139 Ala. 327 | Ala. | 1903
This action is brought to recover the statutory penalty of two hundred dollars for an alleged failure to enter satisfaction upon the margin of the record of a mortgage executed by plaintiff to the defendants, after a request in writing to do so. — Acts, 1898-99, ]). 26.
The chief important question presented is the sufficiency of the written request. It is in this language;: “April 28, 1902, J. E. and AY. E. Henderson. Please go to the probate’s office in Coffee county, Ala., and mark the mortgages and notes you hold open there against me satisfied on the record and oblige.
“W. J. Wilson and wife.”
While it is true that no particular form of words is necessary to constitute a sufficient request, yet I apprehend that the language employed should indicate with reasonable certainty -what mortgage of record is demanded to be satisfied; and this, of course, includes by whom executed. The penalty should never be enforced if the reqriest is in such dubious or doubtful language as that the mortgagee, on the face of the paper, is not reasonably informed what is demanded of him. Whether the request under consideration was to satisfy on the margin of the record mortgages and notes executed to defendants by the plaintiff aione, or those executed by
The use of tlie personal pronoun me would seem to indicate tliat it was tlie purpose to demand a satisfaction on tlie record of mortgages and notes held by the defendants which were executed by plaintiff alone or by his wife alone. To which of these persons the word me refers, whether to the plaintiff or his wife is matter of pure conjecture. If by construction it can be said that "me” should read as “/ns-/” the request clearly has reference to mortgages executed jointly by the plaintiff and wife, and there could be no recovery.
So, then, confining any consideration of the sufficiency of the request to the face of the paper, I feel constrained to hold it is too ambiguous to predicate a penal liability upon; too indefinite and uncertain to inform the mortgagees that an entry of satisfaction was demanded on the record of the mortgage executed by the plaintiff alone. — Perryman v. Smith, 105 Ala. 573; Clark, v. Wright, 123 Ala. 594; Lamar v. Smith, 129 Ala. 418; Chatt. National Building & L. Assn. v. Echols, 125 Ala. 548.
The request in Dothan Guano Co. v. Ward, 132 Ala. 380, is clearly unlike the one under consideration, and what is there said as to its sufficiency in no wise con-iliets with the views I have expressed.
The conclusion I have reached is rather emphasized than otherwise, when the fact is taken into consideration that-defendants held two mortgages which were executed by plaintiff alone.
The foregoing expresses the individual views of the writer as indicated by the context. The other members of the court hold the request sufficient. They have also considered the other questions raised by the assignments of error and find no error in the record.
Affirmed.
