White v. Bates

89 Tenn. 570 | Tenn. | 1891

Burton, J.

Complainant White, as assignee of Jos. Elrod, claims to have redeemed 'the land described in the pleadings, and files this bill to recover possession, rents, etc. The principal question to be decided is as to-whether the land was, under the Code, subject to redemption.

The wife of Jos. Elrod, under whom White claims, filed her bill for divorce and alimony in the Circuit Court of Smith County. An absolute divorce was granted and alimony decreed. For the purpose of providing alimony, it was decreed that the' undivided interest ' of Elrod in a tract of land in Jackson County be sold by the Clei'k of that Court, for cash, to the highest bidder, after clue advertisement; that one-half of the proceeds be paid over as alimony to the wife, and that, after paying costs, the other half of proceeds be paid to Elrod himself. At this sale the defendant, Bates, became the purchaser. The sale was duly confirmed, and title vested in the purchaser.

None of the pleadings or decrees contain any thing concerning the right of redemption. "Within two years after sale the complainant, as assignee of Elrod, undertook to redeem from Bates and his assignees by paying into the office of the Clerk of the Court making the sale the full amount of the purchase-money paid in by Bates, with interest. The purchaser and his assigns refused to permit redemption, and have refused to-receive the redemption-money so tendered, and now insist that the land was not sold subject to redemption.

We are of opinion that this sale was free from any right of redemption. The claim for alimony in a wife’s bill is not a debt. The creditors of the husband cannot be affected by the wife’s claim for alimony. 2 Sneed, 221. Alimony is an allowance out of the estate of the husband made pendente lite for the maintenance of the wife, or for the sustenance °of the wife after legal separation or a divorce.- Such a claim is not a debt. Am. and Eng. Ency. of L., Vol. I., p. 482, and cases cited.

It may become a debt by judgment or decree for a specific sum to be paid by the husband; but the Court may, in its discretion, give alimony in property, real or personal, belonging to the husband, or may .assign to her a fixed proportion of his estate in kind or value, or it may adjudge a specific sum to be paid. Code, §§2468-2470 inclusive ; 6 Bax., 299.

Here the Court, instead of adjudging a particular sum to be paid the wife, or assigning to her a portion of his. estate, decreed to . her the one-half of the proceeds of the sale of a particular interest in land; the other half was decreed to the husband less the cost. "Whether this was a wise decree, or sufficiently protected the husband’s rights, in converting into money more of his land than was necessary to satisfy the wife’s claim, it is unnecessary to determine. The husband submitted to the decree without .appeal. The alimony was to consist of one-half the gross proceeds of the sale of this land. To say now that such*a sale was subject to redemption, would be to cut down the allowance of the wife by the value of the equity of redemption. She would not get one-half the proceeds of the' sale of this land, but one-half less -the value of the right -of redemption. The decree was not for a specific sum to be raised by a sale, but was for an indefinite sum, to be ascertained only by a division of the proceeds of the sale decreed. The sale was not, therefore, made to satisfy a debt. The decree was satisfied whatever the price the land ■ might bring. Lands are only subject to redemption, under our statute, when sold for debt. The language- of the Code is: “ Real estate sold for debt shall be redeemable at any time within two years.” § 2124. The subsections under the general provision cited all . presuppose the condition that the sale is for debt. Such a sale as that ordered in this case was no more a sale for debt than one ordered for purposes of division.

The decree ■ dismissing the bill will be affirmed with costs.