Opinion of the Court.

The next day, July 6, 1852, Eldridge filed the original bill in this cause, and it was pending from term to term in court, an order of some kind occasionally taken, until 1866, a period of fourteen years, when, on the hearing, the bill was dismissed. Here was an end to all litigation. No appeal was prayed or prosecuted, and there was a finality.

Four years thereafter a writ of error was sued out by complainant, Eldridge, to the Superior Court, to send the record to this court, the result of which is found in 60 Ill. supra.

This writ of error was a new suit, and was notice of nothing and to no one, until it was sued out, which, in the absence of proof, we would conjecture was in 1871. Between 1866, when a final decree dismissing the bill was passed, and the commencement of this new suit by writ of error in 1871, the purchases were made from Walker, who had obtained Dyer's title, and large and valuable improvements made on portions of the lots.

They may justly claim to be purchasers for a valuable consideration paid, without notice of any outstanding equities. They caused abstracts of title to be made and exhibited, and employed all the usual means to be advised of the true condition of the title, and there was nothing in existence to put them, or either of them, on more special inquiry. There was no suit pending, for, as to the first suit, the dismissal of the bill, unaccompanied by an appeal, was on the merits, and a finality.

The reason Frink conveyed this property to appellant in July, 1852, is not suggested. It is very evident appellant paid nothing for it, and he does not appear to have taken any interest in the litigation for all the time it was going on. Had he a real interest, he would have notified Farwell, when he was erecting his building on it, of his claim, and so of others who were expending, before and after the fire, thousands of dollars upon the property, under his daily observation and with his full knowledge. Were it necessary to invoke the doctrine of estoppel, the invocation might not be in vain as against appellant.

18-80TH ILL.

Syllabus.

These defendants, who are purchasers for value without notice of any infirmity in this title, must, under the ruling, not only in 60 Ill. supra, but in all other cases where the question has arisen, be protected. They are innocent of any wrong, and can not be charged with any neglect of duty or want of caution or circumspection in making their purchases. The decree of the Superior Court was right, and it must be affirmed.

104a 285 80 274 207 1310

JOSEPH DINET v. CHRISTIAN EIGENMANN, Admr.

and

SAME V. SAME.

1. ALIMONY-sum in gross. Under the statute, the court may, when the justice of the case requires it, decree a sum in gross in full satisfaction of yearly alimony, and even a portion of the husband's real estate in fee to the wife.

2. SAME-as to amount. Where the husband receives property of his wife by the marriage, or converts her means into real estate, taking the title in his own name, or where the wife, from her industry, economy and business capacity, contributes largely to the accumulation of a fortune, it is equitable and just that she should share largely in such property, on divorce for the husband's fault; but where she brings nothing to the husband, and contributes but little or nothing to the accumulation or increase of his fortune, she has no just claim to share in a division of property, but is only entitled to alimony as a support, according to his circumstances and condition in life.

3. SAME allowing interest on sum. A decree giving a wife alimony and a certain sum in gross, which requires the defendant to pay ten per cent per annum interest on the same, is erroneous. A decree can draw but

six per cent interest, except by consent of the parties.

4. SAME-execution for its collection. A decree for the payment of ali mony, like any other money decree, may be collected by execution, where the decree does not provide for its being executed by a master in chancery or a commissioner. An execution may issue precisely as upon a judgment at law.

5. SAME—not released by wife's death. The sum awarded to a wife, after divorce, for alimony, becomes a debt from the former husband to her, and

Statement of the case.

upon her death before payment, the husband is not discharged, but the sum due passes to her personal representative precisely as any other money decree, and he may proceed and collect the same.

6. DECREE-awarding execution after party's death who is entitled to money. Where a person, having a decree for the payment of money, dies before satisfaction, it is erroneous for the court to award an execution in the name of such deceased party. The cause should be revived in the name of the personal representative, and execution issued in his name, or it may be that the administrator, by filing a copy of his letters, might have an execution as upon a judgment at law.

7. SAME as to attorneys' fees, construed. On a bill for divorce by a wife, the court first ordered the husband to pay to P and A $825 for services rendered the wife, as attorneys' fees, after the restoration of the record and papers which had been burned, to be paid by October 1, 1871, to P $285 for legal services after the verdict in the case, and to P, as surviv. ing partner of D, the sum of $1520, for services rendered by them from the commencement of the suit to the rendition of the verdict: Held, that the latter sum included the one first named, and was not in addition thereto.

APPEAL from the Criminal Court of Cook county; the Hon. HENRY BOOTH, Judge, presiding.

This was, originally, a bill for divorce, filed on January 28, 1870, by Elizabeth Dinet against Joseph Dinet, and a crossbill by Joseph Dinet against Elizabeth Dinet, for a divorce. The jury found the defendant in the original bill guilty, and the defendant in the cross-bill not guilty. A decree of divorce was granted the complainant on May 29, 1872, and on August 7, 1872, the court ordered that the defendant pay to the complainant the sum of $10,000 on or before the first day of July, 1873, and provided that if this sum was not paid by January 1, 1873, then the same, or such part thereof as should remain unpaid after said 1st day of January, 1873, should, after that date, bear interest at the rate of ten per cent per annum; also, that the defendant pay to the complainant, or to the clerk of the court for her use, the further sum of $2000 per year, each and every year during the remainder of the complainant's life, in quarter-yearly installments. The other material facts appear in the opinion of the court.

Opinion of the Court.

Mr. JOSEPH SCHLERNITZAUER, for the appellant.

Mr. JOSEPH PFIRSHING, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

These records are presented for the purpose of obtaining a construction of a decree allowing attorneys' fees in the divorce suit, and to determine whether decrees can be enforced by execution, as at law, for alimony, as well as the allowance of the attorneys' fees; also, whether a decree can be rendered to draw ten per cent interest. The statute regulating the manner of granting divorces has provided, by the sixth section of the Divorce Law (see R. S. 1845, p. 197), that, on granting a divorce, it may be lawful for the court to make such order touching the alimony and maintenance of the wife, the care, custody and support of the children, or any of them, as from the circumstances of the parties and the nature of the case shall be fit, reasonable and just."

66

Under this provision, it has been repeatedly held that the court may, if the justice of the case requires it, decree a sum in gross in satisfaction of yearly alimony, and even a portion of the husband's real estate in fee to the wife. Where, under the law in force when the marriage in this case occurred, the wife had money which became the property of the husband by marriage, and a divorce followed, it was but equitable and just that she should have all or a portion of it restored to her. So, where the husband converted her means into real estate, and took the conveyance to himself, it is eminently just that all, or at least a portion, of such real estate be transferred to her, or at least the amount of money invested in it. So, where a wife, from her industry, economy and business capacity, contributes largely to the accumulation of a fortune, every principle of justice demands that she have at least a portion of her accumulations. In such a case, it would be positively wrong to turn her off, where the husband is in the wrong, with what would merely pay her board and simply clothe her respectably.

Opinion of the Court.

On the other hand, where the wife brings nothing to the husband, and contributes little or nothing to the accumulation or increase of her husband's fortune, she has no just claim to share in a division of property; but, under the law, where the husband is in fault, he is bound to support her according to his circumstances and condition in life; and in such case, it is proper that such support be afforded by an annual, half-yearly or quarterly allowance of a fixed sum, as long as she lives, or until supervening circumstances render it improper. In this latter class of cases there is no equity requiring a division of the property, and in such case it would be improper to make it.

In this case, as the evidence on which the decree for alimony is not before us, we must presume that it fully warranted the decree, in the form in which it was rendered. We are, therefore, clearly of opinion that the law, in many cases, warrants, if it does not require, the decree to allow an amount in gross in satisfaction of all or a portion of alimony. The statute has vested the court with a large discretion as to the manner in which alimony and maintenance shall be decreed, only that, from the circumstances of the parties and the nature of the case, it shall be fit, reasonable and just. No doubt the present law entitling married women to hold their own property and earnings free from the control of their husbands, will, in many cases, develop circumstances which will materially modify decrees for alimony. In many cases, it is decidedly for the best interest of both parties that alimony or maintenance should be decreed in gross. It thereby frees the husband's property and enables him to pursue his business unfettered and more successfully, and at the same time secures the wife from loss or great inconvenience resulting from the death of the husband previous to her own death. Had the deceased wife in this case survived, and the husband died at the time she did, all will see at a glance that it would have complicated, if not seriously embarrassed, the collection of the yearly allowance; yet the statute may have contemplated that the alimony would be generally paid as at common law, by yearly installments, but it at the same time intended to and