Eaton v. Copeland , 17 Wis. 218 ( 1863 )

By the Court,

Cole, J.

We have examined tbe record in this case, but can discover no error in the proceedings which would authorize a reversal of tbe judgment. Tbe action is brought to recover tbe penalty given by section 46, chap. 86,® R S.,'for tbe refusal or neglect of a mortgagee to discharge of record a mortgage wbicb had been paid. Tbe questions of fact, under proper instructions, were left to tbe jury. Tbe jury were told that they must say from tbe evidence that tbe plaintiff demanded of the defendant a satisfaction of tbe mortgage described in bis complaint, after tendering a reasonable sum for tbe execution of any satisfaction piece, and that this demand was refused, before they could find for tbe plaintiff We think tbe circuit judge properly told tbe jury, that if it was intended that tbe satisfaction piece wbicb was given Eoberts should be kept in bis pocket and not put upon record as a discharge of tbe mortgage, but was to be used as a defense' to this action, then it was a fraud upon tbe plaintiff, and could not defeat a recovery. This is tbe substance of tbe charge of the court, and we cannot see that it is open to any objection. For clearly the statute penalty is given because a party unreasonably neglects or refuses to discharge of record a mortgage which has been paid, and it is no answer to say ■that a satisfaction piece has been executed and placed in the hands of one who is to keep it in his pocket. The appellant contends that if the debt was paid the lien of the mortgage was discharged, and that it could injure no one if not discharged of record. But this is not the theory of tbe statute. That proceeds upon the idea that “after a full performance of the conditions of the mortgage,” the mortgagor or his assigns may be greatly prej udiced because the mortgage is not discharged of record. It may prevent a sale of the property, or throw suspicion upon the title, and hence this penalty to secure its satisfaction upon the record.

The variance between the mortgage described in the complaint and the one recorded, was properly disregarded. At most it was a mere mistake in regard to one of the initials of the wife of the mortgagor. Tbe appellant doubtless well knew what mortgage he was asked to discharge.

The judgment of the circuit court is affirmed.