Dittman Boot & Shoe Co. v. Mixon , 120 Ala. 206 ( 1897 )

COLEMAN, J.

The appellees, residing in Marion county, Alabama, began suit'by attachment against the appellant, a foreign corporation, to recover the statutory penalty imposed upon a mortgagee, who has been paid ,or satisfied, for failure to enter the fact of payment or satisfaction on the margin of the record.of the mortgage, after being requested in writing, to make, such entry.— Code of 1896, § 1066. That the plaintiffs were ihortgagors and defendant a mortgagee, that the debt was fully paid, and the mortgagee was requested in writing by the mortgagors to enter such payment or satisfaction and failed to comply with the request within the time .provided by statute, is established by the evidence beyond all controversy and without conflict. Much of the argument of appellant’s counsel is directed against the first count of the complaint, but the judgment entry shows, that the complaint was amended by striking out the first count. This left three separate counts, each claiming the statutory penalty of two hundred dollars, and each based upon a separate and additional notice and request. The court properly instructed the jury that only one penalty of two hundred dollars was recoverable, and such was the verdict of the jury. There is nothing to support ’ the contention that plaintiffs sought to recover six hundred dollars.'

In the case of Walker v. English, 106 Ala. 369, in which it appeared that the mortgagee was a citizen of Tennessee, the court reiterated the rule declared in Renfro v. Adams, 62 Ala. 802, “that the failure of the mortgagee [to enter satisfaction], whether willful, intentional or inadvertent, subjects him to liability for the penalty.”

In the case of Gay, Hardie & Co. v. Rogers, 109 Ala. 624, the constitutionality of the act was sustained.

We can see no force in the argument that the statute interferes with interstate commerce. There is no law which requires a mortgagee to record his mortgage. There are certain benefits and advantages to be derived from a compliance with the statute of registration. If a mortgagee avails himself of these advantages, he assumes the legal responsibility of such a course. Having published to the world that he held a lien upon the property of the debtor, it is made his legal duty, upon the written request of the mortgagor, to give equal publicity to the fact, when the lien has been discharged, and the legal duty is enforced by the imposition of a penalty by statute. There is nothing in that objection.

The amendment of the affidavit was jnstified by the statute which authorizes amendments of “any defect of form or substance in the affidavit, bond or attachment,” etc. — Code of 1896, § 564. The cause of action as described in the complaint follows that described in the amended affidavit, upon which the attachment issued. The objection that there was a variance or departure is not well taken.

It is further insisted that the statute does not authorize the issuance of an attachment to recover a penalty. “Debt,” in subdivision 1 of section 524 of the Code -of 1896, may import only such demands as arise from contract, express or implied, but “any money demand” as used in subdivision 2 is much more comprehensive than debt, and includes all rightful claims, whether founded upon contract, tort, or penalties given, by statute, and may be enforced by attachment when the amount is fixed or can be certainly ascertained.—U. S. Rolling Stock Co. v. Clark, 95 Ala. 302: Bouvier’s Dict., “Demand.” There is no error in the record.

Affirmed.