Forrest v. Forrest — 22 N.Y. Super. Ct. 686

Majority

p. 686

Catharine N. Forrest, Plaintiff, v. Edwin Forrest, Defendant.

Headnote

1. Until after an order has been made by a Court by whom a judgment of absolute divorce has been rendered in favor of a wife against a husband, requiring the latter to give a bond with surety, for-the payment of an allowance awarded to such wife, in such judgment, and the failure of such husband and his surety to fulfill the condition, such Court is not authorized by the provisions of the Revised Statutes, (2 R. S., 148, § 60,) to sequester the estate of such husband, appoint a Receiver thereof, and apply it to the payment of such allowance.

2. Where security has been given by the husband in such case, by order of the Court for the payment of such allowance, it must first be resorted to and exhausted before his estate will be sequestered.

3. If such security consist of a mortgage, previously belonging to such husband, and assigned by him to a trustee to secure the payment of such allowance, and the latter has become in arrear by reason of the collection by the husband of the interest on such mortgage, in consequence of a failure to notify the mortgagor of the assignment, and the proceeds of such' mortgage on a sale, would probably after payment thereout, of such arrears, be sufficient if invested at six per cent interest, to yield enough to pay such allowance; the Court, on the wife’s application, will order such trustee to sell

p. 687

the mortgage, pay the arrears from the proceeds of such sale, and invest the residue as security for the payment of such allowance, and apply the interest as received to such payment.

Special Term,

October, 1863.

Before Robertson, J.

lit" this action, which was by a wife, for a divorce, the plaintiff obtained a judgment granting the relief sought, and the judgment contained provisions that there should be allowed to the plaintiff for her support, the sum of $4,000 a year, during the continuance in life of both of the parties, payable in quarterly installments in each year.

The judgment also directed the defendant to assign to a trust company, a mortgage in the sum of $75,000, which belonged to him, to be held by the trust company as security for the payment of the allowance. The judgment of the Court is reported in 8 Bosw., 640 , and its affirmance upon appeal in 25 2ST. T. R., 501.

The plaintiff now moved to compel payment by the defendant, of the allowance which he had failed to make.

Nelson Chase and Charles O'Conor, for plaintiff.

James T. Brady and John Van Buren, for defendant.

The present application is made under the judgment at Special Term, in this action, as affirmed by the Court of Appeals, directing the payment of a certain sum quarterly, by way of allowance to the plaintiff by the defendant. That judgment directed a certain mortgage to be transferred to a trust company as security for the payment of such allowance, and reserved to the plaintiff the right of applying for farther security. Part of such allowance is unpaid. The mortgage is not yet due, and the defendant has collected the interest thereon to the present time; so that it has furnished no means of paying the plaintiff the arrears of the allowance adjudged to her. It does not appear that any notice of the assignment of the mortgage, has ever been given to the mortgagor.

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Besides the judgment in this case, the Revised Statutes provide, that a court may require a husband to give reasonable security for an allowance adjudged by it to his wife, and upon his neglect to do so, or the default of him and his surety to provide such allowance, sequester his personal estate and the rents and profits of his real estate, appoint a Receiver thereof, and apply such personal estate, and rents and profits, towards such allowance, from time to time as seems to it just and reasonable. (2 R. S., 148, § 60.) This contemplates furnishing personal security by sureties in the first place, but in case of any neglect by the husband and his sureties, the immediate appropriation of his estate to the payment of the allowance. The giving of such surety was intended for the ease of the husband until he failed to perform the order of the Court.

Some laches was committed in not giving notice to the mortgagors of the assignment of the mortgage, so as to stop the receipt of the interest by the mortgagee, the defendant. It is fair, therefore, to assume, prima facie, that the plaintiff was willing that he should receive it. Such mortgage having been considered prima facie good security for the payment of the allowance, and no circumstance having occurred to lessen its value as such, it should first be used and the remedy on it exhausted, before requiring a new security to be given. The mortgage is for $75,000, and yields $4,500 interest. If the necessary sum could be raised by its pledge, so as to pay the arrears without interfering with the current allowance, it should be done by the Receivers, the Trust Company. If not, the mortgage should be sold by them, the arrears paid from the proceeds, and the residue invested to meet the allowance. The interest of $70,000, after paying such arrears, if obtained at six per cent, would exceed the amount of the allowance. If not sufficient, the plaintiff is to be at liberty to make a new application for further security.

I do not consider the Court authorized to sequester the defendant’s estate under the statute, until an order has

p. 689

been made directing a bond or undertaking with sureties, as security for the allowance, and there has been a failure to comply with the terms of such bond or undertaking, on the part of the plaintiff and his surety. The mortgage given has taken the place of such security to some extent, and, as it is available, should be first employed, it being a quasi sequestration of that part of the defendant’s property.

The order must be drawn directing a sale of the mortgage in question, the payment of the arrears due, and the costs of the application, fixed at ten dollars, out of the proceeds, and the investment of the residue by the Trust Company, reserving liberty to the plaintiff to make any new application for further security she may be advised;