Whitmore v. Brown , 147 Ark. 147 ( 1921 )

Hart, J.

(after stating the facts). The decree for alimony in gross in the sum of $3,000 was entered by consent of the parties and was for the benefit alone of Eva W. Whitmore. She saw fit to execute a quitclaim deed to R. O. Brown for the lots in controversy, and thus disposed of any possible interest she might have in the lots. Therefore, the question of whether the original divorce decree constituted a lien upon the lots in controversy to secure this amount passes out of the case.

The only question raised by the appeal is whether or not the original divorce decree of the date of April 21, 1919, gives to Eva W. Whitmore in trust for the minor children a lien on the property in controversy for the $75 per month which the court below decreed should be paid by Y. E. Whitmore until the youngest child became of age. Divorce proceedings are regulated by statute, and alimony is just what the statute makes it. There is no statute in this State providing that a decree for alimony or for the support and maintenance of the minor children of the divorced parties shall be a lien on the real estate of the husband. There is a conflict in the authorities as to whether a decree for alimony payable in installments becomes a lien on the lands of the husband, or whether it may expressly be made a lien by the court upon the real estate of the husband.

It is insisted by counsel for appellants that the better reasoning supports the conclusion that a decree for alimony creates a lien on the husband’s real estate, which extends to and includes the installments of such alimony falling due in the future. We need not consider where the better reasoning or the weight of authority on this question is, for this court as early as 1881 took the opposite view of the question, and the decision has never been overruled. This court expressly held that a decree for alimony payable in installments does not operate as a lien upon the real estate of the husband. In Kurtz v. Kurtz, 38 Ark. 119, it was held that the court should not make future payments of continuing alimony a lien on the husband’s real estate for the reason that to do so would be likely to embarrass alienation. The court said that this was too obvious for discussion, and that “as for all matters ordered to be paid at once, and for which execution may issue, they are already g-eneral liens, without being so expressed.” Again in the succeeding year, in the ease of Casteel v. Casteel, 38 Ark. 477, in discussing the question, the court said: “We need not modify the decree, as it is not urged upon us to do so. Otherwise it would be proper to remand the cause for its correction. The alimony should not have been made a lien upon the lands of complainant. This is equivalent to charging them with an annuity, which the owner might do voluntarily, but the court should not in invitum, as it embarrasses alienation. If objection had been made, or were now insisted upon, the court might have secured the payment of the alimony by sequestration, or by exacting sureties. The appellant has, however, chosen to stand on other grounds.” Thus it will be seen that the court adhered to its former ruling on this question, and that the decree in that case was affirmed solely on the ground that appellant did not urge as error, either in the court below or upon appeal, that the decree for alimony was made a lien upon the land of the husband.

The effect of these decisions has never been impaired by subsequent ones, and they have bfecome a. rule of property in this State. It results from these considerations that the decree for continuing alimony for the support of the children did not create a lien on the lots in controversy, and R. O. Brown-was entitled to have his title quieted.

Therefore, the decree must be affirmed.