Royal Lumber Co. v. Elsberry , 185 Ala. 462 ( 1913 )

McCLELLAN, j.

Appellee instituted this action against the Royal Lumber Company, a corporation, to recover tbe penalty, prescribed in Code, § 4898, for tbe failure of tbe defendant to enter, on tbe margin of tbe record, tbe satisfaction of a certain mortgage, of date January 28, 1907, which plaintiff asserted bad been fully paid. During tbe taking of tbe testimony it was disclosed that tbe defendant was a firm composed of J. K. and F. H. Lichtenwalter. Thereupon, with obvious propriety, the court permitted the plaintiff to amend the complaint so as to describe the defendant in its true character, viz., as a partnership composed of the two persons named.

The plaintiff offered in evidence a copy of the written notice delivered to one of the members of the firm. The substance of the notice, signed by plaintiff (the mortgagor), addressed to the Boyal Lumber Company, and of date October 19, 1910, was this: “Please mark satisfied, within thirty days, the mortgage of W. L. Elsberry to Boyal Lumber Co. in Mortgage Becord 22, page 336; also mortgage of W. L. Elsberry to Boyal Lumber Co., in Mortgage Becord 22, page 137.” The failure to mark satisfied the la’st-mentioned mortgage in the notice is the basis of this suit.

. It has been repeatedly ruled here that no particular form of words are necessary to constitute a sufficient notice under these statutes (Code, §§ 4897, 4898), and that the request is “sufficient if the language employed, when fairly and reasonably interpreted, informs the mortgagee that a satisfaction on the margin of the record of the mortgage is demanded of him.” — Partridge v. Wilson, 141 Ala. 164, 37 South. 441, and cases therein noted. The notice held sufficient in the quoted case was this: “You will please cancel all mortgages against me on the record at once.” The demand there was for immediate action; whereas, here the demand was for action in “thirty days.” The mortgagor was, of course, powerless to fix any period for entry of the satisfaction of the mortgage on the record different from that provided by law, viz.: Two months in this case; thirty days, under the just preceding statute, Code, § 4897. The attempt to direct the entry in thirty days was mere surplusage — as ineffectual in the premises as the words “at once” in the Partridge-Wilson Case. The notice was entirely sufficient for the purpose of requiring the entry of satisfaction on the margin of the record, if it was otherwise the duty of the defendant to make the entry. — Lynn v. Bean, 141 Ala. 236, 37 South. 515; 5 May. Dig. pp. 679-681.

The copy of the notice was improperly admitted in evidence. It was secondary evidence, and, in the absence of a proper predicate, was inadmissible. — King v. Bolling, 77 Ala. 596; Loeb v. Huddleston, 105 Ala. 257, 16 South. 714.

As we understand the evidence in the bill of exceptions, the principal issue — arising out of a material allegation of the complaint that the “payment or satisfaction” of the mortgage had been received by the defendant — was whether the defendant had effected an assignment or transfer of the mortgage in question to R. A. Abney before the notice to enter satisfaction was properly served upon one of the partners (Johnson v. Frix, 177 Ala. 251, 58 South. 427) ; and this, in turn, involved the further inquiry whether the arrangement effected between the defendant and Abney, and plaintiff was an assignment or transfer of the mortgage of Jan. 28, 1907, to Abney, and, in consequence, operating to so cast the status as that the subsequent payment or satisfaction of the mortgage was made to Abney, and not to defendant, as the complaint alleges. To put the inquiry in a somewhat different form, the issue was whether the mortgage of January 28, 1907, was paid to defendant, or, being “sold” or “transferred” to Abney (if so), it was paid while the right to its proceeds was in Abney. If payment was not made to defendant, the plaintiff could not recover the penalty prescribed by the statute, section 4898. There was evidence tending to support the respective theories of the parties on these issues. Their solution should have been left to the jury ■under all the evidence hearing thereon. On December 9, 1910, the defendant executed a paper wherein this language occurs: * * When this note [described' before therein] has been paid, the Boyal Lumber Company is to give W. L. Elsberry a receipt in full of all demands, and hereby transfers to B. A. Abney their claim against said Elsberry.” These provisions of the writing are equivocal in respect of the inquiry whether the words “hereby transfer” were dependent for effect upon the condition thereinbefore stated in these words: “When this note has been paid." If it was the intention that the transfer should have effect in prsesenti, and comprehended the mortgage of January 28, 1907, then the subsequent payment of the |300 note, given by Abney to defendant, by plaintiff to Abney was not a payment of said mortgage received by defendant. On the other hand, if the mentioned $300 note was but an additional security to defendant of the real indebtedness still secured by the said mortgage, and there was no transfer to Abney before the $300 was paid, and the payment thereof extinguished the mortgage of January 28, 1907, then defendant was the party who received payment, and should have entered satisfaction.

There is, under the evidence, still another theory that should have been submitted to the jury, viz.: Whether the payment of the $300 note effected, under the agreement between the three parties, extinguished the debt for Avhich the mortgage of January 28, 1907, was a security. If the payment of the $300 note was the condition whereupon the last provision of the paper of December 9, 1909, effected to transfer the mortgage to Abney, then that payment did not satisfy the mortgage, and the plaintiff could not recover. See Clem v. Wise, 133 Ala. 403, 31 South. 986, which, upon a contingency indicated supports the sufficiency of the method of assignment.

The judgment is reversed, and the cause is remanded. Reversed and remanded.

Dowdell, C. J., and Sayre and Somerville, JJ., concur.