Travis v. Rhodes

142 Ala. 189 | Ala. | 1904

ANDEB.SON, J.

This was an action for the statutory penalty for failing to enter partial payment on the record of a recorded judgment, brought by the plaintiff against the assignee of the judgment, and to whom it was assigned after the filing of the certificate.

The 2d. 3d and 9th grounds of the demurrer, raise the question, that the action will lie only against the owner of the judgment who files it for record, and not an assignee who acquires it after registration and who himself never filed it at all.

Section 1920, Code 1896, provides, “That the owner of any judgment or decree may file in the office of the judge of probate a certificate of the clerk or register.” Said section provides that only the owner can file it, and the defendant’s contention is, that as it urns filed by the then owner, that the plaintiff has no cause of action against the assignee who did not file it and was not the owner when it was filed.

Section 1923, Code of 1896, says “Sections 1065 and 1066 of this Code are applicable to registered judgments and decrees.” Section 1065 says, “A mortgagee, or the assignee or transferee of a debt secured by mortgage, who has received partial payment, if the mortgage is of record, must, on the request in writing of the mortgagor, or of a judgment'creditor, or other creditor of the mortgagor having a lien or claim on the property mortgaged, or of a purchaser from the mortgagor, enter on the margiji of the record of the mortgage the date and amount of such partial payment or payments,” etc.

It will be observed that under this section the right is given to sue the assignee for the penalty, and we do not think that the law contemplated the action against an assignee only, to whom the debt was assigned before the recordation of the certificate or who in fact filed it, or that in order for one to be liable he must have refiled the certificate after he became the assignee. And as § 1923 makes said section 1065 applicable to judgments and decrees, the action will lie against the assignee of a judgment, although it had been previously .filed by the original owner. The demurrers upon this ground were not well taken.

The 5th, 6th, 7th, 10th and 12th grounds of demurrer, raise the issue, that the complaint failed to aver that the certificate filed contained the name of the owner of the judgment and was therefore void as a lien, under the former ruling of this court. The law only relates as to the satisfaction of the record of the certificate and not to the judgment. The recordation of the proper certificate is what creates the lien, and when the certificate filed does not create a lien, then the defendant in the judgment cannot complain of a failure to satisfy or enter partial payments on the record of what purports to be, but what is not a lien. This court held in Duncan v. Ashcraft, 121 Ala. 552, that the omission of the name of the owner from the certificate rendered it insufficient to create a lien, and we think in this case, that the complaint should aver facts sufficient to show that a lien existed in order to show a cause of action, as it appears that the certificate was filed prior to the amendatory act of February, 1899. — Acts 1888-89, p. 60. The demurrer upon this ground was properly sustained. • The 11th ground was bad. The law does not require the transfer of a certificate in order to transfer a judgment. Grounds 1 and 4 were bad, as they were general and assigned no' grounds of demurrer. The 8th ground is because the complaint failed to aver that the request to enter the payments was made in writing. The complaint shows just what the demurrer avers it does not and the demurrer was had.

Affirmed.

McClellan, C.J., Tyson and Simpson, J. J., concur ring.