harsh rule in Alabama

1996As examples, the Court cited People v. Wheeler, 22 Cal.3d 258 , 148 Cal.Rptr. 890 , 583 P.2d 748 (1978); State v. Neil, 457 So.2d 481 (Fla.1984); and Commonwealth v. Soares, 377 Mass. 461 , 387 N.E.2d 499 , cert. denied, 444 U.S. 881 , 100 S.Ct. 170 , 62 L.Ed.2d 110 (1979).

1996As examples, the Court cited People v. Wheeler, 22 Cal.3d 258 , 148 Cal.Rptr. 890 , 583 P.2d 748 (1978); State v. Neil, 457 So.2d 481 (Fla.1984); and Commonwealth v. Soares, 377 Mass. 461 , 387 N.E.2d 499 , cert. denied, 444 U.S. 881 , 100 S.Ct. 170 , 62 L.Ed.2d 110 (1979).

1996This fact was made clear in Batson itself, which was decided only after a number of state courts had already taken the initiative in ameliorating the harsh rule of Swain v. Alabama, 380 U.S. 202 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965). [1] More specifically, Batson explained that two United States Circuit Courts of Appeals had recently " [f]ollow[ed] the lead of a number of state courts construing their State's Constitution" to challenge as discriminatory peremptory strikes based on evidence supplied in the "particular case," rather than requiring, as did the federal standard, proof of " system

1996This fact was made clear in Batson itself, which was decided only after a number of state courts had already taken the initiative in ameliorating the harsh rule of Swain v. Alabama, 380 U.S. 202 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965). [1] More specifically, Batson explained that two United States Circuit Courts of Appeals had recently " [f]ollow[ed] the lead of a number of state courts construing their State's Constitution" to challenge as discriminatory peremptory strikes based on evidence supplied in the "particular case," rather than requiring, as did the federal standard, proof of " system

1996As examples, the Court cited People v. Wheeler, 22 Cal.3d 258 , 148 Cal.Rptr. 890 , 583 P.2d 748 (1978); State v. Neil, 457 So.2d 481 (Fla.1984); and Commonwealth v. Soares, 377 Mass. 461 , 387 N.E.2d 499 , cert. denied, 444 U.S. 881 , 100 S.Ct. 170 , 62 L.Ed.2d 110 (1979).

1996This fact was made clear in Batson itself, which was decided only after a number of state courts had already taken the initiative in ameliorating the harsh rule of Swain v. Alabama, 380 U.S. 202 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965). [1] More specifically, Batson explained that two United States Circuit Courts of Appeals had recently " [f]ollow[ed] the lead of a number of state courts construing their State's Constitution" to challenge as discriminatory peremptory strikes based on evidence supplied in the "particular case," rather than requiring, as did the federal standard, proof of " system

1996This fact was made clear in Batson itself, which was decided only after a number of state courts had already taken the initiative in ameliorating the harsh rule of Swain v. Alabama, 380 U.S. 202 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965). [1] More specifically, Batson explained that two United States Circuit Courts of Appeals had recently " [f]ollow[ed] the lead of a number of state courts construing their State's Constitution" to challenge as discriminatory peremptory strikes based on evidence supplied in the "particular case," rather than requiring, as did the federal standard, proof of " system

1996As examples, the Court cited People v. Wheeler, 22 Cal.3d 258 , 148 Cal.Rptr. 890 , 583 P.2d 748 (1978); State v. Neil, 457 So.2d 481 (Fla.1984); and Commonwealth v. Soares, 377 Mass. 461 , 387 N.E.2d 499 , cert. denied, 444 U.S. 881 , 100 S.Ct. 170 , 62 L.Ed.2d 110 (1979).

1996As examples, the Court cited People v. Wheeler, 22 Cal.3d 258 , 148 Cal.Rptr. 890 , 583 P.2d 748 (1978); State v. Neil, 457 So.2d 481 (Fla.1984); and Commonwealth v. Soares, 377 Mass. 461 , 387 N.E.2d 499 , cert. denied, 444 U.S. 881 , 100 S.Ct. 170 , 62 L.Ed.2d 110 (1979).

1996As examples, the Court cited People v. Wheeler, 22 Cal.3d 258 , 148 Cal.Rptr. 890 , 583 P.2d 748 (1978); State v. Neil, 457 So.2d 481 (Fla.1984); and Commonwealth v. Soares, 377 Mass. 461 , 387 N.E.2d 499 , cert. denied, 444 U.S. 881 , 100 S.Ct. 170 , 62 L.Ed.2d 110 (1979).

1996As examples, the Court cited People v. Wheeler, 22 Cal.3d 258 , 148 Cal.Rptr. 890 , 583 P.2d 748 (1978); State v. Neil, 457 So.2d 481 (Fla.1984); and Commonwealth v. Soares, 377 Mass. 461 , 387 N.E.2d 499 , cert. denied, 444 U.S. 881 , 100 S.Ct. 170 , 62 L.Ed.2d 110 (1979).

1996As examples, the Court cited People v. Wheeler, 22 Cal.3d 258 , 148 Cal.Rptr. 890 , 583 P.2d 748 (1978); State v. Neil, 457 So.2d 481 (Fla.1984); and Commonwealth v. Soares, 377 Mass. 461 , 387 N.E.2d 499 , cert. denied, 444 U.S. 881 , 100 S.Ct. 170 , 62 L.Ed.2d 110 (1979).

1978Upchurch v. West, supra. The “harsh rule” alluded to is expressed in this Court’s holding in Allison v. Cody, et al., 206 Ala. 88 , 89 So. 238 (1921).

1978Upchurch v. West, supra. The “harsh rule” alluded to is expressed in this Court’s holding in Allison v. Cody, et al., 206 Ala. 88 , 89 So. 238 (1921).

1978During the period from 1842 to the adoption of the 1923 Code it appears the practice “was more or less a race of diligence between junior encumbrancers as to effecting redemption,” as Mr. Justice Knight points out in Upchurch v. West, 234 Ala. 604, 608 , 176 So. 186 (1937). “[A]nd it was no doubt for the purpose of abrogating the harsh rule then existing, which sanctioned this race of diligence, that the Legislature declared and fixed the order and priority in the assertion of the statutory right of redemption” as it did, in adopting §§ 10141 and 10142 as a part of the Code of 1923.

1978During the period from 1842 to the adoption of the 1923 Code it appears the practice “was more or less a race of diligence between junior encumbrancers as to effecting redemption,” as Mr. Justice Knight points out in Upchurch v. West, 234 Ala. 604, 608 , 176 So. 186 (1937). “[A]nd it was no doubt for the purpose of abrogating the harsh rule then existing, which sanctioned this race of diligence, that the Legislature declared and fixed the order and priority in the assertion of the statutory right of redemption” as it did, in adopting §§ 10141 and 10142 as a part of the Code of 1923.

1951The statute was-enacted to alleviate the harsh rule of the common law and in Edgar v. State, 156 Ala. 147 , 47 So. 295, 297 , the statute was construed as follows: “This statute, we think, can mean nothing more nor less than that the party who erected the fence or building-shall not lose his right to the material in. *473 the structure. * * * The purpose of the statute is to prevent one who innocently and through mistake erects a fence or building on the land of another from losing the material used in such structure.

1951The statute was-enacted to alleviate the harsh rule of the common law and in Edgar v. State, 156 Ala. 147 , 47 So. 295, 297 , the statute was construed as follows: “This statute, we think, can mean nothing more nor less than that the party who erected the fence or building-shall not lose his right to the material in. *473 the structure. * * * The purpose of the statute is to prevent one who innocently and through mistake erects a fence or building on the land of another from losing the material used in such structure.

1951The effect of the statute is to convert the fence or building into personal property, which otherwise would be a fixture and become a part of the realty. * * * ” See also Marbury Lumber Co. v. Lamont, 169 Ala. 33 , 53 So. 773.

1951The effect of the statute is to convert the fence or building into personal property, which otherwise would be a fixture and become a part of the realty. * * * ” See also Marbury Lumber Co. v. Lamont, 169 Ala. 33 , 53 So. 773.

1949If this is to be criticized as a harsh rule, a complete answer is that it is but adhering to the terms of the contract as made and the *615 difficulty could have 'been eliminated by a different contract, to the effect that the vendee advance the necessary amount at closing to enable the vendor to satisfy the mortgage indebtedness, etc. As was observed in the Massachusetts case of Weiner v. Simons, 267 Mass. 327 , 166 N.E. 765, 766 , “the defendants [here Johnson] were entitled to have what they contracted for.

1949If this is to be criticized as a harsh rule, a complete answer is that it is but adhering to the terms of the contract as made and the *615 difficulty could have 'been eliminated by a different contract, to the effect that the vendee advance the necessary amount at closing to enable the vendor to satisfy the mortgage indebtedness, etc. As was observed in the Massachusetts case of Weiner v. Simons, 267 Mass. 327 , 166 N.E. 765, 766 , “the defendants [here Johnson] were entitled to have what they contracted for.

1937It will be noticed that the right of redemption is first given to the debtor, which includes, of course, the mortgagor, McDuffie v. Faulk, 214 Ala. 221 , 107 So. 61 , and then next in order, junior mortgagee, vendee of the debtor, or assignee of the equity or statutory right of redemption, wife, widow, child, heir at law, devisee, or any vendee or assignee of the right of redemption.

1937It will be noticed that the right of redemption is first given to the debtor, which includes, of course, the mortgagor, McDuffie v. Faulk, 214 Ala. 221 , 107 So. 61 , and then next in order, junior mortgagee, vendee of the debtor, or assignee of the equity or statutory right of redemption, wife, widow, child, heir at law, devisee, or any vendee or assignee of the right of redemption.

1910But that is the effect of the proposition as announced in charge 11. —Kansas City, etc., Co. v. Thornhill, 141 Ala. 215, 228 , 37 South. 412 ; Ala. Steel & Wire Co. v. Wrenn, 136 Ala. 475, 494 , 34 South. 970 ; Pioneer, etc., Co. v. Smith, 150 Ala. 359 , 43 South. 561 .

1910But that is the effect of the proposition as announced in charge 11. —Kansas City, etc., Co. v. Thornhill, 141 Ala. 215, 228 , 37 South. 412 ; Ala. Steel & Wire Co. v. Wrenn, 136 Ala. 475, 494 , 34 South. 970 ; Pioneer, etc., Co. v. Smith, 150 Ala. 359 , 43 South. 561 .

1910But that is the effect of the proposition as announced in charge 11. —Kansas City, etc., Co. v. Thornhill, 141 Ala. 215, 228 , 37 South. 412 ; Ala. Steel & Wire Co. v. Wrenn, 136 Ala. 475, 494 , 34 South. 970 ; Pioneer, etc., Co. v. Smith, 150 Ala. 359 , 43 South. 561 .

1908Cases of this character furnish no exception to the maxim that he who seeks equity must do equity; so that if, on the whole case, it wonld be inequitable to set aside a conveyance, there is no inexorable rule that it must be done because, perchance, the grantor was deficient in mental capacity.” In Gribben v. Maxwell, 34 Kan. 8 , 7 Pac. 584 , also reported in 55 Am.

1908Cases of this character furnish no exception to the maxim that he who seeks equity must do equity; so that if, on the whole case, it wonld be inequitable to set aside a conveyance, there is no inexorable rule that it must be done because, perchance, the grantor was deficient in mental capacity.” In Gribben v. Maxwell, 34 Kan. 8 , 7 Pac. 584 , also reported in 55 Am.

1895Hannon v. Hounihan, 85 Va. 429 ; Kirk v. Smith, 9 Wheat. 288 .