Hamaker v. Bynum , 137 Ala. 391 ( 1902 )

SHARPE, J.

Section 1066 of-the Code provides for the recovery of a forfeiture when a mortgage “has been fully paid or satisfied,” and there is no suit in which the- fact of payment or .satisfaction can he tested and the mortgagee fails for two months after -written request to “enter the fact of payment or satisfaction on the margin of the record of the mortgage,” etc. This suit is sought to .he maintained upon' the proposition that a tender of the amount clue on a mortgage, made after breach of its condition, will if the money be brought into court along with the suit, operate as a satisfaction of the mortgage within the meaning of the section referred to. In support of the proposition, appellants rely on section 1067 of the 'Code which declares that “the payment of a mortgage debt whether of real or personal property, divests the title passing by the mortgage,” together with the decision in Maxwell v. Moore, 95 Ala. 166, where, in construction of the last mentioned section, it was in an action of detinue held as stated in the head-note, that “ a tender of full payment of the mortgage debt after default, but before the mortgagee has taken or demanded possession of the property for the purpose of foreclosure, if kept good, and the money brought into court, discharges the lien of the mortgage, and extinguishes the title of the mortgagee.” That decision is opposed, rather than favorable, to appellant’s contention. It recognizes the correctness of the principle asserted in Frank v. Pickens, 69 Ala. 369, to effect that a tender of payment of the mortgage debt, whether made before or after the law clay does not of itself operate to extinguish the title of the mortgagee under a chattel mortgage, and can so operate only in connection with a maintained readiness on the part of the person making it, to pay the debt, so that the mortgagee may accept payment at pleasure and may not ultimately he adjudged to have lost his security without payment, or a deposit of the money for him in court.

Under these decisions, the determination of a suit-having for its subject matter mortgaged property, may depend on conditions in respect of tender existing up to and at the time of trial, when hv relation hack, the tender can he given the effect of divesting the mortgage title as of the time of the tender. But the right to sue for a forfeiture, does not arise until the forfeiture has arisen, and if satisfaction of the mortgage does not occur without maintenance of tender to the trial, it follows that, in such case forfeiture does not occur before tlie beginning of file suit, because by the unambiguous language of the statute payment or satisfaction must precede forfeiture. The statute under consideration is penal, and a settled rule of construction applicable to such statute forbids the extension of its provisions by 'implication. — Jarrett v. McCabe, 75 Ala. 325; Grooms v. Hannon, 59 Ala. 510; Southern B. & L. Asso. v. Rowe. 125 Ala. 491; Southern B. & L. Asso. v. McCants, 120 Ala. 616.

The Judgment of non-suit will be affirmed.