20 Mo. 479 | Mo. | 1855
delivered the opinion of the court.
Some time in February, in the year eighteen hundred and. thirty-four, the plaintiff, Timothy Phelps, borrowed of Washington county the sum of four hundred dollars, for'the payment of which he executed his note, with James H. Relfe and James C. Johnson his sureties. At the same time, the plaintiff, in order to secure his said sureties, executed to them a mortgage on a certain tract of land situated in the county of Perry, containing two hundred and thirty-eight acres and nine
This suit is for the penalty prescribed by the statute for failing to enter satisfaction on the margin of the record of a mortgage, when it has been paid ; also to compel defendant to bring in the note to Washington county before the court to be can-celled, so far as regards the rights of the defendant, Relfe, ¡and for other and general relief.
1. The statute concerning mortgages, (R. C. 1845,) which was the law in force at the time the request in this case was made to have satisfaction entered on the margin of the record, declares, in section 22 : “If any mortgagee, his executor or administrator or assignee receive full satisfaction of any mortgage, he shall, at the request of the person making the same, acknowledge satisfaction of the mortgage on the margin of the record thereof, or deliver to such person a sufficient deed of release of the mortgage.” See. 23. “ 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 money absolutely, and any other damages he may be able to prove he has sustained, 'to be recovered in any court of competent jurisdiction.”
Sec. 24 declares the effect of such acknowledgment of satisfaction thus made, and of such deed of release acknowledged and recorded, to be, “ to release the mortgage and bar all actions brought thereon, and reinvest in the mortgagor or his legal representatives all title to the mortgaged property.”
How can the mortgage in this case be considered satisfied? Only by reason of the purchase by the mortgagee of the mortgaged premises, and this purchase can be considered a satisfaction of the mortgage, alone because it vests in the mortgagee the mortgaged property. Would it not be a strange proceeding to require a mortgagee, who is paid in this manner, to acknowledge satisfaction on the record and thereby restore the property received to the mortgagor ? Such is the glaring absurdity of the case upon which this plaintiff seeks not only
The principle is well established that the purchase by the mortgagee of the equity of redemption in the mortgaged premises extinguishes the mortgage debt, and the effect is the same, whether the purchase is by a direct contract with the mortgagor or at a sale of the land by execution under a junior judgment. (1 Bailey’s Eq. Rep. 338. 2 Cow. Rep. 300.) In this case, however, the court is not to be understood as expressing the opinion that the matters set up and found as above, constitute any payment of the mortgage, as against Relfe. It is enough to say, if they did, that would be the very reason why the plaintiff should not have the relief he seeks.
The judgment is affirmed; the other judges concurring.