personal privilege in Alabama

1871But previous decisions too firmly estab lisked the doctrine that the statutes against usury conferred a personal privilege which the borrower might waive, and no one else could take advantage of. — Cook & Kornegay v. Dyer, 3 Ala. 643 ; Sayre & Converse v. Fenno, 8 Ala. 458 ; Cain v. Gimon, 36 Ala. 168 .

1860The fraud charged in the bill, if admitted or proved, is sufficient to set aside the sale — made, as it is charged, to the beneficiary — and to let in Mrs. Cain to redeem. [4.] The, amended bill contains a sufficient tender in eases.like-this. — Nelson v. Dunn, 15 Ala. 501 ; Billingslea v. Ware, 32 ib. 415. [5.] The bill, as it is amended, offers a sufficient excuse for the delay in filing the bill, and for accepting a lease under Mr. Gimon. — Shelton v. Carroll, 16 Ala. 148, 153 . [6.] Under our decisions, Mrs. Cain can not make the defense of usury, that being a personal defense. — See Cook

1934Defendants became the owners of the property, the legal estate of the judgment debtor having vested in them (Searcy v. Oates, 68 Ala. 111 ; Cramer v. Watson, 73 Ala. 127 ; Johnson v. Davis, 180 Ala. 143 , 60 So. 799 ; Taylor v. Bell, 129 Ala. 467 , 29 So. 572 ), and the exercise by said debtor of the statutory right of redemption was but the assertion of a personal privilege (Code, § 10156; Lewis v. McBride, 176 Ala. 134 , 57 So. 705 ), which in no manner affected here the rights of the parties under the terms of the lease.

1934Defendants became the owners of the property, the legal estate of the judgment debtor having vested in them (Searcy v. Oates, 68 Ala. 111 ; Cramer v. Watson, 73 Ala. 127 ; Johnson v. Davis, 180 Ala. 143 , 60 So. 799 ; Taylor v. Bell, 129 Ala. 467 , 29 So. 572 ), and the exercise by said debtor of the statutory right of redemption was but the assertion of a personal privilege (Code, § 10156; Lewis v. McBride, 176 Ala. 134 , 57 So. 705 ), which in no manner affected here the rights of the parties under the terms of the lease.

1982The Fifth Amendment "privilege is a personal privilege: it adheres basically to the person, not to information that may incriminate him." Nobles , 422 U.S. at 233 , 95 S.Ct. at 2167 .

1982The Fifth Amendment "privilege is a personal privilege: it adheres basically to the person, not to information that may incriminate him." Nobles , 422 U.S. at 233 , 95 S.Ct. at 2167 .

1957Feno v. Sayre, 3 Ala. 458 ; Cook v. Dyer, 3 Ala. 643 ; Harbinson v. Harrell, 19 Ala. 753 ; Cain v. Gimon, 36 Ala. 168 ; Baskins v. Calhoun, 45 Ala. 582 ; McGuire v. Van Pelt, 55 Ala. 344 ; Griel v. Lehman, Durr & Co., 59 Ala. 419 ; Butts v. Broughton, 72 Ala. 294 ; Moses Bros. v. Home Bldg. & Loan Association, 100 Ala. 465 , 14 So. 412 ; Stickney v. Moore, 108 Ala. 590 , 19 So. 76 ; Eslava v. New York Nat.

1917“It was early declared in this state that usury is a personal defense, and can only be interposed by the borrower, his legal representative or heir at law. ‘Usury is a defense personal to the party agreeing to pay it, or those who stand in his place as representatives.’ Fenno v. Sayre, 3 Ala. 458 .

1957Feno v. Sayre, 3 Ala. 458 ; Cook v. Dyer, 3 Ala. 643 ; Harbinson v. Harrell, 19 Ala. 753 ; Cain v. Gimon, 36 Ala. 168 ; Baskins v. Calhoun, 45 Ala. 582 ; McGuire v. Van Pelt, 55 Ala. 344 ; Griel v. Lehman, Durr & Co., 59 Ala. 419 ; Butts v. Broughton, 72 Ala. 294 ; Moses Bros. v. Home Bldg. & Loan Association, 100 Ala. 465 , 14 So. 412 ; Stickney v. Moore, 108 Ala. 590 , 19 So. 76 ; Eslava v. New York Nat.

1871But previous decisions too firmly estab lisked the doctrine that the statutes against usury conferred a personal privilege which the borrower might waive, and no one else could take advantage of. — Cook & Kornegay v. Dyer, 3 Ala. 643 ; Sayre & Converse v. Fenno, 8 Ala. 458 ; Cain v. Gimon, 36 Ala. 168 .

1931Co., 185 Ala. 141 , 64 So. 305 , statutory right of redemption; Johnson v. Davis, 180 Ala. 143 , 60 So. 799 , where the statutory right was a personal privilege or right personal to the debtor; Johnson v. Smith, 190 Ala. 521 , 67 So. 401 , an equitable bill to redeem as distinguished from a statutory bill of redemption.

1931Co., 185 Ala. 141 , 64 So. 305 , statutory right of redemption; Johnson v. Davis, 180 Ala. 143 , 60 So. 799 , where the statutory right was a personal privilege or right personal to the debtor; Johnson v. Smith, 190 Ala. 521 , 67 So. 401 , an equitable bill to redeem as distinguished from a statutory bill of redemption.

1919Parmer v. Parmer, 74 Ala. 285 ; Otis v. McMillan, 70 Ala. 46, 62 ; Childress v. Monette, 54 Ala. 317 ; Mewburn v. Bass, 82 Ala. 622, 626 , 2 South. 520 ; Cooper v. Hornsby, 71 Ala. 62 ; Seals v. Pheiffer, 77 Ala. 278 .

1901Powers v. Andrews, 84 Ala. 291 ; Parmer v. Parmer, 74 Ala. 285 ; Otis v. McMillan, 70 Ala. 61, 62 ; Newburn’s Heirs v. Bass, 82 Ala. 622 ; Lehman v. Moore, 93 Ala. 186 ; Aiken v. Bridgeford, 84 Ala. 295 ; Commercial Real Estate Asso. v. Parker, Ib. 298.

1919Parmer v. Parmer, 74 Ala. 285 ; Otis v. McMillan, 70 Ala. 46, 62 ; Childress v. Monette, 54 Ala. 317 ; Mewburn v. Bass, 82 Ala. 622, 626 , 2 South. 520 ; Cooper v. Hornsby, 71 Ala. 62 ; Seals v. Pheiffer, 77 Ala. 278 .

1901Powers v. Andrews, 84 Ala. 291 ; Parmer v. Parmer, 74 Ala. 285 ; Otis v. McMillan, 70 Ala. 61, 62 ; Newburn’s Heirs v. Bass, 82 Ala. 622 ; Lehman v. Moore, 93 Ala. 186 ; Aiken v. Bridgeford, 84 Ala. 295 ; Commercial Real Estate Asso. v. Parker, Ib. 298.

2025Inst. 1942), which states that "[a] valid judgment on the merits and not based on a personal defense, in favor of a person charged with the commission of a tort … bars a subsequent action by the plaintiff against another responsible for the conduct of such person if the action is based solely upon the existence of a tort … by such person, whether or not the other person has a right of indemnity." (Emphasis added.) See Verrastro, 208 A.3d at 728 n.37.

2025In further support of its position, the Verrastro court also pointed to § 217 of the Restatement (Second) of Agency which states that "[i]n an action against a principal based on the conduct of a servant in the course of employment … [t]he principal has no defense because of the fact that … the agent had an immunity from civil liability as to the act." See Verrastro, 208 A.3d at 728 .

2017In support of its position, Oak Road relies upon Warren v. Gallagher , 252 Ala. 621 , 42 So.2d 261 (1949), in which our supreme court considered whether a trial court had properly allowed a third party to intervene in a pending action.

2017In support of its position, Oak Road relies upon Warren v. Gallagher , 252 Ala. 621 , 42 So.2d 261 (1949), in which our supreme court considered whether a trial court had properly allowed a third party to intervene in a pending action.

2007Co. v. Barcom, 112 Wash.2d 575, 581 , 773 P.2d 56, 59 (1989): "Even if one were to ignore what some would term the artificial distinction between a substantive bar, such as sovereign immunity, and a personal defense, such as a statute of limitation, at no time was the insured . . . legally entitled to recovery from the tortfeasor." Carlton (which overruled Hogan, supra, State Farm Mut.

2007However, the Court in Rock emphasized that the right to testify `is one of the rights that "are essential to due process of law in a fair adversary process,"' 483 U.S. at 51 , 107 S.Ct. at 2708 (quoting Faretta , 422 U.S. at 819 n. 15, 95 S.Ct. at 2533 n. 15), and that it is `[e]ven more fundamental to a personal defense than the right of self-representation,' id. at 52, 107 S.Ct. at 2709 .

2007However, the Court in Rock emphasized that the right to testify `is one of the rights that "are essential to due process of law in a fair adversary process,"' 483 U.S. at 51 , 107 S.Ct. at 2708 (quoting Faretta , 422 U.S. at 819 n. 15, 95 S.Ct. at 2533 n. 15), and that it is `[e]ven more fundamental to a personal defense than the right of self-representation,' id. at 52, 107 S.Ct. at 2709 .

2007However, the Court in Rock emphasized that the right to testify `is one of the rights that "are essential to due process of law in a fair adversary process,"' 483 U.S. at 51 , 107 S.Ct. at 2708 (quoting Faretta , 422 U.S. at 819 n. 15, 95 S.Ct. at 2533 n. 15), and that it is `[e]ven more fundamental to a personal defense than the right of self-representation,' id. at 52, 107 S.Ct. at 2709 .

2007However, the Court in Rock emphasized that the right to testify `is one of the rights that "are essential to due process of law in a fair adversary process,"' 483 U.S. at 51 , 107 S.Ct. at 2708 (quoting Faretta , 422 U.S. at 819 n. 15, 95 S.Ct. at 2533 n. 15), and that it is `[e]ven more fundamental to a personal defense than the right of self-representation,' id. at 52, 107 S.Ct. at 2709 .

1993Because the financial records were not in Mrs. Clark's possession, but in the possession of the bank, Mrs. Clark had no standing to raise the Fifth Amendment privilege. "[T]he Fifth Amendment privilege is a personal privilege: it adheres basically to the person, not to information that may incriminate him." *Page 499 Couch v. United States , 409 U.S. 322 , 328 , 93 S.Ct. 611 , 616 , 34 L.Ed.2d 548 , 554 (1973) (emphasis in original).

1993Because the financial records were not in Mrs. Clark's possession, but in the possession of the bank, Mrs. Clark had no standing to raise the Fifth Amendment privilege. "[T]he Fifth Amendment privilege is a personal privilege: it adheres basically to the person, not to information that may incriminate him." *Page 499 Couch v. United States , 409 U.S. 322 , 328 , 93 S.Ct. 611 , 616 , 34 L.Ed.2d 548 , 554 (1973) (emphasis in original).

1983Ala. Code 1975, § 6-5-246 (1975); Trauner v. Lowrey , 369 So.2d 531 , 534 .

1979Hardin v. Fullilove Excavating Co., Inc. , Ala., 353 So.2d 779 (1977).

1977Boudrow v. H R Construction Co. , 284 Ala. 60 , 222 So.2d 154 (1969); 77 Am.Jur.2d, Venue § 51, p. 900.

1977Boudrow v. H R Construction Co. , 284 Ala. 60 , 222 So.2d 154 (1969); 77 Am.Jur.2d, Venue § 51, p. 900.

1967In Huie v. Smith, 236 Ala. 516 , 183 So. 661 , it was stated that no person in the list of those named in the statute granting a right of redemption, can cut off the rights of another not in privity with him in ownership of the statutory right of redemption except by the exercise of the statuory right as a prior redemptioner, the statutory right of redemption being a personal privilege.

1967In Huie v. Smith, 236 Ala. 516 , 183 So. 661 , it was stated that no person in the list of those named in the statute granting a right of redemption, can cut off the rights of another not in privity with him in ownership of the statutory right of redemption except by the exercise of the statuory right as a prior redemptioner, the statutory right of redemption being a personal privilege.

1965Warren v. Sears, 303 Mass. 578 , 22 N.E.2d 406 , 127 A.L.R. 595 ; Bienvenu v. First National Bank of Atlanta, 193 Ga. 101 , 17 S.E.2d 257 ; 72 C.J.S.

1965Warren v. Sears, 303 Mass. 578 , 22 N.E.2d 406 , 127 A.L.R. 595 ; Bienvenu v. First National Bank of Atlanta, 193 Ga. 101 , 17 S.E.2d 257 ; 72 C.J.S.

1965Warren v. Sears, 303 Mass. 578 , 22 N.E.2d 406 , 127 A.L.R. 595 ; Bienvenu v. First National Bank of Atlanta, 193 Ga. 101 , 17 S.E.2d 257 ; 72 C.J.S.

1965Warren v. Sears, 303 Mass. 578 , 22 N.E.2d 406 , 127 A.L.R. 595 ; Bienvenu v. First National Bank of Atlanta, 193 Ga. 101 , 17 S.E.2d 257 ; 72 C.J.S.

1965White v. White, 206 Ala. 231 , 89 So. 579 ; Hooks v. Hooks, 251 Ala. 481 , 38 So.2d 3 .

1965White v. White, 206 Ala. 231 , 89 So. 579 ; Hooks v. Hooks, 251 Ala. 481 , 38 So.2d 3 .

1965White v. White, 206 Ala. 231 , 89 So. 579 ; Hooks v. Hooks, 251 Ala. 481 , 38 So.2d 3 .

1965White v. White, 206 Ala. 231 , 89 So. 579 ; Hooks v. Hooks, 251 Ala. 481 , 38 So.2d 3 .

1957Feno v. Sayre, 3 Ala. 458 ; Cook v. Dyer, 3 Ala. 643 ; Harbinson v. Harrell, 19 Ala. 753 ; Cain v. Gimon, 36 Ala. 168 ; Baskins v. Calhoun, 45 Ala. 582 ; McGuire v. Van Pelt, 55 Ala. 344 ; Griel v. Lehman, Durr & Co., 59 Ala. 419 ; Butts v. Broughton, 72 Ala. 294 ; Moses Bros. v. Home Bldg. & Loan Association, 100 Ala. 465 , 14 So. 412 ; Stickney v. Moore, 108 Ala. 590 , 19 So. 76 ; Eslava v. New York Nat.

1957Feno v. Sayre, 3 Ala. 458 ; Cook v. Dyer, 3 Ala. 643 ; Harbinson v. Harrell, 19 Ala. 753 ; Cain v. Gimon, 36 Ala. 168 ; Baskins v. Calhoun, 45 Ala. 582 ; McGuire v. Van Pelt, 55 Ala. 344 ; Griel v. Lehman, Durr & Co., 59 Ala. 419 ; Butts v. Broughton, 72 Ala. 294 ; Moses Bros. v. Home Bldg. & Loan Association, 100 Ala. 465 , 14 So. 412 ; Stickney v. Moore, 108 Ala. 590 , 19 So. 76 ; Eslava v. New York Nat.

1957Griel v. Lehman, 59 Ala. 419 ; McGuire v. Van Pelt, 55 Ala. 344 ; Kilpatrick v. Henson, 81 Ala. 464 , 1 So. 188 ; Welsh v. Coley, 82 Ala. 363 , 2 So. 733 ; 3 Brick.Dig. p. 574, § 47.” We think the holdings in the following cases are to like effect.

1957Feno v. Sayre, 3 Ala. 458 ; Cook v. Dyer, 3 Ala. 643 ; Harbinson v. Harrell, 19 Ala. 753 ; Cain v. Gimon, 36 Ala. 168 ; Baskins v. Calhoun, 45 Ala. 582 ; McGuire v. Van Pelt, 55 Ala. 344 ; Griel v. Lehman, Durr & Co., 59 Ala. 419 ; Butts v. Broughton, 72 Ala. 294 ; Moses Bros. v. Home Bldg. & Loan Association, 100 Ala. 465 , 14 So. 412 ; Stickney v. Moore, 108 Ala. 590 , 19 So. 76 ; Eslava v. New York Nat.