Phelps v. Phelps.

the time of her marriage, can make no difference in the decision of the case. She was not bound to use it for the support of his children, to the exclusion of the estate of her husband; but if that question was material, we cannot know the amount of the property, nor that any portion of it was preserved until the death of her husband. So far as any thing appears in the record, the family may be entirely dependent on the estate. Independently of the question whether there is sufficient property to discharge the debts, the law has appropriated to the widow and the family residing with her such specific allowance as was deemed necessary for their support for one year, and made it a first charge upon the estate, to be first discharged to the extent there may be assets belonging to the deceased.

But there is another ground upon which the agreement may be held to be inoperative as to the widow's award. The statutory provision that exempts a portion of a man's estate from the payment of his debts, for the maintenance of his widow and minor children for a limited period, was adopted from motives of public concern. It is, that they may not become a charge upon the eleemosynary institutions of the State, as in many instances they would, but for this humane provision of the law. It is undeniable law that a party may waive the advantage of a statute intended for his sole benefit, but there are grave reasons why a law enacted from public considerations should not be abrogated by mere private agreement. The statute we are considering is of this character. It was intended to throw around the persons named that protection they are unable, in their helplessness, to procure for themselves. This is not a matter of mere private concern. It would be in contravention of the policy of this enactment to permit a party, by an ante-nuptial contract, to relieve his estate altogether from the maintenance of his widow and his children, when they could no longer sustain themselves. The statute has made a temporary provision for them, inadequate as it may be in many instances, and we think every principle of justice and humanity, as well as due regard for the general welfare, require us to hold that a party may not, by private agreement, contract against the liability imposed. It would place upon the State or local municipality the obligation the law has fixed upon his estate.

In Kneettle v. Newcomb, 22 N. Y. 249, it was ruled that a contract made by the head of the family, waiving the benefit of statu

Phelps v. Phelps.

tory exemptions designed exclusively for the benefit of the family, was subversive of the policy of the enactment, and hence illegal and void. The decision, in part, is based upon the reasoning in Woodward v. Murray, 18 Johns. 400. See Harper v. Leal, 10 How. Pr. 276, upon the same point.

Motives of public interest cause the imposition of restraints or prohibitions as to the alienation of certain things, and even as to any dealings with them. The principle is, the citizen may not deal even with his own property in a manner detrimental to the general welfare or public safety. This is the doctrine of both the common and civil law. If the rule prevails as to articles of property, there is no just reason why it should not be maintained as to duties and obligations imposed by positive laws. The statute which sets apart certain specific articles of property, or their value in money, for the maintenance of the widow and family of the deceased, is in the nature of a charge upon the estate, dictated by the spirit of humanity and adopted in accordance with an enlightened public policy, and to permit a party to contract against its salutary provisions is simply to abrogate the law itself. This cannot be done.

Where there is no child or children of the decedent residing with the widow after his death, a very different question would be presented. The award would be for her sole use in such case, and might be treated as a personal right, which she could, if she chose, relinquish; but it is otherwise where there are children of the decedent constituting the family. The award is as much for their benefit as for hers, and she has no power to release it by an ante-nuptial agreement or otherwise. The policy of the law is, to provide a home for the family, that the domestic circle might remain unbroken during the period for which provision is made for them, notwithstanding the death of the husband. To effectuate that purpose, it is necessary that the widow should share in the benefit of the award.

For the reasons indicated, the judgment of the Circuit Court will be reversed, and the cause remanded with directions to affirm the judgment of the County Court granting the prayer of the petition. Judgment reversed.

WALKER, C. J. I am unable to concur in the conclusion and the reasoning of the majority of the court in this case. It is apparent VOL. XXII.-20

Morgan v. Evans.

to my mind that the ante-nuptial contract cut off all claims of the widow to any interest in the property of the husband, without regard to whether it be dower, award or other claim.

MORGAN V. Evans.

(72 Ill. 586.)

Execution-issue of, after time limited by statute.

A statute provided that the execution on a judgment could issue “at any time within one year." Held, that an execution issued after the year was voidable but not void.

A

CTION of ejectment. The opinion states the case.

James M. Warren, for appellants.

H. B. Kepley, for appellees.

MCALLISTER, J. This was ejectment, brought in the Effingham Dircuit Court, by appellants against appellees, to recover possession of a certain tract of land situate in that county, of which appellees were in possession.

It appeared, that Joshua B. Whitney was the common source of title, and September 15, 1860, he conveyed the land in question, by warranty deed, to James M. Whitney. While the legal title was so in James M. Whitney, the appellants sued out of said Circuit Court an attachment against the estate of said James M. Whitney, who was a non-resident, which was levied upon the land in question, and constructive notice having been given pursuant to statute, appellants, at the April term, 1862, recovered a judgment for $1,096.25, against said James M. Whitney, and special execution against the property attached was ordered. No execution, however, was issued until July 3, 1863, over a year from the time of the rendition of the judgment. On this execution, which was levied on the lands attached, the sheriff sold and appellants became the purchasers, receiving the sheriff's deed in December, 1864.

Some question has been made as to the sufficiency of the form of the judgment, but we have no doubt the proceedings in the attach.

Morgan v. Evans.

ment suit were regular down to the entry of the judgment, and that the latter is sufficiently formal to be valid.

The ground that the judgment lacked the requisite form being untenable, the only question remaining is, whether the circumstance that the special execution was not issued within one year after the rendition of the judgment, rendered it void, or only voidable. The court below excluded it from the evidence, and if it was not void but only voidable, this was error.

The statute is as follows: All and singular the goods and chattels, lands, tenements and real estate of every person against whom any judgment has been or hereafter shall be obtained in any court of record, either at law or in equity, for any debt, damages, costs, or other sum of money, shall be liable to be sold upon execution to be issued upon such judgment, and the said judgment shall be a lien on such lands, tenements and real estate, from the last day of the term of the court in which the same may be rendered, for the period of seven years: Provided, that execution be issued at any time, within one year, on such judgment, and from and after the said seven years the same shall cease to be a lien on any real estate as against bona fide purchasers, or subsequent incumbrances by mortgage, judgment or otherwise."

This statute contains a plain recognition of the common-law rule requiring an execution to be issued within a year from the judgment, and if it had been intended that the consequences of noncompliance with that rule should be different from those which had been declared by the courts to follow such non-compliance at common law, such intention, it seems to us, would have been expressed in other language than that employed.

Patrick v. Johnson, 9 Levinz, 404, was trespass for false impris onment. The defendant justified under an execution in his favor, against the plaintiff. The latter demanded oyer of the execution, which appeared to have been sued out above a year after the judgment, and then replied that no execution issued within the year; to which the defendant demurred, and it was resolved that the execution sued out after the year was not void, but only voidable by writ of error, but that until it was reversed it was a good justification. In Shirley v. Wright, 1 Salk. 273, the sheriff had the defendant in custody on a ca. sa., which issued after a year and a day without a scire facias, and let him escape; and it was held the sheriff was liable, and should not take advantage of the error.

Morgan v. Evans.

In Parsons v. Loyd, 3 Wils. 345, Lord Chief Justice DEGRAY marked the distinction between void and voidable process in this language: "There is a great difference between erroneous process and irregular (that is to say void) process: the first stands valid and good until it be reversed, the latter is an absolute nullity from the beginning; the party may justify under the first until it be reversed, but he cannot justify under the latter, because it was his own fault that it was irregular and void at first."

The doctrine of these cases was fully recognized in Reynolds v. Corp & Douglas, 3 Caines, 271. KENT, C. J., there said: "The case that most resembles the present is that of issuing execution upon a judgment which has lain dormant above a year and a day. At common law, the plaintiff in such case was driven to sue out a new original, but the statute of 13 Eliz., ch. 1, gave him a sci. fa. to revive the judgment. If, however, instead of bringing debt or scire facias upon the judgment, the plaintiff sues out a ca. sa., the court, upon application, will set it aside, with costs. 2 Wils. 82; Barnes, 196, 206, 213. But it has been often adjudged, and it is well settled, that the party is not responsible in trespass for suing out the ca. sa.; for that the execution was voidable only, and was a good justification till reversed."

In Jackson v. Bartlett, 8 Johns. 361, the question arose in respect to a fi. fa. and in an action of ejectment, as in the case at bar, only that a third person was the purchaser instead of the plaintiff in the execution. The court, however, laying no stress upon that circumstance, said: "The question on the regularity of the fi. fa. could not be raised in this case. Though the execution may have issued a year and a day after judgment, without revival by sci. fa., it was only voidable at the instance of the party against whom it issued. 3 Lev. 403; 3 Caines, 271, 273. It was good in point of form, and several reasons might possibly have been assigned, if the question had come up on motion to set it aside, why the execution was duly issued, even after the year and a day. It was not for the present defendant to question a purchaser's title under such an execution. It was good authority for the sale. Shirley v. Wright, supra.

It may be proper to suggest, that if the judgment debtor should stay the execution, by injunction, upon a motion to set aside the execution issued after a year, that fact might be shown in answer to the motion. And it will be observed, that most of the cases above cited, expressly hold, that because it is voidable only, a ca.