
    Peeke v. Fitzpatrick et al.
    
      Action for divorce and alimony — Decree requiring husband to pay wife a gross sum — Making said sum, a lien upon husband’s real estate — Decree not dormant because no execution within five years — Statute of limitations.
    
    1. In an action for ■ divorce and alimony, or for alimony alone, a decree of the court requiring the husband to pay the wife a gross sum as alimony, and making said sum a lien upon his real estate situate in the county where the action is pending, does not become dormant because no execution was issued thereon for more than five years from the date of the decree. Lemert v. Lemert et al., 72 Ohio St., 364, approved and followed.
    
      
      2. Such decree having been made on the twenty-third day oí February, 1893, an action commenced by the divorced wife on the twelfth day of March, 1904, against the husband and others claiming an interest in the lands encumbered by said decree, to marshal the liens thereon, and for an order of sale of the premises to satisfy the decree, is not barred by the statute of limitations set up by one who acquired the title and interest of the husband therein, on the nineteenth day of November, 1903.
    (No. 9598
    Decided June 26, 1906.)
    Error to the Circuit Court of Erie county.
    On the twelfth day of March, 1904, Mary A. Fitzpatrick, one of the defendants in .error, filed her petition against the plaintiff in error and others, in the court of common pleas of Erie county, in which she set up a decree for alimony in her favor and against her husband, James Fitzpatrick, in the sum of $1,000, which decree was made by the court of common pleas at the January term for the year 1893, and on the twenty-third of February of that year. A decree of divorce was also made at the same time. It was found in the decree of alimony, that the husband owned in fee simple, certain real estate situate in Erie county subject to the life estate of his mother, Catherine Fitzpatrick, and the land is described in the decree which made the alimony .a lien thereon.
    The petition alleges that nothing has been paid ■on the decree and that it is still due with interest from January 3, 1893, and that the husband since the making of the decree has sold and conveyed all his right, title and interest in and to the said real •estate to H. L. Peeke and Nannie B. McQuown; that the husband owns no other real estate to her knowledge; that her decree for alimony is the first and best lien on the interest of the husband in said premises,', but she says, that by reason of the claim of title made by said grantees of her husband, she is unable to effect a sale of the property on execution; and she therefore asks that the claimants set up their claims, if they have any, and that her decree be declared the first and best lien; and that the real estate be sold and the proceeds applied in satisfaction of her alimony. '
    The husband answered that on the nineteenth day of November, 1903, he sold and conveyed all his interest in the premises to H. L. Peeke for which he has been fully paid. The answer of Peeke says that he received the conveyance from the husband November 19, 1903, and that he still owns the interest so conveyed. He further alleges that no execution was ever issued upon said judgment for alimony, and that it became dormant after five years from its date, and has ceased to be a lien on the premises. The prayer at the close of his answer is, that the court find him to be the sole owner of said premises subject to the life estate of Catherine Fitzpatrick and a certain mortgage for $200.00, executed in 1900, to H. L. Peeke, by the husband and Catherine Fitzpatrick, which was afterwards assigned by Peeke to the Erie County Investment Company about the date of its execution.
    No one contests the life estate of Catherine Fitzpatrick, the mother of the husband. The interest of Nannie B. McQuown is the title to a strip one rod in width off the west end of said premises, which she holds under a deed from James Fitzpatrick and Catherine Fitzpatrick, dated August 20, 1903.
    The case was taken to the circuit court on appeal, where the cause was heard, and the facts found, the substance of which. we have already stated, and found, (1) that the plaintiff, Mary A. Fitzpatrick, has the first and best lien upon the premises, subject to the life estate of Catherine Fitzpatrick; (2) that the Erie County Investment Company for the amount due it, has the best lien on the life estate or interest of said Catherine Fitzpatrick, and the second lien on the interests of defendant, James Fitzpatrick, conveyed to said Peeke; (3) that Peeke has the second lien upon the life estate or interest of said Catherine Fitzpatrick, except that portion of the premises conveyed to Nannie B. McQuown on the twentieth day of August, 1903.
    An order of sale and distribution was made accordingly. Peeke prosecutes error in this court to reverse the order of the circuit court.
    
      Mr. H. L. Peeke, for plaintiff in error,
    cited and commented upon the following authorities:
    
      Lemert v. Lemert, 72 Ohio St., 364; Doyle v. West, 60 Ohio St., 438; Zuellig v. Hemerlie, 60 Ohio St., 27; Neal v. Nash, 23 Ohio St., 483; Water Co. v. Defiance, 68 Ohio St., 520; Conrad v. Everich, 50 Ohio St., 476; Kurtz v. Kurtz, 38 Ark., 119; secs. 5380 and 5367, Rev. Stat.
    
      Mr. John Ray and Mr. John F. McCrystal, for defendants in error,
    cited and commented upon the following authorities:
    
      Webster v. Dennis et al., 2 Circ. Dec., 566; 4 C. C. R., 315; Lemert v. Lemert, 25 O. C. C., 253; State on Complaint of Cook v. Cook, 66 Ohio St., 566; Coffman, Admr., et al. v. Finney, Admr., et al., 65 Ohio St., 68.
   Peice, J.

As a fact omitted in onr statement of this case, we note that James Fitzpatrick, the defendant in the divorce and alimony action, has tiled in this court his cross-petition in error,, in which he assigns practically the same errors complained of by plaintiff in error. Except for his own amusement, we see no reason for his having done so. On the nineteenth day of November, 1903, he conveyed all his title and interest in the premises involved in this proceeding to the plaintiff in error, and thereafter had no interest to protect, unless it would be his covenants of warranty contained in his deed to Peeke of that date.

The controversy, if it can be so dignified, is between the plaintiff in error and the defendant in error, Mary A. Fitzpatrick, in whose favor the decree for alimony was made on the twenty-third day of February, 1893, and in his answer he attacks the decree on the sole ground that it had become dormant because no execution was ever issued for its collection, and was dormant when she brought her action and obtained the decree under review.

The controversy thus raised is foreclosed, unless we overrule the judgment of this court, rendered in Lemert v. Lemert et al., 72 Ohio St., 364, where it is distinctly held that, “a decree for alimony does not become dormant because of the failure to issue execution thereon for more than five years.” On page 368 this court says: “A decree for alimony is not a judgment within the meaning of section 5380, Revised Statutes, which provides that a judgment on which execution has not issued for five years shall become dormant and shall cease to operate as a lien on real estate, nor is it a judgment or finding within the meaning of section 5367, which provides for the revivor of a dormant judgment, or a finding for money in any equitable proceeding. ’ ’

We still think the law is correctly stated in that ease, and therefore follow it in this proceeding. Indeed, the plaintiff in error has not assailed the soundness of that decision either in his brief or oral argument. He opens his brief in this language: “The question in this case is — ‘When does a decree for alimony in gross cease to be a lien on land?’ We claim it ceases to be a lien in ten years. ”

The dormancy of the decree relied on in his answer to plaintiff’s petition seems now to be abandoned, and a statute of- limitations substituted, which formed no part of the issues made by the pleadings. This might be sufficient for us to say on the subject, but perhaps the spirit of enthusiasm in which the argument was presented, deserves further notice. He suggests that in the Lemert case, supra, the decree was six years old, while the decree of Mary A. Fitzpatrick was eleven years old when she commenced her action now under consideration. What does that fact signify? Absolutely nothing. We have seen that the decree is not dormant, and we add now, that we are not aware of any statute that limits its life. The records of the courts are devised and intended to perpetuate judgments and decrees, and unless their lives are limited or cut off by statute, they are the permanent record of what the court has done, until reversed, or otherwise legally set aside. No statute has been cited limiting or cutting off the life of this decree, and it has not been reversed, modified or set aside in any proceeding brought to our attention. Therefore, it was a living decree in her favor when the plaintiff below brought her action, and it was the proper basis for the relief she demanded in that action. Her decree was made a lien on real estate subject to the life estate therein, of another party, and during its life, the husband who was the remainderman, conveyed his estate to plaintiff in error. The remainderman and the owner of the life estate, subsequent to the date of the decree, had executed a mortgage to a third party encumbering their interests in the premises, and a rod in width off one end thereof had been conveyed to still another party. These facts furnished a sufficient ground for the action instituted by plaintiff below, to the end that she might subject the real estate encumbered by her decree to the payment of the same. Her case was in the nature of an equitable execution, as held in some of the cases, and she was simply seeking to enforce her legal rights. The premises were in the actual possession of the life tenant. The defaulting husband could not defend by pleading the statute of limitations against a continuing, permanent decree. The plaintiff was not asking possession of the encumbered estate, but its sale under the continuing decree. The plaintiff in error acquired his title on the nineteenth day of November, 1903, from the defaulting husband, and the action before us was commenced on the twelfth day of March, 1904.

There is no place in the facts or in the law for any statute of limitations to find lodgment.

We find no error in the record, and the judgment of the lower court is affirmed.

Judgment affirmed.

Shauck, C. J., Crew, Summers, Spear and Davis, JJ., concur.  