[Seals et al. v. Pheiffer et al.] Seals et al. v. Pheiffer et al. Creditors' Bill to set aside Conveyance as Fraudulent; Petition for Substitute for Homestead Exemption. 1. Petition by guardian of infant defendants, for allotment of lands as substitute for homestead exemption.--A petition by the guardian ad litem of infant defendants, asking an allotment of lands as a substitute for homestead exemption (Code of 1876, § 2840; Code of 1886, § 2544), without date or affidavit of verification, not shown to have been called to the attention of the court in any manner, can not be considered by this court for any purpose. 2. Petition by widow for such allotment.-It is very questionable if a petition by the widow of a deceased debtor, asking an allotment of land as a substitute for homestead exemption, "does not come too late, after final decree rendered ordering a sale of the lands ;" and even when special circumstances take the case out of the operation of the general rule, the complainants not being notified of the filing of the petition, and the record not showing on what ground it was dismissed by the chancellor, this court can not hold his action erroneous. APPEAL from Pike Chancery Court. PARKS & SON, for appellants. GARDNER & WILEY, contra. STONE, C. J.-This case has had quite a history. It is a creditors' bill, filed in 1882, and seeks to set aside, as voluntary and fraudulent, certain conveyances made and procured to be made by S. J. Seals, an insolvent debtor, to R. C. Seals, his wife. The main equities of the case made by the bill were ruled on by this court at the term of 1884-85. Seals v. Pheiffer, 77 Ala. 278. The case was again before us at the term of 1886 (81 Ala. 518), and the principles governing it were so clearly declared, that all hope or expectation of defeating the object of the suit must thenceforth have ceased. In June, 1886, the chancellor overruled a second application for a rehearing, we affirmed his decree ordering certain real estate to be sold in payment of certain ascertained debts, commanded the register to make sale and conveyance of the property, and to report the sale to him. At the Spring term of the court, 1887, the register reported [Seals et al. v. Pheiffer et al.] that, after proper advertisement, he had sold the property; that Pheiffer & Co. had become the purchasers, and paid the purchase-money, and had received a conveyance. Two petitions appear in the transcript, praying an allotment of a substitute for homestead exemption under section 2544 (2840) Code of 1886. These petitions show on their face that they were prepared after final decree of sale was rendered, but before the sale was made. One of the petitions is signed by the guardian ad litem of the infant defendants. This petition is without date, contains no affidavit of verification, is not shown to have ever been filed in court, and it no where appears that the chancellor took any action upon it, or was asked to do so. There is nothing to show that this petition is rightfully made a part of the transcript. S. J. Seals, the debtor, had died before the suit was commenced, and Mrs. R. C. Seals, the widow, presented her sworn petition, claiming the lot of land decreed to be sold as exempt to her and her minor children, in lieu of homestead exemptions; her husband, at the time of his death, residing on lands not his own. This petition was filed in office February 14, 1887, before the sale of the property. No demurrer, answer, or plea appears to have been filed to this petition; and it is no where shown that any attempt was made to give notice of it, except what is shown further on. As we have said, the petition by Mrs. Seals for homestead allowance was filed after the final decree was rendered, ordering a sale of the lot, but before the sale was made. The report of the sale purports to have been made at the "Special Spring term, 1887," of the Chancery Court; but it is without other date. Mrs. Seals filed exceptions to the report of sale, mainly on the ground that her petition for exemption in lieu of homestead had not been acted on. At the Fall term of the court, 1887, the chancellor made two separate orders as follows: "Er parte R. C. Seals. nied, and the petition is tioner." The prayer of the petition is dedismissed, at the cost of the peti The other order is in the following language: "P. Pheiffer & Co. et al. v. R. C. Seals et al. The exceptions are overruled, and the report of the register is confirmed." Each of these orders bears date September 12, 1887; and they are the rulings and proceedings had on the petition, the report of sale, and the exceptions filed thereto. They are the last orders in the cause. [Edwards v. Edwards.] It is very questionable if the petition for exemption did not come too late, after final decree rendered, ordering a sale of the property.-Sherry v. Brown, 66 Ala. 51, and authorities cited; Toenes v. Moog, 78 Ala. 558; Randolph v. Little, 62 Ala. 396. Possibly, there were circumstances in this case taking it out of the operation of this rule, but we need not consider them. It will be noted that, on the question of homestead exemption, this record shows only the verified petition of Mrs. Seals, her exceptions filed to the register's report of sale, and the brief orders of the court copied above. And all this took place after the final decree in the cause. Not only was there no process, giving notice of the petition, but no prayer for process. The relief she asked for was not of a character she was entitled to, as a matter of course, nor is the proceeding in its nature ex parte. The complainants were entitled to notice, and to be heard.-2 Dan. Ch. Pr. 1606; Weaver v Cooper, 73 Ala. 318. Not being informed on what ground the petition was dismissed, it is our duty to presume that the court did not act illegally. The court may have dismissed the petition for want of prosecution, or for laches. in its prosecution. There is not enough in the record to raise the question, nor to show that the chancellor erred. Affirmed. Edwards v. Edwards, Bill for Divorce. 1. Alimony, permanent and temporary; counsel fees, and costs.-On bill for divorce by the husband, on the ground of abandonment (Code of 1876, § 2685), after a divorce had been refused to the wife on a former suit; the divorce having been granted, and the wife appealing from the decree as to alimony, counsel fees, and costs; this court, modifying the chancellor's decree, allows $50 as temporary alimony, $50 as counsel tees, $60 per annum as permanent alimony, payable semi-annually, and subject to alteration by the chancellor, and divides the costs accruing on the petition equally between the parties, it being considered by the court, that the entire blame does not rest on the wife. APPEAL from Choctaw Chancery Court. Heard before Hon. THOS. W. COLEMAN. The bill was filed by the husband, Edwards, and sought a 84 361 131 447 [Edwards v. Edwards.] divorce a vinculo on the sole ground of abandonment by the wife The wife answered, denying that the abandonment was voluntary, and filed her petition for counsel fees and alimony pendente lite. On decree in favor of husband, a petition for sum in gross as permanent alimony was filed by the wife. An order of reference to the register was made. The chancellor set aside the register's report and rendered a decree disallowing counsel fees, and granting twenty-five dollars as temporary alimony, and an annuity of sixty dollars, to be paid semi-annually until further orders, as permanent alimony, and taxing the costs of the petition on the wife. From this decree the wife appealed. TAYLOR & ELMORE, for appellant. GLOVER & CARNOTHAN, and T. N. MCCLELLAN, contra. STONE, C. J.-When the former suit between these paries was before us- 80 Ala. 97-we said: "The clearly established facts show a sad case of family alienation and discord, but much of the blame is chargeable to complainant." Mrs. Edwards was complainant in that suit, she is defendant in this. It was not said the entire blame rested on her. The clear implication is, that it was not so regarded. Her character is not questioned in this suit, and all the testimony proves her to be a working, struggling, economical woman, doing even hard and menial service. Doubtless she did her share in building up the little property they had gathered about them. Her daughters-two of the only three children of the marriage-and who have quite attained to years of discretion, prefer to remain, and do remain with her, in the sad disruption of the household, while only the youngest child, a son, remains with the father. This is a pregnant circumstance, and is at least persuasive to show that the fault is not all hers. We differ somewhat with the chancellor, and reverse and here render, so as to pronounce judgment as follows: We award to appellant as temporary alimony, fifty dollars. As counsel fees, fifty dollars. And we divide the cost of the petition equally between the parties. And the parties will pay as here indicated. That part of the decree which relates to what is called permanent alimony, we leave as the chancellor fixed it, thirty dollars semi-annually, making sixty dollars per annum; subject, however, to such alteration as [Murray v. Murray.] the chancellor may hereafter make, to be dictated by changes that may occur in personal or property relations.-Williams r. Hale, 71 Ala. 83. Reversed and rendered. Murray v. Murray. Bill in Equity for Alimony without Divorce. 1. Alimony without divorce.—-Under the doctrine declared by this court many years ago (Glover v. Glover, 16 Ala. 440), the wife may maintain a bill against her husband for alimony, without also asking a divorce. 2. Same; how decreed and enforced.--Where the bill seeks alimony only, and the evidence establishes a case for relief, the court will deal only with the income of the husband's property, and will not attempt to divest the title of any part of it, nor permanently deprive him of its use; but the payment of the allowance as decreed, may be enforced by attachment of his person, and, if that remedy prove ineffectual, his property may be placed in the hands of a receiver or trustee, the cause being kept open for modification as circumstances may require. APPEAL from Mobile Chancery Court. Heard before Hon. THOMAS W. COLEMAN. The bill in this cause was filed by Mrs. Murray against her husband seeking alimony without a divorce. The chancellor on hearing decreed a certain sum to be paid monthly to Mrs. Murray, and to be a lien on defendant's property; and afterwards on petition the chancellor decreed a certain sum in gross as alimony, declared such sum a lien on defendant's property, and directed that the property of defendant be sold for the payment of such sum, the real estate first, and the personal property if necessary. From the decree of the chancellor defendant appealed. The principle PILLANS, TORRY & HANAW, for appellant. announced in Glover v, Glover, 16 Ala. 440, and 33 Ala. 98, in Mims v. Mims, that independent of statute the chancery court may decree alimony on bill filed for that purpose alone, is opposed to the general doctrine in the United States and England.----Methvin v. Methvin, 60 Amer. Dec. 666; Adams v. Adams, 100 Mass. 365; 2 Bishop, Mar. and Div. 4th Ed., SS 374, 352. The chancellor erred in the decree 84 363 98 375 84 363 115 475 81 363 121 431 84 363 132 222 84 363 144 416 144 418 |