate of Harless
...were outstanding at the time of recording. This argument rests primarily upon the Alabama Supreme Court's decision in Miles v. Gay, 280 Ala. 131, 190 So.2d 686 (1965), which held that a recorded certificate of a judgment awarding a wife $10.00 per week for an indeterminate period was insuff......
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Austin v. Austin
...813 (1956). Past due and unpaid alimony or child support payments are not "judgments" for all purposes. For example, in Miles v. Gay, 280 Ala. 131, 190 So.2d 686 (1966), it was held that a lien on the husband's real property for past due and unpaid installment payments of alimony awarded un......
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Andrews v. City Nat. Bank of Birmingham
...Such "judgments" are not judgments for all purposes. See Dodd v. Lovett, 282 Ala. 383, 211 So.2d 799 (1968); Miles v. Gay, 280 Ala. 131, 190 So.2d 686 (1965). ALMON, J., JONES, Justice (dissenting): I respectfully dissent. I find that the point of difference between my views and those of th......
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Moates v. Morgan
...search and study of decisions of our supreme court lead in a different direction and dictate a contra result. In Miles v. Gay, 280 Ala. 131, 140, 190 So.2d 686, 694 (1966), it was decided on rehearing that, under what are now §§ 6-9-210 and -211 of the Code of Alabama of 1975, as to the non......