Thomas v. Blair

93 So. 704 | Ala. | 1922

Upon the wife of a mortgagor there is conferred the right to redeem. Code, § 5746. The complainant is so entitled unless she has forfeited the right to avail of the privilege. The debtor, mortgagor, or "any one holding under him by privity of title" must deliver possession to the purchaser within 10 days after the foreclosure sale "on written demand of the purchaser or his vendee." Code, § 5747. There is no "privity of title" between husband and wife with respect to lands owned by the living husband. Dower inchoate is not title. It is a mere expectancy. 5 Mich. Ala. Dig. p. 215. In the husband's land, which from occupancy has become characterized as the homestead, the wife has no estate or title. Witherington v. Mason, 86 Ala. 345,349, 5 So. 679, 11 Am. St. Rep. 41. Not being the debtor or one "holding under him by privity of title," the wife's right to exercise the privilege of statutory redemption (Code, § 5746) is not subject to qualification or forfeiture created by Code, § 5747; this whether or not she was in possession of the lands sold under the power of sale in a mortgage. The statute (Code, § 5747) does not include the wife who desires to redeem. Hence the grounds of demurrer which proceed on the theory that complainant, the debtor's wife, was in default in not surrendering possession of the land within 10 days after written demand by the purchaser, were not well taken.

A mortgage may be given to secure future advancements; and it is not essential to the validity of such an instrument that a particular or definite sum should be specified. Huckaba v. Abbott, 87 Ala. 409, 6 So. 48; Lovelace v. Webb, 62 Ala. 271,280, 281; 1 Jones on Mortg. (7th Ed.) §§ 367, 367a.

If the mortgage was intended by the parties to secure indebtedness to be subsequently incurred to this mortgagee by complainant's husband — and that in fact appears in terms in the instrument — then the subsequent, valid creation of such indebtednesses was the exercise of a lawful privilege or right, without the taint of fraud, whatever the motive or purpose Thomas and Blair had in thus increasing the amount of the incumbrance upon the land. The exercise of a lawful right cannot be constituted wrongful or fraudulent by the mere motive or purpose with which such right is exercised. Empire Realty Co. v. Harton, 176 Ala. 99, 106, 57 So. 763; Sparks v. McCreary,156 Ala. 382, 388, 47 So. 332, 22 L.R.A. (N.S.) 1224. Hence the feature of the bill's allegations undertaking to characterize the incurring of the future indebtedness mentioned — if it was in fact incurred — as fraudulent is unimportant, contributing nothing to complainant's case. If, as the bill avers, there was in fact no valid indebtedness other than the note debt of $650.05, the tender averred by the complainant was sufficient and efficient; and complainant is entitled to redeem.

The demurrer should have been overruled. The decree is reversed, and the cause is remanded.

Reversed and remanded.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.