Nancy McGhee et al. vs. Geo. McGhee et al.
Divorce. Rights of creditors over wife’s claim to alimony. The claims of the husband’s bona fide creditors, or liabilities properly incurred on his behalf, existing prior to an application for divorce and alimony by the wife, must prevail over the rights of the wife, and be first discharged out of the property of the husband.
FROM OVERTON.
The complainant, Nancy McGhee, filed in the circuit court of Overton county, in October 1852, her bill for divorce and alimony against the defendant, George McGhee, her husband, who, as alleged, had abandoned and otherwise maltreated her, and fled the country. His property was attached in obedience to the prayer of the bill, to abide the result of the suit. One of the complainants, Smith, surety on a guardian bond, and others, creditors of the said George McGhee, thereupon filed their cross bills, praying the payment of their debts, contracted by the said George McGhee prior to the filing of said bill of divorce, out of the property of the said George McGhee. The property, most of which the *222defendant derived from bis wife, consisted of a small tract of land and some personalty, ,barely enough to support tbe complainant and her children, of which the defendant had taken off with him about $250 worth of chattels and $500 in money. The debts, part of which were in judgments prior to the filing of the original bill, amounted to between three and five hundred dollars. The complainant Smith, as surety of the defendant upon his guardian bond, paid his liability under the same pending the litigation, and recovered a judgment at law therefor. The cause came on to be heard before-,íGoodáll',' judge, at the February term, 1853, of the circuit court of Overton, who rendered a decree of divorce; but transferred the cause to the chancery court at Livingston, for the adjudication of the other questions involved. His honor T. Nixon Van Dyke, chancellor, at the September term, 1854, of said court, decreed in favor of the rights of the wife to the whole property, subject to the payment of the debts aforesaid. He also gave a decree in favor of the wife over against the husband for the amount of the debts aforesaid. The complainant, Nancy McGhee, appealed.
M. M. BedsN, for the appellant.
GaedeNhibe and McHeNby, for the creditors.
MoKiNNEY, J.,
delivered the opinion of the court.
Smith, the complainant in one of the above cases— prior to the filing of the bill for divorce by Nancy McGhee vs. George McGhee—had become bound as the *223surety of George McGbee, tbe defendant, as guardian of certain minors. Smith’s liability as surety at the time of Mrs. McGhee’s application for divorce, exceeded two hundred dollars. All the property of defendant McGhee having been attached at the instance of his wife, in the divorce case, and he having fled beyond the limits of the State, Smith interposed by bill in equity, to have as much of the property attached by the wife as might be necessary, appropriated to the discharge^pf liability as surety. To this bill Mrs. McC answer, resisting the relief sought, upon jferSunds technical. Pending the divorce ease, final decree, vesting the wife with title If to, the property attached, Smith discharged his liability sur&wkey;5*-"^^" the bond, by payment of the amount fouhTPs^gs*’ the hands of the guardian; and, thereupon, by a proceeding at law, obtained judgment against his principal, George McGhee, for the amount thus paid; and by the final decree in the divorce case, the property given to the wife, was charged with the payment of this sum to Smith.
In this, there was no error. The proviso to the 11 § of the act of 1835, introduces no new rule. Upon well established general principles of law, the claims of the husband’s bona fide creditors,, or liabilities properly incurred on his behalf, existing prior to the application for divorce, must prevail over the rights of the wife. We are not prepared to admit, that the term “creditors” used in the 11 § of the act of 1835, is to be taken in the restricted sense contended for by the counsel of Mrs. McGhee.
But upon this point, no opinion is called for in the *224present ease, as Smith was a judgment creditor before the final decree, declaring the wife’s right to the property.
The decree will be affirmed.