Dothan Guano Co. v. Ward , 132 Ala. 380 ( 1902 )

McCLELLAN, C. J.

— A mortgagee cannot assign the mortgage after it has been paid so as to avoid the statutory duty to enter satisfaction on the margin of its record in the office of the judge of probate. The complaint does not allege when the mortgage was paid further than that it was paid prior to February 17, 1899, when, it is alleged, the request to enter satisfaction on the record was made. Defendant’s third plea fails to aver the assignment of the mortgage before its payment, and was, therefore, open to the second assignment of demurrer.

Defendant's plea “A” was so obviously and palpably wanting in merit as to be frivolous. It was properly stricken on motion. Were this otherwise, the action of the court on the motion to strike should have been presented here by bill of exceptions.

The instrument which plaintiff executed and sought to have satisfied of record is a mortgage. It was made to secure the delivery of cotton in payment of a debt or the payment of the value of the cotton on the day of maturity. It would have; been none the less a mortgage had it been conditioned for the delivery of the cotton without alternative.—Jones Chattel Mortgages, § 1. It is no objection to it as a mortgage that it contains no express defeasance. It expressly evidences a sale to secure a debt, and from this a defeasance is implied.—Ib. § 17. It in terms authorizes the mortgagee to take possession only after maturity of the obligation, and by necessary implication excludes the right of possession in the mortgagee before condition is broken; but it would bay© been/ a mortgage even if it bad been silent as to the time when the mortgagee should take possession' or bad stipulated that possession should pass at once. And the creditor .being a mortgagee, the equity of redemption from him existed in favor of the mortgagor until foreclosure, and after foreclosure the statutory right of redemption.

The written request to' enter satisfaction was sufficient, It was as follows: “February 17th, 1899.—Dothan Guano Co. Mr. W. C. O’Neal. Have all mortgages that has been paid satisfied on record, mortgages which I give you. Respectfully yours John J. Ward.” O’Neal was the president of the guano company, and attended to all its affairs. This doubtless accounts for his name being in the address. But conceding that on the face of the writing it was a request to the- company and to' O’Neal as an individual and sought entry of satisfaction on the record of all mortgages which Ward had executed to either* the company or O’Neal or to them jointly and which he had paid, it would still be a sufficient request to enter satisfaction on the. record of any mortgage given to either or both by Ward,- and recorded in the probate office which had ' been paid. They knew as well'as he did what mortgages he, had given them and what had been recorded and paid; and they would be put at no disadvantage by the generality of the request in the respect-under consideration. Notwithstanding the request is as to “mortgages,” and concedediy addressed to two parties, it could have been fully complied with by the entry of satisfaction on the margin of the record of one mortgage by one of the parties,- if, as seems to be the fact, there was but one mortgage in question and that was executed to- the guano- company.

The testimony of Davis as to his writing a letter to Dan Gordon, the probate judge of Henry county, on the receipt of Ward’s request was rendered competent by the subsequent testimony of plaintiff that O’Neal admitted to him that he had received the notice and had Davis to write to Gordon to' satisfy the record of the mortgage, etc.

Defendant was not- entitled to the general charge: The instrument, sought to have satisfied was a mortgage; it had been paid in full; the request was sufficient ; there was evidence from Avhich' the jury were authorized to infer that the defendant had seasonably received the request, and no entry of satisfaction was entered on the margin of the record within the time allowed after request. '

Charge 2 ivas properly refused to the defendant. The jury had nothing to do with the construction of the statute: That was for the court alone.

There was other evidence than that referred to in charge 4 from which the jury had a right to infer that Ward’s request was “served on or brought to the knowledge of O’Neal.” Hence that charge ivas properly refused.

Charges 3 and 5 requested by the defendant should have been given. There was no pretense in the case that the request was made to the defendant company otherwise than through its president O’Neal. If the request was not made to O’Neal for the company it was not made at all. So that to a recovery it was necessary for the jury to be reasonably satisfied that O’Neal received the request two months before suit brought, as declared in charge 3, else the time allowed the company to enter satisfaction had not lapsed, and, of course, at some time before the institution of the suit,'as declared in charge 5.

For the errors committed in refusing these charges the judgment m-ust be reversed. The cause is remanded.