Audubon v. Shufeldt, 181 U.S. 575 (1901)

AUDUBON v. SHUFELDT.

Alimony, whether in arrear at the time of an adjudication in bankruptcy, or accruing afterwards, is not provable in bankruptcy, or barred by the discharge.

J/r. Henry Randall Webb for appellants.

Mr. John T. Deuoesse for appellee.

Mr . Justic e Gray delivered the opinion of the court.

This was an appeal from an order of the Supreme Court of the District of Columbia sitting in bankruptcy, granting a discharge to Robert W. Shufeldt.

Shufeldt had been adjudged a bankrupt April 5, 1899, on his petition allegingthat he was indebted to the amount of $4538.33, and had no assets which were not exempt under the Bankrupt Act of 1898. The debts from which he sought release were as follows:

Secured debt to Washington National Banking and

Loan Association,...............................................$3200 00 Unsecured debts as follows:

Florence Audubon, .... $800 00 William H. Smith, .... 150 00 Lewis J. Yeager, . . . .150 00 Sundry small debts,.... 238 33

---------- 1338 33

$4538 33

Shufeldt was, and had been for several years before filing his petition in bankruptcy, a surgeon with the rank of captain in e nited States Army, on the retired list, and was in receipt 0 a sa ary of $175 a month, his pay as such retired officer.

The debt of $3200 was the debt of himself and his wife, secured on land in Takoma Park, Montgomery County, Maryland, conveyed by him to his wife in March, 1898, without consideration.

The debt of $800 represented arrears of alimony, granted to his former wife, Florence Audubon, on February 25, 1898, by a decree of the circuit court of Montgomery County in the State of Maryland, in a cause of divorce, directing him to pay alimony to her at the rate of $50 a month, beginning April 1, 1898. No part of that alimony has been paid.

About March 1,1898, Shufeldt left Montgomery County, and took up his residence in the city of Washington in the District of Columbia. A suit in equity has been instituted and is still pending in the Supreme Court of the District of Columbia, to enforce the aforesaid decree for alimony, and to make him pay the alimony in arrear.

The debt of $150 to William H. Smith was a promissory note given for taking testimony in the divorce suit under a commission from the Maryland court, and was duly assigned to John W. Hulse before the filing of the petition in bankruptcy.

The debt of $150 to Lewis J. Yeager was for professional services rendered in the District of Columbia in the equity suit aforesaid.

The small debts for $238.33 were contracted for supplies furnished to Shufeldt and his family before the filing of the petition in bankruptcy.

After the filing of the petition in bankruptcy, Florence Audubon filed in court her claim for $800, being the arrears of alimony, describing it as “ a debt ” due by him to her; and voted thereon at the meeting of creditors for the election of a trustee. She afterwards filed a memorandum directing the withdrawa of her claim ; but no order of the court to that effect was passed.

By section 4 of the Bankrupt Act of July 1, 1898, c. 541, “any person who owes debts, except a corporation, shall be entitled to the benefits of this act as a voluntary bankrupt.” 30 Stat. 547. An officer in the army falls within this description ; and it may be that he is not bound to include his pay in his schedule. Flarty v. Odium, (1790) 3 T. R. 681; Apthorpe v. Apthorpe, (1887) 12 Prob. Div. 192. Our bankrupt act contains no such provision as the English Bankruptcy Act, 1883, authorizing the court, when the bankrupt is an officer in the army or navy, or employed in the civil service, to order a portion of his pay to be applied for the benefit of his creditors in bankruptcy. In re' Ward, (1897) 1 Q. B. 266. But the question now before us is not whether his pay can be reached in bankruptcy, but whether he is entitled to a discharge from the arrears of alimony due to his former wife.

The Bankrupt Act of 1898, provides in § 1, that a “ discharge ” means “ the release of a bankrupt from all his debts which are provable in bankruptcy, except such as are excepted by this act; ” and includes, in § 63, among the debts which may be proved against his estate, “ a fixed liability, as evidenced by a judgment or an instrument in writing, absolutely owing,” at the time of the petition in bankruptcy, whether then payable or not, and debts “ founded upon a contract, expressed or implied.” 30 Stat. 541, 563.

Alimony does not arise from any business transaction, but from the relation of marriage. It is not founded on contract, express or implied, but on the natural and legal duty of the

usband to support the wife. The general obligation to support is made specific by the decree of the court of appropriate jurisdiction. Generally speaking, alimony may be altered by t at court at any time, as the circumstances of the parties may require. The decree of a court of one State, indeed, for the

In the State of Maryland, and in the District of Columbia, alimony is granted by decree of a court of equity. Wallingford v. Wallingford, (1825) 6 Har. & Johns. 485 Crane v. Maginnis, (1829) 1 Gill & Johns. 463 ; Jamison v. Jamison, (1847) 4 Maryland Ch. 289; Tolman n . Tolman, (1893) 1 App. D. C. 299; Tolman v. Leonard, (1895) 6 App. D. C. 224; Alexander v. Alexander, (1898) 13 App. D. C. 334. And, as the Court of Appeals of the District of Columbia has more than once said: “ The allowance of alimony is not in the nature of an absolute debt. It is not unconditional and unchangeable. It may be changed in amount, even when in arrears, upon good cause shown to the court having jurisdiction.” 6 App. D. C. 233; 13 App. D. C. 352.

In Nenzie v. Anderson, (1879) 65 Indiana, 239, the Supreme Court of Indiana held that a judgment for alimony was not a “ debt growing out of or founded upon a contract, express or implied,” within the meaning of a statute exempting certain property from execution for such a debt.

In Noyes v. Hubbard, (1892) 64 Vermont, 302, it was held by the Supreme Court of Vermont that a decree for alimony, not being a judgment for the enforcement of any contract, express or implied, existing between the parties thereto, but for the enforcement of a duty in the performance of which the public as well as the parties were interested, was not barred by a discharge in insolvency.

In Romaine v. Chauncey, (1892) 129 N. Y. 566, it was held by the Court of Appeals of New York that alimony was an allowance for support and maintenance, having no other purpose, and provided for no other object; that it was awarded, not in payment of a debt, but in performance of the general duty of the husband to support the wife, made specific and measured by the decree of the court; and that a court of equity would not lend its aid to compel the appropriation of alimony to the payment of debts contracted by her before it was granted.

In Barclay v. Barclay, (1900) 184 Illinois, 375, it was adjudged by the Supreme Court of Illinois that alimony could not be regarded as a debt owing from husband to wife, which might be discharged by an order in bankruptcy, whether the alimony accrued before or after the proceedings in bankruptcy; and the court said: “ The liability to pay alimony is not founded upon a contract, but is a penalty imposed for a failure to perform a Qty. It is not to be enforced by an action at law in the State w ere the decree is entered, but is to be enforced by such procee mgs as the chancellor may determine and adopt for its enorcement. It may be enforced by imprisonment for contempt, W1. out violating the constitutional provision prohibiting imprisonment for debt. The decree for alimony may be changed om ime to time by the chancellor, and there may be such cirms ances as would authorize the chancellor to even change

Syllabus.

the amount to be paid by the husband, where he is in arrears in payments required under the decree. Hence such alimony cannot be regarded as a debt owing from the husband to the wife, and, not being so, cannot be discharged by an order in the bankruptcy court.”

In England, it seems to be the law that alimony is neither discharged nor provable in bankruptcy. Linton v. Linton, (1885) 15 Q. B. D. 239; Hawkins v. Hawkins, (1894) 1 Q. B. 25 ; Watkins v. Watkins, (1896) Prob. 222; Kerr v. Kerr, (1897) 2. Q. B. 439.

The only cases brought to our notice, which tend to support the decision below, are recent decisions of District Courts, in which the authorities above cited are not referred to. In re Houston, 94 Fed. Rep. 119 ; In re Van Orden, 96 Fed. Rep. 86; In re Chdlloner, 98 Fed. Rep. 82.

The result is that neither the alimony in arrear at the time of the adjudication in bankruptcy, nor alimony accruing since that adjudication, was provable in bankruptcy, or barred by the discharge.

The order granting a discharge covering arrears of alimony is reversed, and the case remandedfor furtherproceedings consistent with the opinion of this court.

YAZOO AND MISSISSIPPI VALLEY RAILROAD COMPANY v. ADAMS.

The railroad company filed a bill to enjoin the collection of certain s taxes from 1892 to 1897 inclusive. This court held that a new cop ration was formed by a consolidation of certain prior corpora 10^s October 24, 1892, and that the taxes having accrued subsequen date were legally assessed under the state constitution o ’

U. S. 1). The railroad company moved for a rehearing with respect to the taxes of 1892 upon the ground that they accrued prior to the consolidation of October 24. Held: That as the Supreme Court of Mississippi had decided that all the taxes had accrued after the consolidation of Octobei’ 24, and the company had thereby lost its exemption; and as this was a construction of the general tax laws of the State, which were complex and difficult of interpretation, this court would accept that construction and deny the petition for a rehearing.

This was a petition for a rehearing of the case reported in 180 U. S. 1, upon the ground that the taxes for the year 1892 were separable from taxes for the succeeding years, inasmuch as the taxes for that year had been completely levied and assessed on September 22, 1892, and that the claim of the State, if any, had fully accrued at least one month before the articles of consolidation were executed, (October 24, 1892,) and that the judgment therefore gave to the consolidation a retrospective effect.

J/r. William D. Guthrie, Mr. J. M. Dickinson, Mr. Edward Mayes and Mr. Noel Gale, for the Railroad Company, petitioner.

Mr. F. A. Critz, Mr. Marcellus Green and Mr. R. C. Beckdll’) for Adams, opposing.

Mr . Justice Brow n delivered the opinion of the court.

We have not found it necessary to decide whether a party, upon a petition for a rehearing in this court, may avail himself of a point not taken in the court of original jurisdiction, or upon either one of two appeals to the Supreme Court, nor in the assignment of errors in this court, nor even called to our attention in the briefs or arguments of counsel, as we are of opinion that upon the merits the petition must be denied.

Whatever force we might be disposed to give to prior adjudications of the Supreme Court of Mississippi upholding these exemptions, there can be no doubt that that court has expressly held that the taxes for the year 1892 did not accrue until after the consolidation of October 24 of that year, and hence that this case does not fall within those adjudications. We quote the following from the opinion of the court of February 20, 1899, upon a second appeal to that court: “So far as concerns the argument that the appellants relied on the case of Mississippi Mills v. Cook, (56 Miss.,) and that, if the overruling of that case is correct, nevertheless the appellants should be protected from taxation accruing before the overruling of that case, it is enough to say that question is not material here, since all the taxes here sued for accrued after the consolidation of October 24,1892, and the appellants were expressly held to have lost their exemption, if any they had, by their own voluntary act of consolidation. That was the first and main ground on which our former opinion was distinctly rested. It must be too clear for serious disputation, in this view, that all discussion of the case of Mississippi Mills v. Cook is wholly unavailing as to these taxes.” 77 Mississippi, 194, 316.

Had the opinion above cited involved the construction of section 21 of the Mobile and Northwestern charter—that is, the contract for commutation or exemption—it would have directly involved a Federal question ; but it did not. It was an opinion as to when, under the general laws of the State of Mississippi, a claim for taxes accrued, and a distinct ruling that such taxes did not accrue until after a certain date. Raymond)s Lessee v. Longworth, 14 How. 76, 79; Bailey v. LLagwire, 22 Wall. 215. For the reasons above stated we accept the views of the Supreme Court of Mississippi as to the proper construction of these laws.

The petition for a rehearing must therefore be