which to answer the amended petition that is allowed by law for answer to an original petition which, it is claimed, gave them until and including the third Saturday after the pleading was filed for answer; and especially should they have been allowed that rule, it is said, because no other time for. answer was fixed by the court. The court is authorized to permit amendments of pleadings before or after judgment in furtherance of justice, on such terms as may be proper, "by inserting other allegations material to the case," and in many other respects: Rev. Stats., sec. 5114. An amended petition, which contains all or part of the allegations of the original petition, with others that are material, is a form of amendment permitted by the statute, and a mode often adopted; and as the statute has prescribed no rule day for answer to such a pleading, nor to an amendment in any form, the time within which an answer may be filed to a pleading of that kind is within the discretion of the court. Where no other time is fixed by the court, setting the case for trial on a specified day is, in effect, an order that the issues be made up by that time; and it appears they were made up in this case before the trial commenced.

Judgment affirmed.

EQUITY-REFORmation of ContRACTS.-Equity will reform an instrument which, by reason of a mistake, fails to execute the intention of the parties: Leitensdorfer v. Delphy, 15 Mo. 160; 55 Am. Dec. 137, and note; Smith v. Jordan, 13 Minn. 264; 97 Am. Dec. 232, and note; Evants v. Strode, 11 Ohio, 480; 38 Am. Dec. 744, and note; Chapman v. Allen, Kirby, 399; 1 Am. Dec. 24; Coger v. McGee, 2 Bibb, 321; 5 Am. Dec. 610. See note to Hecht v. Batcheller, 9 Am. St. Rep. 712.

CoNRAD v. EVERICH.

[50 OHIO STATE, 476.]

JUDGMENT FOR ALIMONY-LIEN OF.-If in a final decree of divorce a wife is awarded a gross sum as alimony, such sum is a lien upon the husband's real property, if by the statute of the state every final determination of the rights of the parties is declared to be a judgment, and every judgment to be a lien upon the lands and tenements of the debtor in the county wherein the judgment is entered.

A JUDGMENT FOR ALIMONY IS A DEBT OF RECORD as much as any other judgment for money is.

Charles A. Beard, for the plaintiff in error.

W. H. Ball, for the defendants in error.

476 DICKMAN, J. The original action was commenced in the court of common pleas of Muskingum county, by the 477 plaintiff, Minerva Conrad, against the defendants, Sarah E. Everich and W. H. Bolin, as sheriff of that county. The object of the suit was to enjoin the sale under execution of certain lands and tenements in Zanesville, Ohio, described in the plaintiff's petition, which had been levied upon by the sheriff, to satisfy a claim for alimony in favor of Sarah E. Everich. As disclosed by the record, the undisputed facts that give rise to the only question before us for determination are as follows:

At the January term, 1889, of the court of common pleas of Muskingum county, Sarah E. Everich obtained a divorce from her husband, James S. Everich, in an action for divorce and alimony, wherein the court, having ordered the delivery to her of certain articles of personal property of which she was the owner, further ordered, adjudged, and decreed that James S. Everich pay to her additional alimony in the sum of one thousand dollars, and in default of such payment within five days thereafter, that execution issue therefor; and further, that he pay the taxed costs of the action, and that execution issue therefor in default of payment. Neither the petition in the action nor the decree for alimony, described, mentioned, or referred to any lands or tenements; and the decree for alimony was simply for the gross sum of one thousand dollars in money, and was not, by its terms, made a charge upon any real estate.

On March 14, 1889, Mrs. Everich caused an execution to be issued against the property of James S. Everich, to satisfy the judgment for alimony and costs, and the same was levied by the defendant, W. H. Bolin, as sheriff, upon certain personal property, but no levy thereof was made on any lands and tenements, and the same was duly returned into the office of the clerk of the court on May 4, 1889. The personalty levied on was sold for forty-eight dollars and twenty cents, for which a credit was given on the execution; and on August 1, 1889, a second execution was issued, and levied on the lands and tenements described in the petition, which the sheriff caused to be appraised and duly advertised and offered for sale.

On the tenth day of July, 1889, the plaintiff, being fully informed of the decree for divorce rendered at the January 478 term, 1889, of the court of common pleas, purchased the

lands and tenements so levied on from James S. Everich, who, on that day, conveyed to her in fee simple the purchased premises.

At the time of the purchase of the property there was a mortgage thereon which had been executed by James S. Everich and Sarah E. Everich when husband and wife; and by the terms of the contract of purchase the plaintiff was to assume the payment of that mortgage as part of the consideration of the conveyance to her. A release of the mortgage was accordingly obtained, by the plaintiff executing with her husband to the mortgagee a new mortgage on the property for the amount originally secured.

As prayed for in the plaintiff's petition the court of common pleas perpetually enjoined the defendants from selling or offering for sale, by virtue of the judgment for alimony, the lands and tenements levied on and advertised for sale under execution.

On petition in error by Sarah E. Everich the circuit court reversed the judgment of the court of common pleas, and remanded the cause for a new trial. By this proceeding in error the plaintiff, Minerva Conrad, seeks to reverse the judgment of the circuit court.

Upon the facts as thus stated the question is presented, whether the judgment in favor of Mrs. Everich for one thousand dollars in gross, as alimony, was per se a lien on the lands of James S. Everich in Muskingum county. If such lien. was thereby created, the claim for alimony must take precedence of any rights under the deed executed to the plaintiff subsequently to the rendition of the judgment.

It is urged in behalf of the plaintiff that in Olin v. Hungerford, 10 Ohio, 268, decided in 1840, it was held that a decree for alimony, to be paid in installments, does not operate as a lien upon the real estate of the defendant unless made a charge thereon by the decree itself. The decree in question in that case was rendered in 1831, and its effect was determined in accordance with the statute in force at the time of its rendition. By the act then in operation, the court in their discretion might grant alimony, 479 where the evidence justified such decree: 2 Chase's Comp. Stats. 1409. The statute did not make the decree a lien on real estate; nor was the effect of the decree, as to alimony, declared; nor was the mode of enforcing its payment designated. But the power to grant alimony having

been conferred, some mode of enforcing its payment incidentally followed. And the court, while adopting the practice of enforcing collection by execution, considered it an exercise of legitimate power to make its decree a charge upon real estate, and such had been its practice in cases where it was deemed proper. It is true that, by section 7 of the act of March 14, 1831, "directing the mode of proceeding in chancery" (3 Chase's Comp. Stats. 1692), it was provided that "decrees in chancery shall, from the time of their being pronounced, have the force, operation, and effect of a judgment at law." But the court, in the above-cited case, did not recognize a sufficient analogy to hold that a decree in a divorce case, which allows alimony to the wife, and which is a statutory proceeding throughout, is in the nature of a decree in chancery; and was of the opinion that there could be no more propriety in calling the proceedings in a divorce. case proceedings in chancery than there would be in calling proceedings for the partition of real estate, under the statute regulating that subject, proceedings in chancery. By the amendatory act, however, concerning divorce and alimony, passed March 1, 1834 (32 Ohio Laws, 37), it was enacted "that all proceedings in cases of divorce shall be as in chancery." But the court, in Olin v. Hungerford, 10 Ohio, 268, did not regard this statute as fixing the force and effect of decrees in cases of divorce, but only as providing the proceedings in order to arrive at such decrees. And hence, in delivering the opinion, the court uses the language: "Even under this statute, should we hold that a decree for a gross sum to be paid the wife would operate as a lien, it does not follow that the same principle would hold where, as in the present case, it was for the payment of specified sums annually during the joint lives of the parties." It is manifest, therefore, that the court did not pass upon the question now before 480 us, whether a decree for alimony payable in gross operates as a lien upon the lands of the husband in the county where it is rendered; but, as involving a difference of principle, the court signified that in respect to being a lien upon real estate, a distinction might be drawn between a decree for alimony payable in gross and a decree payable in installments.

In Kurtz v. Kurtz, 38 Ark. 119, the court speaks of the embarrassment and inconvenience incurred by making future payments of alimony a lien upon real estate as too obvious for discussion; but remarks that, "as for all sums ordered to

be paid at once, and for which execution may issue, they are already general liens, without being so expressed." As, in our view, a decree for a gross sum to be paid the wife for alimony would, in itself, operate as a lien, we do not think it necessary to inquire how far a decree for alimony payable in installments is thereby obviously distinguishable in regard to its operative effect as a lien upon real estate.

By the adoption of the Code of Civil Procedure the distinction between actions at law and suits in equity and the forms of all such actions and suits theretofore existing were abolished, and in their place but one form of action, called a civil action, was instituted. Prior to the adoption of the code, judgments at law and decrees in chancery were made liens by statute on the lands of the debtor in the county. But the final determination of the rights of the parties in action is now denominated a judgment; and a lien of judgment attaches to the lands and tenements of the debtor, within the county where the judgment is entered, from the first day of the term at which judgment is rendered: Rev. Stats., secs. 5310, 5375. This definition of a judgment is broad enough to comprise all final judgments and all final decrees. Within the meaning of the statute, a final determination of the rights of the parties in an action for divorce and alimony, in which a sum in gross is ordered to be paid as alimony, is, in its nature, a judgment; and if so, we discover no good reason why it should not become a lien upon lands as other judgments. In section 5697 of the Revised Statutes the award 481 of alimony is designated a "judgment." It is enacted by section 5703 that the court shall, on petition for alimony, . . . . "give judgment in favor of the wife for such alimony out of her husband's real and personal property as is just and equitable, which may be allowed to her in real or personal property, or both, or in money, payable either in gross or in installments." The statute thus, to all intents and purposes, authorizes a money judgment as and for alimony, with the same force and effect, in itself, as any other judgment for the payment of money.

It is contended in argument that alimony is not a debt, and if not, that it is difficult to see how it is a lien, unless expressly made so by the court. But, in Lockwood v. Krum, 34 Ohio St. 1, it is well said by Boynton, J., in delivering the opinion of the court: "The claim for alimony rests on the common-law obligation of the husband to support the wife in