Burr v. Burr — 10 Paige Ch. 166

Majority

p. 166

Burr vs. Burr.

1843. March 7.

Headnote

Upon an appeal by the husband, from a decree of separation from bed and board, the appeal bond should not be given to his wife in her own name, but should be in the name of her next friend, or in the name of the clerk or register of the court of chancery, as a trustee, for her use and benefit.

Where in a suit for a separation from bed and board, instituted by the wife against her husband, the defendant was decreed to pay the costs of the suit and a certain amount immediately, for the alimony of the complainant from the time of the fling of the bill to the entry of such decree, and was also decreed to pay to her an annuity for life, for her permanent alimony, and to give security for the payment of such annuity, under the direction of a master; and the defendant appealed from the whole decree ; Held, that to stay her execution for the amount which was directed to be paid immediately, and for the costs of the suit, it was sufficient for the appellant to give a bond, with sureties, in double the amount thus directed to be paid; as directed by the 82d section of the title of the revised statutes relative to writs of error and appeals.

Held also, that to stay the proceedings of the complainant upon the other branch of the decree, requiring the appellant to give security for the payment of her permanent alimony, and to prevent the execution of process of sequestration to compel the defendant to give security for such payment, the appellant must give the security required by the decree, and must deposit the same with the register to abide the final order and decree of the appellate court, as directed by the 84th section of the same title.

After an execution has been issued upon a decree for the payment of money, and has been levied upon the defendant’s property, the execution of the appeal bond required by the 82d section of the statute does not of itself stay the sheriff from proceeding upon the execution. But the court will direct the proceedings upon the execution to be stayed, upon the giving of the security and paying the sheriff’s fees.

Upon an appeal by the husband from a decree dissolving the marriage contract, or a decree annulling the marriage and declaring it void, the 'appeal bond may be given directly to the wife in her own name; as she will be considered as a feme sole from the time of the original decree if such decree is affirmed, and the bond of the defendant to her will be valid. Miter, upon a decree of separation from bed and board merely, where the common law relation of husband and wife still continues in other respects, so as to render a bond from the husband to his wife invalid.

This was an application on the part of the defendant to stay the proceedings upon a decree against him pending an appeal to the court for the correction of errors. The bill was filed by the wife against her husband for a limited divorce, 'or separation from bed and board. She obtained a decree

p. 167

of separation, and for alimony from the time of the commencement of the suit; the arrears up to the 12th of October, 1842, at the rate of $10,000 per annum, together with the costs of the suit, to be "paid immediately, and at the same rate during the natural life of the complainant, to be paid quarterly. The decree also directed that the allowance for alimony should be secured to her, for her separate use, under the direction of a master and through the medium of a trustee ; with liberty for her to dispose of the same as she pleased, at her death, by an instrument in the nature of a will, and notwithstanding her coverture. The arrears of alimony and the costs of suit not being paid, the complainant’s solicitor caused the decree to be enrolled, and took out execution for the amount then due, as authorized by the terms of the decree ; which execution was levied by the sheriff upon the property of the defendant. After such levy, and before the sheriff had proceeded to sell, the defendant appealed to the court for the correction of errors. He executed an appeal bond to his wife, with two sureties, approved by an injunction master, in the penalty of $250, conditioned to pay the costs and damages which might be awarded against him upon the appeal; which bond was filed with the register. • He also executed another bond to his wife, with two sufficient sureties, in the sum of $60,000, conditioned to prosecute his appeal, and to pay the amount decreed to be paid, if the decree should be affirmed ; and to abide and obey the order of the court for the correction of errors to be made upon the subject of such appeal. This 'bond was also approved by the injunction master and filed with the register.

W. Hay & D. Wright, for the appellant.

S. Stevens & C. Stevens, for the respondent.

Although the statute requires a bond to the adverse party upon the appeal, the bond must be given in such form as to be valid. . And if a husband can

p. 168

not give any bond to bis wife which can be legally enforced in her name, the appeal bond must be given to her next friend, or to the register of the court, or to some other trustee, for her use and benefit. By the common law, the husband and wife are considered one person • and a bond given by the husband to the wife would be invalid, as he canpot covenant with her. (Coventry’s Coke, 112.) If a man gives a bond to a feme sole and afterwards marries her the bond is discharged.' So if she marries one of the obligors in the bond. (Com. Dig. Baron & Feme, D. 1.)

The wife is undoubtedly the adverse, party in this case. And if it was an appeal from a decree granting an absolute divorce, or a decree annulling the marriage and declaring it void, an appeal bond given to the complainant in her own name would be valid. For if the decree should not be reversed upon the appeal, she would be considered as a feme sole from the date of the original decree. And if it was reversed, the condition of the bond would have been complied with. But in the case under consideration I think the bond should have been given to the next friend of the complainant, or to the register of the court as her trustee j which would have been a sufficient compliance with the statute requiring a bond to be given to the adverse party. The appellant, however, may amend, by filing a new bond in the penalty of $250, to perfect his appeal, or by depositing the amount in money, with the register, nunc pro tunc.

If the amount of alimony decreed to be paid hereafter, as .well as that which is now due and payable, is necessary to be secured, to make the appeal a stay of the execution for the amount now due, under the provisions of the 82d section of the statute relative to appeals, (2 R. S. 606,) the bond in this case is wholly insufficient. For the amount now due, and that which will probably become due during the residue of the respondent’s life, according to the usual tables of mortality, would be at least equal to the whole penalty of the bond. I am inclined to think, however, that in such a case as this the execution for the amount which is now due should be stayed, upon giving security by

p. 169

a bond in double that amount. But that will not stay the execution of process of sequestration, to compel the giving of security to the trustee of the respondent for the payment of the future alimony, unless such security is given in conformity with the decree, and deposited with the register to abide the final decree of the court for the correction of errors, as required by the 84th section of the statute. The decree in this case directs the payment-of money, and also requires the execution of certain securities, in trust, to secure future payments. In such a case, in order to stay the proceedings upon both branches of the decree, the provisions of both sections must be complied with. And if only one of them, which is applicable to but one part of the decree, is complied with, it will not stay the proceeding under the other part of the decree appealed from.

Although the execution of a bond, under the provisions of the 82d section of the statute relative to appeals, does not of itself stay the sheriff from proceeding upon an execution which had been previously issued, the court, m its discretion, will direct the execution to be stayed, upon the giving of the security and paying the sheriff’s fees upon the execution. (Clark v. Clark, 7 Paiges Rep. 607.) There must therefore be an order to stay all further proceedings upon the execution in the hands of the sheriff, upon the execution of a new bond to the register, or to the next friend, in trust for the complainant, in the penalty of at least fifty thousand dollars, with two sufficient sureties, to be approved by the proper officer and filed with the register within ten days, and paying the sheriff’s fees. This stay of the execution, however, is upon the condition that the ad interim alimony is paid from time to time, as directed by the former order of the court; to be deducted from the amount of permanent alimony, decreed to be paid, if the decree of this court is affirmed upon the appeal. But the complainant’s solicitor is to be at liberty to proceed to enforce the giving of the security for future alimony, under the other branch of the decree, unless the defendant shall think proper to stay such proceedings, pending the appeal,

p. 170

by giving the security required by the decree, and filing it with the register, to abide the final decision of the appellate court.