Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-11-30
WEDNESDAY NOVEMBER so 1870

MAS
SUPREME COURT OPINION
September Term Knoxville,
-. s1 1870.
- e ~
- az --Es3 ao6
Joseph b. Heisken, Attorney GENE
eraI and Reporter.
Ia8 No. SO. m
- Hannah A. McBec vs.. Adam H McBee.
A writ Of error lies upon decree for ali
mony, incident to divorce, though the decree
that proceeding a 80 a
Code construed, q, 8I5s, 2,46s.
Cases cited: Parlnenter VS.. Parmenter, 3
Head, 225; Owen VS.. Simms. Col. 54i
ance, and moving to dismiss for want of no.
tice ~ -
10 bar the right of redemption under the
Code, II, 2l24 4,1S9 it is nOt.suhicient that the
sale be made ON a credit. 1t must appear that
upon application, of complainant, the sale
was so ordered. But a statement in the de-
cree, that at tine special instance anu request
of the complainant, the said land shall be sold
without the equity Of redemption" Is sufh-
cient. - ee
Case cited. Bulrow VS.. Henson, 2 Sneed, e5s.
To require the payment of material pro-
portion of the value of the land in cash. and
decree the sale to be without equity of re-
demption, is error.
1t may be that SIM may be required to be
paid down TO cover the COS Is and counsel fees,
without affecting the decree. in cases where
both parties are represented by counsel, and,
the assent of the debtors counsel might be
presumed. or where it appears that the amount
is not such 2s to affect the price.
A decree under which a sale has been made
viii be reversed, if erroneous, leaving the par
ties TO settle their rights under sec. 3.IS6, of
the Code, which provides that a reversal ON a
writ of error shall not affect the rights of pur-
chasers, acquired before the writ granted.
From the Chancery Court of cambridge,
Seth ]. W. Lucky, Oh, presiding.
Meek and Gratz for complainants; cited
Code, S,1S3, as to notice of writ of error,
Code 3, 158, and Owens VS.. Simns, 3Col.
544, as to divorce; Code 4, 4S9, 1904, and
3, lS6; 1885, C. 90, g. 16, and Lewis vs..
Baker, Head. $50; McGavock VS.. Bell,
3 Col. 572, as to purchasers right. Pryor
VS.. Conner, Ms, that a payment of 800
was not error in decree barring redemp-
ton.
j. r. Cooke for defendants, insisted
that Parmenter vs.. Parmenter, and 5 81
15S, Code, did not preclude relief as to
the decree for alimony, and cited Dwarris
on Stat. p. 30. On the decree, to bar re-
demption, they cited Code, 1924, sub.
sec. 9.
OPINION.
Complainant filed her bin for divorce
aud alimony against defendant, on the 9TH
of Novembers 1864. Defendant being a
nonresident, publication was made, and
upon his failure to appear aud defend, at
the June term, 1865, of the Cbancery
Court, at cambridge, judgment pro con-
fessO was taken and the cause set tor
hearing The cause was heard at the
same term, when divorce was made, dis
solving the bonds of matrimony. 1t ap-
pearing to the court that defendant
prayed for alimony, and that to secure
this, complainant had procured tract of
land, of about $50 acres, belonging to de-
PENDANT, TO be attached, and the Chancel-
lor, being of opinion that she was emit
tled,to alimony, ordered the Clerk and
Master to report what amount would be
proper as alimony, and, also, what would
be a reasonable comp nsation to
her solicitor. The Clerk and Master re-
ported that two thousand dollars would
be a reasonable allowance as alimony,
and that two hundred dollars would be
reasonable compensation to her solicitor.
This report was confirmed, and the land
attached YVES decreed to be sold. The
following is the DEGREES s'That the tract
of land mentioned IN the pleadings, so at.
tached, be sold in satisfaction of the
aforesaid sum of money, and the costs of
the suit, and that the Clerk and Master,
after giving thirty days notice, viii pro-
coed to sell said land to the highest bidder,
on a credit of six months. taking bond
and security and retaining lien until the
purchase money is paid, with the excep-
ton of the sum Of four hundred dollars,
which the Clerk and Master shall require
TO be paid, cash in hand, on the day of
sale, and out of the proceeds Of sale, the
Clerk and Master shall first pay the costs
of this suit, and the Solicitors fee, and
the sum of two thousand dollars to the
complainant, as her alimODy, ETC., and at
the special instance and request of COM
out the equity of redemption.
The land was sold in August, 1865,
when it was bid off by purchaser, at
two thousand five hundred dollars, of
which, four hundred dollars was paid in
cash, and note given for the residue,
payable at six months. At the December
term, 1865, the sale was confirmed and
the title Invested and vested.
On the 30th of August, 1867, defend
ant petitioned one of the Supreme Judges
for writ of error, which was granted.
1t is now moved to dismiss the writ of
error, on two grounds, first, because the
five days notice of the application for
writ of error was not given, and second,
because by S 8, l5S of the Code, divorce
case can be revised only by appeal
The answer to the first reason Is, that
complainant has waived the necessity for
notice, by appearing answering the
object Of notice.
The answer to the second reason is,
that the bill is not only divorce bill, but
also bill for alimony. Whilst it is true
that errors in divorce cases can only be
revised upon appeal, it does not follow
that errors in bill for alimony, as well
as divorce, may not be revised by writ of
error. The reasons for excepting divorce
cases from the general provision, allowing
writs of error, are special, and have no
application to DEGREES for alimony. Nor
is there any necessary connection between
divorce and alimony, a divorce may be
granted without alimOny, and alimony
may be granted when no divorce is de-
creed. Code S 246S. Looking to the
intention of the Legislature as our guide,
we are satisfied that it was not intended
TO prohibit writs of error in cases of ali
mOny. Whilst, therefore, any error in
this case, as to the divorce, caLnOt be re-
vised by this court, if there are errors in
tine decree, as to alimoDy, they are sub
ject to revision by writ of error. In this
conclusion, we are not in conflict with
The cases of Parmenter VS.. Parmenter, 3,
Head 225, and Owens vs. Simms, 8, Cold,
544
An examination of the record discloses
much irregularity and disregard of the
rules of Chancery proceedings, in the as
certainment of a reasonable amount to be
allowed for alimony, and as compensation
TO compliments solicitor, but as we do
not see that either allowance is unreason-
able, or that injustice was done to defend
ant we refrain from commenting upon
these Irregularities The objection to the
decree mainly relied on by defendants
counsel, is, that the Chancellor decreed
the land to be sold for four hundred dol
lars in cash, and the residue on credit
of SIX months, and, at the special instance
and request of the complainant ordered
the sale to take place without the equity of
redemption. We are aware of NO re-
ported case in which the question, now
raised, has been determined. We must
be governed, then, by fair construction
of those provisions of the Code, which
secure to the debtor or owner of the land
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