Mahoney v. Mahoney

61 N.W. 334, 59 Minn. 347, 1894 Minn. LEXIS 165

• Court: Supreme Court of Minnesota
• Decided: December 7, 1894
• Docket: No. 9042
• Status: Published

Opinion

Mitchell, J.

Action to recover possession of. eighty acres of land. The material facts found by the court are that in a former action between these same parties, who were then husband and wife, judgmént was rendered granting the plaintiff an absolute divorce on the ground of cruel and inhuman treatment, and granting her $700 alimony out of the property of the defendant, and adjudging the same a specific lien on the land here in controversy, and that collection might be enforced by execution; that execution was duly issued upon this judgment or decree, directing the sheriff to collect said sum out of the property of the defendant; that under this execution the sheriff sold the land, as the law directed, to the plaintiff, and executed to her a certificate of sale; that the land has not been redeemed from this sale, although the time of redemption has expired; that at the time of the trial of the divorce action the land was the homestead of the defendant, and his family, and that he has ever since continued to reside on it, claiming it as his homestead.

There are two grounds upon either of which the judgment in favor of the plaintiff must be affirmed:

First. Even if the court erred in the former action in decreeing plaintiff’s alimony to be a specific lien on the homestead, yet this would be mere error, and would not render the judgment void. It could not be collaterally attacked on that ground.

Second. The judgment was not in that respect even erroneous. The statute provides that upon any divorce, for any cause except the adultery of the wife, the court may decree to the wife such real estate of the husband, not exceeding the value of her dower, as it deems just and reasonable under the circumstances, and may also decree her such alimony out of the estate of the husband as it may deem just and reasonable, and by its decree make the same a specific lien upon any specified real estate of the husband. 1878 Gf. S. ch. 62, § 23.

An allowance o^r alimony to the wife out of the property of the husband, in case of a divorce, is not a debt or liability within the meaning of either the constitution or statute relating to exemptions. In providing for the division and adjustment of property in case of divorce, the law proceeds upon the theory that the wife has an interest in the property of her husband. This is peculiarly true of a homestead, which is exempted from seizure and sale for debt, for the benefit of the wife and children, if any, as well as of the husband. This consideration, whether expressed in terms or not, lies at the foundation of all homestead exemption laws. Therefore, in making an adjustment or division of the property of the husband in case of a divorce, the “homestead exemption” has no more application than it would have in an ordinary suit for partition.

The court can set off to the wife in fee the whole or a part of the homestead, or, if this is impracticable, it may allow her a sum of money equivalent to her proper share of the homestead, and make the amount a specific lien on the land. While the homestead laws of the various states differ from each other in many respects, yet this principle runs through the decisions under all of them. See Waples, Homesteads, p. 68, et seq.; Brandon v. Brandon, 14 Kan. 342; Blankenship v. Blankenship, 19 Kan. 159; Armstrong v. Armstrong, 35 Ill. 109; Daniels v. Morris, 54 Iowa, 369, (6 N. W. 532;) Webster v. Webster, 64 Wis. 438, (25 N. W. 434.)

Whether, when the amount allowed the wife is decreed to be a specific lien on specified lands, the proper way of enforcing the lien is by execution, we need not inquire. In the present case the judgment itself provided for that manner of enforcement, and hence, even if this was erroneous, it was merely judicial error, which is no ground for collateral attack.

Whether the homestead could be sold on execution on a judgment for alimony where the judgment itself does not make it a specific lien on the land is a question upon which we intimate no opinion; for no such question is presented. Judgment affirmed.

Gileillan, C. J., absent on account of sickness, took no part. Buck, J., took no part.

(Opinion published 61 N. W. 334.)