McClendon v. Henderson Land & Development Co.

63 So. 811 | Ala. Ct. App. | 1913

THOMAS, J.-

This suit was brought by the appellant to recover of appellee the statutory penalty, provided by section 4898 of the Code, for a failure to enter upon the margin of the record of a mortgage the fact of its satisfaction and payment. It appears from the averments of the complaint, among other things, that, while the mortgage mentioned was executed by both the appellant and his wife, yet the request in writing made on appellee to enter of record the fact, of its payment, was made only by the appellant, his wife not joining therein. It is further alleged in the complaint, however, that the property embraced in the mortgage was the sole property of the plaintiff (appellant), and that his wife “had no interest therein” but “joined in the execution of the mortgage merely for the purpose of barring herself of asserting against the mortgagee any claim of homestead or dower rights in the property.” The demurrers filed by defendant to the complaint raise for consideration here the sole question as to whether or not, under the facts disclosed by the complaint, it is necessary to a cause of action under the statute cited that the wife should have joined in the request for the satisfaction of the mortgage.

We are of opinion that the lower court was correct in holding that she should. We think the case of Jowers v. Brown, 137 Ala. 582, 34 South. 827, conclusive of the question. This case is sought to be differentiated from that by the allegation in the complaint here, as noted, that the wife had no interest in the property, except dower and homestead, whereas it is urged by counsel for appellant that in the Jowers Case the presumption is, the record not showing to the contrary, that she owned the legal title either wholly or in part at least. Assuming such presumption to be true, we are not of opinion that the difference in fact between the two cases is such as to make a difference in the legal principles governing or applicable to them. While it is true that the wife has no title to the husband’s real estate, yet she has a right or interest in it — homestead and. inchoate dower — created by law, which the law recognizes as valuable and which it safeguards and protects by preventing- its being taken from her except with her consent, to be evidenced by joining in the execution of the paper with the husband, etc. And while it is further true that this right or interest is not such as may form the basis of a security for a debt or of credit extended her, and hence an unsatisfied mortgage against it would not detrimentally affect her future credit as it would that of the husband, in Avhom resides the legal title to the property, yet such an unsatisfied mortgage, though fully paid, might and could jeopardize this right or interest which she has in the property. Should the husband who has paid the mortgage, and Avho alone has knoAvledge of this fact outside of the mortgagee, fail to take up the paper upon such payment, or a receipt in full against it, or should he do one or the other,.but lose or misplace the canceled paper or the receipt against it, and then die before the mortgage has been marked “satisfied” on the record, the wife, whose interest in the property was before inchoate and then became consummate, could be put to much trouble, and perhaps defeated, in asserting her rights of dower and homestead against a mortgagee who was disposed not to volunteer a statement that the mortgage had been paid. She has, then, contrary to the allegations of the complaint, an interest in the property, and one, too, that is safeguarded by having the settled mortgage marked canceled on the record.

The statute (Code 1907, § 4898) creating against the mortgagee the right of action for his failure to do so on demand is a penal one, in derogation of common law, and is to be strictly construed. — Coffman v. Henderson, Infra, 63 South. 808; Groons v. Hannon, 59 Ala. 510; Jarrett v. McCabe, 75 Ala. 325; Scott v. Field, 75 Ala. 419. It requires that the demand upon him to make the entry shall be made by “the mortgagor,” etc. The singular means, of course, the plural, when there is more than one mortgagor, for the right of action given in their favor is joint and not individual, affording, not damages to each, but one penalty to both, or to all of them, jointly. Both must make the demand, and both must join as plaintiffs in the action. — Jowers v. Brown, supra.

The judgment of the lower court is affirmed.

Affirmed.