Jordan & Sons v. Mann

57 Ala. 595 | Ala. | 1877

BRICKELL, C. J.

The statute subjects a mortgagee, the mortgage debt having been paid, who fails for three months after request of the mortgagor, to enter satisfaction upon, the margin of the record of the mortgage, to a penalty of two hundred dollars, recoverable by the party aggrieved. Code of 1876, §§ 2222, 2223. The disputed question of fact in the present case was, whether the mortgagor had, after payment of the mortgage debt, requested the mortgagees to enter satisfaction on the record. The entry of satisfaction is a duty the statute casts on the mortgagee. He is not in default, and subjected to the penalty, unless he fails for three months after request of the mortgagor, to perform the duty.

2. The request the statute contemplates, is simply notice from the mortgagor that performance of the duty is required or desired. No particular form of words is necessary, but the language employed must be such as will inform the mortgagee that performance of the duty is desired. He must accept and act upon it, according to its fair and reasonable meaning, and as it would be understood by others of common intelligence. It is no excuse for his delinquency, that he ■did not understand it as a request, if that is its fair and reasonable meaning, and such would be its common acceptation. The request being oral, the sufficiency of the evidence to prove it, is a matter for the consideration of the jury, under proper instructions from the court. The instruction given the jury conforms substantially to this view, but it is urged that it erroneously assumes as proved, a declaration of the mortgagor to the mortgagees, of which there is no evidence. We do not so construe it. The court did not assume to repeat the evidence to the jury, or any of the declarations proved, in the language employed by the witnesses, but simply to instruct them as to the difference in the effect of the declarations of the mortgagor, as the evidence for the plaintiff, or defendants, tended to establish them. If the declaration was that he wished the mortgage settled on the books of the mortgagees, the jury were instructed it was not a request to enter satisfaction on the record. But if the effect ■of the declaration was, that he wished it settled on the records, then, if the mortgagees understood him as referring to the record of the mortgage, it was a request to enter satisfaction on the record.

3. The principle prevailing in criminal prosecutions, that if the jury entertain a reasonable doubt, they must acquit, has no application to civil suits for the recovery of statutory penalties.—Hitchcock v. Manger, 15 N. H. 97.

Judgment affirmed.