77 So. 708 | Ala. | 1918
Suit by the appellant for recovery of the statutory penalty provided by section 4898 of the Code of 1907 for the failure to mark "satisfied" the record of two certain mortgages executed by the plaintiff, who was formerly Hattie E. Cash, and her husband, John W. Cash, in the year 1905. The husband died in the year 1906. Requests for the satisfaction of the mortgages were given by said plaintiff in March, 1916. It was held in the court below that, as the undisputed evidence shows, there were two mortgagors, and the request for the satisfaction of the record was made by only one; therefore the plaintiff had no cause of action. This is the sole question presented for determination here.
The statute creating the remedy here sought is highly penal, is to be strictly construed, and cannot be extended by implication. It has heretofore been held by this court that where the mortgage is executed by two mortgagors, the request to enter satisfaction must be made by both of the mortgagors, and not by one of them alone; that the right to ask for the penalty is a joint one given to both of the mortgagors, who are required to join in the action for recovery.
In Jowers v. Brown,
"To recover a statutory penalty, the party complaining must bring himself within the letter of the statute, for such statutes are construed strictly."
There it was held that the statute did not authorize the institution of a suit against the transferee of the mortgage. In our recent case of Mayhall v. Woodall,
The statute here under consideration provides for the requests in writing to be given by the mortgagor, or of a judgment, or other creditor of the mortgagor having a lien or claim on the property mortgaged, or of a purchaser, but omits any reference to *184 an heir or descendant of the mortgagor, and specifically provides that the right of action should be considered a "personal right." Had John W. Cash been the sole mortgagor, there is no provision in this statute whereby his heir could have made the request for satisfaction of the record and maintained a suit under the statute for the recovery of this penalty. Under the statute and decisions of this court, where there are two mortgagors each must sign the request and bring the suit, as it is a joint action. The mere fact that subsequent to the death of her husband, the plaintiff had the property set apart to her as exempt, and became the owner thereof, is of no avail to her in this action, which, as above stated, is the enforcement of a "personal right."
We have referred to some of our cases for the purpose of showing with what strictness the statute has been construed from its earliest history, and that to show a right of recovery a plaintiff must bring himself within the letter of the statute. The plaintiff in the instant case clearly does not come within this letter. If this is a contingency which the lawmaking body has overlooked, it is an oversight which we are not permitted under the strict rule of construction to supply by implication. The statute is in derogation to the common law, strictly penal in its nature, and its deficiencies, if any, must be supplied by the lawmaking power.
We are therefore of the opinion that the plaintiff failed to establish a right of action, and the judgment will be accordingly affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.