27 Wn.2d 590, THOMAS A. SWANSON et al. v. FLORENCE ISABEL GRAHAM et al.
[No. 30043. Department One. Supreme Court April 10, 1947.]
THOMAS A. SWANSON et al., Appellants, v. FLORENCE ISABEL
GRAHAM et al., Respondents.«1»

[1] It wad early decided in this state that a decree for alimony creates no lien upon the real property of the defendant, unless the decree fastens itself upon some particular property.

In Philbrick v. Andrews, 8 Wash. 7, 35 Pac. 358, the respondent and his two minor children of his first wife lived upon lands patented to him during the life of that wife. His first wife died and he remarried, and his second wife later divorced him. The decree allowed her alimony in the amount of fifteen hundred dollars, the same to be a "lien upon the property of the said defendant." No property was mentioned or described in the decree. A judgment of fifteen hundred dollars was docketed June 19, 1891, and a general execution was issued August 15, 1891. In setting the sale aside, it was held:

"The land in question was community property of the defendant and his first wife, and upon her death one-half of it descended to their minor children. There is no question but that the court had power in the divorce action to award the half belonging to the defendant, or any part of it, to the plaintiff, or to render a judgment for a sum of money and make it a specific lien thereon which would take precedence of a homestead exemption. But to do either it was necessary that the property should have been brought before the court (Webster v. Webster, 2 Wash. 417, 26 Pac. 864), and the proper way to have done this was to describe it in the pleadings. Bamford v. Bamford, 4 Or. 30. If the property was not brought into said case by either party, the court had no jurisdiction over it and could not

Apr. 1947] SWANSON v. GRAHAM. 595

dispose of it therein, nor create a specific lien thereon. It was for the plaintiff in this case to show that the facts were such as to give the court this authority, and in the absence of any showing to that effect, the judgment rendered in favor of the plaintiff therein could not be made a lien upon the defendant's property except by an execution levy, or by causing the judgment to be recorded in the office of the county auditor, under § 449, Code Proc., when, as in the case of other judgments, it would become a lien upon his real estate."

In Stafford v. Stafford, 18 Wn. (2d) 775, 140 P. (2d) 545, Evelyn R. Stafford obtained a decree of divorce from Morgan A. Stafford, the decree providing for the payment of one hundred dollars a month alimony. Later the husband filed a declaration of homestead on the property on which he was then living, and thereafter married his present wife. On August 2, 1941, Evelyn Stafford caused an execution to issue, based upon the unpaid balance due on the original decree, and caused such execution to be issued on the homestead property. In holding that the homestead property could not be sold to satisfy the accrued alimony payments, we said:

"It seems to us the effect of the decision in the Philbrick lien on any property of the husband, unless the property is described in the decree, and the decree by its terms makes the judgment for alimony a specific lien on such property; that only where a specific lien is created may the homestead be sold to satisfy the judgment for alimony. If the judgment for alimony does not make it a specific lien on property of the husband, then the judgment does not become a lien on any property of the husband until a levy is made, in which case the right of the husband to a homestead exemption would be paramount to the lien thus created.

"In the instant case, the decree awarding the respondent alimony did not create, and of course could not have created, a specific lien on the property here involved, as it was not acquired by appellant until after the decree was filed." (Italics ours.)

In Seattle Brewing & Malting Co. v. Talley, 59 Wash. 168, 109 Pac. 600, Averdale Talley Lacerda obtained a

596 SWANSON v. GRAHAM. [27 Wn. (2d)

divorce from her husband. The decree awarded her six hundred dollars in lieu of alimony. The property standing in the name of the defendant was decreed to be his sole and separate property, free and clear of all claims of the plaintiff. He later sold certain of that real property to the Seattle Brewing & Malting Company. Subsequently, the wife caused execution to issue on her judgment, and the execution was levied on the property theretofore sold to the brewing company.

The appellants brought an action to quiet title to the real estate and to restrain the sheriff from the threatened sale. It was there held:

"The general rule seems to be that a `decree for alimony creates no lien upon the estate of the husband, in the absence of statutes so providing, unless the decree fastens it upon some particular property. It is a personal charge upon the husband rather than upon his estate.' 2 Am. & Eng. Ency. Law (2d ed.), p. 133. The statutes of this state do not make a decree for alimony a lien upon real estate. In King v. Miller, supra, [10 Wash. 274, 38 Pac. 1020] we said:

"`Ordinarily a decree of divorce between the parties puts their property matters at rest, and should do so, but in this case an express lien was created upon the real estate in controversy for the purpose of securing the monthly allowance which was made'; thus recognizing the general rule, and also that an award of alimony may be made a lien by express order and not otherwise. . . .

"It is argued by respondent that this award of $600 in lieu of alimony is, in effect, a general judgment, and therefore became a lien upon the defendant's real estate under the statutes relating to such judgments, even though the same was not expressly made a lien by the decree. There would be some force in this argument if the court, at the time of rendering the decree, had not specifically declared that the real estate standing in the name of the defendant is `hereby declared to be his sole and separate and individual property free and clear from all claims of the plaintiff herein of every kind and nature whatsoever.'"

Apr. 1947] SWANSON v. GRAHAM. 597

[2] A lien is an encumbrance which one person has upon the property of another as a security for some debt or charge. Liens have been described as follows:

"In its most general significance, a lien is a charge upon property for the payment or discharge of a debt or duty. It is a qualified right, a proprietary interest, which, in a given case, may be exercised over the property of another. It is a right which the law gives to have a debt satisfied out of a particular thing. However, it confers no general right of property or title upon the holder; on the contrary, it necessarily supposes the title to be in some other person." 33 Am. Jur. 419, § 2.

"Since a judgment lien does not amount to a transfer of title, it does not destroy the seisin of the defendant, or take away his capacity to convey. Ordinarily, however, the judgment lien does operate to give the judgment creditor priority over other adverse interests subsequently acquired and precludes the subsequent disposal or encumbrance of the property from operating to prejudice the judgment creditor or to prevent a levy of execution under the judgment." 31 Am. Jur. 20, § 303.

[3] Accrued judgments for unpaid alimony installments are a basis for writs of garnishment, writs of attachment, and general executions, and may be collected through contempt proceedings. But do such judgments, as they accrue, become a lien on the property of the defendant? What is it, under the statute, which creates the lien? It is the entry of the judgment, and the extent of the lien is limited to the amount of such judgment, plus interest and costs. At the time a judgment providing for future payments of alimony installments is entered, there is no debt due. There is nothing to secure. There is nothing for which a lien could come into being. (The situation would be different, of course, if the judgment provided for alimony in a lump sum.) As the installments accrue and are unpaid, they become judgments. But such judgments do not become statutory liens.