Stevenson v. Stevenson , 41 N.Y. Sup. Ct. 157 ( 1884 )

Follett, J.:

At common law (since the statute of 13 Edward I, permitting lands to be taken on execution) all of a debtor’s property, except necessary wearing apparel, might be taken to pay the claims of creditors. So might all rights of action arising from contract, and abo judgments recovered for the wrongs of others.

The exceptions to this general rule exist solely by virtue of the statutes of exemptions, and no statute has been cited exempting alimony or the separate maintenance of a married woman. It has been held that the separate maintenance of a married woman secured by her husband, they living apart, may be reached by a bill in equity by the creditors of the wife. (Kenge v. Delavall, 1 Ver., 326; Lillia v. Airey, 1 Ves., Jr., 277.) In Ex parte Bremner (L. R., 1 P. & D., 254) it was held that an attorney’s lien attached to alimony. It is difficult to see why the creditors have not the same right to pursue a separate maintenance secured by judgment that they have to pursue one secured by deed No case has been cited or found in which this precise question has been determined, but remarks of judges in the reports may be found indicating that alimony and separate maintenance stand on the same footing.

In Hunt v. De Blaquiere (5 Bing., 560) Park, J., says: “No distinction can be drawn between maintenance under a separation deed and maintenance by virtue of a decree for alimony.”

In Burr v. Burr (7 Hill, 213) Nelson, Ch. J., says : “ The same power that can vest her with an absolute separate interest in a portion of the husband’s estate, can enable her to dispose of it as she may think proper.”

At the time the judgment in this case was entered and at the time the proceedings were had, the statute gave married women the absolute control of their separate estates and rendered them liable for their debts. After judgment awarding alimony the plaintiff acquires a vested right'to the sum which is not divested by her remarriage. (Shepherd v. Shepherd, 1 Hun, 240; affirmed 58 N. Y., 644; Park v. Park, 18 Hun, 466; affirmed 80 N. Y., 156.)

The only statutes under which it is claimed that the sums falling due under this judgment are exempt from the claims of creditors are sections 1879 and 2463, Code' Civil Procedure, which exempt from the reach of creditors, by bill or by supplementary proceedings, “ any money, thing in action, dr other property held in trust for a judgment debtor, where the trust has been created by, or the fund so held in trust has proceeded from a person other than the judgment debtor.” The trusts above referred to are the express trusts authorized by the statutes. No property has been set apart by a donor for a particular purpose, no property had by a trustee from which the annual payments are derived. A legal estate is not vested in one and an equitable estate in another, and no confidence is, or has been, reposed by any one in another.

The judgment and the relation of the parties to it, and to each other, are insufficient to 'create the semblance of an express trust. This judgment, by the law in force when it was entered, was enforceable by execution. (2 R. S., 183, § 104; Lansing v. Lansing, 4 Lans., 377; Miller v. Miller, 7 Hun, 208.)

A judgment directing the payment of a sum of money is-assignable. (Code Civ. Pro., §§ 1910, 1912.)

It might often prove a great hardship should a divorced wife be unable to procure credit on the strength of her judgment for alimony, and quite as great a hardship to the creditor, who, having advanced money upon the faith of the judgment, should be unable to enforce his demand. The judgment is a charge, a legal lien, enforceable by execution, as the plaintiff sought to enforce it, ánd which, by the way, is an unusual remedy for the enforcement of a trust.

While it may be that the separate maintenance of a wife (living apart from her husband); secured by deed through a trustee, is exempt under the sections of the Code above quoted (thus changing the-rule which existed before those sections), still those sections are not broad enough to exempt alimony in which she alone is interested, and arising from a judgment. The fifty dollars due January 5, 1884, was a debt. (Howard v. Howard, 15 Mass., 196.) It was but an incident resulting from the judgment, and is no more exempt as property acquired after the entry of the order than rent falling due on a lease for the life of, and held by, the debtor. It follows .that the receiver acquired title to these sums, and the payment of them by the defendant to the receiver discharged his •liability, and the execution was properly set aside.

The order is affirmed, with costs and disbursements.

Hardin, P. J., concurred; Merwin, J., not voting.

Order affirmed, with ten dollars costs and disbursements.