62 Ala. 443 | Ala. | 1878
1. Mortgages or instruments may be taken as a security for a present debt, or against contingent liabilities, or to cover future advances or responsibilities, when such is the agreement and intention of the parties. Many questions may arise when the rights of subsequent mortgagees or encumbrancers, or of judgment creditors, oi of purchasers without notice are involved, which would affect the security and operation of the mortgage, when made as a security for future advances or responsibilities, which will not diminish its security or lessen its operation, when, as in the present case, the controversy is between the mortgagor and mortgagee. As between them it certainly is not essential to the validity of the mortgage, that on its face it should be expressed that it is to operate as a security not only for a present debt, but also for future advances ; nor is it necessary that the agreement that such may be its operation should be in writing. When, as in the present case, a note is given for an aggregate sum, which embraces not only the pre-existing debt, but a sum intended to cover future advances, it is contemplated the mortgagee will make before, the maturity of the note, there is not, as to the future advances, or the sum intended to cover them, any want of consideration for the note, and a mortgage given for its security is a valid security for so much as is advanced by the mortgagee. — 1 Jones’ Mort. §§ 364, 378.
2. When the mortgage was executed, there was no statute prescribing any particular mode in winch the wife’s concurrence in any alienation or mortgage of the homestead should be expressed. If she joined with her husband in executing the conveyance, and it was acknowledged before and certified by a proper officer, the constitutional requisition of her voluntary signature and assent was satisfied. She could impeach the validity of tbe conveyance by proof of fraud or duress practiced on her inducing its execution, but its valid
The general rule of pleading in equity, and at common law is, that when a party claims a right, whether as ground of relief, or as a matter of defense, under a foreign law, he must, by appropriate pleading, set out the law, so that the court can see the right claimed falls within it. — Cockrell v. Gurley, 26 Ala. 405; Gunn v. Howell, 27 Ala. 663; Cubbedge, Hazlehurst & Co. v. Napier, MSS. If the statute of Georgia would affect the validity of the note and mortgage, it is pleaded too generally to be available to the appellants.
Let the decree be affirmed.
