Barber v. Barber , 1 Chand. 280 ( 1849 )

Larrabee, J.

The. demurrer is well taken. After many decisions, which overthrew the doctrine of the common law, it was at last held, after a full argument before the twelve judges, that a feme covert could not sue or be sued as a feme sole, even though she was living apart from her husband, with Ms consent, and upon a separate maintenance secured by deed. Marshall v. Button, 8 Term, 545.

It is also a settled doctrine that a divorce a mensa et thoro does not destroy the relation of marriage, but merely suspends for a time some of the obligations arising out of that relation. Lewis v. Lee, 8 Barn. & C. 291.

This is the doctrine of the English courts, though in this country it does not appear to be well settled. It is true that in the case of Dean v. Richmond, 5 Pick. 461, it was held that a wife divorced a mensa might sue and be sued in an action at law as a feme sole, for property acquired or debts contracted subsequently to the divorce; and Chancellor Kent, in his Commentaries (2 Kent, 158), regards this as the more reasonable doctrine. But this decision is based upon the fact that at the time there was no court of chancery in Massachusetts, and hence an adherence to the strict rule would operate as a complete denial of justice. The decision in this view was no doubt a very proper one, but here there is no necessity for such a departure, and we are disposed to maintain the doctrine of the common law. The action in this case being in the name of a p-ochien ami, does not obviate the difficulty.

Another ground of demurrer is, that an action of debt does not he to enforce a decree in chancery.

Without going into an examination of the general doctrine, it is sufficient for the present purpose to inquire into the force and effect of a decree for alimony in the state of New York, where this decree was made. Has it the same force as a judgment at law? We think clearly not, as the statute provides (2 N. Y. Rev. Stat. 148), that the husband shall be required to give reasonable security for the performance of the decree, and, in case of his neglect or refusal, authorises the court to sequester his personal estate, and the rents and profits of his real estate.

There is no provision which declares in so many words as does our own, that decrees shall have the same force and-effect as a judgment; but the general provision in relation to decrees for the payment of any debt, damages, etc., makes them a oharge upon lands, tenements, real estate and chattels real, the force of a decree for alimony thus being an exception to the general provision.

The decree for alimony is a specific one for the support of the wife, and in its nature distinct and temporary. It may be increased as the necessities of the wife may require, and the abifify of the husband permit, or it may be diminished or dissolved. Hence it cannot be regarded as a decree absolute for the payment of a sum certain, nor has it the force and effect of a judgment at law. It belongs to that numerous class of decrees which, from their very nature, cannot be enforced in any other than a court of chancery, where one exists. Elliot v. Ray, 2 Blackf. 31.

We are therefore of opinion that the action does not lie in this case.

. The judgment is affirmed.