80 Miss. 643 | Miss. | 1902
delivered the opinion of the court.
Appellant, in February, 1892, loaned to appellees $600, and to secure its payment appellees executed a mortgage on 160 acres of land in Lowndes county, which was placed of record in Book 71, p. 6, et seq. In 1896 the mortgage debt was paid by the attorney of appellees to the attorney of appellant, when the former wrote the latter directing him to “have the trust deed paid by this draft canceled at once.” On January 28, 1899, N. Oayce, as attorney for the Burkes, wrote A. L. Richardson, New York, as follows: “In July, 1896, M. M. Burke and I. S. Burke paid to the British and American Mortgage Company a note, the payment of which was secured by a deed of trust upon land in this (Lowndes county). It being part of the land included in the deed from the British and American Mortgage Company to I. S. Burke, of date November, 1898. The record of said deed of trust has never been marked ‘Satisfied,’ but it appears to be uncanceled upon the record. M. M. and I. S. Burke hereby request that the mortgagees aforesaid take proper steps and have the record of said deed of trust marked ‘Satisfied’ by proper authority.” On March 4, 1899, appellant wrote to A. L. Richardson, saying: “The mortgage executed about 1892 on 200 acres of land, and paid in full to W. V. Sullivan during the year 1896, has never been canceled. We now demand of you to cancel the same instanter.” This suit is to recover of appellant $600, the full penalty allowed by § 2451, code 1892, upon the alleged ground'that appellant “did not, within one month after request, make acknowledgment of satisfaction upon the margin of the record
The right of appellees is, as we regard it, strictissimi juris. If so, they cannot recover in this suit. Not a single one of the requests made is a proper one. The first one was for the cancellation of the trust deed and not for an entry of satisfaction upon the margin of its record. The second request, made by attorneys, also was to have acknowledgment made upon the margin of the record of a deed of trust upon land conveyed by appellant dated November, 1898, and that was not the fact. The third request was that “the mortgage executed about 1892 on 200 acres of land, and paid in full to W. V. Sullivan during the year 1896,” be canceled. We have earnestly regarded these three requests, and have closely scrutinized them, and we think that there is not one of them that supports the declaration. If it be said that we are standing too strictly upon the letter of the statute, the reply is we do so because the action is given solely by the letter of the statute. Upon comnliance with the letter, appellees may recover; without it, they cannot. We think the action, as pleaded, is not sustained by the evi- . dence before the court. The appellees virtually admit that the requests are not literally correct — that is, do not ask for the doing of the thing for which the suit is brought; but they insist that either of them is sufficient to have put upon appellant the duty of doing that which appellees desired. But it might be noted that there was undisputed evidence that appellant had, upon the payment of $600 mortgage, executed authority for its cancellation, and therefore supposed it so marked on the margin of the record. Besides, during the existence of the
Reversed and remanded.
