White v. Bates

• Decision Date: 27 January 1891
• Citation: 15 S.W. 651
• Parties: WHITE <I>et al.</I> v. BATES <I>et al.</I>
• Court: Tennessee Supreme Court

15 S.W. 651

WHITE et al. v. BATES et al.

Supreme Court of Tennessee.

January 27, 1891.

Appeal from circuit court, Jackson county.

J. F. Anderson, R. A. Cox, G. W. Morgan, and Hamilton Parks, for appellants. M. C. Butler, for appellees.

LURTON, J.

Complainant White, as assignee of Joseph 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 Joseph 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 clerk of that court for cash, to the highest bidder, after due 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 contained anything concerning the right of redemption. Within two years after sale the complainant and 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 assignees 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. McGhee v. McGhee, 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. 1 Amer. & Eng. Enc. Law, 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...