Commercial R.E. & B. Ass'n v. Parker

• Decision Date: 22 May 1888
• Citation: 84 Ala. 298,4 So. 268
• Parties: COMMERCIAL R. E. & B. ASS'N v. PARKER ET AL.
• Court: Alabama Supreme Court

4 So. 268

84 Ala. 298

COMMERCIAL R. E. & B. ASS'N v. PARKER ET AL.

Supreme Court of Alabama

May 22, 1888

Appeal from chancery court, Montgomery county; JOHN A. FOSTER Judge.

This was a bill filed by James Parker, W. H. Jackson, David Blakey, and T. R. Parker, the wife of the said James Parker and seeks to redeem the lands in controversy from the defendants, appellants in this court. Mrs. Parker prayed for the right to redeem on the ground that she was the assignee of the mortgagor's equity of redemption, which she had purchased before the mortgage sale. The complainant Blakey sought to redeem on the ground that he was the assignee of the statutory right of redemption, which he purchased after the mortgage sale. The complainant James Parker asked for the right of redemption under the statute; he having been the original mortgagor, but had disposed of his equity of redemption to his wife, Mrs. Parker, one of the complainants. There was no contest as to the complainant Parker. The defendant demurred to the bill on the ground of the want of equity, and for the misjoinder of parties, but the chancellor overruled the demurrer, and decreed that the complainants be allowed to redeem. This ruling and decree of the chancellor is here assigned as error.

Troy, Tompkins & London, for appellant.

Brickell, Semple & Gunter, for appellees.

SOMERVILLE J.

1. In the case of Powers v. Andrews, ante, 263, (decided at the present term,) we have held that the vendee or assignee of a mortgagor's equity of redemption, not being named in the statute among those to whom is accorded the statutory right of redemption,-by which is meant the right to redeem after sale under execution, or foreclosure of a mortgage by decree or under a power of sale,-is by necessary implication excluded from the exercise of such privilege, with the single exception, specified in the statute itself, of a child of the debtor and owner, to whom his parent had conveyed the land. Code 1886, §§ 1879 et seq., 1888. This ruling was affirmed in the case of Aiken v. Bridgeford, ante, 266, (present term,) where a junior mortgagee sought to exercise the statutory right of redemption, and was held not to be entitled to it.

2. The same course of reasoning adopted in these cases would preclude the assignment by a debtor of his statutory right of redemption, which is but the bare right of repurchase after sale. The statute names the persons who are authorized to exercise it, and it excludes from this enumeration the assignee of the debtor. If the debtor can transfer such right, why may not the judgment creditor do the same, without assigning his judgment? The reason is that the right is neither property nor the right of property, but a mere personal privilege, the essential nature of which is that it is confined to the person of the party within whose option its exercise rests. Our decisions fully commit us to the personal nature of the right, and are therefore logically inconsistent with the idea of its assignability. Parmer v. Parmer, 74 Ala. 285; Childress v. Monette, 54 Ala. 317; Otis v. McMillan, 70 Ala. 46. No liberality of construction can authorize us, on sound principles, to incorporate in the statute a new class of persons as entitled to exercise the right who have not been named by the law-making power, which has for the last 40 years amended the statute from time to time by extending its benefits to others not previously enumerated. Posey v. Pressley, 60 Ala. 243. This power is a legislative not a judicial function, and we are content to remit to the general assembly the policy or impolicy of including within the provisions of the law the assignee or vendee of the debtor's right to redeem under the terms prescribed by the statute. The chancellor, in holding to the contrary, bases his opinion, in some measure, upon an intimation in Carlin v. Jones, 55 Ala. 624. But the question was in that case expressly...