Spencer v. Spencer and Others , 9 R.I. 150 ( 1869 )

The plaintiff filed her principal and ancillary petitions against her husband, Obadiah B. Spencer, and his attorney in fact, Walter Spencer, on the 13th of March, 1866, and, on the same day, at half-past one o'clock, P.M., service of the latter petition was made on the said Walter Spencer. Subsequently, on the same day, the attachments in behalf of the defendants, Walter Spencer, Thomas P. Allen and Allen Barber, were made on the real estates of the said Obadiah B. Spencer described or designated in the petitions. The said Obadiah B. Spencer was at this time absent from the state in one of the Sandwich Islands, and has had no service on him of either of the petitions, except, subsequently to the attachments, by letter mailed to him by order of the court, and by publication. It is admitted that Walter Spencer had actual notice of the filing of the principal petition at the time of the attachment in his behalf, and it is claimed that the other said defendants had constructive notice thereof, the attorney employed by said Walter Spencer, who confessedly had actual notice, being likewise employed by them.

On the day following the attachments, the plaintiff obtained a decree in her ancillary petition, enjoining her husband and the defendant, Walter Spencer, until further order, from obstructing or encumbering the described estates and property, and for an allowance of $150, which was made a lien or charge upon the real estates.

Afterwards, the plaintiff obtained, in her principal petition, a decree, which was entered as of the last day of the March term (March 15, 1867,) of the Supreme Court for the County of Kent, divorcing her from bed, board, and future cohabitation from her said husband, c., giving her the custody of her children, and securing for her use one of the real estates, and charging that, and the other estate described in the petition, with the annual payment of fifty dollars decreed to her for her own use, and two hundred and fifty dollars for the support and maintenance of her children, and also, perhaps, with the allowance of one hundred and fifty dollars, granted in her ancillary petition.

The defendants obtained judgment in the several suits in which said attachments were made, at the said March term of the Supreme Court, and, on the 22d day of March, 1867, caused their writs of execution to be levied on the estates attached.

The plaintiff asks, in the present suit, to have the defendants enjoined from proceeding further under their executions, and to have the liens, created in her favor by the decrees entered in her petitions, declared to have precedence of said attachments and levies, or each of them.

In considering this case, we propose first to consider it as if the plaintiffs had never filed any ancillary petition, and afterwards, if it becomes necessary, to consider what effect, if any, the ancillary petition, or the decree thereon, ought to have upon our decision. The case so considered presents the question whether the defendants — supposing them to have had, or to have been affected as claimed with notice of, the principal petition — are so affected thereby that their attachments must be subordinated to the decree entered in said petition in favor of the plaintiff.

We find it difficult to answer this question favorably to the plaintiff, for the reason that, excepting her inchoate right of dower, her petition did not disclose that she had any subsisting equity or interest in the estates therein described, unless the claim — which we are not now to consider — that one of the estates was purchased with her money, c., can be regarded as such; for, though she and her children may have had a right of support from her husband, this was not a right inherent in any specific property of her husband.

The petition showed, among other things, a desire on her part, for certain causes therein alleged, to be divorced from her husband, to have the custody of her children, and to have certain portions of his property assigned or secured for her use and maintenance, or charged for her alimony and their support and education, and of the filing of her petition for the purpose of making this desire effectual. Such a notice would not, in our opinion, make it unconscionable for a creditor of her husband to desire to secure the same property for the payment of his claims, nor inequitable for him to make attachments thereof for the purpose of so securing the same. Our law, except to the extent of the wife's right of dower, does not accord the right of wife and child to support out of the property of the husband or father, any preference over the right of the creditor to payment, but rather the reverse.

The plaintiff likens her petition for divorce and alimony to a suit in equity brought by a judgment creditor after execution issued and return of nulla bona, to obtain judgment out of the equitable assets of the debtor. There are some New York cases of this class which contain expressions to the effect that the creditor by the filing of his bill acquires a lien on the property therein described. Corning v. White, 2 Paige, Ch. 567; Beck v. Burdett, 1 Ib. 305; Edmeston v. Lyde, Ib. 637. But even if the doctrine is that the lien in this class of cases begins with the filing of the bill, before service, and does so independently of any statute of the state, we are still not satisfied that the cases would furnish a sufficient precedent for a similar view in regard to a petition for divorce and alimony. The creditor proceeds upon an adjudicated claim, for the satisfaction of the same, in default of legal assets, out of the equitable assets of his debtor; whereas, in a petition for divorce and alimony, with a prayer that such alimony may be made a lien upon the described property, it is uncertain whether any alimony will ever be allowed, or, if allowed, to what amount it will be allowed, — the whole matter being in fact unadjudicated. We think it would be going further than the cases cited warrant us in going, to hold that the mere filing of such a petition creates a lien for the purposes thereof, upon the property described.

Strictly speaking, the case does not involve the doctrine oflis pendens, for until service there is no lis pendens, and here there was no service of the principal petition previous to the attachments. Hayden v. Bucklin, 9 Paige, Ch. 512; Anon. 1 Vernon, 318; Murray v. Ballou, 1 Johns. Ch. 566; Diamond v. Lawrence County, 37 Penn. 353; Herrington v. Herrington, 27 Misso. 560; Jackson v. Dickenson, 15 Johns 309; 2 Sugd. on Vend. 1045. If the principal petition had been duly served previous to the attachments, the case would then have presented the question whether the property described in the petition was not by such service put in litigation, or brought under jurisdiction of the court in such a manner as to be bound to abide the decree of the court, in the petition, the rights of subsequently attaching creditors being subordinated thereto. This is a question which we do not deem it necessary in the present case to decide. It is said that the rule of lis pendens is at best but a substitution of constructive for actual notice, and that when there has been actual notice it obviates the necessity of inquiring whether the proceedings have been such as to create the constructive notice or not. This argument assumes, that the rule of lis pendens rests upon a presumption of notice. This appears to be the doctrine of some of the cases. There are other cases which rest, or seem to rest, the rule, upon the ground that the property described having by the service been put in litigation, will be held to abide the event of the suit, public policy requiring that no alienation made or lien acquired, pendentelite, shall have an effect to defeat or embarrass the litigation. Murray v. Lylburn, 2 Johns. Ch. 441, 445.Hopkins v. Melasen, 4 Cowen, 667, 679. 2 Sugd. on Vend. 1045, note 2, citing Newman v. Chapman, 2 Randolph, 293; 1 Story's Eq. Jur. § 406; Bellamy v. Sabine, 1 Deg. J. 566; ExparteThornton, Law Rep. 2 Ch. Appeal Cases, 171. We are of the opinion that the rule of lis pendens, if applicable at all to a simple petition for divorce and alimony, c., where the property sought to be charged is described, is only applicable because it rests upon the latter ground; and, therefore, that notice of the filing of the petition to third persons who are creditors of the respondent's husband, is not, as to such persons, equivalent to service, so as to postpone their bona fide attachments of the property described. This might be the effect of such notice in the case of a suit brought to establish or enforce a right or equity subsisting previous to the suit, in the property therein described; or in a case, if any such there be, where a lien begins with the filing before service, but not the effect, we think, in the case of a suit which, like a petition for divorce and alimony, is brought to create or acquire a right or equity in such property as a consequence of its successful prosecution, — there being no fraud or collusion to affect the validity of the attachments.

The plaintiff also contends, that she is entitled to precedence, because her decree was entered as of a day prior to the levies made by the defendants on their executions. But we think we must look to the attachments, and not to the levies, to determine the rights of the defendants.

We, therefore, do not find that the plaintiff is entitled, by reason of her principal petition, or of the decree entered therein, to be declared to have a precedence over the said allotting creditors, or to have them enjoined from selling the property attached upon their executions.

We come next to inquire, whether the ancillary petition, or the decree entered therein, entitles the plaintiff to the relief which she seeks.

There was a service of the ancillary petition made previous to the attachments, not, however, upon Obadiah B. Spencer, but upon the defendant, Walter Spencer, his attorney, in fact; we think, however, that the fact that the service was so made, previous to the attachments, cannot have any effect to defeat, or postpone these attachments. One purpose of this petition was, to have Obadiah B. Spencer and Walter Spencer, his attorney in fact, enjoined from alienating or encumbering the property described in the principal petition, until the hearing thereon. The language used to effect this purpose, in the decree which was entered in the ancillary petition, was somewhat general; but we think it must be considered, in so far as it affected Walter Spencer, to have affected him simply as the attorney, in fact, of Obadiah B. Spencer, and that it would not prevent him, as a creditor of Obadiah B. Spencer, from pursuing any remedy which he was previously entitled to pursue as such. Neither the petition, adinterim, for the injunction to restrain Obadiah B. Spencer and Walter B. Spencer, his attorney in fact, from alienating or encumbering the estates; nor the decree awarding the injunction, would, in our opinion, be construed to prevent the creditors of Obadiah B. Spencer from attaching his estates for the security of their claims; that being a right accruing to the creditors under the law, and not, in the absence of collusion, by any action of the debtor or his attorney, and being also a right which would remain to the creditor, as such, though, as attorney, he had been enjoined.

Another purpose of the ancillary petition was, to obtain for the plaintiff an ad interim allowance out of the estate of her husband, and in the decree such an allowance, to the extent of $150, was granted and made a lien or charge on the real estates described. It thus appears, that the court did, for this purpose, assume a jurisdiction over these estates previously to any service upon their owner. And, yet, without such service, we do not see how we can allow the ancillary petition in respect of this prayer for an ad interim allowance, any more effect than we have allowed the principal petition; or the decree therein, for such an allowance, any effect which we refuse to the decree in the principal petition, the notice, if any, of either petition, being equally ineffectual to bind the consciences of the attaching creditors. We therefore feel constrained to hold, that the ancillary petition and the decree therein, can have no effect to defeat or subordinate the attachments for the benefit of the plaintiff, even to the extent of the ad interim allowance, if, indeed, that allowance is not to be regarded as invalid for want of service on Obadiah B. Spencer, in so far as it depends on the decree in the ancillary petition.

In the view which we have taken of this case, we have not found it necessary to decide, whether or not, the defendants, Thomas P. Allen, and Allen Barber, were, through their attorney, affected with notice of the plaintiff's petitions, or their contents, for, assuming — as in our view we may assume, without detriment to them — that they were so affected, we have, nevertheless, come to the conclusion that we cannot, for any reason, as yet given by the plaintiff, grant her the relief which she asks; and that consequently we must dismiss her bill, unless she wishes, and is entitled to be further heard, upon some question reserved in the agreement between the counsel.

Bill dismissed.