Barker v. Dayton

28 Wis. 367

• Court: Wisconsin Supreme Court
• Decided: June 15, 1871
• Status: Published

Opinion

DixON, 0. J.

Counsel for the defendants argue several minor propositions or points in support of the first general proposition insisted on by them, which is, that supplementary proceedings and tbe appointment of a receiver are unauthorized upon a judgment for divorce with alimony, or to enforce payment or satisfaction of tbe judgement for alimony in sucb case. There is high authority for saying, independently of any statutory provision to that effect, that a suit or action in equity will be maintained to compel payment of alimony which has been decreed to the wife in such case (Barber v. Barber, 21 How., 582); and, regarding supplementary proceedings under the code as a substitute to some extent for the former proceedings by bill in chancery to compel payment and satisfaction of judgments, it is not improbable that supplementary proceedings for the purpose here instituted might be sustained on the same ground. But counsel have thought proper to put their objection altogether upon the ground that such proceedings are not authorized by the statute of divorce, and that, not being so authorized, they cannot be maintained. We propose to consider the question in the same point of view, believing, as we do, that the proceedings are authorized by the divorce act It is an undoubted general principle of the law of divorce in this country, that the courts, either of law or equity, possess no powers except such as are conferred by- statute; and that, to justify any act or proceeding in a case of divorce, whether it be such as pertains to the ground or cause of action itself, to the process, pleadings or practice in it, or to the mode of enforcing the judgment or decree, authority therefor must be found in the statute, and cannot be looked for elsewhere, or otherwise asserted or exercised. This general principle being fully conceded, the several minor propositions of counsel which were intended for the most part to illustrate and enforce it, and do do so, become unimportant in the view we have taken of the statute.

Section fifteen of the statute reads as follows: “ Actions to annul or affirm a marriage, or for a divorce, and all other matters coming within the provisions of this chapter, not otherwise specially prescribed, shall be conducted in the same manner as other actions in courts; an'd the court shall have power to award issue, to adjudge costs, and to enforce its judgments, as in other cases.” B. S., cb. Ill, § 15. It cannot be claimed that it is “otherwise specially prescribed ” by tbe statute, that supplementary proceedings shall not be instituted, to compel payment of a judgment for alimony; and the only question which can possibly arise upon the construction of the section is, whether the words, “and to enforce its judgments, as in other cases,” are to be applied or limited to proceedings in the action itself for divorce, or whether they are to be considered as extending to other or independent proceedings for the purpose of enforcing the judgment. But we are not required to decide this question, since it has been held, and we think correctly, that a supplementary proceeding is a proceeding in the action itself, and not a distinct and independent action or proceeding, like the former creditor’s bill in equity. This was expressly so held by the supreme court at general term, in Bank of Genesee v. Spencer, 15 How. Pr. R., 412; and by the superior court of New York also, at general term, in Dresser v. Van Pelt, id., 19. And see also the opinion of Willard, J., in Davis v. Turner, 4 How. Pr. R., 190. The very name supplementary proceeding implies that it is a proceeding in the same action, although it is to some extent, and in many cases, perhaps, fully, a substitute for a creditor’s bill under the old practice. 24 Wis., 548; 10 Wis., 459; 81 N. Y., 635; 2 Duer, 688; 16 How. Pr. R., 278. It follows that the objection to the proceeding itself, or that it is unauthorized and will not lie in this particular case, must be overruled.

It is next objected that the complaint in this action is insufficient because it does not charge the real estate in controversy to be the property of the defendant Jeremy S. Dayton. The complaint alleges that at the date of the conveyance, the land, with the dwelling house thereon situated, was owned and occupied by the wife, Sarah A. Dayton, and her husband, the defendant Jeremy S., as their home; and that the conveyance by the defendant Jeremy S., without the knowledge, assent or signature of Ms wife, was a pretended or fraudulent one, executed with intent to delay and prevent the collection of the judgment in her favor for alimony. These we deem sufficient allegations of title or interest in the defendant Jeremy S., to sustain this action, which proceeds, not on the ground that he has the actual legal title as between himself and Ms co-defendant, the grantee named in the alleged fraudulent conveyance, but that such conveyance is fraudulent and void as against the plaintiff, who represents the wife, the defrauded party in the judgment for divorce.

Another objection is, that the execution upon the judgment for alimony was not returned unsatisfied before the institution of the supplementary proceedings and the appointment of the plaintiff as receiver. The return of the sheriff, nulla bona, was in fact made and signed by him on the execution before the proceedings were instituted, though the execution does not ap-. pear to have been filed in the clerk’s office until afterwards. This was sufficient to justify and sustain the proceedings; and the fact that the execution was not filed with the clerk ought not now to be held to vitiate them.

It is likewise objected that an action like this cannot be maintained by a receiver appointed in supplementary proceedings. In the case of Hamlin, Receiver, vs. Wright and others, 26 Wis., 50, such an action was instituted by the receiver, and sustained both in the circuit court and in this court, where the judgment in Ms favor was affirmed. It is true, no objection was taken in that case. It seems to have been assumed, both by court and counsel, that the action was maintainable; and we tMnk there was no error in the assumption. It is an action of the very kind in which the statute declares the receiver shall sue. E. S., ch. 184, § 96. Counsel seem to confound this action, which is brought to remove obstructions, settle adverse claims, and obtain a transfer or conveyance of title to the receiver, with actions brought by a receiver, founded upon an assumption of title in himself, and where such title is necessary, as in actions for injuries to real estate or to recover possession thereof. The appointment of a receiver vests in him the title to the debtor’s personal estate, but the title to real estate is transferred only by virtue of a conveyance to Mm, wbicb tbe court’ bas power to compel, as was held in King, Receiver, v. Cutts, 24 Wis., 627; in Chatauque County Bank v. Risley, 19 N. Y., 369; and in Moak v. Coats, 33 Barb., 498. This is a necessary action, and one expressly authorized by statute, to compel a conveyance to the receiver. It is like that instituted by the receiver in behalf of a portion of the creditors in Becker v. Torrance, 31 N. Y., 636, 637.

It is furthermore objected, that there was no fraud in the conveyance by the defendant Jeremy 8. to his co-defendant, and could be none, because the property conveyed was a homestead, and as such exempt from forced sale on execution against him; and the cases of Dreutzer v. Bell, 11 Wis., 114, and Pike v. Miles, 23 Wis., 168, are cited. A proper answer to this objection seems to be, that the defendant Jeremy S. has attempted to convey, and has abandoned the property as Ms homestead, thus voluntarily opening the door, or subjecting the property to forced sale on execution, or otherwise, so far as he is concerned. His conveyance, though insufficient for any purpose as against the plaintiff, or Mrs. Dayton, whom the plaintiff represents, may be sufficient to preclude or estop Mm from setting up the homestead right and privilege of exemption. He appears here defending that conveyance and asserting its validity, a position which is quite inconsistent with any right of homestead or privilege of exemption in himself; and should he succeed in defeating the action on the latter ground, it would be mamfestly not for Ms own benefit and to protect his homestead, but' for the benefit of Ms co-defendant, to whom he has conveyed, and whose titlé he does not and can not hereafter deny. He is claiming that as a homestead, therefore, which, according to his own showing, is not and can not be such — the privilege of exemption for property in which he has not and can not have any title or interest, except at tbe mere will or option of another, wbo alone is to be benefited by tbe allowance of sncb claim. It cannot be tbat tbe privilege of exemption is available or bas not been forfeited in snob a case, especially as to a person so situated as Mrs. Dayton is, wbo, unlike a general creditor, bas tbe additional and peculiar ground of complaint, tbat tbe conveyance was made in violation of tbe statute requiring ber signature, and in fraud of ber rights as tbe wife of tbe grantor. Tbe defendant Jeremy S. is undoubtedly estopped from claiming tbe property as exempt, and Mrs. Dayton is at liberty, if she chooses, to proceed to a sale of it, through tbe receiver or otherwise, in satisfaction of tbe judgment in ber favor for alimony. If there bad been no conveyance by tbe husband, and no abandonment of bis homestead, a different question would have been presented. It might then have been tbat no forced sale as upon execution could have been made, but tbat Mrs. Dayton’s remedy for alimony wordd have been to have had a portion or tbe whole of tbe homestead property set off, and tbe title passed to ber in tbe judgment for divorce.

A question is made as to whether Mrs. Dayton bad not forfeited ber right to tbe homestead by tbe abandonment or desertion of ber home before tbe conveyance made by tbe defendant. It is well settled tbat tbe wife, if driven from ber borne by tbe cruelty of ber husband, loses no rights, and forfeits none of tbe immunities or privileges to which she is entitled by law; but tbat she retains the same without prejudice as if she bad remained in tbe bouse, or continued to reside with ber bus-band. Sucb, we are fully persuaded, were tbe facts with regard to tbe removal of Mrs. Dayton from ber borne. Sbe was driven out by tbe cruelty and neglect of ber husband, and consequently lost no rights to which sbe would otherwise be entitled.

One other, and tbe final objection we are required to consider in this case is, tbat tbe statute declaring tbat any mortgage or other alienation of a homestead, by tbe owner thereof, if a married man, shall not be valid without tbe signature of tbe wife to tbe same, is unconstitutional and void. E. S., cb. 134, § 24. Tbis objection is based on tbe language of tbe first sentence of sec. 14, art. I of tbe constitution, wbicb reads as follows: “ All lands witbin tbe state are declared to be allodial, and feudal tenures are prohibited. ”

Tbe argument in support of tbis position was, to saj tbe least of it, ingenious and plausible, and I must confess I was quite interested in it. But we do not tbink it was sound. It proceeded chiefly upon tbe meaning of tbe word “allodial,” or “allodium” as defined in tbe books; and much learning and research were shown in that particular. If tbe provision of tbe constitution bad ended with tbe word “ allodial,” as there found, it would have been much more difficult to answer the position of counsel than it now seems to be. Taking that word as defined by lexicographers and writers on tbe law, and giving full effect to such definition without regard to tbe residue of tbe sentence, it is not easy to say that counsel are so far wrong in tbe conclusion at wbicb they arrive. But it is well understood that words often undergo an important modification in sense and meaning, by tbe connection in wbicb they are used. It is true as to a multitude of words and sentences, that tbe exact meaning or proper sense or intent of tbe writer cannot be ascertained, or rightly understood, except from tbe context or connection, and that to select a single word or sentence, and require a determination from that, would not unfre-quently lead us entirely astray. We need not go to tbe grammarians for tbis, for many of our rules of statutory and constitutional construction are founded upon consideration of tbe same truth. Taken in connection with tbe residue of tbe sentence, therefore, we are able to say, as we tbink, without much doubt or uncertainty, that tbe word has no such meaning or far-reaching effect as is ascribed to it by counsel. Taken in such connection, it means little more than if tbe framers bad said “free,” or “held in free and absolute ownership,” as con-tradistinguished from feudal tenures, wbicb are prohibited in tbe same sentence, and by tbe very next words, and tbe prohibition of wbicb, with tbeir servitudes and reservations, and all tbe attendant hindrances and obstacles in tbe way of free and ready sale and transfer of real property, constituted tbe chief object of tbe provision.

Such being tbe context and obvious primary purpose of tbe provision, it is not difficult to say that tbe word was not used in tbe sense contended for, but only in that above indicated; for, as argued by counsel opposed, it would seem absurd to bold that tbe framers of tbe constitution intended that tbe legislature should have no power or control whatever over tbe sale or disposition of real property, so that tbe owner might transfer it by word of mouth if he chose; that there could be no law requiring the conveyance to be in writing, or signed, or acknowledged, or recorded — no right of dower, or homestead, or other interest created by reason of the domestic or other relations of the owner, and positively no restrictions founded on motives of public or private convenience or policy, or to remedy or prevent public or private mischiefs or wrongs. It is clear that the language of the constitution was never so intended, as all our governmental experience, from the foundation of the state to the present day, fully demonstrates; and yet such would be the logical results of the position assumed by counsel. Tbe position is untenable, and the objection must be overruled.

By the Court. — Judgment affirmed.

LvoN, J., took no part in this decision, having presided at the circuit when the cause was tried.