Thomas v. Blair

• Decision Date: 29 June 1922
• Docket Number: 4 Div. 3.
• Citation: 93 So. 704,208 Ala. 48
• Parties: THOMAS v. BLAIR ET AL.
• Court: Alabama Supreme Court

93 So. 704

208 Ala. 48

THOMAS v. BLAIR ET AL.

4 Div. 3.

Supreme Court of Alabama

June 29, 1922

Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.

Bill to redeem by S. J. Thomas against M. W. Blair and another. From a decree sustaining demurrers to the bill, complainant appeals. Reversed and remanded.

Mulkey & Mulkey, of Geneva, for appellant.

H. G Tiller, of Geneva, for appellees.

McCLELLAN J.

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...