Royal Lumber Co. v. Ellsberry

WALKER, P. J. —

This was an action by the appellee to recover the statutory penalty for the failure of the appellant, a mortgagee, after a request in writing to do so, to enter satisfaction on the margin of the record of the mortgage. — Code, § 4898. The general affirmative charge in favor of the plaintiff was given at his request. Under the evidence adduced in the trial, this action of the court cannot be sustained. There was evidence tending to prove that, while the debt secured by the mortgage was still unpaid, it was by the mortgagee transferred as collateral security to a bank, which still held it as collateral when the request was made, and that subsequently, and before the payment of the mortgage debt, the mortgagee, in a transaction to which the mortgagor was a party, transferred to a third party all interest it had in the mortgage, and that it had no interest in or title to it when the request to enter satisfaction on the record ivas made. There was other evidence tending to prove that this last-mentioned transfer was never consummated; but, under the aspect of the evidence above mentioned, the mortgagee did not, when the request was made, have such interest in the mortgage as to entitle it to enter satisfaction on the record. If such transfer was made before the request was made, the mortgagee had no power or authority to satisfy the mortgage, and its failure to comply with the request did not subject it to the statutory penalty. — Harris v. Swanson & Brother, 67 Ala. 486.

The question presented as to the right of the plaintiff to offer secondary evidence of the written request or notice served on the mortgagee need not be passed on, as the question is one which may he readily avoided in another trial.

Reversed and remanded.