Kinard v. Hill , 154 Ala. 632 ( 1907 )

SIMPSON, J.

This was a suit brought for the statutoury penalty for failure to enter satisfaction of a mortgage, after payment and notice, the suit being by the appellees against the appellant. The mortgage, though made in Bibb county, covered only lands in Tuscaloosa county, and was recorded in both counties, which fact was indorsed on the mortgage.

The only proper place to record said mortgage was in Tuscaloosa county; consequently, all questions with regard to the payment of the recording fee in Bibb county were irrelevant. The mortgagor was not liable for the fee for recording in Bibb county.

The questions with regard to the manner of proving the notice, and the transcript of the mortgage, need not be considered, as the defendant acknowledged having-received the notice, and also produced the original mortgage.

The mortgage provided that the mortgagor should pay for recording the same, and, in order to recover in this action, it was necessary for the plaintiff to prove, not only that the debt had been paid, but also that the recording fee had been paid. — Smith et al. v. Bank of Enterprise, 148 Ala. 501, 42 South. 551.

Not only, is there no proof that the recording fee in Tuscaloosa county has been paid, but, on the contrary, the evidence is undisputed that the said recording fee has not been paid. Consequently, the plaintiff was not entitled to recover, and the general affirmative charge requested by the defendant should have been given. The judgment of the court is reversed, and the cause remanded.

Reversed and remanded.

Tyson, G. J., and Anderson and Denson, JJ., concur.