Lambeth v. Lambeth , 249 N.C. 315 ( 1959 )

106 S.E.2d 491 (1959) 249 N.C. 315

Helen Urban LAMBETH
v.
J. Walter LAMBETH.

No. 380.

Supreme Court of North Carolina.

January 14, 1959.

Walser & Brinkley, Lexington and Jordan, Wright & Henson, Greensboro, for plaintiff.

No appearance for defendant.

DENNY, Justice.

The question posed on this appeal is this: Does a judge of the superior court have the power and authority to order a Receiver of the defendant husband's property, located in North Carolina, to sell certain non-income producing real estate for the purpose of investing the proceeds derived therefrom in legal investments so as to produce an income sufficient to enable the Receiver to pay the expenses of the receivership and alimony payments awarded the plaintiff by the final judgment entered upon the jury's verdict that the defendant had abandoned his wife and child?

It appears from the record on this appeal that since the defendant abandoned his wife and child on 27 July 1957 he has not contributed anything to their support. Moreover, he has not paid anything pursuant to the orders heretofore entered in this cause in the court below. All that has been paid for the maintenance and repair of defendant's property, taxes, insurance, suit money, attorneys fees and alimony, has been paid by the Receiver.

It is well settled in this jurisdiction that a Receiver of the defendant husband's property in a case in which the wife has been awarded alimony may sell the husband's real estate to raise money to pay the alimony. Bailey v. Bailey, 127 N.C. 474, 37 S.E. 502; White v. White, 179 N.C. 592, 103 S.E. 216; Wright v. Wright, 216 N.C. 693, 6 S.E.2d 555; Pennington v. Fourth National Bank, 243 U.S. 269, 37 S.Ct. 282, 61 L.Ed. 713.

It has likewise been held in this jurisdiction that a Receiver may collect the income from the husband's real property for the purpose of paying therefrom the alimony awarded the wife. Gobble v. Orrell, 163 N.C. 489, 79 S.E. 957; Perkins v. Perkins, 232 N.C. 91, 59 S.E.2d 356.

The plaintiff herein has obtained a judgment for alimony without divorce pursuant to the provisions of G.S. § 50-16, and such statute, among other things, provides, "* * * it shall be lawful * * * to cause the husband to secure so much of his estate or to pay so much of his earnings, or both, as may be proper, according to his condition and circumstances, for the benefit of his said wife and the children of the marriage, having regard also to the separate estate of the wife * * *."

G.S. § 1-505 (1957 Cumulative Supplement) provides: "The resident judge or the judge assigned to hold any of the courts in any judicial district of North Carolina shall have power and authority to order a sale of any property, real or personal, in the hands of a receiver duly and regularly appointed by the superior court of North Carolina, upon such terms as appear to be to the best interests of the creditors affected by said receivership * * *."

It is likewise said in 75 C.J.S. Receivers § 221 page 856 et seq., "Since the usual power and duty of a receiver are to collect and take possession of the assets of the estate and hold them for disposition as the court may direct, * * * a sale by him is ordinarily improper, but the property, unless it is perishable, should be preserved intact for the benefit of the party ultimately entitled. There are, however, instances in which a sale of real or personal property of the estate is expedient and proper, and, pursuant to the general rule justifying the appointment of a receiver when necessary to preserve property from loss or destruction, * * * where the character of the property or the surrounding circumstances are such as to render a sale necessary for the adequate protection of the rights of the parties, the court may direct and empower its receiver to sell such property, to the end that its value may be preserved, although the parties have not requested such sale, * * *. Thus, where property or a business cannot be administered by a receiver except at a loss, it is clearly within the power of the court to stop the loss by ordering the sale of such property or the assets of such business; * * *."

It is said in 27 C.J.S. Divorce § 251 page 1024, "Alimony is not strictly a debt due to the wife, but rather a general duty of support made specific and measured by the court. It is generally held, however, that alimony decreed to a wife is as much a debt, until the decree is recalled or modified, as any judgment for money is, that the wife is a judgment creditor and as such is entitled to avail herself of all the remedies given to judgment creditors, and that the decree operates to cause an indebtedness to arise in her favor as each installment of alimony falls due. So, it has been held that a decree for alimony is a ``debt,' * * * within the meaning of a statute authorizing the appointment of a receiver of the estate of an absentee and the application of his property to the discharge of such debts as may be proved against him * * *." See also 17 Am.Jur., Divorce and Separation, section 784, page 806.

In Walton v. Walton, 178 N.C. 73, 100 S.E. 176, the holding of the court is sucinctly stated in the third headnote as follows: "The wife's inchoate right to alimony makes her a creditor of her husband, enforceable by attachment, in case of his abandonment, which puts everyone on notice of her claim and her priority over other creditors of her husband." Hagedorn v. Hagedorn, 211 N.C. 175, 189 S.E. 507.

The superior court is a court of general jurisdiction, both in law and equity. Consequently, such court has inherent power over property in custodia legis and may order the sale of such property when such sale is necessary for the proper protection of the interests involved. Commonwealth for the Use of Lewistown Trust Co. v. Nestler, 312 Pa. 484, 167 A. 354; Mc-Clatchey v. Marquis, 203 Iowa 76, 212 N.W. 374; 30 C.J.S. Equity § 81 page 439.

In the case of Blades v. Hood, 203 N.C. 56, 164 S.E. 828, 829, this Court said: "There are numerous cases in which courts of competent jurisdiction apply equitable remedies which have for their object the prevention, rather than the redress, of injuries. * * * The receiver is an officer of the court, and is amenable to its instruction in the performance of his duties; and the custody of the receiver is the custody of the law. Simmons v. Allison, 118 N.C. 761, 24 S.E. 740; Pelletier v. [Greenville] Lumber Co., 123 N.C. 596, 31 S.E. 855; Greenleaf v. Land [& Lumber] Co., 146 N.C. 505, 60 S.E. 424. Courts of equity have original power to appoint receivers and to make such orders and decrees with respect to the discharge of their trust as justice and equity may require. Skinner v. Maxwell, 66 N.C. 45; Lasley v. Scales, 179 N.C. 578, 103 S.E. 214."

In light of the findings of the court below, and the authorities cited herein, we hold that a judge of the superior court does have the power to order the sale of the defendant's non-income producing real estate for the purpose of investing the proceeds derived from such sale in legal investments as provided in Article 6 of Chapter 53 of the General Statutes of North Carolina, so as to produce an income sufficient to enable the Receiver to pay the expenses of the receivership and alimony awarded the plaintiff wife. It would seem upon the facts found by the court below, that within the foreseeable future, the investment of the proceeds as contemplated by such a sale would protect the defendant from any further use of any portion of the corpus of his estate in order to carry out the orders of the court below and to meet the financial requirements of the receivership. Unless the defendant is given notice thereof, all orders of this character should be entered at a term of the superior court and not in chambers. The proceeds from such sale should be subjected to the doctrine of equitable conversion and retain its character as realty, and it is so ordered in the event such sale is authorized and consummated.

Error and Remanded.