Loeb v. Huddleston , 105 Ala. 257 ( 1894 )

BBICKELL, 0. J.

1. The action was brought to recover the penalty of two hundred dollars, imposed by the statute, (Code, § 1868), upon any mortgagee, or the transferee of the mortgage debt, who fails for thirty days after request in writing by the mortgagor, to enter on the margin of the record of the mortgage the date and amount of partial payments which may have been made on the debt. The trial was had on the plea of the general issue, which cast upon the plaintiff the bur-then of proving all the facts essential to a right of recovery. The record of the mortgage was an essential fact, and of the fact, a transcript from the record, properly certified by the judge of probate, was appropriate, if not the exclusive evidence. The objection to the transcript and certificate offered in evidence, was general and undefined. Such objections are not favored, and it may be laid down as a general rule, that if the party making them will not particularize, the court may overrule them without casting about to ascertain the grounds upon which it may be intended to rest them.

2. When a writing is in the possession or within the power of an adverse party notice may be given him to produce it on the trial, and if he fails or refuses, secondary evidence of its contents becomes admissible. There was evidence tending to prove that the plaintiff had in writing requested the defendant to enter partial payments on the margin of the record- of the mortgages, and having a tendency to show that the writing was in the possession, or within the power, of the defendant. Notice having been given him to produce it, and production not following, secondary evidence of the contents was admissible. — 1 Green. Ev., § 560; 1 Whart. Ev., § 152.

3. The request to enter partial payments on the record of a mortgage, contemplated by the statute, is in its essence a notice — it performs the office of notice — it communicates to the mortgagee, or the transferee of the mortgage debt, the demand the mortgagor or other party mentioned in the statute has the right to make, that the partial payments be entered on the record. The request must be in writing, unless the party to whom it is preferred waive the writing, assenting to a request made verbally. Any and every species of notice required to be in writing, intended for the benefit and protection of a party, may be waived, and verbal notice accepted as sufficient. The statute does not prescribe the manner in which the request must be brought to the knowledge of the mortgagee or the transferee of the mortgage debt. Personal notice, by which is intended the delivery of the writing to the mortgagee, or the transferee of the mortgage debt, in person, is most usual in practice, and when practicable should be adopted. If another mode is pursued — if the request be left with an agent, or one supposed to be the agent, or at the usual abode, or place of business of the party to be affected, tracing the fact to the knowledge, or the writing to the possession of the party, is the equivalent of a personal delivery. — Wade on Notice, § 640; 2 Taylor's Land. & Ten., § 484. The evidence that the defendant was informed of the delivery of the papers at his place of business, and that one of them, was a notice to enter the partial payments on the record of the mortgage, was not subject to objection. It was not as seems to have been supposed, nor could it have been intended as evidence of a verbal request. It tended to show that the defendant accepted as sufficient the delivery of the notice at his usual place of business, and to raise an inference that the papers came to his knowledge or possession.

4. The burthen of proving the fact, that in obedience to the request, the partial payments had been entered on the record of the mortgage, rested on the defendant. It was a fact lying peculiarly within his knowledge ; and as a general rule, when a fact is peculiarly within the knowledge of a party, the burthen rested upon him to prove such fact. — 1 Whart. Ev., § 367 ; 1 Brick. Dig. 869, §§ 922-23. The defendant dot having given evidence, that the payments had been entered, the evidence of witnesses tending to negative the fact, was merely redundant or superfluous, and if illegal, its admission is error without injury. — 1 Brick. Dig, 887, § 1192. *

5. We cannot perceive that the instruction given the jury at the request of the plaintiff, is in any respect erroneous. The instructions requested by the defendant were properly refused. The first, the charge to find for the defendant, if the evidence was believed, is never proper when there is a material conflict in the evidence. The second, when read in connection with the evidence, would have authorized a finding for the defendant, though his failure to receive the notiqe was the default of his clerk Broadnax.

We find no error in the record, and the judgment must be affirmed.