38 Mo. App. 150 | Mo. Ct. App. | 1889
The respondent failing to furnish any brief or argument, we are at a loss to determine upon what theory the court below declared to the jury that the evidence adduced by the plaintiff failed to show any case against the defendant. So much of sections 3311 and 3312, Revised Statutes, 1879, as relate to this controversy, reads as follows :
“ Sec. 3311. If any mortgagee receive full satisfaction of any mortgage or deed of trust, he shall, at the request and the cost of the person making the same, acknowledge satisfaction of the mortgage or deed of*153 trust, on the margin of the record thereof, or deliver to such person a sufficient deed of release of the mortgage or deed of trust.
“Sec. 3312. If any such person, thus receiving satisfaction, do not, within thirty days after request and tender of cost, acknowledge satisfaction on the margin of the record, or deliver to the person making satisfaction a sufficient deed of release, he shall forfeit to the party aggrieved ten per cent, upon the amount of the mortgage or deed of trust money, absolutely, and any other damages he may be able to prove he has sustained, to be recovered in any court of competent jurisdiction.”
In letter and spirit this statute applies as well to mortgages of personal as to mortgages of real property. After payment of the mortgage debt, the statute imposes on the mortgagee, upon tender of the proper costs, the duty that he shall satisfy the record, thereby relieving the property (whether it be chattel or real property) from an apparent encumbrance, and thereby relieving, too, the mortgagor’s credit of an erroneous charge of overdue indebtedness. •
It seems this action was commenced April 10, and that on April 13. three days after the institution of the suit, defendant went to the recorder’s office, and did then acknowdedge satisfaction of the mortgage security on the record. But this action by the defendant was too long delayed. If, as the evidence discloses, plaintiff had, on March 7, requested defendant to enter satisfaction, and accompanied the request with a tender or payment of the needed charges, then, on April 10, when plaintiff instituted this suit, a cause of action had accrued in his, plaintiff’s, favor, and such subsequent satisfaction of the record would be no defense. Deeter v. Crossley, 26 Iowa, 180.
It follows that the judgment of the circuit court must be reversed, and the cause remanded for a new trial.
