
    *Harriet L. Piatt v. Jacob W. Piatt.
    Where the Supreme Court decree a dissolution of the bonds of matrimony, a gross sum may be decreed to the wife, and also another sum every three months during tbe joint lives of tbe parties, as alimony.
    
    But such a decree, if erroneous, can not be questioned in resisting a sale upon execution under it.
    
      "Where alimony is decreed in a gross sum, or in instalments, the decree may be enforced by execution for such instalment as it becomes due, or any nnmber of instalments, due when execution issues, may be included in one writ.
    Motion to set aside a sale and execution. From Hamilton county. At April term, 1836, a divorce from the bonds of matrimony was decreed in favor of Mrs. Piatt upon the aggression of her husband. A prayer for alimony to the wife was then taken under advisement, upon which the court afterwards decreed, “ that the defendant pay to the elerk of the supreme court, in Hamilton county, for the use of the complainant, the sum of one hundred and fifty dollars on the 1st of Sept., 1836, and seventy-five dollars as alimony, at the expiration of every three months thereafter, for and during the period of the joint lives of the said Harriet L. and Jacob W. Piatt; and that in ease of failure to make either of the payments aforesaid, execution issue therefore as on a judgment at law.” The eourtfurther ordered, “ that this decree stand as a lien on the lands of ihe defendant, to secure the payment of the said several sums as aforesaid.”
    On the 6th of March, 1837, a writ of fieri facias et levari facias, issued from the clerk’s office, in favor of the said Harriet, against the said Jacob, commanding the sheriff to make the sum of three hundred dollars, “ which H. L. Piatt, in a petition for divorce and alimony, at, etc. recovered against him for alimony, whereof the said Jacob W. Piatt is convicted, as appears to. us of record.” On the back of this writ is endorsed, “ alimony one hundred and fifty dollars, interest from Sept. 1, 1836, — seventy-five dollars, interest from Dee. 1, 1836— seventy-five dollars, interest from March 1, 1837.” The costs were also endorsed.
    Upon this writ a levy was made on lot 19, in Cincinnati, an appraisement had, and a return, lot unsold for want of bidders. Afterwards a venditioni exponas issued, similarly endorsed, but with additional costs. The sheriff returned a sale of the lot upon this venditioni exponas, to B. M. Piatt, for six hundred and five dollars. The sheriff’s return coming up for confirmation, a motion was interposed on the part' of the defendant and of the purchaser, to set aside the writ and sale, for the following reasons ■—
    *1- That the execution is irregular, having issued for too much. 2. That it is for alimony, while alimony can only exist while the relation of husband and wife subsists. 3. That it issued upon a void judgment or decree. 4. That the clerk’s proceedings in issuing it are irregular and void. 5. That there is no decree to warrant it. 6. That no appraisement is returned with the writ, and it is not shown that any was made hy three disinterested, freeholders.
    J. C. Wright and T. Walker, for the motion,
    declined arguing the last objection, as the facts would speak for themselves. The other objections, for convenience, they considered together.
    Alimony, in its legal signification, is an allowance of subsistence to a married woman from the estate of her husband, while she is lawfully separated from him, and can only be allowed while the relation of •husband and wife exist. The court may order alimony to be paid upon a decree of divorce from'bed and board; or pending a bill for divorce ; or upon lawful separation for any cause for which a divorce might be decreed. But no decree for alimony is known in practice, or recognized as right, where the marriage contraet is dissolved.
    The statute of Ohio follows the English rule. The fifth section of the divorce act, 29 O. L, 432, provides, that where a divorce is granted upon the aggression of the husband, the woman shall be restored to all her lands and tenements, and may be allowed by the court, “ out of her husband's real and personal estate, such share as the court shall deem reasonable, having regard to the personal property that came to •him by marriage, and his estate at the time of the divorce.” This seems plain. Upon such divorce, the woman shall have her land restored, and the court may allow her, in addition, such part of her hus■band’s estate, as, all things considered, they may deem reasonable. This enactment attempts no change of the law — it merely declares it. It does not speak of alimony, or contemplate it, because, as we think, alimony could not properly be considered, when the relation of husband and wife was severed. Upon the dissolution of the marriage, the law looks to a division of the property upon eqitable principles, first giving back to the wife her land, and secondly, allowing her what is equitable as her portion of the remaining property, having especial regard to what she brought in. We insist this allowance must be in gross, having relation to the property held when the divorce is decreed. It can not be made dependent upon any future contingency, as the •duration of life. It can not be allowed as an annuity, because it is not subsistance or *alimony, to be paid from time to time as required, but is a division of the effects of the husband and wife when they cease to be such, and looks particularly to what each brought in, and to what may have been acquired afterwards during their ■matrimonial connection. This allowance was not regarded by the general assembly as alimony, as will clearly appear by reference to-a succeeding section of the act.
    In the seventh section of divorce law, 29 O. L. 432, power is expressly given to the court to grant alimony to the wife for her sustenance, in the following cases. 1. During the pendency of a petition for divorce. 2. Where she prays alimony without asking a dissolution of the marriage. This accords with our construction, and is the only grant of power to the court on the subject of alimony that we find ; and if the power to grant alimony be a common law or chancery power, our constitution only confers it on the court in such cases as shall he directed hy law. The court has only a limited jurisdiction in divorce cases. It can not divorce from bed and board merely, but may dissolve the bond of matrimony. When that is decreed at the instance of the wife, the court must restore to her her lands, and may moreover allow her a reasonable portion of her husband’s estate. If' the estate be land, the court may apportion a part of it to her. So if in money, goods, furniture, etc., it may be apportioned to each a part. The court may make this apportionment by an allowance of a gross sum in money. In either event, the property set apart or the sum allowed is thenceforth her’s ; and the controversy ended.
    In the case before us, the court dissolved the marriage, and ordered one hundred and fifty dollars to be paid to the clerk, by the 1st of Sept. 1836, and then add, “ and seventy-five dollars as alimony, at the expiration of every three months thereafter” during the joint lives of' the parties. We think it clear, that the alimony part of this decree is-null and void, because the court had no power to pronounce it. The execution upon which the levy was made, commands the officer to make three hundred dollars and costs recovered against the defendant for alimony. Now there is no judgment or recovery upon which to predicate this writ. No decree is recited in it. Are we permitted to-conjecture that the writ was issued upon the decree of divorce, although the sum named therein is only one hundred and fifty dollars, and that is not decreed for alimony ? We think the execution unsupported by any judgment or decree, and void. The memorandum on the back of the writ, can not supply any essential ^defect in it, or make it valid. If the writ is void, no proceedings under it can have legal efficacy.
    - As to the amount above one hundred and fifty dollars, if we refer to-the decree, how can the clerk determine, at the end of every three months, whether the parties are alive; whether the money is unpaid;. •or the right to issue execution, without notice, or giving the parties an opportunity to be heard? Or if the right be controverted, how can he try it?
    It may be said this is not the place or mode of determining the questions raised. If so, we reply, that -we understand the court refuses to review divorce cases, and if remedy is not given on motion, we •see no way to reach the matter.
    N. Wright and Hodges, contra,
    submitted no argument.
   By the Court,

Wood, Judge.

The first objection raised by defend•ant’s counsel, is not without apparent plausibility to sustain it, as an •objection to the confirmation of sale, viz. that the execution issued for too large a sum. One hundred and fifty dollars was decreed to be paid on the 1st of September, and seventy-five dollars every three months thereafter. As these distinct sums fall due at different periods, •it is urged that a separate execution ought to issue for each. We think execution might issue upon each instalment as it became due ; but as the decree is an entire thing, though to be performed by the payment of periodical instalments, if the complainant sees fit to wait until a number of these instalments fall due, we see no substantial reason against including whatever may be due at the time of issuing the writ in the same execution. Such a course is for the defendant’s benefit, and he ought not to set it up as an objection. It saves him the expanse of several writs and returns. The proceeding is similar to that of a judgment at law for debt, damages, penalty and costs; they constitute but one judgment, though consisting of distinct items. So if a party is orderfed to pay costs of several continuances, it is the general practice to include all of them in one execution, under the •denomination of costs, in case they accrued in the same cause.

The second point raised by counsel, that alimony can only exist while the relation of husband and wife continues, has no foundation on which to rest, and as Lord Holt once said, he must be a bold man who ventures on such an assumption. It is certainly opposed to the long continued and well settled practice of this court. The authority to grant alimony in this state, is derived from the 5th and 7th sections of the *act concerning divorce and alimony, 29 O. L. 432. The fifth section provides, that where a divorce shall be decreed in case of the aggression of the husband, the woman shall be restored to all her lands and tenements, and be allowed out of her husband’s real and personal estate, such share as the court shall think reasonable. Here is power conferred upon the court to dissolve the marriage contract, and allow such amount to the wife, as in its discretion may be thought' just. Such allowance, it is true, is not in this place called alimony, but it is clearly intended such. But it is said this alimony must be allowed in gross, and can not be made payable in instalments. The answer to this is, the statute is silent on that subject, and therefore, like the amount to be allowed, is left to the discretion of the court. The practice has been so to decree. Besides, this objection is not so much to the sale, as to the supposed irregularity of the decree, and it is well settled, that errors in a decree can not be reached and corrected in this collateral way. A sale under a judgment or decree, which is merely erroneous, not void, is valid, and will pass a good title to the purchaser. There is nothing in the objection, that the decree in this-ease was void, because the court had jurisdiction of the subject matter in controversy, and of the parties. In such cases, judgments or decrees are valid, although they may be held very erroneous.

As to the objection, that the clerk’s proceedings in issuing the execution, are irregular, and that there is no decree to warrant the execution, the answer is simply, non constat.

It is also objected that there is no appraisement returned with the writ, nor statement in the return that the lot was appraised by three disinterested freeholders. The return is in these words, “ I have duly appraised, advertised, and offered for sale.” Now if the sheriff has duly appraised, he has done so by the oath of three freeholders; and the presumption is that the appraisal has been returned, because the-law requires it of the officer, and in the absence of anything to ■ the contrary he will be presumed to have done his duty.

We intend in this case to be understood as deciding, 1. That in a decree dissolving the bonds of matrimony, a gross sum, may be allowed as alimony, and be ordered to be paid in gross or in instalments, in the-discretion of the court. 2. That such decree may be enforced by execution issued for each instalment as it becomes due, or by one for all the instalments due at the time it is issued. 3. That after sale on such execution, an objection that the decree for alimony is erroneous if not void, will not be listened to.

The motion is overruled, and the sale confirmed;  