Jowers v. Brown Bros. , 137 Ala. 581 ( 1902 )

DOWDELL, J.

The appellants, J. M. Jowers and Effie A. Jowers, sued ’the defendants to recover a penalty under the statute, (Code, § 1066), for an alleged failure to enter satisfaction on the margin of the record by them as mortgagees of a mortgage executed to them by the; plaintiffs, after request in writing to do so; In Jarrett v. McCabe, 75 Ala. 325, it was said: “The statute giving the penalty is obviously penal in its nature, and must be strictly construed. It can not be extended by implication. ' The request to enter satisfaction must, for this .reason, be made by all tbe interested parties, by both of the. mortgagors, and not bygone; of them alone in his own name. This is the letter of the statute, and comports also’with its policy and spirit. The right to sue for .the penalty is a joint cine, given to both of the mortgagors, who are required to join in an action for its recovery. * * * No one could be regarded as a ‘party aggrieved’ within the meaning of the statute, unless he had himself made the request, and there had been an unlawful neglect of the mortgagee to comply with it.” In that case, as in this, there were two mortgagors. The request in writing was by one of the mortgagors, and the action for the penalty was brought in the name of both. Here the request in writing was written by J. M. Jowers, who signed his own name and that of the other mortgagor, and delivered it to one Dunn to he by him delivered to the defendants. There is no proof that this was done with the knowledge and assent of the mortgagor who did not sign the written request. The mere fact that the mortgagor, who did not sign, was the wife of the mortgagor, who drew up the writing and signed the names of both to the same, is not enough to supply the omission to prove that it was done with her knowledge and consent, or in other words, that it was her request. If the two mortgagors had been, in nowise related, and one without the knowledge and consent of the other, had made request in writing, signing the names of both, it would not for a moment be contended that such request would be sufficient under the authority cited above. The uniting in a joint action is not such a ratification as will relieve the. situation, since; the right of action itself must-be based upon a failure to enter satisfaction for two months after proper request made. The court prouerly gave the general charge as requested by the defendants, and the judgment- will be affirmed.

Affirmed.