Steiner & Bro. v. Snow, 80 Ala. 45

80 Ala. 45 | Ala. | 1885

CLOPTON. J.

The statutes require a mortgagee, whose mortgage has been recorded, upon payment of the amount secured thereby, and request in writing, to enter satisfaction on the margin of the record, which operates a release of such mortgage, and a bar to all actions thereon. On failure to enter satisfaction for three months after payment and request, the mortgagee forfeits to the party aggrieved the sum of two hundred dollars, unless at the time of such request or within three months thereafter, there shall be a pending suit, involving the fact of satisfaction. Acts 1880 — 1, 32. We do not understand, that the record of the mortgage was offered as proof of the execution or contents of the original. To entitle the plaintiff to a repo very of the statutory penalty, proof that the mortgage has been recorded is requisite, as unless recorded no duty to enter satisfaction arises. For this purpose, the record of the mortgage is admissible in evidence. That the probate of the mortgage does not appear, is no objection to the admissibility of the record. Williams v. Bowdin, 68 Ala. 126. The suit is between the mortgagor and mortgagee, and no question as to the rights of third persons can be raised. As the bill of exceptions does not purport to set out all the evidence, we must presume, that one proof of notice to produce the original, it being shown to have been in the possession of the adversary party, and of its execution, was made. Evidence that the record was a copy of the original mortgage was necessary to its identification, as the record on the margin of which entry of satisfaction was requested. For this purpose it was not necessary to call thd subscribing witnesses. As there appeared on the margin of the record an entry of satisfaction, it was permissible to show that the entry was made after the commencement of the suit, to the end of disproving that it was a performance of the duty required by the statute.

No particular form of words is necessary to constitute a snfiicient request. All that the statute requires is notice, that entry of satisfaction on the record is desired, and that the words used be such as to reasonably inform the mortgagee that performance of the statutory duty is requested. If such be its fair and reasonable meaning, and so ordinarily understood, the mortgagee must act upon it, and it is no excuse, that we did not understand it as a request under the circumstances of the case, and on the hypothesis stated in the charge of the court, the written request can not reasonably be referred to any cancellation or satisfaction, other than on the record. The charges requested by the defendant were, as an abstract proposition, calculated to mislead, the jury, and properly refused. Jordan v. Mann, 57 Ala. 595.

Affirmed.