Gay, Hardie & Co. v. Rogers , 109 Ala. 624 ( 1895 )

COLEMAN, J.

The action was to recover the statutory penalty imposed upon a mortgagee for failing to enter on the margin of the record of the mortgage partial payments. The complaint states the cause of action with sufficient definiteness, and the demurrer on this ground to the complaint was properly overruled. Williams v. Bowdin, 68 Ala. 126. We are unable to discover any sound reason against the constitutionality of the statute. There is no law which requires a mortgagee to have his mortgage recorded.' There are certain benefits and advantages to be derived by complying with the statute of registration. When a mortgagee avails himself of these provisions, and publishes to the world that he holds a lien upon the property of another, the debtor to this extent is injured in his credit, and ability to utilize his means. This he assumed in giving the mortgage, When the lien or mortgage has been wholly or partially satisfied, by payments, fairness and justice to him demand that his credit be restored. The mortgagee haying published to the world the existence of his lien or claim, when it has been removed, he owes, independent of the statute, a moral duty to his debtor to give the same publicity to the fact that the property of the debtor is no longer encumbered. The statute makes it a legal duty to perform a moral duty, and imposes a penalty if he fails to discharge this duty. Scott v. Field, 75 Ala. 422. The constitutionality of the act might be rested upon other grounds. The demurrer was properly overruled.

The appellants insist the court erred in admitting in evidence the record book of mortgages. It is urged that this book was introduced to prove the execution of the mortgage. An examination of the record, to which we are referred by the counter abstract, does not sustain the contention. The objection taken before the court was, ‘ ‘that original records of the probate court could not be taken from that office,” and “that the record was not verified.” The clerk of the probate court identified and verified that it was the record of mortgages. The record book was competent evidence in the case. Steiner & Bro., v. Snow, 80 Ala. 46; Williams v. Bowdin, supra.

We think it was competent to show the recovery of the judgment by the trial docket and minutes of the court in which the judgment was entered up. In some instances, before the final record of the judgment is entered, we do not see how otherwise, a judgment could be established. The objection to the admission of the records were purely technical, and without merit; as was also the objection to the proof of the notice to enter the credits of the payments. In both instances the defendant was duly notified to produce the originals, that is the mortgage and the notice, at the trial, and having failed to do so, other proof was admissible.

We do not think the objections to the written admissions made by defendant, in answer to interrogatories filed to him in another case,well taken. The paper was identified, and that the answers were made was fully established, before the admissions were offered in evidence. They were relevant and material. The precise objection is that the whole record should have been offered. No doubt the defendant was entitled to have the interrogatories introduced, and any other fact which tended to qualify or explain the admissions, if he had desired, or he was at liberty to explain them from the stand. We do not understand that he was deprived of this right by any ruling of the court. Deliberate admissions of a party, material to the issue, voluntarily made, are competent against him.

We find no error in the record.

Affirmed.