Terry v. Allen Bros.

32 So. 664, 132 Ala. 657, 1902 Ala. LEXIS 115

• Court: Supreme Court of Alabama
• Decided: June 28, 1902
• Status: Published

Opinion

McCLELLAN, C. J.

— When any ground or assignment of demurrer to a complaint is sustained, the demurrer to that complaint is sustained; and if plaintiff declines to amend, judgment final must be rendered against him. It is of no consequence that the court may in terms overrule one or any pumber less than the whole of the assignments of demurrer1: The sustaining of any assignment is as effectual as the sustaining of the demurrer generally or each and all its assignments expressly.—Watson v. Jones Bros., 121 Ala. 579.

The complaint in each of its counts, except the one last filed by way of amendment, on October 2, 1901, set up a contract whereby the plaintiffs undertook to' assign to defendants, and the latter undertook to exercise upon certain terms, a statutory right of redemption of certain lands from the purchaser at a foreclosure sale, and claimed damages for a failure on the part of the defendants to carry out this contract. As the statutory right of redemption is not property nor any right in property but a mere personal privilege conferred by the law upon one whose lands have been sold in foreclosure proceedings and the like, and as this privilege is not assignable and cannot be exercised by any person other than him \ipon whomi the statute has conferred it, it is clear that those grounds of the demurrer which set up the want of consideration for the undertaking of the defendants and the absence of any duty, obligation or capacity on the part of the defendants to carry out the undertaking they had nominally assumed, were well taken; and that of consequence the demurrer was properly sustained on such grounds.

The supposed action of the trial court in striking the count filed October 2, 1901, is not shown here by a bill of exceptions, and we, therefore, cannot review it.

Affirmed.