62 Ala. 302 | Ala. | 1878
The action was brought to recover the penalty of two hundred dollars, which is imposed by § 2223 of the Code, upon any mortgagee who fails, on the request of the mortgagor, for three months, to enter on the record of the" mortgage satisfaction thereof, after the payment of the mortgage debt.
Several objections to the complaint are made by demurrer, which we do not think are well taken. The facts necessary to support the action, are presented in an intelligible form and with clearness. The material questions seem to be, whether notice or a request to each of the mortgagees, who were partners, to enter satisfaction of the mortgage, was necessary to render them jointly liable for the penalty; and whether the failure to enter satisfaction must not have been wilful and intentional, before the penalty is incurred. These questions must be answered negatively.
The general rule resulting from the unity of a partnership, is, that when notice or a request is necessary to fix its liability, it may be given to the one, and is notice or request to all the partners. — New York & Alabama Con. Co. v. Selma Savings Bank, 51 Ala. 305.
The failure of the mortgagee, whether wilful, intentional, or merely negligent or inadvertent, subjects him to liability for the penalty. It is against his negligence or inadvertence, as well as his wilfulness, the statute intends to protect the mortgagor, or the party aggrieved. Whether there may not be circumstances which would relieve him from liability, such as his physical or mental inability to comply with the request, it is not necessary to consider. But when the failure is the result of mere inadvertence or inattention, or indifference, the penalty is incurred. The rulings of the circuit court were in accordance with these views, and its judgment is affirmed.