| Ala. | Dec 15, 1880
— This is a suit brought by the appellants against the appellee, Wilkinson, claiming a penalty of two hundred dollars, for a failure to enter satisfaction of a mortgage, after request, under the provisions of sections 2222 and 2223 of the Code of 1876. The request made of the appellee was not made by the mortgagors in person, or either of them, but by their specially authorized agent and attorney.
It is claimed that this is a penal statute, and must be strictly construed; and that it can not be implied that the request of an agent is to be substituted for that “ request of the mortgagor, ” which is required by the law-making power. Without denying the force of the suggestion, we can not permit it to be prevail to such an extent as to defeat, by refinement of construction, the obvious intention of the legislature. No statute is to be interpreted, if avoidable, so as to be repugnant to reason, and lead to inconvenience. — Potter’s Dwar. Stat. 245-6. “ A person ought not to think,” says Plowden, “ if he have the letter on his side, that he hath the law, in all cases.” It is a sound and wise maxim of the law, demanded by the exigencies of trade and commerce, and the practical pursuits of every department of business, that ■“ whatever a man sui juris may do of hinself, he may do by another ”; and it is a correlative of the maxim, that “ what is done by another, is to be deemed done by the party himself.” The common law and civil law, alike, recognize the potency of this principle, as found embodied in the familiar maxim, Qui facit per alium,facit per se. — Story on Agency, §§ 2, 440.
We think the notice or request by the agent of the mortgagor was sufficient. It was the mortgagee’s duty, moral and legal, to enter the satisfaction without request; and if he questioned the authority of the mortgagor’s attorney, he should have so stated, and demanded proper evidence of it. The purpose of the statute is, to quicken his diligence ; and there is no reason for confining the power to give it to the mortgagor, and refuse it to his authorized agent or attorney. This construction is not affected by the use of the phrase, “ either in person or by attorney,” found in the ensuing section of the Code (§ 2223). This was inserted from abundant
The Circuit Court erred in sustaining the demurrer to plaintiff’s replication; and its judgment is reversed, and the cause remanded.