In re Garrett

E.D. Virginia

In re Garrett

10 F. Cas. 47, 2 Hughes 235

DecidedFebruary 15, 1875

StatusPublished

This text of 10 F. Cas. 47 (In re Garrett) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Garrett, 10 F. Cas. 47, 2 Hughes 235 (E.D. Va. 1875).

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Opinion

HUGHES, District Judge.

The state court which rendered the decree mentioned was a court having full jurisdiction of questions of divorce and alimony, which this, the bankruptcy court has not. That court was competent to render such decree, and the bankruptcy court has no jurisdiction, directly or indirectly, to review or modify or affect that decree. The lien of the decree directing the payment of alimony in monthly instalments is a continuing lien, similar in some respects to a ground-rent charge upon ground in which a homestead should be claimed. In this case it is superior to the claim of homestead; for, though the decree of alimony was •itself subsequent in date to the adoption of the state constitution, which makes the homestead superior to judgments upon contracts made after its adoption, yet the marriage and birth of children, and therefore the contract [48]*48on which the decree was rendered, occurred long before the adoption of the state constitution, and have priority over the right of homestead.

As to the monthly payments which fell due before the proceedings in bankruptcy, it might be a question whether, as a personal charge, the discharge in bankruptcy does not release from them. That is a question which can only be decided in a suit in per-sonam for these instalments, on a plea of discharge in bankruptcy. Certainly, however, does the lien of the decree bind the lands for these instalments.

As to the payments accruing monthly after the petition in bankruptcy, they are due by natural obligation which continues; they are in the nature of fiduciary obligations, which the bankruptcy law does not affect, and which a bankruptcy court will not interfere with, the proper state court having exclusive jurisdiction of the subject — to enforce, remit, diminish, or increase the alimony as it may see fit.

I will allow the land claimed as a homestead to be set aside to the bankrupt as such, but shall take care to recite in the order that the homestead shall be held subject to the right of the wife to alimony, as has been or may be decreed to the wife by the state court.

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HUGHES, District Judge.

The state court which rendered the decree mentioned was a court having full jurisdiction of questions of divorce and alimony, which this, the bankruptcy court has not. That court was competent to render such decree, and the bankruptcy court has no jurisdiction, directly or indirectly, to review or modify or affect that decree. The lien of the decree directing the payment of alimony in monthly instalments is a continuing lien, similar in some respects to a ground-rent charge upon ground in which a homestead should be claimed. In this case it is superior to the claim of homestead; for, though the decree of alimony was •itself subsequent in date to the adoption of the state constitution, which makes the homestead superior to judgments upon contracts made after its adoption, yet the marriage and birth of children, and therefore the contract [48]*48on which the decree was rendered, occurred long before the adoption of the state constitution, and have priority over the right of homestead.

As to the monthly payments which fell due before the proceedings in bankruptcy, it might be a question whether, as a personal charge, the discharge in bankruptcy does not release from them. That is a question which can only be decided in a suit in per-sonam for these instalments, on a plea of discharge in bankruptcy. Certainly, however, does the lien of the decree bind the lands for these instalments.

As to the payments accruing monthly after the petition in bankruptcy, they are due by natural obligation which continues; they are in the nature of fiduciary obligations, which the bankruptcy law does not affect, and which a bankruptcy court will not interfere with, the proper state court having exclusive jurisdiction of the subject — to enforce, remit, diminish, or increase the alimony as it may see fit.

I will allow the land claimed as a homestead to be set aside to the bankrupt as such, but shall take care to recite in the order that the homestead shall be held subject to the right of the wife to alimony, as has been or may be decreed to the wife by the state court.

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Bluebook (online)

10 F. Cas. 47, 2 Hughes 235, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-garrett-vaed-1875.