Ewing v. Shelton

34 Mo. 518 | Mo. | 1864

Dryden, Judge,

delivered the opinion of the court.

The plaintiff being indebted by note in the sum of $2,600 to Asa S. Jones, conveyed certain real estate in the county of St. Louis to Eleazer Sherman, in trust to secure the payment of said debt. The trust deed was duly recorded in the proper i*ecorder’s office, and the trust debt was duly assigned by Jones to the defendant Shelton, to whom, after maturity of the debt, the plaintiff made payment. After payment the plaintiff requsted the defendant to acknowledge satisfaction on the margin of the record of the deed, or deliver him a sufficient deed of release ; but he refused, and, continuing in default for thirty days, the plaintiff instituted this suit to recover the penalty given by the 22d section of the mortgage law. (R. C. 1855, p. 1091.) The plaintiff recovered a verdict and judgment for the penalty, and the defendant appealed to this court. It is provided by the law that — “Sec. 21. If any mortgagee, trustee or cestui que trust, his executor or administrator or assignee, receive full satisfaction of any mortgage or deed of trust, he shall, at the request oí the person making the same, acknowledge satisfaction of the mortgage or deed of 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. 22. If any such person thus receiving satisfaction do not, within thirty days after request, 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.”

The question in the case is, whether an assignee of a mortgage or trust debt is one of those required by the statute to acknowledge satisfaction. It is safe to assume that, by the phrase “ satisfaction of any mortgage or deed of trust,” employed in the above section, is meant satisfaction of the debt or undertaking secured by such mortgage or deed of trust. The words of the law plainly enjoin upon him who receives satisfaction the duty of acknowledging it, and imposes the penalty on him who “ thus receiving satisfaction ” refuses the required acknowledgment. The owner alone is entitled to receive satisfaction of the debt; payment to any other would not work an extinguishment of the debt. Before assignment, the assignor, whether mortgagee or cestui que trust, is owner after assignment, the assignee is owner. The appellant, then, having been owner of the trust debt by assignment, and as such having received satisfaction of the same, it was his duty by law either to acknowledge satisfaction on the margin of the record, or to deliver to the mortgagor a sufficient deed of release; and having done neither, the penalty attached.

We find no error in the record. Let the judgment be affirmed.

Judge Bay concurs ; Judge Bates dissents.

Bates, Judge. I am of opinion that the word assignee, in the statute, does not refer to an assignee of the debt secured by the mortgage or deed of trust, but to an assignee in a deed of assignment for the benefit of creditors.