70 Wis. 69 | Wis. | 1887
The statute under which this action was brought reads as follows: “ Section 2256. If any mortgagee, his personal representative or assignee, after a full performance of the conditions of the mortgage, whether before or after a breach thereof, shall, for the space of seven days after being thereto requested, and after tender of his reasonable charges, rqfuse or neglect to discharge the same as provided in this chapter1, or to execute and acknowledge a' certificate of discharge or release thereof, he shall be liable to the mortgagor, his heirs or assigns, in the sum of one hundred dollars damages, and also for actual damages occasioned by such neglect or refusal, to be recovered in an action.”
1. There was abundant testimony on the trial to support the finding of the jury that the mortgage in question had been fully paid as claimed by the plaintiff. Counsel for the
2. Counsel for the appellant further maintains that the testimony of the plaintiff shows the alleged payment to have been made on a Sunday, in contravention of the statute in that behalf (sec. 4595, R. S.), hence that he cannot
3. A demurrer to the complaint for defect of parties was interposed and overruled. It was claimed that the statute under which the action was brought in effect imposes a fine or forfeiture, the clear proceeds of which belong to the school fund by virtue of the constitution (art. X, sec. 2), and hence that the state of Wisconsin should have been made a party plaintiff in the action, pursuant to E. S. secs. 3295, 3297. We 'think this objection is not well taken. . The “ one hundred dollars damages ” given by statute is neither a fine nor a forfeiture; it is nothing more than exemplary or punitory damages, which the successful plaintiff recovers in the action in addition to his actual damages.
4. The only remaining question to be considered is whether the element of good faith is involved in the action, that is to say, -whether the defendants can be held liable for the penalty of the statute if they honestly believed that the mortgage debt was still unpaid when the discharge of the mortgage was demanded of them. As a general rule, no doubt, the penalties of the law are aimed against those who wilfully and knowingly violate its requirements. Gases are not wanting in which this rule has been applied to penal statutes from which the words wilfully, knowingly, and the like, as descriptive of the offense of prohibited act, have been omitted. Cohn v. Neeves, 40 Wis. 393, belongs to this class. That was an action to recover treble damages for
' It is entirely competent for the legislature to impose a penalty for the refusal to discharge a mortgage, regardless of the good or bad faith of the holder thereof. On the authority of (John v. Weaves, we must look into the statute itself, which is general in’its terms, to ascertain whether the legislature intended that it should be restricted in its operation to those wilfully offending’against it. We find in sec. 2256 a satisfactory indication that the general language of the statute was intended to operate without restriction and without regard to the good or bad faith of the holder of the mortgage. The statute gives to any person upon whom the demand is made to discharge a mortgage, seven days in which to determine whether-he will discharge it or not. If
In the present case the jury must have found that the mortgage debt was paid personally to the appellant. Such being the case, it is difficult to perceive how he can successfully maintain that he refused in good faith to discharge the mortgage, believing that the debt was not paid. •
Upon the whole case we find no sufficient grounds for disturbing the judgment.
By the Court.— Judgment affirmed.